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Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 2 [1907]

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Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1908). Vol. 2. http://oll.libertyfund.org/titles/2082

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About this Title:

A massive three volume collection of essays by leading American and English legal experts which surveys the entire body of Anglo-American law. Volume 2 covers particular topics such as the sources of English law, the court system, procedure and equity.

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Table of Contents:

Edition: current; Page: [ii]
SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY
Volume Two
Edition: current; Page: [iii]
SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY
By VARIOUS AUTHORS
compiled and edited by a committee of the ASSOCIATION OF AMERICAN LAW SCHOOLS
IN THREE VOLUMES VOLUME II
BOSTON
LITTLE, BROWN, AND COMPANY
1908
Edition: current; Page: [iv]

Copyright, 1908, By Little, Brown, and Company.

All rights reserved

Published October, 1908

COLONIAL PRESS

Electrotyped and Printed by C. H. Simonds & Co.

Boston, U.S.A.

Edition: current; Page: [v]

PREFACE

THE first volume of this series seems to have met with the commendation of those for whom it was intended. This, in the opinion of the Editorial Committee, is partly due to the singular symmetry with which the individual essays were found to unite in a mosaic showing the general pattern of our law for the last six centuries. In the present volume, containing the first half of Book II, History of Particular Topics of the Law, that feature can no longer be looked for in such degree; the separate Essays will more usually have, in Coleridge’s phrase, only “the same connection that marbles have in a bag,—they touch without adhering.”

But what may be lost in symmetry is more than made up in concreteness. The solid tangibleness of the ultimate details gives somehow its own peculiar satisfaction. The Essays tell each its separate story of legal history: the varied succession of pictures pleases, like the assembled incidents of daily life depicted by Homer on Achilles’s shield:

  • “There he placed two fair cities. . . .
  • Here a multitude
  • Was in the forum, where a strife went on—
  • Two men contending for a fine, the price
  • Of one who had been slain. Before the crowd
  • One claimed that he had paid the fine, and one
  • Denied that aught had been received, and both
  • Called for the sentence that should end the strife.”

So through Procedure and Courts to Property and Torts these detailed cameos make up an interesting whole. Some Edition: current; Page: [vi] day the missing spaces will be filled in, and the present tracings revised and re-set. Both the small facts and the large features of our last six centuries we shall then know as well at least as the Germans and the French already know their own much more complicated story.

The other contributors to the volume will surely pardon the Committee for specially mentioning its appreciation of the interest shown and the labor done by Professor Heinrich Brunner in re-writing for this Series his essay on the Sources of English Law. May his interest in our legal history stimulate some of us to take a like interest in the origins of that related system for which he has done so much!

No less important and attractive to us, for a later stage in our development, should be the history of Norman and French law, and the researches of the great scholars who labor on it. How much lies there for us, a mere glance at the citations on any page of the lamented leader Maitland will show. Thus far, none of that material has been available for this Series; but it is the hope of the Committee that the third volume will include one representative essay from the French field.

After all, we must recognize that an enlightened cosmopolitanism will be no new thing for us in the legal sphere. Many men from many other lands and systems, in time past, have shared in influencing our law. Bracton drew inspiration from an Italian, and Blackstone from a Frenchman; on Dutch learning Hardwicke and Kent were nourished; an Italian supervised the preparation of Domesday Book, and a Dutchman signed the Bill of Rights; Anglo-Saxon laws have been unearthed by a German, and Bracton’s Note-Book by a Slav; and a Frenchman made Bentham famous. Even the latest achievement of Maitland, which traces back our theory of equitable trusts to an ancient Lombard idea (expounded in a modern German book), was given to the world in an Austrian periodical and is as yet formally unpublished in our own language. The day of the open door in legal learning is upon us.

It remains to repeat that the Lists of References prefixed to each of the Parts in this Book are not put forth as exhaustive, Edition: current; Page: [vii] but are intended merely to assemble in convenient form the various materials which the Committee came upon in preparing the selection here reprinted.

The Committee of the
Association of American Law Schools.
Ernst Freund,
University of Chicago.
William E. Mikell,
University of Pennsylvania.
John H. Wigmore, Chairman,
Northwestern University.
Edition: current; Page: [viii]

A TABLE OF BRITISH REGNAL YEARS

1Although Charles II. did not ascend the throne until 29th May, 1660, his regnal years were computed from the death of Charles I., January 30, 1649, so that the year of his restoration is styled the twelfth year of his reign.
Sovereigns Commencement of Reign
William I October 14, 1066
William II September 26, 1087
Henry I August 5, 1100
Stephen December 26, 1135
Henry II December 19, 1154
Richard I September 23, 1189
John May 27, 1199
Henry III October 28, 1216
Edward I November 20, 1272
Edward II July 8, 1307
Edward III January 25, 1326
Richard II June 22, 1377
Henry IV September 30, 1399
Henry V March 21, 1413
Henry VI September 1, 1422
Edward IV March 4, 1461
Edward V April 9, 1483
Richard III June 26, 1483
Henry VII August 22, 1485
Henry VIII April 22, 1509
Edward VI January 28, 1547
Mary July 6, 1553
Elizabeth November 17, 1558
James I March 24, 1603
Charles I March 27, 1625
The Commonwealth January 30, 1649
Charles II1 May 29, 1660
James II February 6, 1685
William and Mary February 13, 1689
Anne March 8, 1702
George I August 1, 1714
George II June 11, 1727
George III October 25, 1760
George IV January 29, 1820
William IV June 26, 1830
Victoria June 20, 1837
Edward VII January 22, 1901
Edition: current; Page: [1]

SELECT ESSAYS IN ANGLO - AMERICAN LEGAL HISTORY:
VOLUME II HISTORY OF PARTICULAR TOPICS

Edition: current; Page: [2]

CONTENTS: BOOK II: HISTORY OF PARTICULAR TOPICS

  • part i. sources
    • 22. The Sources of English Law . . . . 7

      Heinrich Brunner

    • 23. Materials for the History of English Law . . 53

      Frederic William Maitland

    • 24. The Year Books 96

      William Searle Holdsworth

    • 25. The English Reports, 1537-1865 . . . 123

      Van Vechten Veeder

    • Appendices: A. List of Sources for Continental Mediæval Law . . . 156

      Edward Jenks

    • B. List of Sources for American Colonial Law . . . 164

      Paul Samuel Reinsch

    • 26. An Historical Survey of Ancient English Statutes 169

      The Commissioners

  • part ii. the courts, their organization and jurisdiction
    • 27. The Courts as Established under Edward I . . 209

      Frederic Andrew Inderwick

    • 28. The History of the Court of Chancery . . 219

      George Spence

    • 29. The Ecclesiastical Courts and Their Jurisdiction 255

      William Searle Holdsworth

      Edition: current; Page: [3]
    • 30. The History of the Admiralty Jurisdiction . . 312

      Thomas Lambert Mears

  • part iii. procedure
    • 31. The Older Modes of Trial . . . . . 367

      James Bradley Thayer

    • 32. The King’s Peace in the Middle Ages . . . 403

      Sir Frederick Pollock

    • 33. The Methods of the Royal Courts of Justice in the Fifteenth Century . . . Hubert Hall 418
    • 34. Criminal Procedure, from the Thirteenth to the Eighteenth Century . . . . . 443

      Sir James Fitzjames Stephen

    • 35. The Story of the Habeas Corpus . Edward Jenks 531
    • 36. The History of the Register of Original Writs . 549

      Frederic William Maitland

    • 37. An Action at Law in the Reign of Edward III . 597

      Luke Owen Pike

    • 38. The Development of Oral and Written Pleading . 614

      William Searle Holdsworth

    • 39. The Historical Development of Code Pleading in America and England . . . . . 643

      Charles McGuffey Hepburn

    • 40. A General Survey of the History of the Rules of Evidence . . . John Henry Wigmore 691
  • part iv. equity
    • 41. Early English Equity . . . . . 705

      Oliver Wendell Holmes

    • 42. Common Law and Conscience in the Ancient Court of Chancery . . . Luke Owen Pike 722
    • 43. Tyrrel’s Case and Modern Trusts . . . 737

      James Barr Ames

      Edition: current; Page: [4]
    • 44. The Development of Equity Pleading from Canon Law Procedure . . . . . . 753

      Christopher Columbus Langdell

    • 45. Courts of Chancery in the American Colonies . 779

      Solon Dyke Wilson

    • 46. The Administration of Equity through Common Law Forms in Pennsylvania . . . . 810

      Sidney George Fisher

Edition: current; Page: [5]

PART I.: SOURCES

  • 22. The Sources of English Law.

    Heinrich Brunner.

  • 23. Materials for the History of English Law.

    Frederic William Maitland.

  • 24. The Year Books.

    William Searle Holdsworth.

  • 25. The English Reports (1537-1865).

    Van Vechten Veeder.

  • APPENDICES
    • A. List of Sources for Continental Mediæval Law.

      Edward Jenks.

    • B. List of Sources for American Colonial Law.

      Paul Samuel Reinsch.

    • 26. An Historical Survey of Ancient English Statutes.

      The Commissioners.

Edition: current; Page: [6]

[Other References on the Subjects of this Part are as Follows:

In Select Essays:

A Prologue to a History of English Law, by F. W. Maitland (No. 1, Vol. I).

English Law and the Renaissance, by F. W. Maitland (No. 6, Vol. I).

The Five Ages of the Bench and Bar, by J. M. Zane (No. 19, Vol. I).

In other Series and Journals:

Quadripartitus, by F. W. Maitland (Law Quarterly Review, VIII, 73; 1892).

The Manuscripts of the Year Books, by L. O. Pike (Green Bag, XII, 533; 1900).

Year Book Bibliography, by Charles C. Soule (Harvard Law Review, XIV, 557; 1901).

Ricardus Anglicus, by Sir Travers Twiss (Law Magazine and Review, 4th ser., XX, 1; 1896).

Bracton’s Notebook, by Paul Vinogradoff (Law Quarterly Review, IV, 436; 1888).

Historical Introductions to the Rolls Series, by William Stubbs, ed. Hassall (London, 1902).

Introductions to the Year Books of Edward II, by F. W. Maitland (Vols. XVII, XIX, XX, Selden Society; 1903-5).

Introduction to The Mirror of Justices, by F. W. Maitland and W. J. Whittaker (Vol. VII, Selden Society, 1893).

Introduction to Bracton and Azo, by F. W. Maitland (Vol. VIII, Selden Society, 1894).

Bracton and His Relation to Roman Law, by C. Güterbock, tr. E. Coxe (Philadelphia, 1886).

Sources and Literature of English History, by Charles Gross (London and New York, 1900).

List of Texts Used, prefixed to Pollock and Maitland’s History, Vol. I, 2d ed., 1899.]

Edition: current; Page: [7]

22.: THE SOURCES OF ENGLISH LAW1

A.: THE ANGLO-SAXON SOURCES

IN the history of the English law the Anglo-Saxon sources occupy about the same relative position as the so-called “folk laws” and the other legal monuments of the Frankish period do in the history of the other Western Teutonic Edition: current; Page: [8] nations.1 It is true, the independent development of Anglo-Saxon law was stopped by the Norman Conquest, its operation being superseded by the rule of the Anglo-Norman law. But Anglo-Saxon legal ideas have at least in part survived amidst Norman innovations and shared with them the formation of the historical foundations of the English legal and political constitution.

The importance of the study of the Anglo-Saxon sources is moreover not confined to English legal history, but extends to the legal history of all Teutonic nations. While the Western Teutons of the Continent used the Latin tongue for committing their legal monuments to writing, and while in Germany in statutes and documents German began to replace Latin only in the thirteenth century, the Anglo-Saxon like the North Teutonic sources were written in the vernacular. The insight thus gained into national legal terminology, the wealth of Anglo-Saxon legislation during the five centuries from Aethelberht to William the Conqueror, the purely Teutonic character of the law, uninfluenced by the Roman, and only slightly influenced by the Canon law, and finally the uninterrupted sequence of sources, which elsewhere, between the ninth and thirteenth centuries, reveal gaps that can be supplied only with difficulty,—all these conditions place the Anglo-Saxon legal monuments in the front rank of the sources of information of Teutonic law.

Among the sources of the Anglo-Saxon law we distinguish statutes,—the laws of the Anglo-Saxon kings being the most important of these,—legal formularies, treatises, and documents.

General statutes were enacted in the national assemblies.2 in which the king consulted with the great men of the country (witan), especially with the secular and ecclesiastical Edition: current; Page: [9] dignitaries, regarding the maintenance and strengthening of the peace, and regarding innovations in the laws.

Like the German “folk laws,” the laws of the Anglo-Saxons (dómas, gerædnessa, ásetnysse) have partly created new law, and partly enacted existing customary law. The oldest statutes were occasioned by the conversion of the Anglo-Saxons to Christianity.

The Anglo-Saxon legal monuments may be grouped as follows:

1. The statutes of the Kentians, whose state at the time of Christianization was the leading Anglo-Saxon power. They begin with the domas of King Aethelberht, ninety brief chapters, in part of striking originality, concerning penalties especially for infliction of wounds, wergilds,1 and the law of marital property rights. They date from the time when Augustinus was active in England, more particularly the years from 601 to 604.

Then follow the laws of Hlothære and Eadric (685-6), containing mainly criminal and procedural law, and the laws promulgated by King Wihtræd, 695, at a diet at Berstead, concerning ecclesiastical relations, purgatory oath, and larceny; Wihtræd’s laws utilized the resolutions of a church synod of Hertford of 673; among other matters they contain penalties against idolatry and breach of fast, which presumably go back to the legislation of Earconberht (640-664) which has not come down to us, but is mentioned by Beda.

All Kentish laws have come down to us only in a more recent West Saxon transcript,2 which has not entirely obliterated the traces of the Kentish dialect of the original text.

2. The code of Ine, king of the West Saxons, of the period from 688 to 695. According to the prologue Ine’s code is the result of deliberations had by the king with the witan of his people concerning the salvation of souls and the condition Edition: current; Page: [10] of the kingdom, in order that right law (aéw) and right statutes (cynedómas) might be established and assured. The ecclesiastical enactments precede. Ine’s laws surpass the Kentish in ease of diction, wealth of vocabulary and content as well as in bulk. The fact that Wessex became subsequently caput regni et legum1 explains the regard paid to Ine’s laws by the more recent legislation. They have come down to us not in their original form, but abridged, and in more modern language, as an appendix to the laws of Alfred.

3. From the period of the union of the Anglo-Saxon kingdoms we have:

a. The code of Alfred (871-900), probably from the closing period of his reign, when after many years’ struggles with the Danes, he was able to think again of reconstructing the disintegrated law. The code proper is preceded by an introduction of forty-nine chapters, borrowed from the Bible (Exodus and Actus Apostolorum) and supplemented by some additions by Alfred. In the last chapter of the introduction Alfred declares that he has compiled in his code the laws of Ine, of Offa of Mercia,2 and of Aethelberht of Kent, so far as the same seemed right to him, omitting those that did not commend themselves to him.

Alfred’s code proposes to create a common law of his kingdom. As an appendix for Wessex the code of Ine (mentioned above under 2) was published, the provisions of which partly conflict with Alfred’s own laws. In more recent laws the Alfred-Ine code is often cited simply as dómbók. The rubrical index dates from about 940 at the latest.

b. Alfred’s treaties with the Danes of East Anglia. A treaty of Alfred with King Guthrum of East Anglia (of the years from 880 to 890) contains provisions regarding wergild, oath, guaranty, and trade. A second convention of Alfred with Guthrum, chiefly concerning ecclesiastical relations and precepts, has not come down in the original form, but in an altered version in which it was confirmed or renewed Edition: current; Page: [11] by Edward I after the acquisition of Guthrum’s territory in 921 or somewhat later.

c. Two laws of Edward I; the older one, from the period between 900 and 924, deals with purchase, anefang, real actions, and perjury; the later one was enacted in 924-5 in Exeter for the advancement of public security.

d. From the time of Aethelstan (925 to 940) date: the ordinance of that king regarding tithes; the one regarding alms; the enactments of the diet of Greatley (the most important of Aethelstan’s laws), and the resolutions of Exeter (927 to 937); further, an enunciation of the ecclesiastical and secular notables and of the people of Kent “de pace observanda” (928 to about 938), and the so-called Judicia civitatis Lundoniae (of about 930 to 940), an autonomous statute of the bishops and the gerefas, who through their tenants belonged to the jurisdiction of London, significant chiefly by the fact that they contain the by-laws of the London peace gilds (the oldest Teutonic gild statutes).

e. Edmund’s laws from the years 940 to 946, comprising (α) the resolutions of a London synod convened by him, and (β) a law regarding expiation of homicide and composition of feuds, and (γ) the resolutions of “Culinton” regarding measures against thieves.

f. Edgar’s laws, among which we may probably count an ordinance (946 to about 961) concerning the hundred court (Hundredgemót) and may count with certainty the resolutions of Andover (959 to about 962), and of Wihtbordesstan (962-3).

g. Aethelred’s laws, closing the series of statutes enacted by native kings. We note among them particularly the diet resolutions of Woodstock (980 to 1013), of Wantage (981 to 1012), and of London (991 to 1002), a comprehensive law of 1008 presumably enacted at “Eanham,” the contents being chiefly ecclesiastical and religious; a diet resolution of Bath (992 to 1011) and a constitution of 1014 concerning the particular peace of the churches and the legal status of the clergy, and finally a peace treaty of 991 with Olaf Tryggvason, concerning the peace purchased of the Northmen.

Edition: current; Page: [12]

In the history of Anglo-Saxon legislation the transition from the ninth to the tenth century marks an important epoch. The views of the Church exercised a controlling influence upon the older statutes, which is shown equally in the several kingdoms, the Anglo-Saxon ecclesiastical law extending over the whole of England as early as the seventh century. This influence appears among other things in the limitation of capital punishment, and in the consequent extension of the system of amends (see Alfred, Introduction, ch. 49, 7), in the application of penal servitude, in the impaired status of illegitimacy, and in the regulation of proof, from which the duel is barred, while the ordeal of the lot is suppressed and that of the hot water appears only very rarely.

A transformation begins with the close of the ninth century. The Frankish law is drawn upon for Frankish ordeals and Frankish ordeal liturgies. Punishment of life and limb is applied increasingly for the strengthening of the peace. Besides, Anglo-Saxon legislation undergoes significant influences from the North. It pays some regard to the “Danelag,” the domain of the law of the Danes and other Northern folk who had settled in England, and Northern legal ideas and numerous Northern terms of law gain entrance into the Anglo-Saxon law.

4. Decrees and the Code of Cnute. Two several ordinances have come down to us from King Cnute, an ordinance of 1020 which exhorts the people to observe ecclesiastical and secular law, and for this refers to the recognition given to Edgar’s legal constitution (Eadgares lage) by English and Danes in 1018 at a diet in Oxford. The second decree (preserved in Latin translation only) is a manifesto of Cnute of 1027, in which after his expedition to Rome he proclaims the conventions with Emperor Conrad II, with King Rudolf of Burgundy, and with the Pope, and admonishes the people to pay the Peter’s pence, and to render the Church its dues.

Between Christmas, 1027, and 10341 Cnute promulgated Edition: current; Page: [13] at Winchester a comprehensive code, divided into two parts, the first containing ecclesiastical, the second secular statutes (woruldcunde geraednysse). The substance is borrowed for the greater part from older Anglo-Saxon laws from Ine to Aethelred, partly also from Kentish laws. Until the middle of the twelfth century Cnute’s legislation (which obtained no less than three independent translations into Latin) was regarded as the true gospel of the Anglo-Saxon law, in which character it was then superseded by the mythical Laga of Edward.

5. From the tenth and eleventh centuries we have some scattered laws or fragments of laws without names of kings, and legal monuments of which it is controverted and doubtful whether they are statutes or judicial findings or private writings. We should mention particularly a statute concerning the law of the “Dunsaete,” enacted about 935 at an Anglo-Saxon diet with the concurrence of Welsh notables (Waliae consiliarii).1 It was intended for a border district, the country of the Dunsaetes, who are mentioned nowhere else, and should probably be located in Herefordshire; its purpose was to regulate the legal relations between the Dunsaetes of Kymric and English nationality separated from each other by a river (the Wye?), especially with reference to fresh pursuit, anefang, wergild, procedure, and international jurisdiction.

To the tenth century also belong certain anonymous statutes, which relate to the procedure for the ordeal of the iron and the hot water, to arson, murder, and anefang (forfang). The Northumbrian priests’ law, “Nordhymbra preosta lagu” (from between 1028 and about 1060), concerning the extinction of paganism and the ecclesiastical constitution of the Danes around York is an autonomous enactment of the Church.

The Anglo-Saxon laws were officially written on separate parchment sheets, none of which have been preserved. Many a law may have been irretrievably lost. What has come Edition: current; Page: [14] down to us of laws and other Anglo-Saxon legal monuments, comes chiefly from manuscript collections which were made in ecclesiastical centres, which do not go back of the eleventh century, and which do not always reproduce language or arrangement faithfully. For our knowledge of some pieces we are indebted to Latin translations made in Anglo-Norman times.

6. A good insight into procedure is afforded by the preserved formulae, especially of oaths, of pleas to real actions, and of ordeals. A form of the coronation oath dates in its Anglo-Saxon version probably from the years 975 or 973 while the Latin text is certainly much older.1

7. Of private writings the most important may be mentioned.

a. The Rectitudines singularum personarum, the work of a bailiff concerning the rights and duties of the tenants of a noble estate. It was probably composed in the first half of the eleventh century.2

b. The treatise of the wise steward (scadwis gerefa), of about 1025, pointing out the matters requiring the attention of one in that employment.

c. The treatise (written by a clergyman) “Be gridhe and be munde,” concerning the privileged safety according to Kentish, South English, and Danish law.

d. The notes regarding the amounts of the wergild among the “Northfolk,” and in Mercia, and regarding the manner of its payment.

e. A treatise regarding espousals and marriage of about 1030.

f. An ecclesiastical instruction regarding the duties of a judge.3

8. Documents—both royal and private—from the time before the Conquest have come down in large numbers, partly Edition: current; Page: [15] in Latin, partly in Anglo-Saxon, among them, it is true, many spurious or doubtful pieces, the verification of which is rendered difficult through the absence of a settled diplomatic practice among the Anglo-Saxons.

Of especial significance was the title deed of real estate (bóc), land, if acquired by bóc, being called bócland (in distinction from the folkland which was acquired and possessed according to folk law1) and being alienated and transferred by delivery of the original title deed.

9. We should regard further as sources of Anglo-Saxon law, at least in part, several law books in the nature of compilations, which do not belong to the Anglo-Saxon age but to the twelfth century, written, not in Anglo-Saxon, but in Latin, but meaning or pretending to present Anglo-Saxon law, and partly composed for the purpose of giving to the modern law the appearance of being identical with the old one.

The following are Anglo-Latin law books:

a. The Quadripartitus.2 This was the title of a legal treatise, which, according to the original plan of the author, was to be divided into four parts, upon the contents of which he remarks in a bombastic preface: Primus liber continet leges anglicas in Latinum translatas; secundus habet quaedam scripta temporis nostri necessaria; tertius est de statu et agendis causarum; quartus est de furto et partibus ejus.

The first book contains a Latin version made by the compiler of a nearly complete collection of Anglo-Saxon legal documents. It is not merely highly valuable for the understanding and criticism of the Anglo-Saxon texts, but has been the exclusive means of preserving many very important pieces. Notwithstanding the frequent use of Anglo-Saxon legal terms, it bears clear traces of Frankish terminology (so it employs the word “intertiare” for anefang instead of the Anglo-Saxon befón or aetfón, it calls the outlaw forisbannitus, and translates “meldefeoh” by “delatura”).

The second book begins with a special preface, and constitutes Edition: current; Page: [16] a collection of state papers of the time of Henry I, containing his coronation charter of 1100, records of Archbishop Gerhard of York, and the decree of Henry I “ut comitatus et hundreda sedeant” of about 1110.

The third and fourth book, which the preface announces, are missing.1

The author probably used the material which he intended for these books, or at least for the third book, in the subsequent composition of a new legal treatise (the Leges Henrici). The two extant books were completed in 1114. The compiler, whose name we do not know, was a secular clerk of Continental descent who entered into relations with Archbishop Gerhard of York, presumably into his service, subsequently became crown judge, and as such wrote legal treatises for the use of his colleagues.2

b. The Leges Henrici, a work written by the author of the Quadripartitus, into which he transferred from the latter treatise the brief introduction and the coronation charter of Henry I of 1100, which heads the book. The title Leges Henrici may be a remnant of the original title. The book contains partly Anglo-Saxon, partly Norman law. For the former the author used the first book of the Quadripartitus, more particularly Cnute’s code, which appeared to him as the principal source of the Anglo-Saxon law then in force. His knowledge of the Norman law may be due to his practical experience as justitia regis. He used, moreover, parts of Frankish books of penances, the Breviarium Alaricianum from the Epitome Aegidii, passages from the Lex Salica and the Lex Ribuaria and Frankish capitularies, from the patristic literature St. Augustine, of canon sources directly or indirectly Pseudo-Isidore and Yvo of Chartres. Now and then the brings Latin and Anglo-Saxon proverbs. The work is deficient in arrangement and clearness, and suffers from numerous contradictions and repetitions. The style is full of mannerisms and far-fetched antitheses, and changes from redundancy to obscure brevity. In spite of this the work Edition: current; Page: [17] is an invaluable source for the knowledge of the period of fermentation which in the legal history of England preceded the full development of the Norman law. The work was written between 1114 and 1118.

c. The Instituta Cnuti aliorumque regum Anglorum,1 a Latin compilation of Anglo-Saxon laws, the author of which is likewise a secular clerk. The first two parts contain in the main passages from Cnute’s code (so-called Versio Cnuti Colbertina), while the third part, which went formerly by the misleading name of Pseudo-leges Cnuti regis, compiles excerpts from Alfred-Ine and other Anglo-Saxon sources, among others two passages the Anglo-Saxon original of which has not been preserved. The whole compilation probably dates from the first decade of the twelfth century.

d. The Consiliatio Cnuti,2 likewise a Latin and almost complete translation of Cnute’s code, preceded by an independent preface, and followed by an appendix which consists of the statutes (mentioned under 5, supra) concerning arson, murder, forfang, and of the ordinance regarding the hundred court (3, f, supra). We gather from the ecclesiastical tendencies that the author was a clergyman, from the blunders in translation that he was no Anglo-Saxon, from the avoidance of technical legal terms, and the fondness for classical expression, that he was not a practical lawyer. The work, which was based on a lost Anglo-Saxon legal manuscript, was written in the first half of the twelfth century, presumably between 1110 and 1130.

e. The so-called Leges Edwardi Confessoris.3 This title has been used only since the seventeenth century for a legal treatise written from about 1130 to 1135, which in its introduction presents itself as the result of an inquest concerning the Anglo-Saxon law which William the Conqueror undertook in the fourth year of his reign, by summoning from each county twelve notable Anglo-Saxons as jurors, who were to give evidence regarding the law. The law thus alleged Edition: current; Page: [18] to be proven is taken to be the law of Edward the Confessor. But the author does not sustain his part, for in the course of the exposition he drops the form of the jury inquest. The chequered contents of the book show that we have before us a private treatise, which presents the law in force toward the end of the reign of Henry I, and attributes to Norman institutions an Anglo-Saxon origin. This abundant source of law has come down in two texts, one shorter, and one longer, the latter being an enlargement and explanation of the former.1 The work attained great and undeserved authority. In the more recent Anglo-Norman period it was considered as the chief source of Anglo-Saxon law.

f. The Constitutiones Cnuti regis de foresta,2 are a forgery. The name is assumed by a work prepared with the aid of the Instituta Cnuti. It claims to be a forest statute of Cnute. The forest law which it presents is not Anglo-Saxon, but the early Anglo-Norman established by William the Conqueror. Its counterfeit character is revealed by the employment of Anglo-Norman legal terms, by the Norman substance of its law, and by the deliberate alterations which disfigure the passages taken from the Instituta Cnuti. The fabrication dates from the twelfth century, probably toward the end of the reign of Henry II, about 1185, and is the work of a high forest official, who wished to cover the harsh and unpopular Norman forest law by the name of Cnute, and to produce the impression that it was customary Anglo-Saxon law.

Editions and Bibliography. The first collection of Anglo-Saxon laws was published by William Lambarde in 1568 under the title: Archaionomia sive de priscis Anglorum legibus. An enlarged and more critical edition, which in the older literature was used for references to Anglo-Saxon laws, was furnished by David Wilkins (Wilke), Leges Anglo-Saxonicae, 1721, reprinted in Canciani, Barbarorum leges, iv, and in Houard, Traités sur les coutumes Anglo-Normandes. This edition was superseded by the one arranged by the Record Commission: Ancient Laws and Edition: current; Page: [19] Institutes of England, London, 1840, begun by R. Price, after his death completed by Thorpe, in folio, and also in two octavo volumes. Upon this is based the edition by Reinhold Schmid Gesetze der Angelsachsen, 2d ed., 1858, with German translation, excellent introduction on the history of the sources, and with a valuable glossary. The Alfred-Ine code was separately published by M. H. Turk (The legal code of Alfred the Great, 1893). The best critical edition, the only one that should now be used, was prepared with the aid of no less than 180 manuscripts, by F. Liebermann (Die Gesetze der Angelsachsen, i, 1903). The editor offers beside the Anglo-Saxon texts a literal German translation. Of the second volume so far only the dictionary has appeared (1906). The legal glossary, and a third volume to be devoted to comments, are still to be expected.

A collection of documents from the Anglo-Saxon times was furnished by Kemble, Codex diplomaticus aevi Saxonici, 6 vols., 1839-1846; also by Benjamin Thorpe, Diplomatarium Anglicum aevi Saxonici, 1874 (with a translation of the Anglo-Saxon texts). An enlarged edition, corrected in part from the manuscripts, but deficient in discrimination between genuine and spurious pieces, was prepared by W. de Gray Birch, Cartularium Saxonicum, i, 1885, ii, 1887, iii, 1893. Valuable from a philological point of view is John Earle, Hand-book to the Land Charters and other Saxonic Documents, 1888, a selection of Anglo-Saxon documents with introduction, glossary, and index; as a work of legal history it is not up to date, since it ignores the modern researches in Anglo-Saxon documents. Nineteen early charters and documents are excellently edited in the Anecdota Oxoniensia: The Crawford Collection, with instructive notes by Napier and Stevenson, 1895. Three unpublished Northumbrian documents of about 1100 were edited and commented on by Liebermann in the Archiv für das Studium der neueren Sprachen und Literaturen, 111, p. 175. Facsimiles of Ancient Charters in the British Museum were published by the order of the Trustees, 1873 sqq. Selected passages from the sources of legal and general history are given in English translation or the Latin original, by Stubbs, Select Charters and other Illustrations of English Constitutional History, 2d ed., 1874.

Bibliography. On Anglo-Saxon legal sources see the Introduction in Schmid, Gesetze der Angelsachsen. Especially as far as the Anglo-Latin books are concerned, it now needs some correction from the critical researches of Liebermann, which have been indicated above in the notes. See Liebermann’s own announcement of the first instalment of his edition, in the Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, german. Abteilung, xix. 174. An inquiry concerning the Danelag, which Edition: current; Page: [20] throws new light upon the history of some sources, but on the whole overestimates somewhat the influence of the northern law, was given by Steenstrup, Normannerne, Vol. 4, 1882.

With reference to Anglo-Saxon documents see Heinrich Brunner, Zur Rechtsgeschichte der romischen und germanischen Urkunde, 1880, i. 149, sqq.: Das angelsächsische Landbuch. Some points are treated more fully by Aronius, Diplomatische Studien über die älteren angelsächsischen Urkunden, 1883.

For Anglo-Saxon legal history see the following:

Kemble, The Anglo-Saxons in England, 2 vols., 1849, revised by Birch, 1876, translated into German by Brandes, 1853-1854, 2 vols.—Konrad Maurer, Ueber angelsächsische Rechtsverhältnisse, in the Kritische Ueberschau, i, ii, iii, 1853 sqq.—Phillips, Geschichte des angelsächsischen Rechts, 1825.—The chapters dealing with the subject in Gneist, Geschichte des englischen Verwaltungsrechts, 2d edition, 1867.—Geschichte und heutige Gestalt der englischen Communalverfassung oder das Selfgovernment, 2d edition, 1863.—Selfgovernment, Communalverfassung und Verwaltungsgerichte in England, 3d edition, 1871, and Englische Verfassungsgeschichte, 1882.—Sir Francis Palgrave, The Rise and Progress of the English Commonwealth, 1831, 1832, 2 vols.—Stubbs, The Constitutional History of England in Its Origin and Development, 3 vols., 1874-1878, based on thorough historical research, and incorporating the results of German studies in legal and general history.—Essays in Anglo-Saxon Law, Boston, 1876, containing: The Courts of Law by H. Adams; The Land Law by Cabot Lodge; The Family Law by E. Young; The Legal Procedure by L. Laughlin.—Pollock and Maitland, History of English Law before the Time of Edward I, 1895, 2 vols., an epoch-making work, which has placed the earlier English legal history upon a new foundation; see Political Science Quarterly, xi. 537, Sept., 1896.—H. Munro Chadwock, Studies on Anglo-Saxon Institutions, 1905.

B.: THE SOURCES OF THE ANGLO - NORMAN LAW

From William I to Henry II, 1066-1154.—The conquest of England was the result of the political as well as the military superiority of the Norman state over the declining Anglo-Saxon constitution. Just as the antiquated cuneiform battle order of the Anglo-Saxon infantry, of which the battle of Hastings saw the last attested application among West Teutons, could not cope with the then modern art of war of the Norman knighthood, so the feudal order of Normandy secured an ascendancy over the Anglo-Saxon polity, the communal Edition: current; Page: [21] foundations of which had been submerged by unfree estates and oppressive servitudes, while it was unable to develop into a proper feudal tenure, and so in the struggle between the two legal systems which the Conquest brought about, the Norman law proved the stronger. Principles of Franco-Norman constitutional and administrative, private, criminal, and procedural law gained an entrance into England, and in consequence of the free play which the king had there for systematic organization, were, like the feudal system, developed and accentuated to a degree which they did not attain on their native soil.

The Normans applied in their relations toward each other the Norman law. For the relations between Normans and Anglo-Saxons special provisions were made. To the Anglo-Saxons the unimpaired continuance of their own law was assured in principle, and at the very beginning William the Conqueror affirmed the laga Edwardi, the law existing under Edward the Confessor; but the result was as usual when a concession is made in principle. It was ignored in practice, for the force of circumstances was stronger than the rule laid down. Normans constituted the higher ranks of society and possessed themselves of the large estates. They thronged the court of the king, while the Saxon nobles sulkingly kept aloof from the new order and eventually perished in futile insurrections. Soon ecclesiastical and secular offices were filled with Normans. Normans formed the curia regis, and thus the highest court was given over to the influence of the Norman law,—a fact all the more significant, as in England the practice of the King’s Court, through the unexampled centralization of justice, completely dominated the development of the law.

This course did not appear in full clearness immediately after the Conquest. The Normanization of the country and of its law was gradual. Under William the Conqueror legislation still moved in the grooves of Anglo-Saxon tradition. The compilations of Anglo-Saxon law, prepared under Henry I (see supra) prove on the one hand the continued existence of Anglo-Saxon law, on the other the struggle in which it had been engaged, not always successfully, against Edition: current; Page: [22] its Norman transformation. First in part, and then altogether the Latin supersedes the Anglo-Saxon as the language of the law, alternating with French from the time of Edward I and yielding to it completely since Richard II.

Of William the Conqueror (1066-1087) we have only three short legislative acts: 1. Willelmes cyninges asetnysse of between 1067 and 1077, a law in the Anglo-Saxon language regulating the method of proof in trials between Anglo-Saxons and Normans. The Anglo-Saxon is called englisc man, the Norman frencisc man and his law nordhmandisc lagu. 2. The Espiscopales Leges (1070-1076), a statute concerning the separation of ecclesiastical from secular jurisdiction, whereby, contrary to Anglo-Saxon custom, Continental principles were introduced into this matter, and ecclesiastical causes (quae ad regimen animarum pertinent) were withdrawn from adjudication by the secular courts. 3. A charter for the portgerefa and the citizens of London (1066 to 1075), who are guaranteed the legal status which they had enjoyed under Edward III.

The so-called Leis Willelme1 are not a code of William I, but a private treatise. They introduce themselves as the laws and customs, granted by King William to the English people after the Conquest of England, and as being the same as those which his cousin King Edward had administered before him. The book has come down to us in French and in Latin text, the latter being a translation from the French made about 1200. The first division (ch. 1-28) contains chiefly Anglo-Norman laws, based perhaps in part upon genuine statutes of William I; it takes some account of the Danelag, and among other things regulates the liability of the hundred for the killing of Normans. Some chapters may be traced back to Cnute’s code. The second division (ch. 29-52) offers a selection of laws from Cnute’s code, and besides rules of Roman law (ch. 33-38), borrowed directly or indirectly from the Digest and Code of Justinian. The author of the Leis Willelme sometimes estimates by shillings of Edition: current; Page: [23] Norman currency, and sometimes by solz engleis, Mercian shillings at four dimes (denars). The work was compiled between 1090 and 1135, probably in the first decades of the twelfth century, in East Mercia, for the purpose of giving an exposition of the law in force under William I.

The Articuli Willelmi are likewise a private compilation. They are ten articles under the heading: Hic intimatur quid Willelmus rex Anglorum cum principibus suis constituit post conquisitionem Angliae. They contain laws going back to William, and in part are based upon the Instituta Cnuti. The work was written in the years between 1110 and 1135. This part entitled “Hic intimatur” was under King Stephen joined together with the Leges Edwardi Confessoris retractatae (see A9,e supra) and with a Genealogia ducum Normannorum, into a larger compilation which may be designated as “Tripartita.”1 Under Richard I, in 1192-3, it was translated into old French. On the basis of the Tripartita, the Quadripartitus, and of other sources, a London author about 1210 made a compilation containing interpolations and falsifications in the interest of the city of London. The piece “Hic intimatur” is incorporated in this compilation with many additions in seventeen chapters.2

Toward the end of the reign of William I, an official inquest resulted in the production of the Domesday Book, a detailed record (descriptio) of the real property, its tenants, its burdens and its value. Drawn up as an assessment roll for fiscal purposes according to counties and manors, it contains together with statistical data valuable findings on local customs. It was officially edited in 1783, 2 vols. fol., to which were added two supplementary volumes of the Record Commission in 1816. See Sir H. Ellis, A General Introduction to Domesday Book, 2 vols., 1833. Lappenberg, Geschichte Englands, ii. 143 sqq. Gneist, Englisches Verwaltungsrecht, Edition: current; Page: [24] i. 122. In 1886 England commemorated the eighth centenary of its tax record by a series of lectures, which were edited with a bibliography under the title, Domesday Studies, by Edward Dove, in 1888. The most valuable contributions, from the point of view of legal and economic history, to the understanding of Domesday Book were made by Maitland in his profound treatise, Domesday Book and Beyond, three essays on the early history of England, 1897, and by Round, Feudal England, 1895.

We owe to the fiscal administration of the Normans in England another important legal monument, dominated by the fiscal point of view, but, considering the influence of fiscal considerations upon the whole political and legal constitution, also instructive as to the existence of legal rules and institutions, namely, the accounts of the Exchequer, which in England date farther back than in Normandy, though with a less degree of specialization of items. They are commonly called Rolls of the Pipe, Rotuli Pipae. The oldest dates from the reign of Henry I, and was edited by Jos. Hunter under the title: Magnus Rotulus Scaccarii vel Magnus Rotulus Pipae de anno 31 regni Henrici I (ut videtur), 1130-1131, 1833.

A useful compilation of older Anglo-Norman documents relating to procedure, a corpus placitorum for the time from William the Conqueror to 6 Richard I, is furnished by Bigelow, Placita Anglo-Normannica, law cases from William I to Richard I preserved in historical records, 1879. The collection, which is taken entirely from printed sources, is composed chiefly of accounts of lawsuits from English historians, of royal writs, and of procedural passages from Domesday Book and the Exchequer Rolls. See H. Brunner in Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, ii. 202 sqq.

From Henry II to about 1300.—The development of the law received a strong impulse under Henry II (1154-1189), who had been Duke of Normandy since 1150, and Capitalis Justitiarius Angliae in the last years of Stephen. From his reign date the epoch-making constitutions of Clarendon, 1164, and of Northampton, 1176. It was Henry II who introduced Edition: current; Page: [25] the jury of inquest,1 theretofore employed only in exceptional cases, as a regular mode of trial in civil procedure, thereby laying the foundation stone of English procedure as well as of substantive private law. In connection with this reform he established a special procedure in possessory actions by an assise which was promulgated probably about 1166. Henry’s reforms organized the procedure by writ (see 2 (a) infra), and probably also the practice of enrolling judgments; they inaugurated the absolute subordination of inferior jurisdictions to the royal judicial power. Renewing an earlier occasional practice, Henry established the institution of itinerant justices, justices in eyre, dividing the realm into large circuits, for the purpose of the delegated exercise of the prerogative royal jurisdiction, a measure to which we find a historical analogy in the organization of the regular missi by Charles the Great. From the time of Richard I, 1189-1199, we have the Capitula Itineris, the instructions given to the itinerant justices in 1194 and 1198, which in form and context recall the Karolingian Capitulare Missorum. This innovation did not disturb the unity of the curia regis as the centre of justice and administration, for the court held by the justices in eyre was likewise curia regis. Yet already Glanvill contrasts the justiciarii itinerantes with the capitalis curia regis (viii. 5 § 4). The latter is not yet outwardly separated from the scaccarium, but under Henry II there is differentiated from the officials of the curia regis a special group, the members of a board of judges residing “in banco.” Later on the exchequer, as organ of fiscal administration and jurisdiction, is formally severed from the king’s court, and the latter is divided into the Court of King’s Bench and the Court of Common Pleas. This division exists in fact, though not as a matter of technical nomenclature, not later than the reign of John. At that time a distinction is made between (1) placita coram rege (ipso) or quae sequuntur regem, and (2) placita de banco, which are held at definite terms by the justiciarii de banco at Westminster (or London). Edition: current; Page: [26] The placita coram rege represent what is called later on King’s Bench, the placita de banco, the later Common Bench, Court of Common Pleas. Under Henry II, we find also the beginnings of systematic exposition of the Anglo-Norman law, which in the subject-matters of its treatment, the fiscal administration of the scaccarium and the practice of the King’s Court, reveals the sources from which it received its impulse.

The legal sources of this age may be divided into statutes, judicial sources, records of fiscal administration, and legal treatises.

1. Statutes.—English jurists divide the bulk of their law into statute law and common law, according to its derivation from legislative enactment or from custom. However, the division is not consistently maintained, and the term common law is used in distinction from other divisions. The older enactments of the Norman kings are regarded as common law. They are either Constitutions, Assises, promulgated by the king after consultation with the great men of the land (assisa means assembly, session, judgment, or statute as the result of session or assembly, and also a certain form of procedure introduced by royal statute), or charters which are royal grants to remedy grievances. The official edition of the statutes prints as charters those of Henry I of 1100, of Stephen de libertatibus ecclesiae anglicanae et regni of 1136 and sine dato, of Henry II without date, of John “ut liberae sint electiones [of prelates] totius Angliae” of 1214, the Articuli of the barons, the Magna Charta of John of June 15, 1215,1 wrested from the king by the barons, and based on the Articuli, and its confirmations (in part modifications) of 1216, 1217, 1225, the latter furnishing the text for the subsequent frequent confirmations; moreover the Charta de Foresta of 1217, confirmed in 1225.

The statutes proper begin with the Provisions of Merton of the 20th Henry III, 1236, in the statute books regularly Edition: current; Page: [27] preceded by the Magna Charta and the Charta de Foresta. Of the time of Henry III we should also mention the important Statutum of Marleberge, Statute of Marlborough, 1267.

Under Edward I (1272-1307), the English Justinian, the number of statutes increases so much that an enumeration of even the most important seems impracticable. Through the many reforms of the reign of Edward I, England obtained the essential foundations of her subsequent constitution and the organic forms of her legislation. A permanent or “continual” council, consisting of the highest officers of church and state (the later Privy Council) was formed as “the centre of government.” By special royal summons prelates and barons were from time to time joined with this council, and with it formed the Magnum Concilium, the Great Council. Under Edward I it also became the custom to convene delegates of the communitates, representatives of counties and boroughs to consult on extraordinary contributions, and shortly after also to confirm laws and to remedy grievances, who since Edward III constituted a separate body. “And thus was formed the frame of an upper and a lower house, by the advice and consent of which the Crown worked out the organic legislation of the current period.” (Gneist, Self-government, 2d edition, i. 146.)

Editions.—In the official English edition and in Schmid’s book, and also in Liebermann’s (who also gives the decrees of Henry I), the laws of William I are placed with the laws of the Anglo-Saxons. The subsequent laws up to the beginning of the collections of English statutes have been brought together by Henry Spelman in the Codex legum veterum statutorum regni Angliae ab ingressu Guilelmi I usque ad a. 9 Henrici III, a compilation of fragments from the scriptores, of royal ordinances, privileges, constitutions, etc., which have been reprinted from the posthumous papers of the author by Wilkins in his Leges Anglo-Saxonicae, and subsequently by Houard in the second volume of his Anciennes Loix. Better texts, but without critical notes, are now to be found in the more accessible compilation of William Stubbs in his Select Charters, 2d ed., 1874. Valuable as this handy collection is, it can still be considered only as a provisional means of information, and a critical edition of the older Anglo-Norman assises continues to be urgently needed.

Edition: current; Page: [28]

The statutes proper down to 1714 appeared from 1810 to 1824 in an official edition: “The Statutes of the Realm from original Records and authentic MSS., printed by command of his Majesty King George the Third in pursuance of an address of the House of Commons of Great Britain, from the earliest times to the end of the reign of Queen Anne,” 10 vols. fol., including an alphabetical index, also a chronological index, 1828.

The most important older statutes have received a famous commentary in Coke’s Institutes of the Laws of England, Part II. Among the numerous editions for practical use which omit antiquated statutes may be mentioned: The Statutes at large from Magna Charta to the Union of the Kingdom of Great Britain and Ireland, first by Ruffhead, in later editions by T. E. Tomlins and J. Raithby, London, 1811, 4°, 10 vols.

2. Judicial Sources. (a) Writs (Brevia). There arose in the English curia regis, as in Normandy, an official procedure (capable of taking the place of the old formal trial by duel and oath), which in principle was confined to the curia regis, and which was begun and in part carried on by royal mandates (writs, brevia). At first these writs were a favor granted for money by the king for each particular case. From the time of Henry II they became a generally available remedy, the royal chancery receiving permanent instruction to grant in certain cases these writs in fixed forms to the parties on demand. The legal import of writs was different according to their purpose. Where the purpose was to remove a suit to the king’s court, the defendant was summoned by a writ which required the vicecomes to command the defendant to make restitution or to show cause before the king’s court why not. Such a writ is called writ of praecipe and has its prototype in the Frankish indiculus commonitorius. Or the vicecomes was required by the writ to select and summon a jury (recognitio) to determine some question of fact (breve recognitionis). There are numerous other occasions for writs. It is a peculiarity of the English law that real actions even in a popular court could be started only by a royal writ; for from the time of Henry II it became settled, that in the manorial courts in controversies regarding land the defendant did not have to answer in the absence of a royal writ requiring the lord of the court to see that right be done, failing which the vicecomes would see to it (breve de Edition: current; Page: [29] recto, corresponding to the Frankish indiculus de justitia). In so far as writs served to start a suit, a procedure was developed in England which may be compared to the formulary procedure of the Roman law. The actions of the English law became specialized by the forms of the writs, so that Bracton was able to say: tot formulae brevium, quot sunt genera actionum. In the thirteenth century the king lost the right arbitrarily to create new writs. Even according to Bracton a writ is to be deemed void if obtained contra jus et regni consuetudinem. On principle, he says, the issue of novel writs requires the assent of the council, but it is sufficient if the great men offer no opposition. This view, which became more rigorous with the growing importance of Parliament and impeded the free development of writs, led to the distinction between brevia formata and brevia magistralia. For the former the forms are legally fixed, the latter are granted by the Chancery in consimili casu, i. e. in cases analogous to those already provided for, quia in novo casu novum remedium est apponendum, a sort of actiones utiles,—a procedure expressly sanctioned by the second statute of Westminster, 13 Edw. I, c. 24, 1285. Another distinction was made between brevia originalia, which started the lawsuit, and brevia judicialia, which intervened in its further course. Numerous forms of writs are found in Glanvill and in the law books of the thirteenth century; especially also in the Statutum Walliae of 1284, which introduced English procedure into Wales. As to the older writs, see H. Brunner, Entstehung der Schwurgerichte, 1872; as to the older register of writs see Maitland, the History of the Register of Original Writs in Harvard Law Review, ii, iii, 1888, 1889.

(b) Records, i. e. memoranda of the proceedings and decisions of courts (records proper: of royal courts), which were taken and kept in the several courts as authentic memorials of judicial acts. The systematic enrolment of the proceedings of the king’s court seems to be one of the great reforms of the last years of Henry II (according to Maitland). From the rotuli placitorum we distinguish fines, documents regarding compromises entered into in the king’s Edition: current; Page: [30] court with royal or judicial leave on the basis of an actual or fictitious lawsuit. They are also called finales concordiae (quae finem imponunt negotio) or pedes finium, a term explained by reference to the lower part of the instrument (the foot of the fine), but which is probably due to a mistranslation of the old French pees (pax). The rotuli placitorum of the time of Richard and John, without distinction of series, are known as coram rege rolls. The rotuli placitorum of the time of Henry III are divided into three groups: (1) coram rege rolls; (2) assise rolls; (3) Tower coram rege rolls and Tower assise rolls—a distinction based upon the fact that the rotuli of the first two series were preserved in Westminster, those of the third series in the Tower.1

Editions. An insufficient selection from the older records, much too meagre for legal historical investigations, was made from 1619 to 1626 and published in 1811 under the auspices of the government as “Placitorum in domo capitulari Westmonasteriensi asservatorum abbreviatio temporibus Ric. I, Joh., Henr. III, Edw. I, Edw. II.” An edition of complete records was furnished 1835 by Palgrave: Rotuli Curiae Regis, Rolls and Records of the Courts held before the King’s Justiciars, etc., vol. i: from the sixth year of King Richard I to the accession of King John; vol. ii: the first year of King John. Palgrave edited only a portion of the plea rolls of the time of Richard I. The Pipe Roll Society has undertaken to fill the gaps. Under its auspices Maitland published, 1891, “Three Rolls of the King’s Courts in the Reign of King Richard the First, ad 1194-1195.” We owe besides to Maitland the edition of the Select Pleas of the Crown, vol. i (1200-1205), 1888, in the publications of the Selden Society, vol. i, a collection of placita coronae, i. e. of criminal cases reserved to royal jurisdiction, with introduction and translation. Select civil cases from 1200 to 1203 were published by William Paley Baildon, Select Civil Pleas, vol. i, 1900, (Selden Society, vol. iii). We shall note below (4, c) as Bracton’s Note-book a collection of cases of the time of Henry III, made on the basis of official rotuli for the personal use of the jurist Bracton. Pleas of the Crown for the County of Gloucester (1221) were edited by Maitland, 1884, Extracts from the Plea Rolls (1294-1307), by Wrottesley, 1888 (William Salt Archaeol. Society for Stafford). Select Pleas of the Forest, placita forestae, i. e. inquests and proceedings concerning hunting and forest offences of the 13th century, together with an Edition: current; Page: [31] introduction on forest law, forest administration, forest jurisdiction, and a glossary of technical terms, are given by G. I. Turner; Select Pleas of the Forest, 1901 (Selden Society, vol. xiii); Select Cases from Coroners’ Rolls from the years 1265 to 1413, with a summary of the history of the office of coroner1 are edited by Charles Gross, 1896 (Selden Society, vol. ix). The following are editions of the Fines: Fines sive pedes finium in turri Londinensi asservati (1216-1272), ed. Roberts, 2 vols., 1836; Feet of fines of the reign of Henry II and of the first seven years of the reign of Richard I (1182-1196), 1894 (Pipe Roll Society, vol. xvii); Feet of Fines of the reign of Richard I, years 7-10 (1196-1199), 1896-1900 (Pipe Roll Society, vols. xxi, xxiii, xxiv).

The manorial courts, too, began to keep records in the first half of the 13th century. Select Pleas in manorial and other seignorial courts of the time of Henry III and Edward I were edited in the publications of the Selden Society (vol. ii) by Maitland in 1889, with an introduction which is valuable for the history of manorial jurisdiction. The publication, The Court Baron together with select pleas from the Bishop of Ely’s Court of Littleport, edited by Maitland and Baildon, 1891 (Selden Society, vol. iv), contains in its fifth chapter selections from the rolls of the Curia episcopi Eliensis apud Littleport of the years 1285 to 1327. The first four chapters of this publication contain forms for proceedings and judicial acts in manorial courts.2

Numerous records in the English archives still await publication. The following may serve as guides to the mass of unprinted matter: Ewald, Our public records, a brief hand-book to the national archives, 1873; Rye, Records and record searching, 1888; Scargill-Bird, Guide to principal documents in Public Record Office 2. ed. 1896.

(c) Reports, i. e. professional memoranda, not, like the records, serving as official memorials of judicial acts, but giving only secondary attention to the concrete facts of a particular case, and intended to give information of points of interest to legal practitioners. They therefore contain only a brief narration of facts, upon which the records lay Edition: current; Page: [32] the principal stress, but give more fully the arguments of counsel and the grounds of decision.1 The Reports were written by officially appointed and paid reporters. It is uncertain when this was first done. The Reports from the time of Edward II to Henry VIII, barring several gaps, are printed under the name of Year Books.

Editions. The first collective edition appeared 1678. As to the defects of the earlier editions see Cooper, An Account of the most Important Public Records, 1832, ii. 391 sqq. Earlier reports of the reign of Edward I (20-22, 30-35) and Edward II (11-14) have been edited with an English translation of the Anglo-French texts in the Rerum Britannicarum medii aevi scriptores under the title: Year Books of the Reign of Edward I (or Edward II), edited and translated by Alfred J. Horwood (those of Edward II by L. O. Pike), 1863 sqq. A critical edition of the earlier Year Books has recently been undertaken by the Selden Society. Up to this time three volumes have appeared. They relate to the years 1, 2 and 3 Edward II (1307-1310), and were edited by Maitland, 1903-1905, vol. xvii, xix, xx of the Publications of the Selden Society.

3. The Rotuli Scaccarii. Of the above mentioned Exchequer Rolls there has been preserved a complete series from the reign of Henry II which affords valuable glimpses into the history of Henry’s great legal reforms.

Editions. In part they are edited by the Record Commission, in part their publication has been undertaken by the Pipe Roll Society, which was organized for the purpose of publishing the Pipe Rolls and similar documents of the time before 1200. The following have so far appeared: The Great Rolls of the Pipe for 2, 3, and 4 Henry II, 1155-1158, ed. Hunter, 1844; The Great Rolls of 1158 to 1178, published 1884 to 1907 by the Pipe Roll Society (the third volume contains an Introduction to the Study of the Pipe Rolls); The Great Rolls of the Pipe for 1 Richard I, 1189-1190, ed. Hunter, 1844; Rotulus Cancellarii vel antigraphum Magni Rotuli Pipae de tertio anno regis Johannis (1201, 1202), 1833. Other rotuli are: The Rotuli de dominabus et pueris et puellis de donatione regis (concerning fees under the king’s wardship), ed. Grimaldi, 1830; the Rotuli Edition: current; Page: [33] de Liberate ac de Misis et Praestitis regnante Johanne, cur. Th. Duffus Hardy, 1844; Rotuli de Oblatis et Finibus . . . Temp. Regis Johannis accur., Th. Duffus Hardy, 1835. The entries of the Liberate Rolls, which concern loans made by English kings of Italian merchants in the thirteenth and fourteenth centuries, are explained and collated in a treatise by E. A. Bond, Extracts from the Liberate Rolls, in the 28th volume of the Archaeologia published by the Society of Antiquaries of London (1840). The treatise gives valuable information regarding the loan system of the English kings and the history of securities.

4. Legal Treatises. (a) The Dialogus de Scaccario (“De necessariis observantiis scaccarii dialogus”), a treatise written in form of a dialogue concerning the constitution and administration of the Royal Exchequer, valuable also for private law and procedure. “It bears witness to the early maturity of administrative processes in the Norman constitution, a remarkable evidence of the spirit of centralization and the bureaucratic conception of the state, without a parallel in the Middle Ages” (Gneist, Verwaltungsrecht, i. 201). The Dialogus was written in 1178 or in the beginning of 1179 by Richard FitzNigel, Archdeacon of Ely, and later Bishop of London. As the son of a high treasury official, the author had grown up in the atmosphere of the Exchequer, in which for forty years he filled the office of treasurer. His statements are based upon an accurate knowledge of the practice of the scaccarium and are intended to serve as a guide to its officials. By his desire to systematize, however, and from political motives, the author was led to make statements not corresponding to the facts.

Editions. The Dialogus is printed as an appendix to Madox. The history and antiquities of the Exchequer of the Kings of England, London, 1711 and 1769. A reprint with somewhat amended text is found in Stubbs, Select Charters, p. 168 sqq. Much improved is the text in the recent critical edition by Arthur Hughes, C. G. Crump, and C. Johnson: De necessariis observantiis scaccarii dialogus, 1902, with introduction and copious commentary. A careful study regarding the author, and the origin and character of the work, with a summary of its contents, is Liebermann, Einleitung in den Dialogus de Scaccario, 1875.

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(b) Glanvill’s Treatise, the first classical law book of England, and at the same time “the first attempt at a scientific exposition of native law in modern Europe.”1 The commonly used title of the work: “Tractatus de legibus et consuetudinibus regni Angliae tempore Regis Henrici secundi compositus justitiae gubernacula tenente Ranulfo de Glanvilla” is not original, but dates from some time after the death of Henry II.2

The work was written some time between November, 1187, and July 6, 1189. The author, Ranulfus de Glanvilla, was from 1180 to 1189 Capitalis Justitia Angliae, and certainly not without some share in the reforms of Henry II.3 The beginning of the prologue is modelled after that of the Institutes of Justinian. The treatise, which is divided into fourteen books, confines itself to an accurate and luminous exposition of the practice of the king’s court, as it had been settled on the basis of those reforms. The author expressly declines, as beyond his task, to describe the law of the local (county and manorial) courts. In the beginning of the thirteenth century Glanvill’s treatise was translated into French, and was revised as late as 1250 in view of recent developments of the law.4 On Glanvill is based the Scotch law book called from its initial words “Regiam Majestatem,” written between 1200 and 1230.

Editions. For Germany the most accessible edition is found in the second volume of Phillips’ History of the English law. It is also found in Houard’s Traités sur les Coutumes Anglo-Normandes, i. Separate editions appeared in England 1604, 1675, 1680. An English translation with notes was given by J. Beames, 1812, also 1900, with introduction by J. H. Beale, Edition: current; Page: [35] Jr. A new and critical edition is urgently needed, and one is being prepared by Leadam for the publications of the Selden Society.

(c) Henrici de Bracton de legibus et consuetudinibus Angliae libri quinque. The author, Henry de Bratton (from a village of Bratton in Devonshire), was a clergyman and royal judge under Henry III (1216-1272). We meet him first in 1245 as itinerant justice, from 1248 to 1267 as assise judge in the southwestern counties of England. His permanent office was that of royal judge in the Placita coram ipso rege (quae sequuntur regem), i. e. in the old curia regis proper. He never sat in the bancum regis at Westminster. He died in 1268. His name, the incorrect spelling of which he cites as an illustration of the invalidity of a writ, was frequently misspelled by copyists. As a consequence, he has come down to posterity as Bracton. The treatise has remained outwardly and inwardly unfinished. It breaks off in the midst of the account of the breve de recto; even as far as it goes it has not had the final revision which the author contemplated. Bracton must have practically completed his work before 1259. The pause then ensuing may have been due to the fact that from 1258 he no longer had at his disposal official court records which he had theretofore used. The decisions made use of in the treatise date almost exclusively from the time prior to 1240, and with few exceptions they are decisions of the royal judges, Martin Pateshull and William Raleigh, so that Bracton’s treatise was not incorrectly said to be an exposition of the English law as represented in the administration of justice by those two judges. Like Glanvill (whom he uses) Bracton purports to describe the law and practice of the king’s court and of the judicial commissions. He gives the fullest account of the English law of the Middle Ages, “the crown and flower of English mediaeval jurisprudence” (Maitland). The treatise is distinguished by a wealth of detailed application of principles and by careful treatment of cases, of which no less than 494 are cited. In both these respects English jurisprudence has found its first typical representative in Bracton, so also in the peculiarly precise but sound legal reasoning. In another Edition: current; Page: [36] respect, however, Bracton stands alone in English legal literature, and that is in the weight he gives to Roman influence in the exposition of his native law—especially in the first book of his treatise. The Roman law had received passing but careful attention in England during the twelfth century, especially through Vacarius. Its teaching unmistakably influenced the older English law books as to precision of legal thought and method of treatment. No English jurist shows as clearly as Bracton the first vigor of this impulse. The definitions of general legal concepts, the divisions, the terminology of Bracton, often point to Roman and canon law, the knowledge of which he obtained from the Corpus juris civilis, the Decretum and the Decretals, from Bernard of Pavia, and Tancred, and above all from Azo’s Summa to the Codex and to the Institutes.1 It happens, however, very rarely that Bracton is led by Roman ideas to depart from the law in force in England.

Editions. An edition of the treatise appeared 1569 in folio and was reprinted 1640 in 4to without change. It intended to give the text as handed down in manuscript as completely as possible, and incorporated subsequent additions to Bracton’s work without indicating them as such. A new edition, indicating sources, with cross references, and an English translation, was given by Sir Travers Twiss in 6 volumes, 1878 sqq. As regards text criticism, however, it did not fulfil legitimate expectations, since no use was made of some important manuscripts. Shortly after its appearance a discovery was made in the British Museum of about 2,000 cases of the time of Henry III, which Bracton had used in writing his treatise, and to which he made or dictated numerous marginal annotations. It was edited as Bracton’s Note Book, 1887, by Maitland, with instructive notes and with an introduction giving excellent observations regarding Bracton’s life and activity and the history of the origin of his treatise. See Vinogradoff (discoverer of the manuscript of the Note Book) in the Athenaeum of July 19, 1884, and in Law Quarterly Review, vol. i.; Güterbock, Henricus de Bracton und sein Verhältnis zum römischen Rechte, 1862 (English by Coxe, 1866); Scrutton, Roman Law in England, p. 79 sqq; Pollock and Maitland, History of English Law, i. 185 sqq.

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(d) Fleta seu Commentarius Juris Anglicani, the work of an unknown jurist, getting its name from the fact that it was written in the so-called Fleet prison (tractatus . . . Fleta merito appellari poterit quia in Fleta . . . fuit compositus). It dates from about 1290. A large part is copied, often literally, from Bracton, whose bulk is reduced to about one-third. It makes use of laws enacted since Bracton, and supplements the latter in essential points.

Editions. The Fleta was printed 1647 and 1685. Both editions have as an appendix the valuable Dissertatio historica ad Fletam by Selden. See Twiss in Bracton, vi, introduction, p. 18; Nichols, Britton, i, introduction, p. 25. An incomplete reprint is found in Houard, Traités sur les Coutumes Anglo-Normandes, iii.

(e) The treatise by Gilbert of Thornton, “Summa de Legibus et Consuetudinibus Angliae,” etc., of about 1292. The author was Chief Justice of the King’s Bench from 1289 to 1295, and, as he says himself, desired to make a compendium of Bracton’s elaborate treatise. The author promised to take into account the legislation enacted since Bracton, but failed to do so. The work was not printed and is lost. Our information regarding it is derived from Selden in his Dissertatio ad Fletam.

(f) More independent of Bracton than the two last named works is a treatise going by the name of Britton, which sometimes, but without reason, has been described as a condensation or revision of Bracton. According to the investigations of its latest editor it owes its origin to a project (which is historically verifiable) of Edward I to cause a compilation of the English law to be made after the manner of the Institutes. The work is not written in the style of a law book, but its propositions are couched in the authoritative language of the lawgiver (nous voloms, nous grauntoms, etc.). The author, Britton, was probably a clerk in the service of the Crown. Since the statute Quia emptores, 18 Ed. I, is cited as “une novele constitution,” Britton must have been written soon after 1290, somewhat later than the Fleta, of which, as of Bracton, it makes use. It is the oldest English law book written in French.

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Editions. Earlier editions of 1540 and 1640 have been superseded by the careful edition by Nichols, Oxford, 1865, 2 vols., with English translation, and references to Bracton, the Fleta, and the Statutes, and with glossary and index.

(g) A treatise of small compass is the Summa Magna et Parva of Ralph of Hengham, likewise of the time of Edward I, which is intended to supplement Bracton’s work in the learning of defaults and essoins. It is reprinted as an appendix to the edition of Fortescue (see infra) of 1737.

(h) The editions of Fleta subjoin to the last chapter of that book a treatise in Anglo-French of fifty paragraphs relating to procedure. It begins with the words “Fet assaver,” which also frequently recur at the head of the several paragraphs, and by which the work is cited.

(i) The Mirrour of Justices, also called Liber Justiciariorum, a curious legal monument, probably written between 1285 and 1290. The text is preceded by five Latin verses, in the last of which the writer calls himself Andrew Horn. Of one Andrew Horn, who was chamberlain of the city of London in 1320, we know that in 1328 he bequeathed to the London Guildhall together with other books his copy of the Liber Justiciariorum. We do not know the author, but he was hardly Andrew Horn. The manuscript to which all those now extant go back, is not the original, but a copy by the hand of a careless copyist who occasionally skipped an entire line.1 The Mirrour contains a mixture of fiction and truth. It is the work of an amateur jurist, who, with the conceit of superior knowledge, represents the law such as in his opinion it ought to be, as being old law, giving his unbridled imagination full play, and inventing silly stories to explain the origin of legal institutions. How far the work contains useful data, especially in matters within the reach of a layman’s comprehension, must be ascertained by further special studies, which might prove rather thankless. The Mirrour is divided into five books, of which the last, “De abusions,” contains a criticism of legal abuses concerning Edition: current; Page: [39] the common law, the Magna Charta, the statutes of Merton and Marlborough and the statutes of Edward I down to 1285. Being taken seriously in its entire content by English jurists from Edward Coke down to the late editor of Reeves’ History of English Law, it has done a good deal of mischief in the study of English legal history.

Editions. The Mirrour was printed in 1642. An English translation was offered by William Hughes, 1646, reprinted 1768 and 1840. Houard, in the fourth volume of his Traités, gives the first four books. The latest edition is that by W. I. Whittaker, 1895, in the Publications of the Selden Society, vol. vii. It contains a critical introduction by Maitland.

5. The sources of English municipal or borough law are bewildering in their wealth, only partly sifted, and a still smaller portion published. In them we meet not infrequently principles and ideas going back to Anglo-Saxon law which within the city walls escaped the inundation of England by Norman law. In their chequered diversity the sources of municipal law cannot be exhaustively arranged under the four heads above chosen. Nor is it within the compass of this sketch to enter upon the sources of local law. A systematic review of the principles of English law recognized according to the sources in the municipal courts of England, Scotland, and Ireland during the Middle Ages is given by Miss Mary Bateson, Borough Customs, in two volumes of the Publications of the Selden Society, 1904, 1906 (vol. xviii, xxi). In vol. i, p. 18, sq., we find a list of printed and unprinted municipal sources. See also Gross, Bibliography of British Municipal History, 1897.

Bibliography Regarding the Sources of This Period: Matthew Hale, History of the Common Law, 2 vols., 8vo, an unfinished work, published from the author’s posthumous papers by Runnington, 6th ed., 1820; as an appendix Hale’s analysis of the civil part of the law is printed. J. Reeves, History of the English Law from the time of the Saxons to the end of Philip and Mary, 4 vols.; 3d ed., 1814, with a fifth volume, under the title History of the English Law from the time of the Saxons to the end of the Reign of Elizabeth, vol. v containing the reign of Elizabeth, 1829. This is the most thorough and comprehensive Edition: current; Page: [40] work of English legal history going beyond the Middle Ages. A recent edition was prepared by Finlason, 1869, in three volumes, who added worthless notes, and arbitrarily changed the arrangement of the material. (See as to this edition: H. Brunner in the American Law Review, Oct., 1873, vol. viii, p. 133.)—Phillips, Englische Reichs- und Rechtsgeschichte seit der Ankunft der Normannen, 2 vols., 1828, goes only to 1189.—Crabb, History of the English Law, 1829, translated into German by Schäffner, 1839, somewhat superficial.—Savigny, Geschichte des römischen Rechts im Mittelalter, 2d ed., 1850, iv, appendix, 24.—Stubbs, Constitutional History of England, ends in the third volume with the death of Richard III.—The sources of the common law are thoroughly treated with special reference to private law and procedure by Gundermann, Englisches Privatrecht, i. 1864 (Introduction).—From the point of view of public law the sources are grouped by Gneist in the notes on pp. 56 and 137 of his Geschichte . . . der englischen Communalverfassung oder das Selfgovernment, i, 1863.—Glasson, Histoire du Droit et des Institutions politiques civiles et judiciaires de l’Angleterre, 1882 sqq., 6 vols.—Above all for the age of Glanvill and Bracton the great History of English Law by Pollock and Maitland, 1895. Note also the historical studies by Maitland in the introductions of his editions in the Publications of the Selden Society.—A. T. Carter, Outlines of English Legal History, 1899.

As to Real Property see: K. E. Digby, An Introduction to the History of the Law of Real Property, 3d ed., 1884; Pollock, The Land Laws, London, 1896 (translated into German by E. Schuster, 1889). For Procedure: Bigelow, History of Procedure in England, the Norman Period, 1880; and H. Brunner, Entstehung der Schwurgerichte, 1872. A history of the courts and of the jurisdiction exercised by them down to the present time is given by W. S. Holdsworth, A History of English Law, vol. i, 1903. Useful notes are found in the Bibliotheca Legum Angliæ, part II, containing a general account of the laws and law-writers of England from the earliest times to the reign of Edward III; compiled by Edward Brooke, London, 1788. Valuable recent material for the history of sources is found in Cooper, An Account of the most important Public Records of Great Britain, and the publications of the Record Commission, London, 1832, 2 parts. A summary view is given by Stephen, New Commentaries on the Laws of England (partly founded on Blackstone), 13th ed., 1899.

C.: SOURCES OF ENGLISH LAW FROM THE FOURTEENTH CENTURY TO BLACKSTONE

From the time of Edward III, and beginning in 1340, the Chancery with its staff officials appears as a separate organ Edition: current; Page: [41] of equity, a remedial jurisdiction for cases in which the common law afforded no redress or no adequate redress. As the Anglo-Saxon king had the authority to temper the strict law,1 as the Frankish king had the right to order the decision of controversies in the king’s court secundum aequitatem, as the later Roman law had reserved the application of aequitas to the consistorium principis, so the Anglo-Norman king since the thirteenth century administered equity in the Council. This function of the Council gradually became vested in the Chancery, which long before had granted new writs in consimili casu, as a court of equity, which in course of time through the following of precedents (lex cancellariae) assumed definite form, and developed not merely a procedure without jury based upon the canon law, but a substantive private law of equity in contrast to the common law. “England thereby obtained the necessary supplement to its private law, which in Germany resulted from the reception of the Roman law”—an observation by Gneist (Engl. Verfassungsgeschichte, p. 335), which expresses a fundamentally correct idea.

Editions. The older records of the Chancery are printed in the first two volumes of the work: A Calendar of the Proceedings in Chancery in the Reign of Queen Elizabeth, to which are prefixed examples of earlier proceedings in that court, namely, from the reign of Richard II to that of Queen Elizabeth inclusive, 1827 sqq.; and in the publication (which supplements that work): Select Cases in Chancery, 1364-1471, ed. William Paley Baildon, 1896 (Selden Society, vol. x).

Toward the end of the fifteenth and beginning of the sixteenth century, when the reception of the Roman law occurred in Germany, it also seemed to ask for admission to the courts of England. Especially in the second quarter of the sixteenth century the continuity of the development of English law seemed seriously threatened. A number of causes, however, combined to make it possible to ward off the foreign law permanently. The English law, which had attained to a relatively high degree of technical perfection, found strong Edition: current; Page: [42] support in the schools of law with settled traditions of teaching.1 The early reception of Roman ideas, especially in the age of Bracton, had “operated as a sort of prophylactic inoculation, and had rendered the national law immune against destructive infection.”2 It seemed to augur ill for the English law that in 1535 the Year Books were discontinued, the official reports, which had aided so strongly the continuity of English jurisprudence. But in the same year Henry VIII prohibited the study of the canon law, which in Germany had opened the path for the triumphant march of the Roman law.

As sources of the common law (as distinguished from equity) we should mention for this period the following:

A. Statutes. The series of statutes begins at a time when the principles of English law regarding the constitutional methods of legislation were not yet settled. Statutes are divided into statuta vetera and nova. The dividing line is the beginning of the reign of Edward III, 1327, it being assumed that by this time the essential elements of the modern idea of a statute are fixed. This assumption is incorrect, for the constitution of Parliament is settled as early as Edward I, while its rights with reference to legislation are expressly recognized only after Edward III. Since Edward III we have, however, a distinction between statutes and ordinances, based upon the fact, that parliamentary acts intended to be of permanent operation were entered in the official statute rolls. In default of such entry the act was an ordinance. What constitutes an ordinance, from the substantive point of view, is controverted, some regarding it as an imperfect statute, others as a temporary law. It is probably correct to assume that originally statute and ordinance served the same purpose. (See Gneist, Verwaltung, Justiz, Rechtsweg, 1869, p. 62). As in the German Empire down to 1654 the laws enacted at a diet were collected as “Reichsabschied,” recessus imperii, so in England the laws enacted at a session of Parliament were put together as a statute, the Edition: current; Page: [43] several legislative acts being designated as chapters. Each law is cited according to the king who enacted it, prefacing the year of his reign and adding the number of the chapter. So 18 Ed. III, c. 7. From the time of the Tudors the language of the statutes degenerates noticeably, and becomes more diffuse and slovenly as the number of statutes increases. From Henry VII on (1485-1509) the language of legislation is English exclusively.

Editions. To the Statutes of the Realm we should add for the time of the Commonwealth: Acts and Ordinances during the Usurpation from 1640 to 1656 by Henry Scobell, London, 1658, fol. The proceedings of the Council, above referred to, have been edited by Sir Harris Nicolas as Proceedings and Ordinances of the Privy Council of England, from 10 Ric. II, 1386, to 33 Henr. VIII, 1541, 7 vols., 8vo, 1834-1837. The Register of the acts and important proceedings of Parliament, the Parliamentary Rolls, are printed as Rotuli Parliamentorum ut et Petitiones et Placita in Parliamento (1278-1503), 6 vols., 1764 sqq. An index to this was published in 1832. The official journals of the House of Lords begin 1 Hen. VIII, those of the House of Commons, 1 Ed. VI. See Gneist, Selfgovernment, i. 256, and Gneist, Das englische Parlament vom neunten bis zum Ende des neunzehnten Jahrhunderts, 1886.—Continuing the above mentioned collection by Tomlins and others, the later statutes are contained in the Statutes of the United Kingdom of Great Britain and Ireland by Tomlins, Raithby, Simons, Bevan and Rickards, 29 vols. (to 32 & 33 Vict.), 1804-1869.

In 1860 a Commission was set to work to publish an abridged edition of the statutes, eliminating repealed and antiquated matter. The final result of this is the second revised edition of the statutes, prepared under the direction of the Statute Law Committee, 1888-1890. Of the editions for practical use should be mentioned Chitty’s Collection of Statutes of Practical Utility arranged in alphabetical and chronological order, re-edited and brought down to date by Lely, 5th ed., 1901.

B. Judicial Sources. The fourteenth century and the first half of the fifteenth lived on the rich legacy of the thirteenth. It was not until the second half of the fifteenth century that important law books reappeared which relegated the older ones to oblivion. The development of the law at this time must be traced almost exclusively through the judicial sources.

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Since the number of the regular writs (brevia de cursu) grew constantly, the need of a collection made itself felt. One made under Edward III at the same time illustrated their application: it is known as Old Natura Brevium. An official collection of forms appeared in 1531, known as Registrum Brevium omnium tam Originalium quam Judicialium. An extract from this is revised in the New Natura Brevium by Anthony Fitzherbert (many editions, first French, 1534; ninth edition, English, 1794, with a commentary by Lord Hale).

The records belonging to this period are as yet unprinted. Even the Abbreviatio closes with Edward II. The printing of the older records would be especially desirable in order to facilitate the understanding of the Year Books. The language of the records long remained Latin, even after French had in 1362 been superseded by English as the language of the courts.

The official reports close under Henry VIII (1535). Reports from the time of Edward III have been published by Pike in continuation of Horwood’s edition of the Year Books. The official are replaced by private reporters, the reports in some instances being made primarily for the private use of the reporter, who was subsequently prevailed upon to publish them. The high value attached to precedents in England appears from the fact that the reports not only furnished the main material for independent legal treatises, but constituted themselves a most important form of legal literature. The number of reporters is large and the greatest names in English jurisprudence are found among them. Of the older reporters, Plowden (1578) and Dyer (1585) stand especially high. A conspicuous place belongs to Edward Coke who attained to such authority that his reports are cited without name—a distinction shared by no other English jurist. His reports comprise thirteen volumes, of which the last two appeared after his death. Of the reporters after Coke may be mentioned: Croke, Yelverton, Hobart, Saunders, Vaughan, and Levinz. The number of printed reports is very large. Sir Fred. Pollock estimates the number of printed reports for England alone at more than 1,800 volumes, the number Edition: current; Page: [45] of reports for Great Britain, the Colonies, and the United States at 8,000 volumes.1

Editions. A list of the reports and of the abbreviations by which they are cited, is given by Arthur Cane, Tables, Alphabetical and Chronological, of all Reports of Cases decided in England, Scotland and Ireland, . . . with a list of the usual modes of citation compiled under the direction of the Council [of Law Reporting], London, 1895. For the history of the reports see: Daniel, History and Origin of the Law Reports, 1884; J. W. Wallace, The Reporters, 1882; Sir Frederick Pollock, A First Book of Jurisprudence for Students of the Common Law, 1896, p. 274 sqq., and the sketch by Van Vechten Veeder, The English Reports, 1292-1865, in the Harvard Law Review, 1901.

C. Legal Writings.—After a long pause English legal science received a new lease of life with the work of Fortescue, De laudibus legum Angliae, and with Littleton’s Tenures.

John Fortescue had first been attorney, and in 1442 under Henry VI had become Chief Justice of the King’s Bench. Adhering to the House of Lancaster in the struggle between the Roses, he was convicted of high treason after the victory of Edward IV of York, in 1461, and fled from England. About 1463 he was with the Queen and Prince Edward in Barrois in Lorraine. Probably in this exile, from which he returned to England only in 1471, he wrote for the education of the successor to the crown his famous work, “De laudibus legum Angliae,” to which he gave the form of a dialogue between prince and chancellor. (Fortescue had been nominally appointed chancellor by Henry VI. Edward IV pardoned him in 1473 and made him privy councillor.)

The book, which is written in popular style, pursues the double purpose of showing the peculiarities and advantages of the English law as compared with the Roman law, and to point out the good features of a constitutionally limited monarchy in contrast to a despotic government. Not a few of the propositions first enunciated by him later on became political axioms. For the Continent Fortescue is important as the precursor of those modern authors who by pointing Edition: current; Page: [46] out the advantages of English law prepared the way for the reception of English institutions by Continental Europe.

Editions. The most valued edition of the work is that of 1737 in folio. A later edition appeared, 1825, with notes by Amos, republished 1874 with an English translation by Francis Gregor (Cincinnati). Careful edition by Plummer, Oxford, 1885. All the works of Fortescue were published by Lord Clermont in 1869. As to Fortescue, see the article by Gundermann in Bluntschli and Brater’s Staatsworterbuch, and Foss, The Judges of England with sketches of their lives, iv. 215, 308.

A contemporary of Fortescue, Thomas Littleton (died 1481), furnished an epoch-making exposition of private law by his Tenures, in which he discusses the law of real property on the basis of the material scattered through the numerous reports. According to Coke, the work was written after the fourteenth year of Edward IV (1461-1483), and attained such authority that Coke, who speaks of it as the most perfect and absolute work that was ever written in any human science, was able to say that he knew of no decision conflicting with any view of Littleton’s.

Editions. Some place the oldest edition in the year 1481; according to this the Tenures were printed soon after the introduction of printing into England. Edward Coke furnished an English translation of the old French text, and a commentary, and in this form the Tenures dominated down to Blackstone like a code the practice and study of the English law. The old French text with English translation and notes was last edited by Tomlins in 1841. A new edition of the old English translation was prepared by Eugene Wambaugh, with valuable introduction and bibliography, Washington, 1903. Coke’s edition will be referred to later on. See Foss, Judges, iv. 436.

A much read and often printed treatise, written under Henry VIII, was St. Germain’s Dialogus de fundamentis legum Angliae et de conscientia. It contains a dialogue between a doctor of divinity and a student of English law, aiming at a philosophical justification of English legal institutions.

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Editions. The earliest edition is of 1523. In English translation, under the title Doctor and Student, the book experienced many editions. That of 1787 is entitled: Doctor and Student; or dialogues between a doctor of divinity and a student in the laws of England concerning the grounds of those laws, together with questions and cases concerning the equity thereof. Eighteenth edition, corrected and improved, by William Muchall, 1815.

Anthony Fitzherbert, the author of the New Natura Brevium (died 1538), is also known for some special treatises on the courts, especially, however, by his Graunde Abridgement (printed 1514, 1516, 1565), a digest of the Year Books. The cases from the time of Henry III which are digested in the Abridgement, are almost exclusively taken from Bracton’s Note Book.

Between 1554 and 1556 Sir William Staunforde (also spelled Staundford; died 1558), England’s earliest scientific criminalist, wrote a highly valued work on criminal law and procedure, “The Pleas of the Crown,” which makes good use of the treatise of the thirteenth century, in addition to the Reports. Staunforde was also the first to edit Glanvill’s treatise, and he wrote a treatise, De prerogativa regis, which is generally subjoined to the editions of the Pleas of the Crown. (See Foss, Judges, v. 390. Reeves, History of the English Law, iii. 564 sqq.)

An excellent summary description of the English political and legal constitution at the time of Elizabeth was given in 1565 by Sir Thomas Smith in his little book. De Republica Anglorum, which among other things contains a summary of civil and criminal procedure. The vivid account, written in Toulouse without the aid of a library, is strongly spiced with classical quotations. Aiming at the utmost purity of Latin, Smith replaced English by classical terms, transformed the coroner into the quaestor homicidii, the justice of the peace into the eirenarches, the king’s bench into the subsellia regis, and so on. His description was later on often enlarged by others. A new edition, with preface by Maitland, was published in Cambridge, 1906.

Edward Coke, whose works have in part been already referred to, became the most celebrated authority among English Edition: current; Page: [48] jurists. He was born in 1552, became attorney-general in 1594, Chief Justice of the Common Pleas in 1606, Chief Justice of the King’s Bench in 1613, but lost the king’s favor and his position in 1616, partly in consequence of the antagonism of his opponent, Sir Francis Bacon. His principal works are the above mentioned Reports and the Institutes of the Laws of England. The latter (very improperly so-called) appeared in 1628 and consist of four parts. The first contains a Commentary on Littleton’s Tenures, which has frequently been edited and annotated. The notes by Hargrave and Butler are particularly valuable. Part II furnishes a copious commentary to Magna Charta and the older statutes, but without systematic arrangement. The third part gives an exposition of criminal law (Placita Coronae). The fourth treats of jurisdictions. The Institutes are cited by prefixing to “Inst.” the number of the part, and adding the page. Coke accomplished all that is possible by the method of the commentary. His works are distinguished by thoroughness and learning, but not by a display of genius. (See Foss, Judges, vi. 108.)

Edition. The Institutes of the Laws of England . . . autore Edw. Coke, London, 1817, in 6 vols. Part I (2 vols.) with notes by Hargrave and Butler; last edition 1832 (19th ed.).

Of the jurists after Coke and before Blackstone it is sufficient to mention Matthew Hale, William Hawkins, and John Comyns. M. Hale (died 1676), who, although Royalist, became, under Cromwell, judge in the Court of Common Pleas on account of his eminence as a lawyer, wrote in addition to the above mentioned History of the Common Law, a work on criminal law: the History of the Pleas of the Crown (Historia Placitorum Coronae), first edited 1739, then in 1800 with notes by Dogherty, last in 1847 by Stokes and Ingersoll with a biography of the author (2 vols.); also, the Analysis of the Law which became the foundation of Blackstone’s Commentaries. William Hawkins is to be noticed likewise for a work on criminal law and procedure: the Treatise of the Pleas of the Crown or a system of the principal Edition: current; Page: [49] matters relating to that subject, published by the author in 1716 (8th edition, 1824, revised by Curwood, with supplements by Leach). Sir John Comyns (died 1740) is noted for his Reports (1744), and still more for the Digest of the Laws of England (1762, 5th edition by Hammond, 8 vols., 1822), said to be distinguished for method, thoroughness and accuracy.

English legal literature entered upon a new era with the Commentaries on the laws of England by Sir William Blackstone (born 1723, died 1780). Blackstone was first lawyer, but subsequently entered upon the academic career, and in 1758 obtained the chair of English law endowed at the University of Oxford by the jurist Viner, author of a voluminous Abridgment of Law and Equity. Later on he was again active at the bar, and as a member of Parliament, and finally became judge in the Court of Common Pleas. His varied activities enabled him to combine in his works theoretical learning with practical judgment. The so-called Commentaries, which grew out of his academic lectures, are really a systematic exposition of the English law. In the plan of the work he followed Matthew Hale, the portions on public law betray the influence of Montesquieu. The first volume treats of the rights of persons, the second of the rights of things (including obligations), the third of private wrongs, the fourth of public wrongs (crimes, punishments, criminal procedure). The other departments of law (constitution, church, courts) are forced into this division. The first edition of the Commentaries appeared 1765: Blackstone himself altered little in the later editions. The lucidity and transparency of the style, the scientific thoroughness of the author, the repression of ponderous learning, the mastery of the enormous material, have given the work a world-wide reputation. Blackstone did not write primarily for lawyers, but for the educated public in general. He was the first who succeeded in raising English jurisprudence from its isolation to the level of general culture. The legal historian may find some of the historical expositions from the point of view of present knowledge shallow and incorrect: a Romanist will look in vain for a strict system. Those who desire a Edition: current; Page: [50] legislative transformation of the English law, such as was advocated later on by Blackstone’s pupil, Bentham, may from their point of view not unjustly criticize his want of reformatory spirit and his adherence to legal traditions. Yet it can be boldly asserted that not one of the modern systems of law can boast of an exposition equal to that which the English law possesses in Blackstone. Abroad he has become almost the representative of English jurisprudence. The Continent of Europe derived its knowledge of English law chiefly from him. In America he is regarded as the repository of the common law. In England the study of the law even to-day is chiefly based upon the Commentaries. The work has gone in England through more than twenty editions.1 In the beginning the changes that were called for by the progress of the law were made through notes, addenda, and corrections. This was done especially by Christian, who brought out the twelfth to the fifteenth editions. But the radical legislative changes since 1815 necessitated a revision of the text of the Commentaries. The most important of these revisions is that by Stephen, whose New Commentaries on the laws of England (partly founded on Blackstone) afford the best view of the present state of the law in England (13th edition, 1899). The last English edition of the original text of Blackstone is that by Robert Malcolm Kerr (4 vols., 4th ed., 1876). The principal American editions are by Hammond, 1890, giving all American cases in which Blackstone is cited, and by Tucker, Sharswood, Cooley, and Lewis. Of the abridgments of Blackstone may be mentioned that which Foss published in 1820 under the name of John Gifford (translated into German by Colditz, Schleswig, 1822), a Blackstone abridged and adapted to the existing law by Samuel Warren (2d ed., 1856) and Kerr’s Student’s Blackstone (10th ed., 1887). Besides the Commentaries, Blackstone wrote a number of smaller treatises, of which a collective edition appeared under the name of Tracts, chiefly relating to the Antiquities and Laws of England (3d Edition: current; Page: [51] ed., Oxford, 1771), among them an Analysis of the Laws of England, an Essay on Collateral Consanguinity, Considerations on Copyholders, and an Introduction to Magna Charta. He also wrote Reports (edited with notes by Elseley, 1827), which are criticized as being not quite accurate. (As to Blackstone, see the article by Marquardsen in Blunstchli and Brater’s Staatswörterbuch, ii. 157. Wilson, History of Modern English Law, hardly does him justice.)

The period of the undisputed rule of the common law ended in England in the past century. A complete break with the past, such as was demanded by the naturalistic radical theories of Bentham and Austin regarding the function of legislation, has been wisely avoided. Yet incisive reforms had become inevitable. The idea of codification, which emerged as early as the sixteenth century, assumed definite shape when the consolidation of statutes on special topics, especially in criminal law and procedure, was undertaken, and at the same time comprehensive reforms were introduced by legislation. The importance of the statutes as a source of law has greatly increased in the field of the common law. The great reorganization of the judiciary inaugurated by the Supreme Court of Judicature Act, gave the development of the English law an entirely new direction. The several courts at Westminster were replaced by one consolidated Supreme Court. By the transformation of the Court of Chancery into one of the Divisions of the High Court of Justice the traditional contrast between common law and equity lost much of its sharpness and the infusion of equity into the common law was made possible.

With the expansion of the territory of the realm, the English law has been extended in the main to Wales and Ireland, while Scotland remains legally distinct. Here there had been a reception of English law in Anglo-Saxon and still more in Anglo-Norman times, especially since Henry II; and English statutes and writs obtained force in Scotland. But from the time of Edward III the development of Scotch law pursued its independent course, so that it differs now in many respects from the English common law. The sources Edition: current; Page: [52] of law for each country being almost equally comprehensive, it must suffice here to refer to the data given in Stephen-Blackstone, New Commentaries, i. Neither can the development of the English law in the British Colonies or in the United States be here considered.

Bibliography. Of Reeves, History of the English Law, part of vol. ii and vols. iii-v treat of the period here considered to the reign of Elizabeth inclusive. Crabb becomes very summary subsequent to the period covered by Reeves. The most recent development of the law is treated of by Wilson, History of Modern English Law, 1875, a zealous advocate of radical modernization of the English law through legislation (Benthamism), contrasting the common law with the recent changes. Full notes regarding the legal writers who were also judges are found in Edw. Foss, The Judges of England, with sketches of their lives, 9 vols., to 1864, and in his Biographia Juridica, a biographical Dictionary of the Judges of England, 1066-1870, 1870. Holmes, The Common Law, Boston, 1881, gives a very noteworthy account of civil and criminal institutions of the common law and their historic foundations. An excellent view of the English private law on a historical basis is afforded by Ernst Heymann, in Holtzendorff-Kohler: Encyclopaedie der Rechtswissenschaft, 6th ed., i (1904), p. 795. For a first introduction see Sir Fred. Pollock, A First Book of Jurisprudence for Students of the Common Law, 1896.

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23.: MATERIALS FOR THE HISTORY OF ENGLISH LAW1

A DISTINGUISHED English lawyer has recently stated his opinion that the task of writing a history of English law may perhaps be achieved by some of the antiquarian scholars of Germany or America, but that “it seems hardly likely that any one in this country [England, to wit] will have the patience and learning to attempt it.”3 The compliment thus paid to Germany and America is, as I venture to think, well deserved; but a comparison of national exploits is never a very satisfactory performance. It is pleasanter, easier, safer to say nothing about the quarter whence good work has come or is likely to come, and merely to chronicle the fact that it has been done or to protest that it wants doing. And as regards the matter in hand, the history of English law, there really is no reason why we should speak in a hopeless tone. If we look about us a little, we shall see that very much has already been achieved, and we shall also see that the times are becoming favorable for yet greater achievements.

Let us take this second point first. The history of history seems to show that it is only late in the day that the laws of a nation become in the historian’s eyes a matter of firstrate importance, or perhaps we should rather say, a matter demanding thorough treatment. No one indeed would deny the abstract proposition that law is, to say the least, a considerable Edition: current; Page: [54] element in national life; but in the past historians have been apt to assume that it is an element which remains constant, or that any variations in it are so insignificant that they may safely be neglected. The history of external events, of wars and alliances, conquests and annexations, the lives of kings and great men, these seem easier to write, and for a while they are really more attractive; a few lightly written paragraphs on “the manners and customs of the period” may be thrown in, but they must not be very long nor very serious. It is but gradually that the desire comes upon us to know the men of past times more thoroughly, to know their works and their ways, to know not merely the distinguished men but the undistinguished also. History then becomes “constitutional;” even for the purpose of studying the great men and the striking events, it must become constitutional, must try to reproduce the political atmosphere in which the heroes lived and their deeds were done. But it cannot stop there; already it has entered the realm of law, and it finds that realm an organized whole, one that cannot be cut up into departments by hard and fast lines. The public law that the historian wants as stage and scenery for his characters is found to imply private law, and private law a sufficient knowledge of which cannot be taken for granted. In a somewhat different quarter there arises the demand for social and economic history; but the way to this is barred by law, for speaking broadly we may say that only in legal documents and under legal forms are the social and economic arrangements of remote times made visible to us. The history of law thus appears as means to an end, but at the same time we come to think of it as interesting in itself; it is the history of one great stream of human thought and endeavor, of a stream which can be traced through centuries, whose flow can be watched decade by decade and even year by year. It may indeed be possible for us, in our estimates of the sum total of national life, to exaggerate the importance of law; we may say, if we will, that it is only the skeleton of the body politic; but students of the body natural cannot afford to be scornful of bones, nor even of dry bones; they must know their anatomy. Have we then any cause to Edition: current; Page: [55] speak despondently when every writer on constitutional history finds himself compelled to plunge more deeply into law than his predecessors have gone, when every effort after economic history is demonstrating the absolute necessity for a preliminary solution of legal problems, when two great English historians who could agree about nothing else have agreed that English history must be read in the Statute Book?1 In course of time the amendment will be adopted that to the Statute Book be added the Law Reports, the Court Rolls and some other little matters.

And then again we ought by this time to have learnt the lesson that the history of our law is no unique phenomenon. For a moment it may crush some hopes of speedy triumph when we learn that, for the sake of English law, foreign law must be studied, that only by a comparison of our law with her sisters will some of the most remarkable traits of the former be adequately understood. But new and robuster hopes will spring up; we have not to deal with anything so incapable of description as a really unique system would be. At numberless points our mediæval law, not merely the law of the very oldest times but also the law of our Year Books, can be illustrated by the contemporary law of France and Germany. The illustration, it is true, is sometimes of the kind that is produced by flat contradiction, teaching us what a thing is by showing us what it is not; but much more often it is of a still more instructive kind, showing us an essential unity of substance beneath a startling difference of form. And the mighty, the splendid efforts that have been spent upon reconstructing the law of mediæval Germany will stimulate hopes and will provide models. We can see how a system has been recovered from the dead; how by means of hard labor and vigorous controversy one outline after another has been secured. In some respects the work was harder than that which has to be done for England, in some perhaps it was easier; but the sight of it will prevent our saying that the history of English law will never be written.

And a great deal has been done. It is true that as yet we Edition: current; Page: [56] have not any history of our whole law that can be called adequate, or nearly adequate. But such a work will only come late in the day, and there are many things to be done before it will be produced. Still some efforts after general legal history have been made. No man of his age was better qualified or better equipped for the task than Sir Matthew Hale; none had a wider or deeper knowledge of the materials; he was perhaps the last great English lawyer who habitually studied records; he studied them pen in hand and to good purpose. Add to this that, besides being the most eminent lawyer and judge of his time, he was a student of general history, found relaxation in the pages of Hoveden and Matthew Paris, read Roman law, did not despise continental literature, felt an impulse towards scientific arrangement, took wide and liberal views of the object and method of law. Still it is by his Pleas of the Crown and his Jurisdiction of the House of Lords that he will have helped his successors rather than by his posthumous and fragmentary History of the Common Law.1 Unfortunately he was induced to spend his strength upon problems which in his day could not permanently be solved, such as the relation of English to Norman law, and the vexed question of the Scottish homage; and just when one expects the book to become interesting, it finishes off with protracted panegyrics upon our law of inheritance and trial by jury. When, nearly a century later, John Reeves2 brought to the same task powers which certainly were far inferior to Hale’s, he nevertheless achieved a much more valuable result. Until it is superseded, his History will remain a most useful book, and it will assuredly help in the making of the work which supersedes it. Reeves had studied the Year Books patiently, and his exposition of such part of our legal history as lies in them is intelligent and trustworthy; it is greatly to his credit that, writing in a very dark age (when the study of records in manuscript Edition: current; Page: [57] had ceased and the publication of records had not yet begun), he had the courage to combat some venerable or at least inveterate fables. Still his work is very technical and, it must be confessed, very dull; it is only a book for those who already know a good deal about mediæval law; no attempt is made to show the real, practical meaning of ancient rules, which are left to look like so many arbitrary canons of a game of chance; owing to its dreariness it is never likely to receive its fair share of praise. Crabb’s History of English Law is a comparatively slight performance;1 it adds little if anything to what was done by Reeves.

But particular departments of law have found their historians. What we call constitutional history is the history of a department of law and of something more—a history of constitutional law and of its actual working. For men of English race, constitutional history has long had an interest; they can be stirred by the politics of the past, for they are “political animals” with a witness. It would be needless to say that in this quarter solid and secure results have been obtained, needless to mention the names of Palgrave, Hallam, Stubbs, Gneist. Still, for modern times, much remains to be done. In relation to those times “constitutional history” but too frequently means a history of just the showy side of the constitution, the great disputes and great catastrophes, matters about which no one can form a really sound opinion who is not thoroughly versed in the sober, humdrum legal history of the time. But this work will certainly be done; the “general historian” will see more and more clearly after every attempt that he cannot be fair, that he cannot even be very interesting, unless he succeeds in reproducing for us not merely the facts but the Edition: current; Page: [58] atmosphere of the past, an atmosphere charged with law.

Again, other parts of the law have been submitted to historical treatment; in particular, those which in early times were most closely interwoven with the law of the constitution, criminal law1 and real property law,2 while the history of trial by jury has a literature of its own and the history of some early stages in the development of civil procedure has not been neglected.3 But every effort has shown the necessity of going deeper and deeper. Everywhere the investigator finds himself compelled to deal with ideas which are not the ideas of modern times. These he has painfully to reconstruct, and he cannot do so without calling in question much of the traditional learning, without tracing the subtle methods in which legal notions expand, contract, take in a new content, or, as is sometimes the case, become hide-bound, wither and die. This task of probing and defining the great formative ideas of law is one that cannot be undertaken until much else has been done; it is only of late that the possibility and the necessity of such a task have become apparent, but already progress has been made in it. We are not where we were when a few years ago Holmes published a book which for a long time to come will leave its mark wide and deep on all the best thoughts of Americans and Englishmen about the history of their common law.4

And here let us call to mind the vast work done by our Record commission, by the Rolls series, by divers antiquarian societies, towards providing the historian of law with new materials. Let us think what Reeves had at his disposal, what we have at our disposal. He had the Statute Book, the Edition: current; Page: [59] Year Books in a bad and clumsy edition, the old text-books in bad and clumsy editions. He made no use of Domesday Book; he had not the Placitorum Abbreviatio, nor Palgrave’s Rotuli Curiae Regis; he had no Parliament Rolls, Pipe, Patent, Close, Fine, Charter, Hundred Rolls, no Proceedings of the King’s Council, no early Chancery Proceedings, not a cartulary, not a manorial extent, not a manorial roll; he had not Nichols’ Britton, nor Pike’s nor Horwood’s Year Books, nor Stubbs’ Select Charters, nor Bigelow’s Placita Anglo-Normannica; he had no collection of Anglo-Saxon “land books,” only a very faulty collection of Anglo-Saxon dooms, while the early history of law in Normandy was utter darkness. The easily accessible materials for that part of our history which lies before Edward I have been multiplied tenfold, perhaps twenty-fold; even as to later periods our information has been very largely supplemented. Where Reeves was only able to state a naked rule, taken from Bracton or the Statute Book, and leave it looking bare and silly enough, we might clothe that rule with a score of illustrations which would show its real meaning and operation. The great years of the Record commission, 1830 to 1840, the years when Palgrave and Hardy issued roll after roll, such years we shall hardly see again; the bill, one is told, was heavy; but happily the work was done, and there it is.1 A curious memorial it may seem of the age of “the radical reform,” of the time when Parliament, for once in a way, was really showing some interest in the ordinary, every-day law of the realm, and was wisely freeing it from its mediæval forms. But in truth there is nothing strange in the coincidence; the desire to reform the law went hand in hand with the desire to know its history; and so it has always been and will always be.2 The commencement in 1858 of the Rolls Edition: current; Page: [60] series is, of course, one of the greatest events in the history of English history, and in that series are now to be found not only most of our principal chronicles, but also several books of first-rate legal importance, Year Books never before printed and monastic cartularies. The English Historical society published Kemble’s collection of Anglo-Saxon charters, the Camden society published Hale’s Domesday of St. Paul’s and several similar works. More recently the Pipe Roll society started with the purpose of “dealing with all national manuscripts of a date prior to 1200,” and the Selden society with the purpose of “printing manuscripts and new editions and translations of books having an important bearing on English legal history.” Such work must chiefly be done in the old country, but it would be base ingratitude were an Englishman to forget that the Selden society owes its very existence to the support that has been given to it in America. And then again the original documents themselves are now freely and conveniently accessible to the investigator, and a very great deal has been done towards making catalogues and indexes of them. Our Public Record office, if I may speak from some little experience of it, is an institution of which we may justly be proud; certainly it is a place in which even a beginner meets with courtesy and attention, and soon finds far more than he had ever hoped to find. Then, lastly, there has been a steady flow of manuscripts towards a few great public libraries. He who would use them has no longer to go about the country begging favors of the great; he will generally find what he wants at the British museum, at Oxford, or at Cambridge. No, most certainly we do not stand where Reeves stood.1

But perhaps we have not yet cast our eyes towards what will prove to be the brightest quarter of all, the study of our common law in the universities. Not only are there law schools, but (and this is more to our point) we on this side Edition: current; Page: [61] of the water have the pleasure of reading about schools of political science, schools in which law is taught along with history and along with political economy. Surely it cannot be very rash in us to say that the training there provided is just the training best calculated to excite an interest in the history of law. Possibly that interest may be sufficiently keen and sufficiently patient to tolerate the somewhat dreary information which it is the purpose of this article to afford. An attempt to indicate briefly the nature and the whereabouts of our materials may be of some use though it stops short of a formal bibliography. In the course of this attempt the writer may take occasion to point out not merely what has been done, but also what has not been done, and in this way he may perhaps earn the thanks of some one who is on the outlook for a task.

To break up the history of law into periods is of course necessary; but there must always be something arbitrary in such a proceeding, and only one who is a master of his matter will be in a position to say how the arbitrary element can best be brought to the irreducible minimum. It would be natural to make one period end with the Norman conquest; and though, if no line were drawn before that date, the first period would be enormously long, five or six hundred years, still we may doubt whether our English materials will ever enable us to present any picture of a system of English or Anglo-Saxon law as it was at any earlier date than the close of the eleventh century. By that time our dooms and land-books have become a considerable mass. If we stop short of that time, we shall have to eke out our scanty knowledge with inferences drawn from foreign documents, the Germania of Tacitus, the continental “folk laws,” notably the Lex Salica. In that case the outcome will be much rather an account of German law in general than an account of that slip of German law which was planted in England: a very desirable introduction to a history of English law it may be, but hardly a part of that history. Passing by for a moment the deep question whether the English law of later times can be treated as a genuine development of Anglo-Saxon law, whether the historian would not be constrained to digress Edition: current; Page: [62] into the legal history of Scandinavia, Normandy, the Frankish Empire, we shall probably hold that the reigns of our Norman kings, including Stephen, make another good period. The reign of Henry II there might be good reason for treating by itself, so important is it. “From Glanvill to Bracton” might be no bad title, though there would be something to be said for pausing at the Great Charter. The reign of Edward I, “the English Justinian,” has claims to be dealt with separately, or the traditional line drawn between the Old Statutes and the New might make us carry on the tale to the death of Edward II. “The period of the Year Books”—Edward II to Henry VIII—is, so far at least as private law is concerned, a wonderfully unbroken period. If a break were made in it, the accession of Edward IV, the beginning of “the new monarchy” as some call it, might be taken as the occasion of a halt. The names of Coke and Blackstone suggest other halting places. After the date of Blackstone, the historian, if an Englishman dealing solely with England, would hardly stop again until he reached some such date as 1830, the passing of the Reform acts, the death of Jeremy Bentham, the beginning of the modern period of legislative activity; if an American, he would draw a marked line at the Declaration of Independence, and it would be presumption in an Englishman to guess what he would do next. But on this occasion we shall not get beyond the end of the middle ages, and for the sake of brevity our periods will be made few.

I.: England before the Norman Conquest

The materials consist chiefly of (1) the laws, or “dooms,” as they generally call themselves; (2) the “land books” and other diplomata; (3) the ecclesiastical documents, in particular canons and penitentials.

(1) We have first a group of very ancient Kentish laws, those of Ethelbert (circa 600), those of Hlothar and Eadric (circa 675), and those of Wihtred (696). A little earlier than these last come the dooms of the West-Saxon Ine (690). Then follows a sad gap, a gap of two centuries, for we get Edition: current; Page: [63] no more laws before those of Alfred; it is to be feared that we have lost some laws of the Mercian Offa. With the tenth century and the consolidation of the realm of England, legislation becomes a much commoner thing. Edward, Ethelstan, Edmund, Edgar issue important laws, and Ethelred issues many laws of a feeble, distracted kind. The series of dooms ends with the comprehensive code of Canute, one of the best legal monuments that the eleventh century has to show. Besides these laws properly so called, issued by King and Witan, our collections include a few documents which bear no legislative authority, namely, some statements of the wergelds of different orders of men, a few procedural formulas, the ritual of the ordeal, and the precious Rectitudines Singularum Personarum, a statement of the rights and duties of the various classes of persons to be found on a landed estate, a document the date of which is at present very indeterminate. Some further light on the law of the times before the conquest is thrown by certain compilations made after the conquest, of which hereafter; to wit, the so-called Leges of the Confessor, the Conqueror, and Henry I. With scarce an exception these dooms and other documents are written in Anglo-Saxon. An ancient Latin version [vetus versio] of many of them has been preserved, and testifies to the rapidity with which they became unintelligible after the conquest.1

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The dooms are far from giving us a complete statement of the law. With possibly a few exceptions there seems to have been no attempt to put the general law in writing; rather the King and the Wise add new provisions to the already existing law or define a few points in it which are of special importance to the state. Hence we learn little of private law, and what we learn is implied rather than expressed; to get the peace kept is the main care of the rulers; thus we obtain long tariffs of the payments by which offences can be expiated, very little as to land-holding, inheritance, testament, contract, or the like. We have no document which purports to be the Lex of the English folk, or of any of the tribes absorbed therein; we have nothing quite parallel to the Lex Salica or the Lex Saxonum. Again, we cannot show for this period any remains of scientific or professional work, and we have no reason to suppose that any one before the conquest ever thought of writing a text-book of law.

(2) The diplomata of this age consist chiefly of grants of land (“land books”), for the more part royal grants, together with a comparatively small number of wills. The charters of grant are generally in Latin, save that the description of the boundaries of the land is often in English; the wills are usually in English. The latest collection of them will contain between two and three thousand documents.1 If all were genuine, about one hundred of them should come from the seventh century, and about two hundred Edition: current; Page: [65] from the eighth; of course, however, many of them are not genuine, or but partially genuine, and perhaps the history of law presents no more difficult problem than that of drawing just inferences from documents which have either been tampered with or very carelessly copied. Invaluable as these instruments are, the use hitherto made of them for the purpose of purely legal history is somewhat disappointing. The terms in which rights are transferred are singularly vague and the amount of private law that can be got out of them is small. However they have only been accessible for some forty years past and their jural side1 has not yet been very thoroughly discussed. A few of the land books contain incidental accounts of litigation, but for the oldest official records of lawsuits we must look to a much later age.

(3) Besides these we have ecclesiastical documents, canons and penitentials2 which must not be neglected. During this period it is impossible to draw a very sharp line between the law of the church and the law of the realm. It is highly probable again that the penitential literature had an important influence on the development of jurisprudence, and it often throws light on legal problems, for instance the treatment of slaves.

Materials being scanty, all that is said by the chroniclers and historians of the time and even by those of the next age will have to be carefully weighed; use must be made of Beda’s works and of the Anglo-Saxon Chronicle. But the time had not yet come when annalists would incorporate legal documents Edition: current; Page: [66] in their books or give accurate accounts of litigation.

For the continental history of this same period there are two classes of documents which are of great service, but the like of which England cannot show: namely, formularies, that is, in our modern language, “precedents in conveyancing,” and estate registers, that is, descriptions of the manors of great landowners showing the names of the tenants and the nature of their services. We have, as it seems, nothing to set beside the Formulae Marculfi or the Polyptyque of the Abbot Irmino. The practice of conveying land by written instrument seems never to have worked itself thoroughly into the English folk-law, and the religious houses and other donees of “book-land” seem to have been allowed to draw up their own books pretty much according to their taste, a taste inclining towards pompous verbosity rather than jurisitic elegance. Still, it is possible that a very careful comparison of the most genuine books would lay bare the formulas on which they were constructed and show a connection between those formulas and the continental precedents. That we should have no manorial registers or “extents” from this period is much to be regretted; it suggests the inference, very probable for other reasons, that the manorial system formed itself much more rapidly in France than in England.

That we shall ever be able to reconstruct on a firm foundation a complete system of Anglo-Saxon law, of the law of the Confessor’s day, to say nothing of Alfred’s day or Ethelred’s, may well be doubted; the materials are too scanty. The “dooms” are chiefly concerned with keeping the peace; the “land books,” considering their number and their length, tell us wonderfully little, so vague, so untechnical, is their wording. Still the most sceptical will not deny that within the present century a great deal of knowledge has been secured, especially about what we may call the public law of the time. And here of course it is important to observe that the old English law is no unique system; it is a slip of German law. This makes permissible a circumspect use of foreign materials, and it should be needless to say that during Edition: current; Page: [67] the last fifty years these have been the subject of scientific research which has achieved very excellent results. The great scholars who have done that work have not neglected our English dooms; these indeed have proved themselves invaluable in many a controversy. The fact that they are written, with hardly an exception, in the native tongue of the people, whereas from the first the continental lawgiver speaks in Latin; the fact that they are almost absolutely free from any taint of Roman law; the fact that their golden age begins with the tenth century, when on the continent the voice of law has become silent and the state for a while seems dissolved in feudal anarchy,—these facts have given our dooms a high value in the eyes even of those whose primary concern was less for England than for Germany or France. There is good reason then to hope that the main outlines of the development even of private law will be drawn, although we may not aspire to that sort of knowledge which would have enabled us to plead a cause in an Anglo-Saxon hundred moot.

How much law there was common to all England, or common to all Englishmen, is one of the dark questions. After the Norman conquest we find a prevailing opinion that England is divided between three great laws, West-Saxon, Mercian, Danish, three territorial laws as it would seem. On the surface of the documents the differences between these three laws seem rather a matter of words than a matter of substance; but neither by this nor by the universality of the later “common law” are we justified in setting aside a theory which writers of the eleventh and twelfth centuries regarded as of great importance. In earlier times the various laws would be tribal rather than territorial; but we have little evidence that the Kenting could carry with him his Kentish law into Mercia in the same way that the Frank or Bavarian could preserve his national law in Lombardy; the fact that there was not in England any race or class of men “living Roman law,” may have prevented the development of that system of “personal laws” which is a remarkable feature in the history of the continent. There is much evidence, however, that in the twelfth century local customs were Edition: current; Page: [68] many and important. The difficulty of reconstructing these will always be very great unless some new materials be found; still, work on Domesday Book and on the later manorial documents may succeed in disclosing some valuable distinctions.

In noticing what has been done already, it should be needless to mention Kemble’s Saxons in England or his introductions to the various volumes of the Codex Diplomaticus. It will be more to the point to mention with regret that Konrad Maurer’s Angelsächsische Rechtsverhältnisse is to be found only in the back numbers (volumes i, ii, iii) of the Kritische Ueberschau published in Munich. The Essays in Anglo-Saxon Law (Boston, 1876), by Adams, Lodge, Young, and Laughlin, should be well known in America. The public law is dealt with in the constitutional histories of Palgrave, Gneist, Stubbs; also by Freeman, in the first volume of his Norman Conquest. To name the books of foreign writers in which Anglo-Saxon law has been touched incidentally would be to give something like a catalogue of the labors of the “Germanists.” The influence of the Danes in the development of English law has until recent years been too much neglected. It is the subject of an elaborate work by Johannes C. H. R. Steenstrup, Danelag (Copehagen, 1882). This constitutes the fourth volume of the Normannerne (1876-82).

II.: Norman Law

If the history of the law which prevailed in England from 1066 to, let us say, 1200 is to be written, the history of the law which prevailed in Normandy before 1066 will have to be studied. Such study will always be a very difficult task, because, unless some great discovery remains to be made, it will be the reconstruction of law which has left no contemporary memorials of itself. We have at present hardly anything that can be called direct evidence of the legal condition of Normandy between the time when it ceased to be a part of the West-Frankish realm and a date long subsequent to the conquest of England. It is only about the middle of the Edition: current; Page: [69] twelfth century that we begin to get documents, and even then they come sparsely. What then we shall know about the period in question will be learnt by way of inferences, drawn partly from the time when Normandy was still a part of Neustria, when its written law consisted of the Lex Salica and the capitularies; partly from the Normandy of Henry II’s reign and yet later times; partly again from what we find in England after the Norman conquest. Much will always remain very dark, and there is reason to fear that a perverted patriotism will give one bias to English, another to continental writers—an American might surely afford to be strictly impartial. But enough has happened of late years to show that if historians will go deeply enough into legal problems a substantial accord may be established between them. The extreme opinions are the superficial opinions, and they are falling into discredit. The doctrines of Stubbs, Gneist and Brunner have a great deal in common. It is impossible now to maintain that William just swept away English in favor of Norman law. It is quite undeniable that new ideas and new institutions of far-reaching importance “came in with the Conqueror.” Hale made a good remark when he said:

“It is almost an impossible piece of chymistry to reduce every Caput Legis to its true original, as to say, this is a piece of the Danish, this is of the Norman, or this is of the Saxon or British law.”

But even the chemical metaphor is inadequate, for the operation of law on law is far subtler than any process that the world of matter has to show. It is not that English law is swept away by any decree to make room for Norman law; it is much rather that ideas and institutions which come from Normandy slowly but surely transfigure the whole body of English law, especially English private law. Much evidently remains to be done for Norman law, much that will hardly be done by an Englishman; but already of late years a great deal has been gained, and the student of Glanvill must have the coæval Très ancien Coutumier constantly in his hand.

In three very accessible places Heinrich Brunner has sketched the history of law in Normandy: (1) Das anglonormannische Edition: current; Page: [70] Erbfolgesystem (Leipzig, 1869); (2) Die Entstehung der Schwurgerichte (Berlin, 1871); (3) Ueberblick über die Geschichte der französischen, normannischen und englischen Rechtsquellen, in Holtzendorff’s Encyklopädie der Rechtswissenschaft (1882), page 297. In his view, Norman law is Frankish: Frankish institutions take out a new lease of life in Normandy, when they are falling into decay in other parts of the quondam Frankish Empire.

The chief materials1 for Norman legal history are:

(1) Exchequer Rolls. We possess, in whole or in part, rolls for the years 1180, 1184, 1195, 1198, 1201-03.2 They answer to the English Pipe Rolls.

(2) Collections of judgments. We have several private collections of judgments of the Exchequer in the thirteenth century, beginning in 1207,3 drawn from official records not now forthcoming.

(3) Law books. We have to distinguish:

(i) A compilation, of which both Latin and French versions exist, known as Statuta et Consuetudines Normanniae, or Établissements et Coutumes de Normandie;4 but this compilation proves to be composed of two different works: (a) a treatise which Brunner gives to the last years of the twelfth or the first years of the thirteenth century, and which Tardif dates in 1199 or 1200; and (b) a later treatise compiled a little after 1218 according to Brunner, about 1220 according to Tardif.

(ii) Then comes the Grand Coutumier de Normandie. The Latin version of this, which is older than the French, Edition: current; Page: [71] calls itself Summa de Legibus Consuetudinum Normanniae, or Summa de Legibus in Curia Laicali, and was composed before 1280 and probably between 1270 and 1275.1

There are a few later law-books of minor importance.

(4) Diplomata. Normandy is poor in diplomata of early date and, according to Brunner, many of those that exist are still unprinted; but in the Collection de Documents Inédits is a small but ancient (1030-91) Cartulaire de la Sainte Trinité du Mont de Rouen, edited by Deville in 1841; Leopold Delisle has published a Cartulaire Normand de Philippe Auguste, Louis VIII, Saint Louis, et Philippe le Hardi (Caen, 1852); and there exists in the English Record office a manuscript collection made by Léchaudé d’Anisy, entitled Cartulaire de la Basse Normandie, from various Norman Archives.2

III.: From the Norman Conquest (1066) to Glanvill (circa 1188) and the Beginning of Legal Memory (1189)

We may classify the materials thus: (1) laws; (2) private collections of laws and legal text-books; (3) work done on Roman and Canon law; (4) diplomata; (5) Domesday Book, surveys, public accounts, etc.; (6) records of litigation.

(1) Laws. It is, as we shall see, a little difficult to draw the line between the first two classes of documents. No one of the Norman Kings was a great legislator; but we have one short set of laws which may in the main be considered as the work of the Conqueror; besides these we have his ordinance separating the ecclesiastical from the temporal courts and Edition: current; Page: [72] another ordinance touching trial by battle. Henry I’s coronation charter (1100) is of great value, and Stephen’s second charter (1136) is of some value. Henry II was a legislator; we have from his day the Constitutions of Clarendon (1164), the Assize of Clarendon (1166), the Assize of Northampton (1176), the Assize of Arms (1181) and the Assize of the Forest (1184); but we have reason to fear that we have lost ordinances of the greatest importance, in particular the Grand Assize and the Assize of Novel Disseisin, two ordinances which had momentous results in the history of private and even of public law.

(2) Private collections of laws and legal text-books. Our first class of documents shades off into the second class by the intermediation of the so-called Leges Edwardi, Willelmi, Henrici Primi. A repeated confirmation of the Confessor’s law (lagam not legem or leges Edwardi) apparently led to several attempts at the reproduction of this “good old law.” First we have an expanded version of the code of Canute (Schmid’s Pseudoleges Canuti); then we have the Leges Edwardi Confessoris, a document which professedly states the result of an inquiry for the old law made by the Conqueror in the fourth year after the conquest; but the purest version that we have alludes to the doings of William Rufus. Then we have a highly ornate and expanded version of the probably genuine laws of the Conqueror mentioned above: it looks like work of the thirteenth century. Then there is another set of laws attributed to the Conqueror, which as it appears both in French and Latin may be conveniently called “the bilingual code;” its author made great use of the laws of Canute; its history is in some degree implicated with the forgery of the false Ingulf. These various documents demand a more thorough criticism than any to which they have as yet been subjected.1 Of much greater importance is the Edition: current; Page: [73] text-book known as the Leges Henrici Primi. Until lately it was usual to give this work to the reign of Stephen or even of Henry II, on the ground that the author had used the Decretum Gratiani; but his last critic, Liebermann, says that this is not so, and dates the work between 1108 and 1118; this earlier date seems for several reasons the more acceptable.1 The writer has made a large use of the Anglo-Saxon laws, which in general he treats as still in force, but on occasion he stops gaps with extracts from the Lex Salica, Lex Ripuaria, the Frankish capitularies and some collections of canons; he has one passage which comes by a round-about way from Roman law; it is taken from an epitome of the Breviary of Alaric. Altogether he gives us a striking picture of an ancient system of law in course of dissolution and transformation; a great deal might yet be done for his text, which in places is singularly obscure.

The end of Henry II’s reign is marked by the Tractatus de Legibus et Consuetudinibus Angliae,2 usually, though on no very conclusive evidence, attributed to Ranulf Glanvill, who became chief justiciar in 1180, and died a crusader at Edition: current; Page: [74] the siege of Acre in 1190. This book, always referred to as “Glanvill,” was apparently written at the very end of Henry’s reign, and was not finished until after 1187. It is the first of our legal classics, and its orderly, practical brevity contrasts strongly with the diffuse, chaotic, antiquarian Leges Henrici. This is due in part to the fact that the author deals only with the doings of the King’s Court, which is now beginning to make itself a tribunal of first instance for all England at the expense of the communal and seigniorial courts partly also to the fact that he knew some Roman law and made good use of his knowledge in the arrangement of his matter. The great outlines of our land law have now taken shape and many of the “forms of action” are already established.

The Dialogus de Scaccario, written, as is supposed, by Richard Fitz Neal, bishop of London, between 1178 and the end of Henry II’s reign, is hardly a “law book,” but is an excellent and valuable little treatise on the practice of the Exchequer and the whole fiscal system, the work of one very familiar with his subject. This book, written by an administrator rather for the benefit of the intelligent public than for the use of legal practitioners, stands alone in our mediæval literature and must be invaluable to the historian of public law.1

(3) Work upon Roman and Canon law. In dealing with any century later than the thirteenth, the historian of English law could afford to be silent about Roman and Canon law, for, though these were studied and practised in England, and in particular many of the ordinary affairs of life, testamentary and matrimonial cases, were governed solely by the Canon law, still these laws appear in a strictly subordinate position, are administered by special courts, and exercise very little, if any, influence on the common law of England. Edition: current; Page: [75] But a really adequate treatment of the period which lies between the Norman conquest and the accession of Edward I would require some knowledge of Roman law and its mediæval history, also some knowledge of the earlier stages in the development of Canon law. Lanfranc, the right-hand man of the Conqueror, was trained in the Pavian law school, where Roman doctrines were already leavening the mass of ancient Lombard law; his subtle arguments were long remembered in Pavia. The influence of the Lombard school on Norman and English law is a theme worthy of discussion.1 Then in Stephen’s reign, as is well known, Vacarius2 lectured in England on Roman law; it has even been conjectured that the youth who was to be Henry II sat at his feet.3 Vacarius wrote a book of Roman law, designed for the use of poor scholars, a book that is extant, a book that surely ought to be in print. His school did not perish, his scholars glossed his work. There are extant, again, several books of practice of the twelfth century and the first years of the thirteenth, which good critics believe to have been written either in Normandy or in England. Among them is one that has been ascribed to William of Longchamp, who became chief justiciar of England. In many quarters there are signs that an acquaintance with Roman law was not uncommon among cultivated men. Glanvill’s work was influenced, Bracton’s work profoundly influenced, by Roman law. Some of Henry II’s most important reforms, in particular the institution of definitely possessory actions, may be traced directly or indirectly to the working of the same influence. The part Edition: current; Page: [76] played by Roman and Canon law in this critical stage of the formation of the common law deserves a minuter examination than it has as yet received.1

(4) The diplomata of this period are numerous and of great interest; they are brief, formal documents, contrasting strongly with the lax and verbose land books of an earlier age; they are for the more part charters of feoffment and grants or confirmations of franchises; they have never been properly collected. Charters of liberties granted to towns should perhaps form a class by themselves, but those coming from this age are not numerous.2

(5) Domesday Book, surveys, public accounts, etc. By far the greatest monument of Norman government is Domesday Book, the record of the survey of England instituted by the Conqueror and effected by inquests of local jurors; it was completed in the summer of 1086.3 The form of this Edition: current; Page: [77] document is generally known; it is primarily a fiscal survey; the liability for “geld” in time past, the capacity for paying “geld” in time to come are the chief points which are to be ascertained; it has been well called “a great rate book.” Incidentally, however, it gives us a marvellously detailed picture of the legal, social and economic state of England, but a picture which in some respects is not easily interpreted. Of late it has become the centre of a considerable literature;1 but the historian of law will have to regret that a great deal of labor and ingenuity has been thrown away on the impossible attempt to solve the economic problems without first solving the legal problems.

The other public records of this period consist chiefly of Pipe Rolls, that is, the rolls of the sheriffs’ accounts as audited by the Exchequer. Chance has preserved one very ancient roll, now ascribed to 31 Henry I. No other roll is found until 2 Henry II, but thenceforward the series is very continuous.2 These rolls throw light directly on fiscal machinery and administration, indirectly on numberless points of law. The feudal arrangement of England, the distribution of knights’ fees and serjeanties, the obligation of military service and so forth are illustrated by documents Edition: current; Page: [78] of Henry II’s reign contained in the Black Book of the Exchequer.1

(6) Records of litigation. Though we have evidence that before the end of Henry II’s reign pleas before the king’s court were enrolled, we have no extant plea rolls from this age. Accounts of litigation must be sought for in the monastic annals; when found they are too often loose statements of interested parties. However, a good many transcripts of procedural writs have been preserved and these are of the highest value. Before our period is out we begin to get a few “fines” (i. e. records of actions brought and compromised, already a common means of conveying land); in four cases the original documents are preserved, in other cases we have copies.2

In passing we should note that the chronicles of this age are fruitful fields. Not only do they sometimes contain documents of great importance, laws, ordinances, diplomata, but they also supply many illustrations of the working of law and from time to time give us contemporary criticism of legal measures and legal arrangements.

On the whole we have no reason to complain of the tools provided for us. We cannot say of England, as has been said of France and Germany, that between the period of the folk laws and the period of the law books lies a dark age which has left no legal monument of itself. In particular the Leges Henrici serve to mediate between the dooms of Canute and the treatise of Glanvill. The lack is rather of workmen than of implements. But it is to be remembered that it is only of late years that those implements have become Edition: current; Page: [79] generally accessible; also that we have had not only to learn but also to unlearn many things, for the whole of the traditional treatment of the legal history of the Norman time has been vitiated by the great Ingulfine forgery, one of the most splendidly successful frauds ever perpetrated. A great deal of what went on in the local courts we never shall know; but in Henry II’s day the practice and procedure of the king’s court become clear to us, and subsequent history has shown that the king’s court, becoming in course of time the king’s courts, was to have the whole fate of English law in its hands. Towards the end of the period the history of law begins to be, at least in part, a history of professional learning.

There is no very modern work devoted to the legal history of this age as a whole, but it is the subject of Georg Phillips’ Englische Reichs- und Rechtsgeschichte (1827-28). M. M. Bigelow’s History of Procedure (London, 1880) has provided for one important department. Of course constitutional history has had a large share of attention, and books have collected round Domesday and round two other points, namely, frankpledge and trial by jury. As to the former of these two points, it will only be necessary to mention Heinrich Marquardsen’s Haft und Bürgschaft bei den Angelsachsen (Erlangen, 1852), as this will put its reader in the current of the discussion. As to the latter, Brunner’s brilliant book, Entstehung der Schwurgerichte, has already been named; William Forsyth’s History of Trial by Jury (1852), and Friedrich August Biener’s Das Englische Geschwornengericht (Leipzig, 1852) are useful, though chiefly as regards a somewhat later time.

IV.: From the Coronation of Richard I to the Death of Edward I

Our sources of information now begin to flow very freely, and so much has already been printed that very probably the historian would find it easier to paint a life-like picture of the thirteenth century than to accomplish the same task for either the fourteenth or the fifteenth. We may arrange the Edition: current; Page: [80] materials under the following heads: (1) laws; (2) judicial records; (3) other public records; (4) law books; (5) law reports; (6) manorial law; (7) municipal and mercantile law.

(1) Laws. For reasons which will soon appear, we use the untechnical term “laws” rather than any more precise term. Neither Richard nor John was a legislator; they give us nothing that can be called laws except a few ordinances touching weights, measures, money, the prices of victuals. At the end of his reign, however, John was forced to grant the Great Charter (1215); this, if it is a treaty between the various powers of the state, is also an act declaring and amending the law in a great number of particulars; to use terms familiar in our own day, Magna Carta is an act for the amendment of the law of real property and for the advancement of justice. The various editions (1215-16-17-25) of the charter being distinguished, we note that it is the charter of 1225 which becomes the Magna Carta of subsequent ages and which gets to be generally considered as the first “statute.” The term “statute” is one that cannot easily be defined. It comes into use in Edward I’s reign; supplanting “provisions,” which is characteristic of Henry III’s reign; which had supplanted “assize,” characteristic of Henry II’s, Richard’s, John’s. Our extant Statute Rolls begin with the statute of Gloucester (1278), and it is very doubtful whether before that date any rolls were set apart for the reception of laws. Some of the earlier laws of our period are to be found on other rolls, Patent, Close, Coram Rege Rolls: others are not to be found on any rolls at all, but have been preserved in monastic annals or other private manuscripts.1 In later times of course it became the settled Edition: current; Page: [81] doctrine that in a “statute” king, lords and commons must have concurred, and that a rule laid down with such concurrence is a “statute.” But with our improved knowledge of the history of Parliament we cannot insist on this doctrine when dealing with the thirteenth century. Some of the received “statutes” even of Edward I’s day, to say nothing of Henry III’s, were issued without any participation by the commons in the legislative act. After the charter of 1225 we have the statute (or provisions) of Merton (1236), the provisions of Westminster (1259), the statute of Marlborough (1267), all of the first importance; and upon these follows the great series of Edward I’s statutes, a most remarkable body of reforming laws. Hale’s saying about Edward I was very true:

“I think I may safely say, all the ages since his time have not done so much in reference to the orderly settling and establishing of the distributive justice of this kingdom, as he did within a short compass of the thirty-five years of his reign; especially about the first thirteen years thereof.”

(2) Judicial records. The extant Plea Rolls (rolls of pleadings and judgments) of the king’s courts begin in 1194 (6 Richard I), and though we have by no means a complete series of them, we have for the thirteenth century far more than any one is likely to use. These rolls fall into divers classes; there are Coram Rege (King’s Bench) Rolls, De Banco (Common Pleas) Rolls, Exchequer Rolls, Eyre Rolls, Assize Rolls, Gaol Delivery Rolls. The enormous value of these documents to the historian is obvious; they give him a Edition: current; Page: [82] very complete view of all the proceedings of the royal tribunals.1 The rolls of the thirteenth century are in one respect better material than those of later times, since they frequently give not merely the judgment but the ratio decidendi expressed in brief, neat terms. We also begin to get by the thousand “feet of fines,” i. e. records of actions brought and compromised as a means of conveying land. The light which these hitherto neglected documents throw upon the history of conveyancing will some day be appreciated.2

(3) Other public records. The Pipe Rolls continue to give us the sheriff’s accounts; but their importance now becomes much less, since they are eclipsed by far more communicative rolls, namely, the Rolls of Letters Patent and Letters Close, the Fine Rolls and the Charter Rolls. These enable us to study in minute detail the whole of the administrative machinery of the realm; and, owing to the publication of those belonging to John’s reign, the governmental work of that age can be very thoroughly understood and illustrated. The Charter Rolls contain copies of the royal grants made to municipalities and to individuals, and thus to some extent they supply the place of a Codex Diplomaticus. Edition: current; Page: [83] Then from Edward I’s reign we have parliamentary records, a broken series of Rolls of Parliament, of Petitions to Parliament, and Pleas in Parliament.1

(4) Law books. In England as elsewhere the thirteenth century might be called “the period of the law books;” that is to say, the historian of this period will naturally reckon text-books, notably one text-book, as among the very best of his materials.

(a) Bracton’s Tractatus (or Summa) de Legibus et Consuetudinibus Angliae is by far the greatest of our mediæval law books. It seems to be the work of Henry of Bratton, who for many years was a judge of the king’s court and who died in 1268. It seems also to be an unfinished book and to have been composed chiefly between the years 1250 and 1256. It covers the greater part of the field of law. In laying out his scheme the author has made great use of the works of Azo, a Bolognese civilian, and thence he has taken many of the generalities of law; he may also have made some study of the Roman books at first hand; but he was no mere theorist; at every point he appeals to the rolls of the king’s court, especially to the rolls of two judges already dead, Martin of Pateshull and William of Raleigh; his law is English case law systematized by the aid of methods and principles which have been learnt from the civilians. A Note Book full of cases extracted from the rolls has recently been discovered, and there is some reason for thinking that it was made by or for Bracton and used by him in the composition of his treatise.2

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(b) “Fleta” is the work of an anonymous author, seemingly compiled about 1290. It gets its name from a preface which says that this book may well be called Fleta since it was written “in Fleta,” i. e. in the Fleet gaol. In substance it is an edition of Bracton much abridged and “brought up to date,” by references to the earlier statutes of Edward I. It has however some things that are not in Bracton, notably an account of the manorial organization; this the writer seems to have obtained from what we may call “the Walter of Henley literature,” to which reference will be made below.

(c) Bracton and Fleta are Latin books: “Britton” is our first French text-book. It seems to have been written about 1290. The writer made great use of Bracton and perhaps he used Fleta also; but he has better claim to be treated as an original author than has the maker of Fleta. He arranges Bracton’s material according to a new plan, and puts his whole book into the king’s mouth, so that all the law in it appears as the king’s command. Who he was we do not know; he has been identified with John Le Breton, a royal judge and bishop of Hereford; but the book, as we have it, mentions statutes passed after the bishop’s death. To judge by the number of existing manuscripts, Bracton and Britton both became very popular, while Fleta had no success.1

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(d) Selden had a manuscript purporting to contain Bracton’s treatise abridged by Gilbert Thornton in the twentieth year of Edward I; Thornton was chief justice. Selden’s manuscript is not forthcoming and he did not know of any other like it. Possibly, however, Thornton’s abridgment is represented by some of the existing manuscripts which give abbreviated versions of Bracton’s book.

(e) Works of minor importance are two little treatises on procedure by Ralph Hengham, known respectively as Hengham Magna and Hengham Parva; a small French tract of uncertain date, also on procedure, known from its first words as Fet assavoir; and various little tracts found in manuscripts under such titles as Summa ad cassandum omnimoda brevia, Summa quae vocatur Officium Justiciariorum, Summa quae vocatur Cadit Assisa, Placita placitata, and the like. They are of an intensely practical character, but deserve to be collected.1

(f) To Edward II’s reign, or perhaps to the end of his father’s, we must attribute the interesting but dangerous Mirror of Justices of Andrew Horne, fishmonger and town clerk of London.2 It is the work of one profoundly dissatisfied with the administration of the law by the king’s judges. As against this he appeals to myths and legends about the law of King Alfred’s day and the like, some of which myths and legends were perhaps traditional, while others may have been deliberately concocted. Intelligently read it is very instructive; but the intelligent reader will often infer that the law is exactly the opposite of what the writer represents it to be. It has done much harm to the cause of legal history; it imposed upon Coke and even in the present century has been treated as contemporary evidence of Anglo-Saxon law.

(g) There is hardly any book more urgently needed by the historian of English law than one which should trace the gradual growth of the body of original writs, i. e. of the Edition: current; Page: [86] writs whereby actions were begun; such writs were the very skeleton of our mediæval corpus juris. The official Registrum Omnium Brevium as printed in the sixteenth century (1531, 1553, 1595, 1687) is obviously a collection that has been slowly put together. It is believed that extant manuscripts still offer a large supply of materials capable of illustrating the process of its growth. Some of the manuscript collections of writs go back to Henry III’s reign, and occasionally have notes naming the inventors of new writs.1 Here is a field in which excellent work might be done.

(5) Law reports. Just at the end of the thirteenth century there appear books of a new kind, books whose successors are to play a very large part in the legal history of all subsequent ages; we have a few Year Books of Edward I’s reign.2 These are reports in French by anonymous writers of the discussions which took place in court between judges and counsel over cases of interest; whether they bore any official sanction we do not know. They are of special value as showing the development of legal conceptions, which is better displayed in the dialectic process than in the formal Latin record which gives the pleadings and judgment in their final form; we learn what arguments were used and also what arguments had to be abandoned. But for the period now in question we can only give the Year Books a secondary place among our materials.

(6) Manorial law. Of late years our horizon has been enormously extended by the revelation of vast quantities of documents illustrative of manorial law and custom, a department of law which has hitherto been much neglected, but Edition: current; Page: [87] which is of the very highest interest to all students of economic and social history.

(a) In the first place we have numerous “extents” of manors, i. e. descriptions which give us the number and names of the tenants, the size of their holdings, the legal character of their tenure and the kind and amount of their service; the “extent” is a statement of all these things made by a jury of tenants. Such extents are found in the monastic cartularies and registers. Among these we may mention the Boldon Book, which is an account of the palatinate of Durham, the Glastonbury Inquisitions, the Cartulary of Burton Abbey, the Domesday of St. Paul’s, the Register of Worcester Priory, the Cartularies of Gloucester, Ramsey and Battle. A few of those mentioned at the head of our list take us back into the twelfth century. There are still several cartularies which ought to be printed. The “Hundred Rolls” compiled in Edward I’s reign give us the results of a great inquest prosecuted by royal authority into “the franchises,” i. e. the jurisdictional and other regalia which were in the hands of subjects; we thus obtain an excellent picture of seignorial justice. But for certain counties and parts of counties these Hundred Rolls give us far more, namely, full “extents” of all manors. They thus serve to supplement and correct the notions which we might form if we studied only the ecclesiastical manors as displayed in the cartularies.1

(b) Almost nothing has yet been done towards the publication of a class of documents which are quite as important as the “extents,” namely, the earliest rolls of the manorial and other local courts. We have a few older than 1250, a considerable number older than 1300.2 They show the manorial Edition: current; Page: [88] system in full play, illustrate all its workings and throw light on many points of legal history which are not explained by the records of more exalted courts.1

(c) Little known to the world, there is a small but complicated literature of tracts on “husbandry” and the management of manors. In whole or in part it is often associated with the name of a certain “Walter of Henley.” The author of Fleta has made use of it in his well-known chapter on the manorial system. Further investigation will perhaps distinguish between two or three tracts that are intertwined in the manuscripts and presented in varying forms. An edition of all or some of these tracts has been projected. They bear directly rather on agricultural and economic than on legal history; but the historian of manorial law cannot afford to neglect them.2

This department of mediæval law, concerning as it does the great mass of the population, is beginning to attract the attention that it deserves. The traditional learning of lawyers Edition: current; Page: [89] about the manorial system went back only to comparatively recent times and their speculations about earlier ages had been meagre and fruitless. A new vista was opened by Erwin Nasse’s Ueber die mittelalterliche Feldgemeinschaft in England (Bonn, 1869), which was translated into English by H. A. Ouvry (1871). H. S. Maine’s Lectures on Village Communities in the East and West (1876) drew the attention of Englishmen to the work that had been done in Germany. Frederic Seebohm’s English Village Community (1883) came into sharp conflict with what were coming to be accepted doctrines and must lead to yet further researches. In 1887 Paul Vinogradoff published at St. Petersburg a Russian treatise in which much use was made of our manorial extents and rolls; a larger work in English by the same hand is expected. This of course is a department in which legal and economic history meet; and it has become clear that the historian of law must realize the economic meaning of legal rules while the historical school of economists must study mediæval law.

(7) Municipal and mercantile law. The growth of municipal institutions, the development of guilds and corporations, are now recognized topics of “constitutional history.” But a great deal remains to be done towards the publication of documents illustrating the laws and customs administered in the municipal courts. In particular there is much to be discovered about “the law merchant.” Before the end of the thirteenth century the idea had been formed of a lex mercatoria, to be administered between merchants in mercantile affairs, which differed in some respects from the common law. Throughout the middle ages the merchants had special tribunals to go to, and consequently very few of their affairs are noticed in the Year Books. Whether very much of this law merchant can be recovered may be doubtful, but until the archives of our cities and boroughs have been thoroughly explored by some one who knows what to look for, we shall do well to believe that something may yet be learned.1

Edition: current; Page: [90]

V.: From Edward III to Henry VIII

About the remainder of the middle ages we must speak more briefly. On the whole the law has no longer to be sought in out of the way or but newly accessible sources; it may be found in books which lawyers have long had by them and regarded not merely as evidence of old law but as authority, namely the Statute Book, the Year Books and the very few text-books which this age presents. It would be a great mistake, however, to suppose that these sources should be exclusively used or that they are in the state in which they ought to be.

After Edward the Third’s accession we can insist on a strict definition of a statute. The more important laws of a general character are placed on the Statute Roll and about their text there can seldom be any dispute; we have a good official edition of them. But the Parliament Rolls, an unfortunately broken series, also should be studied, as they often show the motives of the legislators and also contain some of those acts of Parliament which were not thought of sufficient general and permanent importance to be engrossed on the Statute Roll; a great deal that concerns trade and agriculture and villainage and the working of the inferior organs of the constitution, in particular the new magistracy, the justices of the peace, must be sought rather in the Parliament Rolls than among the collections of statutes. Again, most of the other series of non-judicial rolls mentioned above are continued; and though they are not of such priceless value for this as for former periods, they should certainly not be neglected by any one who wishes to make real to himself and others the working of our public law. A great deal of that Edition: current; Page: [91] law never comes into the pages of the Year Books and for that reason has remained unknown to us.

We turn to the law reports. A series of Year Books extends from Edward II to Henry VIII, from 1307 to 1535. They got into print piecemeal at various times; the most comprehensive edition is one published in ten volumes, 1678-80. This edition has about as many faults as an edition can well have; it teems with gross and perplexing blunders. Happily it is not complete, and we have thus been enabled to contrast a good with a bad edition. It leaves a gap between the tenth and the seventeenth years of Edward III. This gap is being gradually filled up in the Rolls series by L. O. Pike, who has already given the books for the years 11-14 Edward III; but there are several other considerable gaps to be filled, one for instance between the thirtieth and thirty-eighth years of the same reign, another representing the whole reign of Richard II. Henry VIII’s long reign is scurvily treated, and though we begin now to get a little help from reporters whose names are known, from Dyer and others, still it is true that we have singularly few printed memorials of the law of this important time. An edition of all the Year Books similar to that which we now have in the Rolls series for a few lucky years of Edward III would be an inestimable gain, not merely to the historian of law but to the historian of the English people.

One of the many excellent features of these newly published Year Books of Edward III’s reign consists of further information about the cases there reported, which information has been obtained from the Plea Rolls. Often the report of a case in the Year Books is but partially intelligible to modern readers until they are told what are the pleadings and the judgment formally recorded on the official roll of the court. The Plea Rolls are extant. To print even a few rolls of the fourteenth or fifteenth century would be a heavy task, so copious is the flow of litigation, so lengthy have the pleadings by this time become.1 Still, in that new edition of the Year Books which is urgently needed, a brief statement Edition: current; Page: [92] of the recorded pleadings and judgment ought to be frequently given. But this is not the only use that should be made of the rolls. The Year Books, invaluable though they be (or would be were they made legible), are far from giving us a complete view even of the litigation of the period, to say nothing of a complete view of its law. They are essentially books made by lawyers for lawyers, and consequently they put prominently before us only those parts of the law which were of immediate interest to the practitioners of the time; an exaggerated emphasis is thus laid on minute points of pleading and practice, while some of the weightiest matters of the law are treated as obvious and therefore fall into the background. If anything like a thorough history of “the forms of action” is to be written, the Plea Rolls as well as the Year Books must be examined. The work of turning over roll after roll will be long and tedious, but greater feats of industry have been performed with far less gain in prospect. To give one example of the use of the Plea Rolls, let us recall Darnel’s Case, the famous case of Charles I’s day, about the power of the king and the lords of the council to commit to prison. The question what were the courts to do with a man so committed could not be answered out of the Year Books, it had to be answered out of the Plea Rolls. These rolls contain an exhaustive history of the writ of habeas corpus, the Year Books have little about it, for cases about “misnomer” and the like had been far more interesting to lawyers than “the liberty of the subject.” And so it is be suspected that the new principles of private law which appear in the Year Books of Edward IV—the rise of the action of assumpsit, the doctrine of consideration, the protection of copyholders, the conversion of the action of ejectment into a means of trying title to lands, the destruction of estates tail by fictitious recoveries—that all these and many other matters of elementary importance might be fully illustrated from the Plea Rolls, whereas the Year Books give us but dark hints and unsolved riddles.

The manor becomes steadily of less importance during this period; but that is no reason why the manorial rolls, of which we have now an ample supply, should be neglected; Edition: current; Page: [93] but neglected they have hitherto been. The historian should take account not only of growth but of decay also, and the records of this time should give the most welcome evidence as to the effect of great social catastrophes, the black death, the peasants’ revolt, the dissolution of the monasteries, and also as to the formation of what comes to be known as copyhold tenure. And again, turning from country to town, we shall not believe that the development of the law merchant has left no traces of itself until some one has given a few years to hunting for them.

Still more important, at least more exciting, is the history of the jurisdiction of the Council and of the new courts which arise out of it, the Court of Star Chamber, the Court of Chancery. Much has been recovered, but assuredly much more can be recovered. There are large quantities of Chancery proceedings to be examined; and it is impossible to believe that we shall always be left in our present state of utter ignorance as to the sources of that equitable jurisprudence which in course of time transfigured our English law, be left guessing whether the chancellors trusted to natural reason, or borrowed from Roman law, or merely developed principles of old English law which had got shut out from the courts of common law by the rigors of the system of writs.1

With a few, and these late exceptions, the text-books of Edition: current; Page: [94] the time are of little value; with the thirteenth century died the impulse to explain the law as a reasonable system and give it an artistic shape. Still that is no reason why such books as there are should be left in their present dateless, ill-printed or even unprinted condition; the Old Tenures, the Old Natura Brevium, the Novae Narrationes want editors; and towards the end of our period we get some “readings” which should be published, such as Marrow’s Reading on Justices of the Peace, a work which Fitzherbert and Lambard treated as of high authority. Littleton’s Tenures, which marks the revival of legal and literary endeavor under Edward IV, has had enough done for it by its great commentator, in some respects more than enough, for the historian will have to warn himself against seeing Coke in Littleton.1 Needless to say it is a very good book; and the last parts of it, now little read, are a most curious monument of the dying middle ages. They only become really intelligible and lifelike in the light of the Paston Letters and similar evidence, a light which reveals the marvellous environment of violence, fraud and chicane in which an English gentleman lived. Under Henry VIII, Fitzherbert begins the work of summing up our mediæval law in his Abridgement and his New Natura Brevium. Sir John Fortescue’s works give excellent illustrations of several legal institutions, notably of trial by jury, though as a whole they are rather concerned with politics than with law.2

Here I must stop, without of course intending to suggest that history stops here. The historian of modern law—the Edition: current; Page: [95] historian, let us say, who should choose as his starting point the reign of Elizabeth—would have before him an enormously difficult task. The difficulty would lie not in a dearth but in a superabundance of materials. To trace the development of the leading doctrines at once faithfully and artistically would require not only vast learning but consummate skill, such a combination of powers as is allowed to but few men in a century. But the result might be one of the most instructive and most readable books ever written, one of the great books of the world. However, no one who feels the impulse to undertake such a work will need to be told how to set about it or whither to look for his materials. It is somewhat otherwise as regards the middle ages; those who have seen a little of our records printed and unprinted may be able to give a few acceptable hints to those who have seen less, and it is with some vague hope that the above notes may be of service to beginners that they have been strung together; may they soon become antiquated, even if they are not so already! They should at least convey the impression that there is a great deal to be done for English mediæval law; much of it can only be done in England, for we have got the documents here; but there is no reason why it should not be done by Americans. We have piles, stacks, cartloads of documents waiting to be read—will some one come over into England and help us?1

Edition: current; Page: [96]

24.: THE YEAR BOOKS1

THE Year Books are the Law Reports of the Middle Ages, written by lawyers for lawyers. From the reign of Edward I to the reign of Richard III they stretch in a series which is almost continuous. In the reigns of Henry VII and VIII they become more and more intermittent; and the last printed Year Book is of the Trinity term 27 Henry VIII. During the terms and years of these centuries they give us an account of the doings of the King’s Courts which are either compiled by eye-witnesses or from the narratives of eye-witnesses. They are the precursors of those vast libraries of reports which accumulate wherever the common law, or any legal system which has come under its influence, is studied and applied. If we except the plea rolls they are the only first-hand account we possess of the legal doctrines laid down by the judges of the fourteenth and fifteenth centuries, who, building upon the foundations which had been laid by Glanvil and Bracton, constructed the unique fabric of the mediaeval common law. Because they are contemporary reports they are of the utmost value, not only to the legal historian, but also to the historian of any and every side of English life. Just as the common law is a peculiarly English possession, so these reports of the doings of the Courts which constructed this common law are a peculiarly English source of mediaeval history. No other nation has any historical material in any way like them. Yet, until well on Edition: current; Page: [97] into the last century, they existed only in black letter books, published in the seventeenth century, and printed in contracted law French so carelessly as to be in many instances unintelligible; and the greater part of them are still in this condition. No one had cared to study the manuscripts upon which these printed books were based; and the tale told by tradition as to their origin was accepted without question and without verification. For about the last forty years their unique historical importance has been gradually arousing some interest in them. The work done upon them by the late Mr. Horwood and by Mr. Pike for the Rolls Series, and, above all, the work done upon them by Professor Maitland for the Selden Society, has taught us much of their origin, of the language in which they are written, and of their meaning and importance in the history of England and of English law. It is proposed in this paper to say something of the results which have been reached in ascertaining the position which the Year Books hold among the sources of English legal history, and to indicate the manner in which they illustrate certain aspects of the development of English law.

We shall consider (1) the manuscripts and printed editions of the Year Books, (2) the origin and characteristics of the Year Books, and (3) the Year Books and the development of English law.

(1): The manuscripts and printed editions of the Year Books

Until the publication of some of the unpublished Year Books in the Rolls Series practically no attention at all had been paid to the MSS. of the Year Books. The legal profession and even the legal historians never went beyond the printed books, or the Abridgements which had been published in the sixteenth century. No doubt many of these MSS. are lost, superseded by the printed page.1 Like the works of the lawyers who lived before the age of Justinian Edition: current; Page: [98] they became useless and disappeared. But when in the last half of last century the work of editing the Year Books began again it appeared that many still survived.

Mr. Horwood, describing a large MS. in the Cambridge University library, from which he took the text of the Year Book 20 & 21 Edward I, tells us that, besides the reports of those years, “there is a large body of cases illustrative of pleadings in various writs, and nearly forty consecutive folios (370-409) of cases which, from the names of the judges, must have occurred in or before 18 Edward I” (1290).1 Fitzherbert also used for his Abridgements not only Bracton’s Note Book, but also reports which came from 12 & 13 Edward I (1284-5), as well as a number of undated cases of the time of Edward I.2 Professor Maitland says that there are numerous cases which come from a period before the dismissal of the judges in 1289; “and,” he says, “we may add that one of our manuscripts contains a few cases which, unless we are much mistaken, belong rather to the seventies than to the eighties of the thirteenth century: cases decided by men who were on the bench in Henry III’s day, and who must have known Bracton.”3 Some of these MSS. give very concise notes of cases. They are rather head notes than reports.4 Altogether the number of MSS. containing reports of cases of the reign of Edward II and earlier which have come before Professor Maitland is thirteen;5 they all present striking differences from each other.6 “We are tempted,” he says, “to say that whereas an investigator of manuscript literature can generally assume that every codex has only one parent, the ordinary laws of procreation hold good among these legal volumes, and that each of them has had two parents—two if not more. We could not explain this intimacy, were it not that we have before us the work of men who live in close fellowship with each other.”7 The number of MSS. which Mr. Pike has used is Edition: current; Page: [99] smaller; but here again the differences between the MSS. are very considerable, and no one MS. can be considered as preëminent.1 The marginal notes which their owners have fixed to them show that they have been extensively used.2

Until we get a modern edition of the whole of the Year Books it is impossible to say much of the MSS. of later years. Perhaps these MSS. will tell us something of the mode in which the later reports were made, and the manner in which they were circulated among the members of the legal profession—matters about which we are still very ignorant. For the present we have only the old printed editions, in which the whole of the reign of Richard II and some of the years of Henry V and VI’s reigns are omitted;3 and the new printed editions of some of the years of the three Edwards, published in the Rolls Series and by the Selden Society. Of these printed editions, old and new, we must now say something.

It was not till seven or eight years after the introduction of printing into England that the Year Books began to get into print;4 and it was only gradually and by degrees that some of the many existing MSS. attained to this dignity. From the end of the seventeenth century to the middle of the nineteenth century no new MSS. were printed.

Probably the earliest printer of Year Books was William de Machlinia (1481 or 1482). He is thought to have printed Y. B. 30-37 Henry VI, and possibly Y. B. 20 Henry VI. Pynson (1493-1528) was their earliest systematic publisher. Fifty editions certainly, and perhaps five more, bear his name. Sixteen others are also attributed to him. His Edition: current; Page: [100] editions published between 1510 and 1520 cover 40-50 Edward III, most of the years of Henry VI and Edward IV, and the almost contemporary years of 9 & 12 Henry VII and 14 Henry VIII. Rastell, Redman, Thomas Berthelet, William Myddelton, Henry Smyth, and William Powell were their chief publishers during the first half of the sixteenth century.1 They published them in separate years separately folioed and dated. At most two were bound together. The booksellers or the lawyers bound these parts together in chronological order.2

In 1553 Richard Tottell began his publications of the Year Books. During the thirty-eight years of his activity he succeeded in driving out all his rivals. “There are,” says Mr. Soule, “about 225 known editions of separate years or groups of years which bear his imprint or can be surely attributed to his press.” Early in his publishing career Tottell began to publish the separate years in groups. Thus in 1553 he printed the years 1-14 Henry IV as one book; so, in 1555 he printed the years 1-21 Henry VII, in 1556 the years 40-50 Edward II, in 1562 the years 1-10 Edward III, and in 1563 the years of Henry V.3

From 1587 to 1638 onwards the Year Books were published in parts; and these parts are known as the quarto edition—though really they consisted of small folio volumes. The parts were published as follows:—

  • I. 1587. The long report of the fifth year of Edward IV’s reign known as the “Longo Quinto.” This was republished in 1638.
  • II. 1596. Years 1-10 of Edward III’s reign.
  • III. 1597. The Year Books of 1 Edward V, 1 & 2 Richard III, 1-21 Henry VII, and the years 12, 13, 14, 18, 19, 26, 27 of Henry VIII. Edition: current; Page: [101]
  • IV. 1599. Years 1-22 of Edward IV.
  • V. 1600. Years 40-50 of Edward III, known as “Quadragesms.”
  • VI. 1601. Years 21-39 of Henry VI, omitting years 23-26 and 29.
  • VII. 1605. Years 1-14 of Henry IV, and years 1, 2, 5, 7, 8, 9 of Henry V.
  • VIII. 1606. The Liber Assisarum, i. e. a selection of cases taken from all years of Edward III’s reign, and chronologically arranged. They are reported more concisely than the cases in the other collections; but at greater length than the cases in the Abridgements.
  • IX. 1609. Years 1-20 of Henry VI, omitting years 5, 6, 13, 15, 16, 17.
  • X. 1619. Years 17-39 of Edward III, omitting years 19, 20, 31-37.

Thus it is only in the first part of this so-called “Quarto” edition that the original plan of publication in separate years survives.

Between 1638 and 1679 there was a cessation in the publication of the Year Books. They grew so scarce that in 1678 a complete collection was said to have been sold for £40.1 In 1679 there appeared the standard edition of the Year Books. It consists of eleven parts, the first only of which is new. The first part purports to be the Year Books of Edward I and II’s reign, “selonq les ancient Manuscripts ore remanent en les Maines de Sir Jehan Maynard Chevalier Serjeant de la ley.” It consists of Memoranda in Scaccario only of 1-29 Edward I, and Year Books of 1-19 Edward II. The other ten parts are substantially a reprint of the quarto edition arranged chronologically. The edition is in large folio. Two sides of the leaf of the older edition are contained on one page—a letter B in the margin marking the reverse of the sheet.

This edition therefore for the most part simply reprints those of the Year Books which had been already collected by the industry of the law publishers of the end of the sixteenth and the beginning of the seventeenth centuries. Edition: current; Page: [102] Neither the older editions nor the later show any signs of careful editing. In some cases, where two reports of the same case were found in different MSS., “the second report is dissociated from the first, and either made to appear as a report of a different case, or else labelled as a residuum or continuation.”1 It is true that Tottell takes credit to himself for having done something in the way of correction;2 and there are a few signs that in some cases more than one MS. has been consulted.3 The edition of 1679 also claims to be corrected and amended; but in the opinion of those most competent to judge this claim is not justified. Professor Maitland has collected crushing evidence of the carelessness with which it has been printed.4 He shows that the MS. which Maynard lent, and the table of matters which he furnished, have been so printed that it is almost impossible to make sense of the greater part of the cases. “Of mere, sheer nonsense those old black letter books are but too full.”5 And at the present day the books which served lawyers “steeped in the old learning of real actions” will not serve us, because “we have not earned the right to guess what a mediaeval law report ought to say.”6 Probably Maynard, whose life covered nearly the whole of the seventeenth century,7 was the last who had thus earned the right to guess what the report ought to have said. The other ten parts of the standard edition are not perhaps so bad as the first part. The printer had a printed text before him and not merely a MS.; but even so, Mr. Pike says that the earlier editions are preferable to the later editions. The truth is that the same causes which caused the Register of Writs to become an obsolete book caused the Year Books to become obsolete reports. A large, perhaps the largest, part of the cases reported turned upon the management of a system of procedure which had practically come, with the disuse of Edition: current; Page: [103] many of the older writs, to belong to the past; and the language in which these cases were reported gradually grew more and more unlike that which the lawyers used. What was valuable in the Year Books had passed into the printed Abridgements. For the new law there were modern reports written in modern style.

From 1679 to 1863 nothing was done for the Year Books. The Select Committee on Public Records reported in 1800 that the series of Year Books should be completed by publishing those hitherto unpublished, and by reprinting from more correct copies those which were already in print.1 This recommendation was not followed till 1863, when a series of unpublished Year Books of Edward I’s reign and one year of Edward III’s reign were edited for the Rolls Series by Mr. Horwood between the years 1863 and 1883. In 1885 Mr. Pike took up Mr. Horwood’s work upon the Year Books of Edward III’s reign. He was the first to begin the practice of collating the Year Books with the plea roll—the formal record of the case—and he thereby has shown us, “who have not earned the right to guess,” the way to verify.2 “The process,” says Mr. Pike, “of comparing a report with a record serves a double purpose. On the one hand it gives an authority to the text which would otherwise be wanting, it furnishes a means of deciding between conflicting MSS., and it affords a key to the correct translation of doubtful passages. On the other hand it supplies a ready mode of extracting, from a very valuable but extremely bulky and much neglected class of records, precisely that kind of information which is of the highest value and of the greatest interest. The Year Books are, in fact, to those who know how to use them, the most perfect guides Edition: current; Page: [104] to almost all that is important in the rolls.”1 It has been truly said that this step “will hereafter be regarded as an important advance in the study of English history.”2 Professor Maitland has followed Mr. Pike’s lead in the edition of the Year Books of Edward II’s reign which the Selden Society is publishing under his editorship. The excellence of the editing, the introductions and the notes will, if the series continue, go far to justify Professor Maitland’s assertion that “our formulary system as it stood and worked in the fourteenth century might be known so thoroughly that a modern lawyer who had studied it might give sound advice, even upon points of practice, to a hypothetical client.”3 But to understand the full force of this saying we must pass to our second section—the origin and characteristics of the Year Books.

(2): The origin and characteristics of the Year Books

Till quite recent years it was believed that the Year Books, at all events the Year Books from Edward III’s reign down to Henry VII’s reign, were compiled by official reporters paid by the Crown. This belief, which was shared by Coke,4 Bacon,5 and Blackstone,6 ultimately rests upon some words used by Plowden in the preface to his reports. “As I have been credibly informed,” he says, “there were anciently four reporters of cases in our law who were chosen and appointed for that purpose, and had a yearly stipend from the King for their trouble therein; which persons used to confer together at the making and collecting of a report, and their report being made and settled by so many, and by men of such approved learning, carried great credit with it.” It is clear that Plowden’s statement rested merely upon report; Edition: current; Page: [105] and the statements of later authorities are merely amplifications of his words.

Sir Frederick Pollock has suggested to me that Plowden’s words do not necessarily refer to the Year Books at all. He thinks that they may refer simply to legends of good old days which never had any historical existence. Plowden is not, as Sir Frederick Pollock suggests, writing history: he is simply finding a rhetorical excuse for his shyness in publishing his own reports. If, in fact, any regular system of reporting by official reporters had been in force in the latest period of the Year Books he might well have known men who had personal knowledge of it; and surely both his praise of its merit and his regret for its discontinuance would have been more definite. Sir Frederick Pollock, therefore, inclines to the view that the tale of the official origin of the Year Books is pure fiction. Additional probability is lent to this view by the following passage which occurs later in Plowden’s preface:—

“And (in my humble Apprehension) these Reports [i. e. his own] excell any former Book of Reports in Point of Credit and Authority, for other Reports generally consist of the sudden sayings of the Judges upon Motions of the Serjeants and Counsellors at the Bar, whereas all the Cases here reported are upon Points of Law tried and debated upon Demurrers or special Verdicts, Copies whereof were delivered to the Judge, who studied and considered them, and for the most part argued in them, and after great and mature Deliberation gave Judgment thereupon, so that (in my opinion) these Reports carry with them the greatest Credit and Assurance.”

The reports to which Plowden considers his own to be superior cannot well be the same as those of the four men; for he evidently considered his own to be inferior to them. On the other hand these reports which he considered to be inferior to his own are very probably the Year Books. They answer to his description of these inferior reports; and they are in fact inferior to his own Edition: current; Page: [106] reports in exactly the points which he notes. If this suggestion be true the whole foundation for the belief in the official origin of the Year Books is destroyed. But however this may be, the three most recent editors of Year Books, Mr. Horwood,1 Mr. Pike,2 and Professor Maitland,3 are inclined, for the following reasons, to think that there is very little ground for the traditional belief—that it is certainly not true of the earliest Year Books, and probably not true of any. (1) We do not find any official record of the appointment of such reporters, nor are payments to them anywhere enrolled. (2) If the reports were made by royal officials we should expect to find official copies preserved for the use of the Court; but, says Professor Maitland, “so far as we are aware our manuscript Year Books always come to us from private hands.”4 (3) As we have seen, the MSS. are so markedly different from one another that it is difficult to suppose that they spring from one official original.5 (4) We shall see that the varied and picturesque nature of their contents forcibly suggest that they owe their origin to the enterprise of private members of the legal profession. Even the judges come in for their share of criticism; and in one case the reporter hints that the dissent of a judge from his brethren arose from the fact that he had just been raised to the bench, and had argued the case at the bar.6 That an official reporter should thus have imputed motives is almost inconceivable. In one early MS. there are notes of conversations between the writer and his friends or pupils.7 We naturally think of those associations of students living together in hostels from which sprang the Inns of Court. (5) Further probability is given to this view by the fact that “we see a most remarkable contempt Edition: current; Page: [107] for the non-scientific detail of litigation: especially for proper names. These very often are so violently perverted that we seem to have before us much rather the work of a man who jotted down mere initials in court, and afterwards tried to expand them, than the work of an official who had the faithful plea rolls under his eye.”1 The divergent versions of the same case which the manuscripts present to us make it probable that their authors were men writing for themselves, who not only simplified facts, but also expanded arguments, and even invented both facts and arguments.2 It is useful perhaps to remember that Plowden—one of the earliest of our modern reporters—called his reports commentaries. (6) At the end of Edward I’s reign there was no up-to-date textbook extant embodying the results of Edward I’s legislation. The only ways in which the student or the practitioner could learn modern law was by attending court, taking or borrowing notes, and discussion. For these reasons the weight of evidence is all against the old belief in the official origin of the Year Books. The earliest of them, Professor Maitland thinks, are “students’ notebooks.”3

In course of time the system of reporting gradually developed to meet the obvious needs of a legal profession engaged in administering a system of law, the principles of which depended almost entirely upon the practice of the Court. Just as books of precedents of writs and pleadings were necessary in order that the lawyer might present his case in proper form to the Court, so reports of decided cases were necessary if he was to know the principles which the Court would apply to decide the case. Indeed it is probable that it was only gradually that these books of precedents were differentiated from the law report.4 The book of Edition: current; Page: [108] precedents occasionally borrows from the Year Book;1 and the Year Book sometimes gives us extracts from the pleadings, and thus serves the purpose of a book of precedents. The two things came, however, to be entirely distinct. Broadly speaking, the book of precedents deals with the formal and the procedural side of legal practice, while the Year Book deals chiefly with the application of the principles which underlie, not only the procedural rules, but also the rules of substantive law. Thus for an intelligent understanding, an intelligent application of the precedents, the reports in the Year Books were essential; and perhaps to many practitioners this consideration was a greater incentive to the study of the Year Books than the fact that it was only through them that a knowledge of the principles of the law could be attained. “The spirit of the earliest Year Books,” says Professor Maitland, “will hardly be caught unless we perceive that instruction for pleaders rather than the authoritative fixation of points of substantive law was the primary object of the reporters.”2 But though the needs of the pleader may have been the paramount consideration in the minds of the earliest reporters, though such needs always continued to be an important consideration, it had been clear, since the days of Bracton, that without a knowledge of the doings of the Courts there could be no knowledge of English law. His treatise could not have been written if he had not had access to such information through the records which he had retained for a period.3 But records were valuable things. By a lucky chance perhaps a lawyer might get access to a few of them;4 but neither the mere apprentice, nor even the serjeant, could be sure of getting Edition: current; Page: [109] the constant access to a series of such documents which would be necessary if they were to be used for purposes of instruction or as aids to practice. Moreover much pleading took place, and much argument thereon, which never appeared on the roll; and this was often as interesting to lawyers as the matters which appeared there.1 The legal profession was obliged to supply its own peculiar wants for itself; and thus the report of the doings of the Court made by lawyers for lawyers arose.

We cannot give the exact date when to some lawyer “the happy thought”2 first came of noting down the proceedings of the Court. The earliest printed Year Book in the Rolls Series is of the year 1292; but there are, as we have seen, earlier manuscripts.3 Their writers, Professor Maitland thinks, are persons who are noting down the latest points for the use of themselves or their friends. They give no dates. Often they do not arrange their matter chronologically. Rather they distribute it under suitable heads after the manner of the writers of the later printed Abridgements. Thus, “it is only by degrees that the oldest law reports become ‘Year Books,’ and even when the purely chronological scheme has obtained the mastery, we may see that for a while the men who write the manuscripts or have the manuscripts written for them are by no means very careful about assigning the cases to the proper years and terms.”4 In later times the “chronological scheme” does obtain the mastery. No doubt as the years went on reporting became a more regular pursuit. Still it was an open pursuit.5 The Books of Assizes are reports in a style very different from that of the other Year Books of Edward III’s reign. They are more concise than the Year Books usually are, giving rather the gist of the argument and the decision than a report of the actual proceedings. The Longo Quinto Edition: current; Page: [110] represents a more elaborate effort of reporting than had yet been seen. Often it seems to be more impersonal, and to give the gist of several reports rather than the actual account of the eye-witness. No doubt, too, the reporters became more skilful, more professional as time went on; they allowed themselves fewer scattered notes, fewer personal details. The report of the case is the main thing; and the report grows fuller. Perhaps it may be allowable to conjecture that, with the growing organization of the legal profession, there grew up some sort of organized system of reporting. With the more frequent citation of cases in court, and the greater authority attached to them, the need for reports grew more pressing. We really have no positive evidence at all as to the conditions under which the Year Book was published to the profession. No doubt, as in later times, there was extensive borrowing, and hasty copying of borrowed materials as and when they could be got.1 It is, however, difficult to suppose that a profession so well organized as that of the law did not devise or encourage some sort of informal organization for the production of reports. It is perhaps more than a coincidence that the serjeant’s chief practice was in the Common Bench, and that the greater number of cases reported in the Year Books are common pleas. If there was some sort of organization for the production of reports, and if the legal profession exercised some control over it, we can easily see how the tale of their official origin arose. Such a tale would be the more readily believed by an age which had had time to forget the conditions which had prevailed before the introduction of printing. We sometimes speak of “the Law Reports” as official; but the historian of our age will search the national accounts in vain for information as to the sums paid to the reporters.

A reliance on cases was, as we have said, as old as Bracton; Edition: current; Page: [111] and we can see from the early Year Books that a considered decision was regarded as laying down a general rule for the future. “The judgment to be given by you,” said Herle in argument in 1304, “will be hereafter an authority in every quare non admisit in England.”1 This does not of course mean that all the cases to be found in the lawyer’s notebooks were regarded as authoritative.2 Still cases are cited even in the early Year Books.3 The judges when pressed by the authority of precedents were sometimes restive, as the following dialogue shows. “R. Thorpe. If it so seems to you, we are ready to say what is sufficient; and I think that you will do as others have done in the same case, or else we do not know what the law is. Hillary J. It is the will of the Justices. Stonore C. J. No; law is that which is right.”4 And in Edward III’s reign we see a more frequent citation of and reliance upon cases. In Henry VI’s and Edward IV’s reigns, if we make allowance for the differences between the manuscripts and the printed book, and the differences between the Year Book and the modern report, we see cases cited and distinguished much in the same way as they are cited and distinguished in modern times. This would seem to show that the later Year Books are something very much more than students’ notebooks. Just as the voluntary associations of students for the purposes of legal education won their way to the position of the Honourable Societies of the Inns of Court, so these students’ notebooks became those Reports which Burke called the sure foundation of English law, and the sure hold of the lives and property of all Englishmen.

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The introduction of printing directly affected the accustomed modes of publishing the reports. Men would no longer pay large sums to obtain a MS. or to get the power to copy it, when they could buy a printed report, or an abridgement of the reports. A severe shock was therefore given to the production of the Year Books upon the old lines; and the severity of the shock was aggravated by the fact that the same extensive changes in law and practice which were diminishing the importance of the Register of Writs were rendering many of the old cases obsolete. Material changes in the law assisted the mechanical change in the mode of production. The Year Books, as we have seen, ceased to appear in Henry VIII’s reign. Perhaps some sanguine men considered that there were reports enough.1 But it soon became apparent that the professors and practitioners of a growing system of law, developed by the means of decided cases, could not dispense with reports. Dyer2 and Plowden begin the long list of modern reports.

For many years to come the printed Year Books were absolutely necessary to all students of the law; and the printed Abridgements of the Year Books were useful indices to the Year Books themselves, and gradually became the only authorities for the reigns and years which did not get into print.3 Just as the Year Books are the best indices to the records, so the Abridgements are our only index and guide to the Year Books.

Therefore before going on to speak of the characteristics of the Year Books we shall say something of these abridgments, by means of which the learning of the Year Books was made accessible to future generations of lawyers.

The three abridgments of the Year Books are written by Statham, Fitzherbert, and Broke. Statham’s4 name does not appear in the Year Books; but he was a reader of Lincoln’s Inn in the Lent term of 1471. His abridgment was printed Edition: current; Page: [113] by Pynson somewhere about the year 1495, under the title, Epitome Annalium Librorum Tempore Henrici Sexti. The title is misleading, seeing that the book includes extracts from the Year Books of preceding reigns up to and including the reign of Henry VI. Later editions were published in 1585 and 1679. Its popularity doubtless suffered from the more complete work of Fitzherbert.1 His work, Le Graunde Abridgment, was first printed in 1514. It is remarkable not only for its accuracy but also for its research. It contains extracts from many still unprinted Year Books, and also from Bracton’s Note Book.2 It was a model to future writers of Abridgments; and was extensively used by Staunforde for his treatise on the Prerogative, and by Bellew for his collection of reports of the years of Richard II’s reign. Its popularity is attested by the fact that it was reprinted in 1516, 1565, 1573, 1577 and 1586. The last of the famous abridgments of the Year Books is that of Broke.3 Broke filled the offices of common serjeant and recorder of London. He was Speaker of the House of Commons in 1554, and was made Chief Justice of the Common Pleas in the same year. He died in 1558; and his work was published posthumously in 1568. It is based on Fitzherbert’s Abridgment, but it contains much new matter. In particular it abridges fully the Year Books of Henry VII’s and VIII’s reign. “He observes,” says Reeves,4 “one method, which contributes in some degree to draw the cases to a point; he generally begins a title with some modern determination, in the reign of Henry VIII, as a kind of rule to guide the reader in his progress through the heap of ancient cases which follow.” The book was republished in 1570, 1573, 1576, and 1586.5

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Broke’s abridgment is the last of the abridgments which deal wholly with the Year Books. Others followed and gradually superseded them, just as the more modern reports gradually superseded the Year Books.1 The later abridgments deal principally with these modern reports. It is not till quite recently that we have got an abridgment which attempts to epitomize under alphabetical headings the principles of the law, and not merely to catalogue the result of the cases.2

We must now turn to the characteristics of the Year Books.

There are many mediaeval records of various kinds which record contemporary events. There are no other mediaeval records except the Year Books which photograph the actual words, and actions, and idiosyncrasies of the actors as they were bringing these events to pass. When we read the official record we think of a machine, which automatically eliminates all the human dramatic element, and describes events and results in one impersonal, accurate, stereotyped form of words. When we read the Year Book we think of a human reporter, mainly interested it is true in law, but, for all that, keenly alive to the exciting incidents of the trial which is proceeding before his eyes—to judicial wit, and criticism, and temper, to the shifts and turns of counsel, to the skilful move or the bungling omission, even to the repartee and the exclamations which the heat of a hardly contested fight evoke. Though therefore the Year Books are valuable because they tell us much of the development of law, they are unique because they picture for us days in court in successive terms and years through these two centuries. Because they do this faithfully, not neglecting that human element which to-day is and to-morrow is not, they supply just that information which is omitted by those who record with mechanical correctness merely the serious business done. We see not only the things done; we see also the men at work doing them, the way these men did them, and how they came to be done in that particular way. It is for this reason that the Year Books are valuable documents not only to the historian of Edition: current; Page: [115] English law, but also to the historian of any part of English life. They create for us the personal element, the human atmosphere, which makes the things recorded in the impersonal record live again before our eyes.

There is a dramatic scene in Parliament in Edward I’s reign, related by Bereford C. J. in a style very different from that of any formal record:—

“In the time of the late King Edward a writ issued from the Chancery to the Sheriff of Northumberland to summon Isabel Countess of Albemarle to be at the next Parliament to answer the King ‘touching what should be objected against her.’ The lady came to the Parliament, and the King himself took his seat in the Parliament. And then she was arraigned by a Justice of full thirty articles. The lady, by her serjeant, prayed judgment of the writ, since the writ mentioned no certain article, and she was arraigned of divers articles. And there were two Justices ready to uphold the writ. Then said Sir Ralph Hengham to one of them: ‘Would you make such a judgment here as you made at the gaol delivery at C. when a receiver was hanged, and the principal [criminal] was afterwards acquitted before you yourself?’ And to the other Justice he said: ‘A man outlawed was hanged before you at N., and afterwards the King by his great grace granted that man’s heritage to his heir because such judgments were not according to the law of the land.’ And then Hengham said: ‘The law wills that no one be taken by surprise in the King’s Court. But, if you had your way, this lady would answer in court for what she has not been warned to answer by writ. Therefore she shall be warned by writ of the articles of which she is to answer, and this is the law of the land.’ Then arose the King, who was very wise, and said: ‘I have nothing to do with your disputations, but, God’s blood! you shall give me a good writ before you arise hence.’ ”1

The following dialogue between Roubury J. and the Edition: current; Page: [116] assise illustrates forcibly the relations between Judge and Jury:

Roubury.—How do you say that he was next heir? The Assise.—For the reason that he was son and begotten of the same father and mother, and that his father on his deathbed acknowledged him to be his son and heir. Roubury.—You shall tell us in another way how he was next heir, or you shall remain shut up without eating or drinking until to-morrow morning. And then the Assise said that he was born before the solemnization of the marriage, but after the betrothal.”1

The reasonableness of the borough customs is not always apparent to the royal Judges. In answer to a plea of Parning, that the usage of Hereford was that a man could sell his land when he could measure an ell and count up to twelve pence, Schardelowe J. said, “the usage is contrary to law, for one person is twenty years old before he knows how to measure an ell, and another knows how when he is seven years old.”2 We get a glimpse at the actual working of the common field system in the following answer to a plea which set up common as a defence to an action of trespass:—

“Whereas they have said that this field should lie fallow every third year, and has always done so, Sir, we tell you that that field has always by the custom of the vill, and by the agreement of those therein, been sown in such manner as they chose to agree upon, sometimes for three years, sometimes for one year; and we tell you that it was agreed by all the tenants of the vill who had land in the field whereof we have complained, that the field should be sown.”3

We see, too, the tax collectors at work setting upon each vill a definite quota of the tax granted by Parliament; “and afterwards each man was apportioned by his neighbours according Edition: current; Page: [117] to the goods and chattels which he had in the same vill.”1 We see an allusion to that uncertainty in the measures of land, and the causes for that uncertainty, which makes so much of our earlier history obscure.2 The difficulties of travel which made it necessary for the process of the Court to be slow if it was to be fair are forcibly illustrated by many cases.3 We see the Judges like other people anxious for the beginning of the vacation. Catesby was arguing for a certain form of plea. Danby told him that he must plead specially, and that he had better plead in this way at once “because we can’t stay to argue matters of law at the very end of the term.”4

The Year Books are thus valuable in many ways to historians, other than the legal historian, for the glimpses which they give us of many sides of English life. But even from this more general point of view it is to the legal historian that they are chiefly valuable, because they contain a first-hand, and sometimes critical, account of the doings and sayings of the Court as they passed under the reporter’s eye. As we have before hinted, it is this characteristic of the Year Books which is the strongest evidence against their official origin. We shall here give one or two illustrations of the scenes in court thus described and of the reporter’s doubts and criticisms thereon. For convenience we shall group them under the following heads:—Manners and Wit of the Bench and Bar; the relations of Bar and Bench; the reporter’s notes.

The Manners and Wit of the Bench and Bar

Both Judges and Counsel are fond of swearing, by God, by St. James, or by St. Nicholas. Even in that age, John of Mowbray’s direction to the defendant, the Bishop of Chester, to “go to the great devil,” is not easily surpassed.5 Edition: current; Page: [118] The satisfaction of Counsel when the Judge had given a ruling in their favour sometimes found odd expression. Mutford had recourse to his Vulgate. “Blessed is the womb that bare thee,” he said to Metingham J. when he had given a a ruling in his favour.1 Their dissatisfaction, too, is clearly marked:

Toudeby.—Sir, we do not think that this deed ought to bind us, inasmuch as it was executed out of England. Howard J.—Answer to the deed. Toudeby.—We are not bound to do so for the reason aforesaid. Hengham C. J.—You must answer to the deed; and if you deny it, then it is for the Court to see if it can try, etc. Toudeby.—Not so did we learn pleading.”2

The reporters had a keen eye for the pithy saying, the apposite anecdote, or a wrangle on the bench. “You cannot deny,” said Howard J., “that the tenements as well in one vill as in the other were holden by one and the same service; and you are seised of the tenements in one vill; will you then have the egg and the halfpenny too.”3 In a case of Edward III’s reign, Willoughby J. was laying down the law. “That is not law now,” said his brother Sharshulle. “One more learned than you are adjudged it,” retorted Willoughby.4 The clergy of the province of Canterbury, argued Counsel, do not meddle with the clergy of the province of York, and neither is bound by a grant made by the other—“Because the Jews have no dealings with the Samaritans.”5

The relations of Bar and Bench

The relation between the Serjeants and the Judges was not quite the same as the relation between the Bar and Bench in modern times. The Judges and the Serjeants together formed the highest branch of the legal profession—the order of the coif; so that to become a Serjeant was a more Edition: current; Page: [119] solemn and important step than to become a Judge. Traces of this old fellowship long survived in the common life of the Serjeants and Judges in the Serjeants Inns, in the rule that all Judges must be chosen from the Serjeants, and in the practice of addressing a Serjeant from the Bench by the title of “brother.” The Year Books testify to the fact that the Serjeants and Judges are brothers of one order. The Court asks them for their opinion.1 Resolutions are come to with their consent.2 Their dissent or approval is recorded; and the reporter regards their opinions with more respect sometimes than the dicta of the Judges. “Judgment is pending,” says the reporter, “but all the countors say the writ was invalid.”3 A demandant was nonsuited, “because all the Serjeants agreed that the writ could not be supported in this case.”4 “And this was the opinion of Herle and, for the greater part, of all the Serjeants, except Passeley, who told Hedon boldly to stick to his point. And so [Hedon] did.”5 After a dispute on the Bench it is noted that the common opinion is against the view of Parning.6 Even a dictum of the apprentices is noted,7 and sometimes conversations out of court.8 At the same time the intimacy of the relations between Bar and Bench did not prevent the Judges from speaking their minds very freely to the Bar. “We forbid you on pain of suspension to speak further of that averment;” “leave off your noise and deliver yourself from this account;” “that is a sophistry and this is a place designed for truth”—are remarks attributed to Hengham.9 “Are not the tallies sealed with your seal? About what would you tender and make law? For shame!”; “get to your business. You plead about one point, they about another, Edition: current; Page: [120] so that neither of you strikes the other;” “these seven years I never was put to study a writ, so much as this; but there is nothing in what you say”—are remarks attributed to Bereford.1 “Shame to him who pleaded this plea,” said Malore J.2 “This is not the first time we have heard a plea of this kind,” sarcastically remarked Sharshulle J.3 “I am amazed,” said Honore C. J., “that Grene makes himself out to know everything in the world—and he is only a young man.”4 Pulteney had said, “We do not see what will become of the first plea if this issue be entered.” “It will go to the winds as does the greater part of that which you say,” brutally remarked the same Judge.5 A somewhat neater score was made by one of Edward IV’s Chancellors. The plaintiff has no remedy, argued Counsel, because he has made no deed; and if a man is so simple that he enfeoffs another on trust without a deed he has no remedy and has only himself to blame. Not so, said the Chancellor, he will have a remedy here in Chancery, for God protects the simple.6

The reporter’s notes

The reporters were quick to note a quick retort, a foolish argument or a bungling plea. “My client is a poor man and knows no law,” argued Toudeby. “It is because he knows no law that he has retained you,” was Herle’s reply.7

We hear of the laughter in court occasioned by a foolish answer;8 and we sometimes get criticism of the rulings or manners of the Judges. A ruling is noted as “marvellous.”9 Edition: current; Page: [121] “Your answer is double,” said Brumpton, J., “and cannot be received,” but, adds the reporter, “he did not assign the reason.”1 Hervey le Stanton gets nick-named Hervey le Hasty.2 Thirning said to Counsel that he had spoken with his fellow Justices and that he (Counsel) must answer. Upon which Hull (another Counsel) remarked aside that he had never before seen that laid down for law, and, sympathetically added the reporter, “I myself have seen the contrary adjudged by the same Judges.”3 Mr. Justice Rickel had been a plaintiff together with some others in a plea of trespass. The writ was abated, “with the assent of all the Justices except the plaintiff,” drily observes the reporter.4 He notes, too, the smile with which Paston J. pointed what he considered to be a mildly humorous illustration.5 Similarly we get extraneous facts noted which struck the reporter’s fancy. He is reporting a case in the Exchequer Chamber, and notes that it was heard by the new Treasurer, about whom he gives us a few details.6 In the Year Book of the same year he gives us, at the close of the reports for the Easter term, a narrative of the battles of Hedgeley Moor and Hexham and of the events which had happened after the battle of Towton, leading up to an account of the execution of Sir John Grey, “because of his perjury and double dealing as well to King Henry VI as to King Edward IV the present king.”7 He tells us that other arguments were used on another day “when I was not present.”8 Often his notes express his doubts or queries on points of law—and sometimes they are of a lengthy and argumentative kind.9 Edition: current; Page: [122] Such notes show us the court at work, and something of the minds of the lawyers. But the Year Books are not primarily collections of pithy sayings, and picturesque incidents. The teaching and the publishing of the law is their object.

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25.: THE ENGLISH REPORTS, 1537-18651

FROM the last Year Book, in 1537, to the year 1865, there were no official reports. This important work was dependent for more than three centuries upon private enterprise. Toward the end of the eighteenth century these private reports become fairly accurate and complete, but the long period from 1537 to 1785 is precariously covered by more than one hundred reporters of various degrees of merit. A few of them, such as Plowden, Coke, and Saunders, have long enjoyed an intrinsic authority; others are quite worthless; all are subject to limitations which should never be lost sight of in relying upon their authority as judicial precedents.

During the century following the abandonment of the Year Books private reports multiplied slowly. Down to the time of the Commonwealth the only reports in print, besides certain Year Books, were Plowden, Dyer, Keilway, Benloe and Dalison, the first eleven parts of Coke, Davies, Hobart, and Bellewe’s collection from the Year Books. But during the forty years of political strife from the Commonwealth to the Revolution more than fifty volumes of so-called reports were published; twenty-three of them appeared during the short life of the Commonwealth.3 As a class these reports Edition: current; Page: [124] are accurately described by Sir Harbottle Grimston, afterward master of the rolls, in an “Address to the Students of the Common Laws of England,” published in 1657:—

“A multitude of flying reports, whose authors were as uncertain as the times when taken, have of late surreptitiously crept forth. We have been entertained with barren and unwarranted products, infelix folium ex steriles avenae, which not only tends to the depraving of the first grounds and reason of the young practitioner, who by such false lights are misled, but also to the contempt of divers of our former grave and learned justices, whose honored and revered names have in some of said books been abused and invocated to patronize the indigested crudities of these plagiaries; the wisdom, gravity, and justice of our present justices not deeming or deigning them the least approbation or countenance in any of their courts.”

“The press,” says the reporter Style in his preface, “hath been very fertile in this our age, and hath brought forth many, if not too many, births of this nature, but how legitimate most of them are let the learned judge. This I am sure of: there is not a father alive to own many of them.”

The license of the press prompted the enactment soon after the Restoration of a licensing act, requiring, among other things, that all books concerning the common law of the realm should be printed only upon the special allowance of the lord chancellor or the judges, or by their appointment. This act undoubtedly accounts for the prefatory passports to some of the subsequent reports. There is a significant difference in their phraseology. The Year Books are not only “allowed” by the twelve judges, but also “recommended to all students of the law.” Sir Matthew Hale adds to the license for Rolle’s reports that they are “very good.” While the judges often certify to the learning and skill of the reputed author, they seldom state that they have examined the work, or express any opinion upon Edition: current; Page: [125] its authenticity. At all events, this licensing act, which expired in 1692, did not materially improve the standard of reporting; some of the eighteenth century reports are quite as bad as any of their predecessors. “See the inconveniences of these scambling reports,” said Chief Justice Holt in Slater v. May,1 referring to the fourth Modern; “they will make us to appear to posterity for a parcel of blockheads.” And the best that the author of the fifth Modern could say of the post-Revolutionary reports was that “though some of them, as Justice Shelley merrily said, might be compared to Banbury cheeses, whose superfluities being pared away there would not be enough left to bait what my Lord Hale called the mouse-trap of the law; yet, to speak still in the language of a judge, ‘I think the meanest of them may, like the little birds, add something to the building of the eagle’s nest.’ ”

The most superficial examination of the contents of these volumes reveals the defects which justify such an arraignment. These reports, bearing the names of various judges, sergeants, prothonotaries and lawyers of less character, had their beginnings in every instance in the needs of actual practice. A lawyer would preserve in his common-place book notes of the cases cited by him in an argument, and this would be followed by a memorandum of the case in which they were used. He would also add, from time to time, other cases which he happened to hear, or notes of which were shown to him by his professional brethren. If he subsequently attained a judicial station he would of course take notes of the cases argued before him, and, very likely, of cases cited in argument with which he was not already familiar. Such notes were prepared for personal use and without any thought of publication. Their subsequent publication was almost always posthumous. With the exception of Plowden, Coke, Saunders, and a few others, very few of the reports prior to the Revolution were published in the lifetime of their authors. Bulstrode, Cromwell’s chief justice of Wales, was the first lawyer after Coke to publish his own reports. Obviously these manuscripts would vary in accuracy and Edition: current; Page: [126] value with the capacity of their authors. The note-book of a reputable judge, containing a report of litigation over which he presided, would possess all the elements of authenticity. But it also happened that lawyers of inferior acquirements, often youthful students, employed their leisure in accumulating private collections of cases. Lord Mansfield relates that the reporter Barnardiston often slumbered over his note-book, and wags in the rear would scribble nonsense in it. Whatever the merits of an original manuscript might be, in passing from hand to hand, for the purpose of copying, additions were made by various hands. When, therefore, a manuscript was finally published it would often be difficult, if not impossible, to ascertain how much of it, if any, represented first-hand work. The contents of New Benloe and Anderson extend over a period of one hundred and thirty years; Owen, Saville, Brownlow, Gouldsborough, Popham, and Lane, from fifty to one hundred years. Down to Hanoverian times the same cases are constantly reported by different persons, sometimes by half a dozen at once. By comparing them some idea may be obtained of the careless and slovenly methods of copying in vogue. For instance, the case of Clerk v. Day is reported by Croke,1 by Owen,2 by Moore,3 and is also printed in Rolle’s Abridgment; yet Lord Raymond asserts that it is not accurately reported in any of the books named, even as to the names of the parties.4 Sometimes an author purports to give a case in full; at other times only in part; and to obtain the whole case the scattered fragments must be traced and put together. Thus the leading case of Manby v. Scott is reported in a way in Siderfin and in Levinz;5 the opinion by Sir Orlando Bridgman may be found in Bridgman’s collection of his own opinions, Justice Hyde’s in 1 Modern, Chief Baron Hale’s in Bacon’s Abridgment, while parts of the case are scattered through Keble and Modern. One reporter will give the decision in the form of an abstract principle, another will state the facts Edition: current; Page: [127] upon which it was founded, a third will report the arguments of counsel, while a fourth may supply parts omitted by the others.

There were, moreover, other elements of confusion. Many manuscripts belonging to lawyers of high standing were published without authority, and consequently without any revision. In at least two instances the manuscripts were stolen by servants and published as mere booksellers’ speculations, with various additions from unknown sources. At best, posthumous publication, involving the deciphering of a strange manuscript, was attended with serious risks. An original manuscript was apt to be vitiated long before publication by repeated and careless copying. The editor of Dyer’s reports refers to numerous errors “religiously preserved and carried on without the least attention to sense.” Then many of these volumes are translations of Latin or French originals never published. In cases like Dyer, the first eleven parts of Coke, Yelverton, Saunders, and a few others, where the work was first printed in the original and subsequently translated, we have means of verification. But during the Commonwealth period, English having been made the court language and reports in Latin and French prohibited, editors at once translated their manuscripts into English. Thus Croke, Winch, Popham, Owen, Leonard, Hetley, J. Bridgman, and some others, though originally written in Latin or French, first appeared in English. Considering the cryptographic abbreviations which abounded in the handwriting of former times, the fact that the original manuscript, having been designed for private use, was likely to be filled with symbols understood by the writer alone, and the fact that the translator was exempt from comparison, the probable extent of the errors and imperfections is apparent. “I have taken upon me,” says Croke’s editor, “the resolution and task of extracting and extricating these reports out of their dark originals, they being written in so small and close a hand that I may truly say they are folia sybillina, as difficult as excellent.” A score or more of the early reports have never been translated from the Latin or French in which they were originally published.

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The classical repositories of the old common law are the reports of Plowden and Coke. Their work maintained pre-eminence for more than a century, and exercised a profound influence upon early English law. Plowden was our first private reporter, and in many respects his work has not been surpassed by any of his successors. “The Commentaries or Reports of Edward Plowden of the Inner Temple, An Apprentice of the Common Law,” extend from Edward III. to Elizabeth (1550-1580). They are the result of actual attendance in court, and are among the few old reports prepared for the press and published under the direction of their author. Plowden states in his preface, under date of 1571, the circumstances under which the work was undertaken:—

“When I first entered upon the study of the law I resolved upon two things which I then purposed earnestly to pursue. The first was to be present at, and to give diligent attention to, the debates in law, and particularly to the arguments of those who were men of the greatest note and reputation for learning. The second was to commit to writing what I heard, which seemed to me to be much better than to rely upon treacherous memory, which often deceives its master. These two resolutions I pursued effectually by a constant attention at the moots and lectures, and at all places in court and chancery to which I might have access where matters at law were argued and debated. And finding that I reaped much profit and instruction by this practice, I became at last disposed to report the arguments and judgments made and given in the king’s courts upon demurrers in law, as abounding more copiously in matters of improvement, and being more capable of affecting the judgment, than arguments on other occasions. Upon this I undertook first one case and then another, by which means I at last accumulated a good volume. And this work I originally entered upon with a view to my own private instruction only, without the least thought or intention of letting it appear in print.”

Although often solicited by “some of the judges and other grave and learned men” who had seen his work to allow it to be made public, he modestly declined, “being conscious of Edition: current; Page: [129] the simpleness of his understanding and of the small spark of reason with which he was endued.” He was at length led to alter his resolution by the following circumstances:—

“Having lent my said book to a few of my intimate friends, at their special instance and request, and but for a short time, their clerks and others knowing thereof got the books into their hands and made such expedition, by writing day and night, that in a short time they had transcribed a great number of the cases, contrary to my own knowledge and intent, or of those to whom I had lent the book; which copies at last came to the hands of some of the printers, who intended (as I was informed) to make a profit of them by publishing them. But the cases being transcribed by clerks and other ignorant persons who did not perfectly understand the matter, the copies were very corrupt, for in some places a whole line was omitted, and in others one word was put for another, which entirely changed the sense, and again in other places spaces were left where the writers did not understand the words, and divers other errors and defects there were which, if the copies so taken had been printed, would have greatly defaced the work and have been a discredit to me.”

Plowden took infinite pains to render his work accurate and complete. “In almost all of the cases, before they came to be argued, I had copies of the records, and took pains to study the points of law arising thereupon, so that oftentimes I was so much master of them that if I had been put to it I was ready to have argued when the first man began; and by this method I was more prepared to understand and retain the arguments and the causes of the judgments. And besides this, after I had drawn out my report at large, and before I had entered it into my book, I shewed such cases and arguments as seemed to me to be the most difficult and to require the greatest memory, to some of the judges or sergeants who argued in them, in order to have their opinion of the sincerity and truth of the report, which, being perused by them, I entered it into my book.”

The result of such care is a report which presents with absolute clearness the points at issue, the arguments urged Edition: current; Page: [130] by the respective counsel, and the grounds of the judgment rendered by the court. Moreover, in publishing his work he placed a title at the head of each case, together with the date, the nature of the action, the names of the parties, etc. Beyond their excellent form and arrangement the great authority of Plowden’s cases has a substantial basis. Many of the early reports, particularly the Year Books, contain the off-hand opinions of the judges upon motions; whereas all of Plowden’s cases are “upon points of law tried and debated upon demurrers or special verdicts, copies whereof were delivered to the judges, who studied and considered them, and after mature deliberation gave judgment thereon.” This fact also explains the great esteem in which Plowden’s work has always been held as a book of entries.

Although Plowden called his work a commentary he was sparing in comment. When he undertakes a full discussion of a topic1 he is very instructive; but he is always careful to separate his own views from the opinion of the court. His work is therefore really a report, although called a commentary. It remained for Sir Edward Coke to publish under the title of reports an elaborate commentary, in which the opinion of the court was often edited in accordance with the reporter’s personal views.

The estimation in which Coke’s reports were held by his contemporaries is indicated by their citation simply as “The Reports.” While they were being issued no others appeared, “as it became all the rest of the lawyers to be silent whilst their oracle was speaking.”2 Coke began as early as 1580 to take notes of the legal transactions of the day, perfecting his information during hours of leisure. At length in 1600 he published his first volume, and shortly afterward, while he was attorney-general, the second and third. In 1603 the fourth part appeared, and the fifth about two years later. The remaining six parts were issued between the years 1607 and 1616, while he was successively chief justice of the Common Pleas and of the King’s Bench. These eleven parts or volumes constituted all that were published during his life-time, Edition: current; Page: [131] and, apparently, all that were designed for publication. In 1634, however, twenty-one years after his death, a twelfth part was printed, and about three years later the thirteenth and last. These last two parts had been left by Coke in an unfinished state, and are inferior in authority to their predecessors.1 Besides reports of cases much more loosely stated than in the prior reports, they contain accounts of conferences in the Privy Council, of consultations among the judges, and notes of legal points in general. The fact that they deal largely with questions of prerogative is probably the reason why they were not published in the author’s life-time. The earlier parts had given offense to James I., who deemed certain doctrines contained therein injurious to his royal authority. Coke’s ultimate suspension from judicial office was accompanied by a command to consider and revise his reports, and his “scornful treatment of this order” in reporting only five trivial errors was one of the reasons given for his subsequent dismissal.

In method Coke’s reports are unique. They are not reports at all in the strict sense of the term. He says in his preface that he prepared his reports not merely for citation in court but also for educational purposes; and to a large extent, though just how far it is impossible to say, they contain his own statement of the law. Accordingly, they are much more elaborate than other early reports. Since, to Coke’s mind, the art of pleading was the necessary foundation of all accurate knowledge of the common law, the pleadings are fully set out, not only for a proper understanding of the case but for the instruction of students as well. The reasons of the judgment are thrown into the form of general propositions of law, in the exposition of which earlier cases are collected with laborious care. Hence the report of each case forms a treatise on the point at issue. The arrangement of the cases, moreover, is not chronological, but more or less according to subjects.

Coke’s reports are therefore summary in character. Without tracing any form of argument, he usually gives a statement of the case, following with the substance of all that was Edition: current; Page: [132] said in argument, and concluding with the resolutions of the court. He describes his method in Calvin’s case:1

“And now that I have taken upon myself to make a report of their arguments, I ought to do the same as fully, truly, and sincerely as possibly I can; howbeit, seeing that almost every judge had in the course of his argument a particular method, and I must only hold myself to one, I shall give no just offense to any if I challenge that which of right is due to every reporter, that is, to reduce the sum and effect of all to such a method as, upon consideration had of all the arguments, the reporter himself thinketh to be fittest and clearest for the right understanding of the true reason and causes of the judgment and resolution of the case in question.”

His method of presenting what was decided is, however, disorderly in the extreme. Throughout all parts of the report, but particularly in giving the resolutions of the judges, his inexhaustible learning breaks forth; “one case is followed by another, quotation leads to quotation, illustration opens to further illustration, and successive inference is made the basis for new conclusion; every part, moreover, being laden with conclusions and exceptions, or protected in a labyrinth of parentheses, until order, precision, and often clearness itself is lost in the perplexing though imposing array.” How animating, therefore, is his assurance to the reader that “although he may not, at any one time, reach the meaning of his author, yet at some other time and in some other place his doubts will be cleared.”2

In connection with his habit of editing the conclusions of the court in accordance with his own views of the law, it may be added that Coke is not always accurate. Sometimes, as in Gage’s case,3 he gives a wrong account of the actual decision. Moreover the authorities which he cites do not always sustain his conclusions.4 This fault, indeed, runs through all his writings and has carried in its train some unfortunate consequences. For instance, in Pinnell’s case, by giving a mere Edition: current; Page: [133] dictum the form and effect of an actual decision upon a point in issue he fixed upon English law the rule that a creditor who, on the day his debt falls due, accepts a smaller sum in satisfaction of the whole, but executes no deed of acquittance, is not bound by his agreement.1 The result has been, as Sir George Jessel ironically said in Couldery v. Bartrum,2 that according to English law “a creditor might accept anything in satisfaction of a debt except a less amount of money. He might take a horse or a canary or a tomtit if he chose, and that was accord and satisfaction; but by a most extraordinary peculiarity of English law he could not take 19s 6d in the pound.” Yet the House of Lords in 1884 held that the error was so firmly established that it did not come within their province to correct it. It may be added in further elucidation of the effect of such errors that the resolution of the judges in Pinnell’s case as reported by Coke is not as absurd as some of the distinctions that have been engrafted upon it from time to time by judges who sought to limit the operation of what they believed to be an erroneous principle. Many questionable doctrines have in this way become firmly imbedded in the law. “I am afraid,” said Chief Justice Best, “we should get rid of a good deal of what is considered law in Westminster Hall if what Lord Coke says without authority is not law.”3 Still, it is less true now than formerly that his works have, as Blackstone said, “an intrinsic authority in courts of justice, and do not entirely depend on the strength of their quotations from older authorities.”

The basis of the vast reputation that Coke’s reports enjoyed for centuries is readily apprehended. The only other reports available in his time were Dyer, Plowden, and parts of the Year Books; in the preface to the third part of his reports Coke gives their number as fifteen. Coke’s extensive reports, covering a period of nearly forty years, not only give a fairly complete account of the law during the reigns of Elizabeth and James I., but they made accessible most of Edition: current; Page: [134] the older learning which till then had to be laboriously gathered from the Year Books and the unsatisfactory abridgments. Lord Bacon admitted no more than the bare truth when he said, “To give every man his due, had it not been for Sir Edward Coke’s reports (which, though they may have errors and some peremptory and judicial resolutions more than are warranted, yet they contain infinite good decisions and rulings over cases), the law by this time had been almost like a ship without ballast, for that the cases of modern experience are fled from those that are adjudged and ruled in former time.” Moreover, his careless and disorderly mixture of things great and small is balanced by the grasp of his intellect and the often inimitable effect of his quaint style.1

There are several other brief collections of cases from Tudor times, chief among which is Dyer’s (1513-82). Sir James Dyer presided in the Court of Common Pleas for more than twenty years, and his accurate, concise and businesslike notes have always been regarded as among the best of their class. Although these notes were taken by Dyer for his own use and without any thought of publication, they were edited from a genuine manuscript by his nephew, and were subsequently annotated by Chief Justice Treby. Moore’s reports (1521-1621), the work of Sir Francis Moore, the supposed author of the Statute of Uses and inventor of the conveyance known as lease and release, were edited from a genuine manuscript by Sir Geoffrey Palmer, a distinguished lawyer of the Restoration, with the assent of Sir Mathew Hale, who married Moore’s granddaughter. Anderson’s Common Pleas Reports (1534-1604), the work of a prominent judge, are quite full and circumstantial for their time. Jenkins’s so-called “Centuries,” a brief but accurate collection of notes of Exchequer decisions, contains some cases as early as the thirteenth century. Leonard’s reports (1540-1613), dealing mostly with cases subsequent to the reign of Henry VIII., have been commended by Nottingham and St. Leonards. Benloe and Dalison (1486-1580), Edition: current; Page: [135] Keilway (1496-1531), Brooke (1515-58), and Benloe (1531-1628) are all of secondary value. The only connection between Benloe and Dalison is the fact that their reports were edited by John Rowe. The later Benloe, which is mainly a compilation, is often called New Benloe, to distinguish it from the former; Brooke is likewise called Little Brooke to distinguish it from the same author’s abridgment. Although Keilway’s reports are of uncertain value, they record many cases not included in other reports of this period. The volume bearing the name of Noy (1559-1649) is a collection of mere scraps of cases and dicta, with only an occasional statement of the facts involved. Noy was attorney-general under Charles I., and one of the six persons recommended by Bacon in connection with his plan for official reporting as being “learned and diligent and conversant in reports and records.” This volume was probably an unauthorized transcript from his note-book. The reports of Brownlow and Gouldsborough (1569-1625) are the work of two prothonotaries of the Common Pleas; they are mostly practice cases. Owen (1556-1615), Goldbolt (1575-1638), Saville (1580-94), and Popham (1592-1627) are of little, if any, value.

Many of the reports just mentioned extend into the seventeenth century. On the other hand, there are several reports dealing principally with the reign of the first two Stuarts, whose earlier cases date, like Coke’s, from Elizabeth’s reign. Of these the reports of Sir George Croke, edited by his son-in-law, Sir Harbottle Grimston, master of the rolls, are of most general interest and value. Croke served with credit in a judicial capacity until his eightieth year, when, upon his petition that he might “retire himself and expect God’s pleasure,” Charles I. granted him a pension. His work is of the first importance whenever he reports a case fully; but the value of his reports as a whole is affected by the fact that he gives not only cases in which he participated or which he heard, but many others not reported elsewhere, which were merely cited in argument or which were shown to him. However, when he takes a case at second-hand he generally states somewhere that he does so, and the discredit into which some Edition: current; Page: [136] of his work has fallen is due to some extent to his practice of printing a case in instalments, and the consequent difficulty of reading him aright. As a rule his reports are too brief to be perfectly clear. These reports are always cited by the names of the sovereigns in whose reign the cases were determined.

In addition to the standard authorities, Coke and Croke, the first half of the reign of James I. is covered by Yelverton (1603-13), the second half by Rolle (1614-25), and the whole reign by Hobart (1603-25). Yelverton’s small volume ranks with the best of the old collections of notes. Yelverton was one of the ablest lawyers of his time, and although his notes are not presented with technical precision, having been prepared for his own use, they are known to be authentic. Rolle’s report is a genuine work by Cromwell’s able chief justice. Hobart’s collection, published several years after the Chief Justice’s death by a careless editor, but improved in a subsequent edition by Lord Nottingham, was a standard work of its day. Yet these reports are still very defective in method and precision, and are replete with legal disquisitions which have not served in modern times to add to their usefulness. Hobart includes some cases from the Star Chamber. There are several minor reports of this reign: Davies (1604-12), Lane (1605-12), Ley (1608-29), Calthrop (1609-18), Bulstrode (1609-39), Hutton (1612-39), J. Bridgman (1613-21), Palmer (1619-29), and Winch (1621-25). Davies was a well-known poet and a friend of Selden and Ben Jonson. Ley prints some cases from the Court of Wards. Calthrop deals mainly with cases concerning the customs and liberties of London; Winch, principally with declarations.

Beginning in the last years of James I., but dealing mainly with the succeeding reign, is the collection by Sir William Jones (1620-41). These are accurate reports, from a genuine manuscript, of cases decided during this distinguished judge’s tenure of office. They are among the most interesting of the old reports. In this reign, also, is the volume bearing the name of Littleton (1626-32); but the cases were probably not reported by him. They are concerned largely Edition: current; Page: [137] with applications for prohibitions. Latch (1625-28), Hetley (1627-32), and March (1639-43) are of minor importance. Clayton’s assize reports (1631-51) throw some light on early practice. Aleyn (1646-49) contains loose notes of cases decided during the last years of the reign of Charles I., when judicial proceedings were disturbed by the turbulence of approaching civil war.

There are few reliable records of litigation during the Commonwealth period. Style’s reports (1646-55), which were published by the author himself, are valuable as our sole record of the decisions of Rolle and Glyn, the able chief justices of the Commonwealth. Hardres’ Exchequer reports (1655-69) cover part of this period. They were printed from a genuine manuscript, and give fair reports of the arguments, but very brief reports of the judicial opinions, which are usually by Sir Mathew Hale. Siderfin (1657-70), who gives some cases from this time, is of small consequence.

Within the first decade after the Restoration there are several new reports, extending for the most part over the remainder of the Stuart period. Chief among them is Saunders (1666-73), who is universally conceded to be the most accurate and valuable reporter of his age. His work is confined to the decisions of the King’s Bench between the eighteenth and twenty-fourth years of the reign of Charles II. Saunders participated as counsel in most of the cases, and he reports them with admirable clearness. In general his reports resemble Plowden’s; but they are much more condensed. He gives the pleadings and entries at length, and follows in regular order with a concise statement of the points at issue, the arguments of counsel, and a clear statement of the grounds of the judgment. The work was subsequently enriched by the learned annotations of Sergeant Williams. Thomas Raymond’s notes (1660-84) bear a good reputation. T. Jones (1667-85) and Ventris (1668-91) are of fair authority; about Levinz (1660-96), and especially Keble (1661-79), opinion is conflicting. It is unfortunate that we have no better record than these volumes afford of Sir Mathew Hale’s decisions. The manuscript of Freeman’s notes (1670-1704) was stolen by a servant and published without authority.

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The so-called Modern reports (1669-1732), which begin in the first decade after the Restoration and cover a period of more than sixty years, are of considerable importance when due allowance is made for certain serious limitations. This work, originally composed of five volumes, was formed by combining in a series the work of different hands. It was subsequently revised and remodeled by Leach, who published a definitive edition in twelve volumes (1793-96). Leach made many improvements in the text; he corrected the headings, inserted the names of the judges at the beginning of each term, and modernized the references. In former editions a variety of cases without any names were often crowded together in such a confused mass as to be practically undistinguishable. Leach separated these cases under the title “Anonymous.” Besides contributing many notes and references he added a large number of cases. As thus corrected the work was much improved; but the volumes are still wanting in accuracy and completeness, and, moreover, vary greatly in value. The second, sixth, and twelfth, for instance, have often been cited with commendation, while the reputation of the fourth, eighth, and eleventh is particularly bad. The arrangement of the contents of the work is disorderly and confusing in the extreme. The first two volumes, containing both law and equity cases, deal with the reign of Charles II.; the third mainly with the reign of James II.; the fourth and fifth, during William III.’s reign, and the sixth, during Anne’s, are made up of decisions by Chief Justice Holt; volume seven completes Anne’s reign and contains decisions of Chief Justices Hardwicke and Lee in the King’s Bench from the sixth to the eighteenth years of George II.; volume eight contains King’s Bench decisions from the eighth to the twelfth years of George I., during the service of Chief Justice Pratt; the ninth volume is made up entirely of chancery cases, containing Lord Chancellor Macclesfield’s decrees from the eighth to the eleventh years of George I., and Hardwicke’s from the tenth to the twenty-eighth years of George II.; the tenth, extending from the eighth year of Anne to the eleventh year of George I., is made up of decisions by Macclesfield in law and in chancery; the eleventh Edition: current; Page: [139] gives Holt’s decisions during the first eight years of Anne’s reign, and Chief Justice Pratt’s from the fourth year of George I. to the fourth year of George II.; and the last volume is given to Holt’s cases in the reign of William III. This collection of reports, notwithstanding its deficiencies, has perhaps been cited oftener in modern times than other seventeenth century report. Many of the best known early cases are scattered through these volumes.

The inaccuracies of Shower (1678-94), who gives some good cases, have been somewhat remedied in subsequent editions. Some of Sir Orlando Bridgman’s excellent opinions in the Common Pleas are preserved in the reports bearing his name (1660-67). Vaughan’s reports (1665-74) from the same court deal principally with the labors of the judge of that name; Lutwyche (1683-1702) also records some Common Pleas cases from the latter part of the seventeenth century. Among the minor reports of this time, besides J. Kelyng’s brief collection of criminal cases (1662-69), are several of little, if any, value: Carter (1664-85), Comberbach (1685-99), and Carthew (1686-1701). Since almost all the cases printed by Skinner (1681-98) had appeared in prior reports his work is seldom cited.

Some of the ante-Revolutionary reports exhibit technical learning of a high order; but it must be admitted that they are not easy reading. The cumbersome system of feudal tenure, with which the vast proportion of the cases prior to the Restoration are concerned, was at best unpromising material.1 After the Restoration the reports increase in Edition: current; Page: [140] interest. The radical reforms in the law of real property, and the slow but steady amelioration during the latter half of the seventeenth century of common law doctrines and procedure, in consequence of the interference of the chancellor, gradually brought within the purview of the common law remedial measures which had theretofore been recognized only in equity. For instance, the introduction in the reign of Charles II. of new trials with reference to the evidence obviated recourse to equity in cases like that which had brought about the conflict between Coke and Ellesmere.

Although these early reports, with few exceptions, are now seldom cited in practical work, their historical value can hardly be overestimated. Reports that are almost worthless as judicial records often throw valuable side-lights upon early practice and procedure;1 not infrequently they Edition: current; Page: [141] supply interesting illustrations of the social life of the time.1

The Revolution forms almost as distinctive an epoch in legal as in political history. In the passing of the despotism of the Stuarts, and the consequent acknowledgement and definition of civil and political liberty, the judiciary acquired a stability which has never been shaken. The judges have ever since held their office during good behavior instead of at the sovereign’s pleasure, and their removal could only be effected by the crown upon the address of both houses of Parliament. The turning point in judicial affairs at the Revolution is clearly marked. Of the notorious instruments of usurpation and violence, the dethroned king’s chancellor was in the Tower and his chief justice in Newgate. On the other hand, the new era was opened by the appointment of one of the ablest and best of chief justices, Sir John Holt, to succeed Wright, one of the worst; and from that time no address has ever been voted by either house of Parliament with a view to the displacement of an English judge.

From the Revolution the reports increase in value and importance; they deal more with modern conditions. The Edition: current; Page: [142] development of commerce, and the consequent variety and importance of personal property and of contracts, the growth of maritime jurisprudence, the development of equity, and the general introduction of more liberal and enlightened views of justice and public policy, all combined to give a new tone and impulse to the common law.

It is a great misfortune that the labors of the distinguished jurist whose character and career exemplified the best features of the new era should have been so inadequately preserved. Reference has already been made to the reports of Chief Justice Holt’s cases in Modern. Holt’s term is covered, in addition, by Salkeld (1689-1712), Lord Raymond (1694-1734), and Comyns (1695-1741). The first two volumes of Salkeld (the third volume being a mere collection of detached notes of cases from other reports) were published under the supervision of Lord Hardwicke, and enjoy a good reputation; yet the reports are too brief to be clear, and many of the cases are taken at second hand. Lord Raymond’s reports of Holt’s decisions are of excellent authority. After Holt’s death Raymond seems to have relaxed his efforts. His third volume contains the pleadings at large. Comyn’s reports are posthumous, and are not as reputable as his digest. In addition to the volumes above mentioned, some of Holt’s cases may be found in Carthew (1686-1700), and Levinz (1660-97), both of poor reputation, and in the appendix to Kelyng’s criminal cases. The volume entitled Temp. Holt (1688-1710) is mainly an abridgment of Holt’s decisions by Giles Jacob, Pope’s “blunderbus of the law.”

During the first dozen years of George II.’s reign we have several new reports: Barnardiston (1726-35), Fitzgibbon (1727-32), W. Kelynge (1731-36), Barnes (1732-60), Ridgeway (1733-37), Lee (1733-38), Cunningham (1734-36), Andrews (1737-39), and Willes (1737-60),—most of them, unfortunately, of inferior workmanship. Most of the cases in Cunningham, Ridgeway, 7th Modern, and Lee’s Cases Temp. Hardwicke, are apparently all taken from the same manuscript; yet they are our main reliance for Hardwicke’s services in the King’s Bench.

Fortescue (1695-1738) and Strange (1715-48) are of Edition: current; Page: [143] fair repute. Fortescue is partial to his own opinions, which are characterized by more solicitude for taste than power of thought. Strange was master of the rolls and the colleague of Hardwicke, some of whose arguments at the bar and common law decisions he reports. His reports are quite modern in form. Cooke’s Common Pleas reports, which are frequently cited, are mostly practice cases. Gilbert’s Cases in Common Law and Equity (containing, however, no equity cases) cover the term of Chief Justice Parker. Bunbury (1713-42) and Parker (1743-67) together form a consecutive chronicle of the Exchequer under George I., George II., and the first seven years of George III. Bunbury’s reports are mere notes, but they were taken in court by Bunbury himself, and were afterward edited by his son-in-law, Sergeant Wilson.

Willes’s reports of his own opinions as chief justice of the Common Pleas are highly authoritative. Although published after Willes’s death, they appear to have been carefully prepared by this learned judge, and they were afterward revised and edited by Durnford, the editor of the Term Reports. This volume also contains some cases in the House of Lords. Willes’s excellent reports are little if at all superior to those prepared by Wilson (1743-74). This very accurate work records the labors of such distinguished judges as Wilmot, Willes, and De Grey, and is of great value. Sir William Blackstone’s miscellaneous collection of cases (1746-79), extending over a period of thirty-three years, do not display the care that we should expect from the celebrated commentator. Wilmot’s opinions (1757-70) contain decisions by this learned judge not reported elsewhere. Foster’s small collection of criminal cases (1743-61), the work of a very eminent authority in criminal law, is of the highest authority as far as it goes. The collection of notes published in Kenyon’s name (1753-60) came from a genuine manuscript, but was probably not designed for publication.

Burrow’s reports (1757-71), beginning in the year following Mansfield’s appointment as chief justice of the King’s Bench and just prior to the accession of George III., mark an epoch in law reporting. Burrow was led to publish his Edition: current; Page: [144] work by the same circumstances that had overcome Plowden’s modesty two centuries before. When it became known that he had for many years preserved some account of the decisions of the courts, he was subjected, he says, to “continual interruption and even persecution by incessant application for searches into my notes, for transcripts of them, sometimes for the note-books themselves (not always returned without trouble and solicitation), not to mention,” he feelingly adds, “frequent conversations upon very dry and uninteresting subjects, which my consulters were paid for considering, but I had no sort of concern in.” Burrow’s published reports date only from the time of his appointment as master of the crown office, when personal charge of the court records and regular attendance in court gave him superior opportunities to render his work accurate and complete. Beyond their substantial accuracy, these reports are characterized by clearness of statement and lucid arrangement of the materials of a case. Burrow was the first reporter to appreciate the advantage of prefixing to the report of each case a statement of the facts and issues separate from the opinion of the court, and following in regular order with the arguments, the opinions of the judges, and the judgment of the court. As he did not write short-hand, the opinions of the judges are not given in the exact language in which they were delivered; nor were they revised by the judges. The consequent limitations of all such reporting is analyzed by Burrow in terms which should always be borne in mind in citing the early reports.1

“I do not take my notes in short-hand. I do not always take down the restrictions with which the speaker may qualify a proposition to guard against its being understood universally, or in too large a sense, and therefore I caution the reader always to imply the exception which ought to be made when I report such propositions as falling from the judges. I watch the sense rather than the words, and therefore may often use some of my own. If I chance not fully to Edition: current; Page: [145] understand the subject, I can then only attend to the words, and must in such cases be liable to mistakes. If I do not happen to know the authorities shortly alluded to, I must be at a loss to comprehend (so as to take down with accuracy and precision) the use made of them. Unavoidable inattention and interruptions must occasion chasms, want of connection, and confusion in many parts; which must be patched up and connected by memory, guess, or invention, or those passages totally struck out which are so inextricably puzzled, in the original rough note, that no glimpse of their meaning remains to be seen.”

“I pledge my character and credit,” he says in conclusion, “only that the case and judgment and the outlines of the ground or reason of decision are right.” Their accuracy to this extent has never been questioned.

These reports, of the utmost value in themselves as a record of the services of Mansfield, Foster, Wilmot, and Yates, exercised, moreover, a most beneficial influence upon subsequent reporting. Burrow’s immediate successors, Cowper (1774-78) and Douglas (1778-84), who give a consecutive chronicle of Mansfield’s work from 1774 to the beginning of the Term Reports, follow the same plan and are of similar excellence. Although Burrow had something to say of his vocation, Douglas’s reports contain the first deliberate discussion of the reporter’s art. “My utmost aim will be attained,” he says at the close of his preface, “if I shall be found to have merited in any degree the humble praise of useful accuracy.” Such praise he unquestionably deserves. He edited the opinions of the judges as his predecessors had done, but his statement of the facts, pleadings, and arguments is more concise than Burrow’s, and his work as a whole is less scholastic and technical.

Substantial accuracy and a uniform arrangement of the materials of a case having been attained, the next step in the progress of reporting was the prompt and regular publication of judicial decisions from term to term. This was accomplished in the King’s Bench with the Term Reports, edited by Durnford and East, which were originally published in parts at the end of each term of court. From Edition: current; Page: [146] this time forward the proceedings of the King’s Bench have been regularly and systematically reported. Until 1865 reporting was carried on by private enterprise in each court separately. It often happened that there was more than one reporter from the same court; but some one reporter was understood to be specially authorized by the judges and to have an exclusive, or at least prior, claim to the opinions of the judges as settled and revised by them. Some of the most distinguished of modern English judges, such as Alderson, Cresswell and Blackburn, served an early apprenticeship in reporting, and we have in consequence thoroughly reliable reports of the labors of those great jurists by whom the common law was developed and applied to the needs of modern times.

The Term Reports (1785-1800) cover the term of Chief Justice Kenyon, when Ashhurst, Buller and Lawrence were among the puisnes. The services of Lord Ellenborough and his associates, Lawrence and Bayley, are recorded by East (1801-12) and Maule and Selwyn (1813-17). Barnewall, in association successively with Alderson, Cresswell and Adolphus, reports the decisions of this court from 1817 to 1834, when Lord Tenterden presided over such puisnes as Bayley, Holroyd and Littledale.

The legal reforms contemporaneous with the Reform Bill of 1832 were instrumental in effecting some important changes in the relative value of the different reports. By the Uniformity of Procedure Act the concurrent jurisdiction of the three superior courts of common law was officially established. At the same time, the Exchequer Chamber was reorganized as a regular court of appeal from the three common law courts. The decisions of this appellate tribunal, which was composed on appeals from one court of the judges of the other two, were thereafter included in the reports of the court from which the appeal was taken; and this interchange of judges tended to equalize the standing of the three courts. Aside from this fact, moreover, there was a noticeable revival in the Common Pleas and Exchequer during this period.

Brief reference has already been made to some of the eighteen volumes of decisions of the Court of Common Pleas Edition: current; Page: [147] prior to 1785, chief among which were the individual collections of Chief Justices Orlando Bridgman, Vaughan and John Willes. This court, although a closed court (i. e. only sergeants could argue cases there) until far into the nineteenth century, became very efficient in the last decade of the eighteenth century through the services of several able lawyers who sat on this bench for short periods on their way to scenes of more distinguished labor. The excellent reports of Henry Blackstone (1788-96), recording the services of Loughborough, Eyre, Lawrence, Buller and others, are equal to the best of the King’s Bench reports. From this time the proceedings of the Common Pleas have been regularly reported. But after the retirement of the judges just named the court declined in authority. This falling off is observable during the period covered by Bosanquet and Puller (1796-1807). Taunton’s reports (1808-19) as a whole have never been very highly esteemed. The Common Pleas probably reached its lowest standing in the first five volumes of Bingham’s reports. But the reputation of the court rose rapidly under Chief Justice Tindal (1829-46). The services of this eminent judge, together with his associates, Bosanquet, Maule, and Cresswell, have given deserved repute to the later volumes of Bingham and the reports of Manning and Granger (1840-44). The two series of Common Bench reports (1845-65) represent the highest standard attained by this court. These thirty-nine volumes (particularly the last twenty-five) may be numbered among the classical repositories of the common law, recording as they do the distinguished labors of Jervis, Maule, Cresswell. Vaughan Williams, Willes, Cockburn, Erle and Byles, and the decisions of the Exchequer Chamber on appeal.

Five small volumes comprise our record of the Court of Exchequer prior to 1792. During all this time the Exchequer was hardly regarded as a superior court. Sir Mathew Hale lent distinction to the court after the Restoration, but it was not until far into the nineteenth century that it ranked on an equality with the other two common law courts. The twenty volumes of reports of its proceedings between 1785 and 1830, mostly by Messrs. Anstruther and Edition: current; Page: [148] Price, are seldom cited. Lord Lyndhurst’s acceptance of the chief baronetcy in 1831, after having held the chancellorship, attracted some attention to the court, but it was not until Sir James Parke took his seat upon this bench that its reputation was assured. During the period of Baron Parke’s service (1834-56) the Exchequer exercised an almost dominant authority. The twenty-seven volumes of reports by Messrs. Crompton, Meeson, and Welsby (Crompton and others, 1830-36; Meeson and Welsby, 1836-47; Exchequer Reports, 1847-56), containing the decisions of Parke, Alderson, Pollock, Rolfe and Martin, together with the decisions of the Exchequer Chamber on appeal, have always been highly esteemed for their vast, though for the most part very technical, learning. During the next decade the court, as reported by Hurlstone, was not so effective, in consequence of the habitual conflict of opinion among the barons. Of a bench including Pollock, Martin, Bramwell and Channel, Bramwell was easily the most distinguished.

Notwithstanding the rapid rise in authority of the Common Pleas and Exchequer toward the middle of the last century, the King’s Bench, if it failed to maintain its former preeminence, sustained at all events a corresponding standard of excellence. As a record of the labors of Denman, Littledale, Patteson, and the early services of Coleridge, Wightman, Erle and Campbell, the two series of reports by Adolphus and Ellis (1834-52) have always been held in high esteem. The court attained its highest standing, however, during the period from 1852 to 1865 under Campbell, Coleridge, Wightman, Erle, Cockburn and Blackburn. This period is reported by Messrs. Ellis, Blackburn, Best and Smith.

The chancery reports are of comparatively recent origin. It is not until the last years of the seventeenth century that we have any satisfactory reports of the chancellors’ determinations. Sir John Mitford (afterward Lord Redesdale), writing at the end of the eighteenth century, could still complain of the extreme scarcity of authority; and Lord Eldon, some years later, described Mitford’s book as “a wonderful effort to collect what is to be deduced from Edition: current; Page: [149] authorities speaking so little that is clear.” This slow development was the natural result of the auxiliary nature of the equitable jurisdiction and of the discretionary character of its early administration.

During all these centuries of development we have only a dozen small volumes of so-called chancery reports; in reality they are little more than brief notes on procedure. Of this sort are the cases collected by William Lambert and published under the name of Carey, their editor (1557-1604), which are mostly mere extracts from the registrar’s books, and the so-called Choyce Cases in Chancery (1557-1606), consisting of a collection of notes of cases (mostly between 1576 and 1583), together with a brief treatise on chancery practice. These two volumes contain brief records of many of Ellesmere’s decrees. Tothill’s meagre and imperfect notes extend from Elizabeth to Charles I. (1559-1646). These three collections, which are concerned principally with the reign of Elizabeth, give some idea of the matters dealt with in chancery; but they are extremely brief and unsatisfactory, often giving merely a bare statement of the facts of a case and the final decree, without any indication of the grounds of the judgment.

The seventeenth century reports are not much better. The volume known as Reports in Chancery (1615-1710) is made up mostly of notes of special cases from the reign of Charles I. Nelson (1625-93) records several cases decided by Lord Keeper Coventry, and a few by Littleton and the Parliamentary commissioners. The so-called Cases in Chancery (1660-90) is the best of the earlier reports; it gives in most cases a fair abstract of the chancellor’s judgment, and a few cases are reported quite fully. Dickens’s reports, which extend over a period of more than two hundred years, include some notes of cases as early as the sixteenth century. Freeman’s notes (1676-1706) are unimportant.

In fact, the chancery reports prior to the Restoration are of secondary importance. The official records of the chancery, which begin in the seventeenth year of the reign of Richard II., afford a much more satisfactory and reliable guide to the early history of equity. A selection of these Edition: current; Page: [150] early records, from Richard II. to Elizabeth, has been published by the Record Commission under the title of “Calendar of Proceedings in Chancery.”1 The Selden Society proposes to carry on the work thus begun, and has already published its first volume, “Select Cases in Chancery, 1364-1471.”2 A collection of abstracts from the masters’ reports and from the registrars’ book, published by Cecil Monro under the title, “Acta Cancellariae, 1545-1624,” further illustrate early practice, and serve to correct and supplement many of the reported cases.

Lord Nottingham’s very important chancellorship is covered by the folio volume entitled Reports temp. Finch (1673-80), which is made up of cases in which the reporter was counsel. The work is miserably executed; the statement of facts is defective, and there is only an occasional statement of the arguments; the report concludes with a mere abstract of the decree, without any reference to the reasoning upon which it is based. The only reports at present available that do any sort of justice to the great chancellor’s reputation are those published by Swanston in an appendix to the third volume of his chancery reports.3

The manuscript of Vernon’s reports (1681-1720) was found in the study of that eminent lawyer after his death. Although these volumes constitute our first considerable collection of chancery cases, the reports are very brief and are often inaccurate; they are a most inadequate memorial of Edition: current; Page: [151] the labors of such distinguished chancellors as Nottingham, Somers and Cowper.

The first clear and accurate chancery reports are those prepared by Peere Williams (1695-1736). These excellent reports cover a period during which eminent lawyers presided in chancery, and they have always been regarded as one of the classical repositories of equity. Their value has been enhanced by Cox’s scholarly annotations.1 Precedents in Chancery (sometimes called Finch’s, 1689-1722), generally supposed to be the notes of Pooley, the reputed author of Equity Cases Abridged, is of fair repute. Gilbert (1705-27) is of little value. King’s chancellorship is covered by the reports bearing his name (1724-34) and by Moseley (1726-30), neither of which is particularly good. Cases temp. Talbot (1731-37) is somewhat better. W. Kelynge (1731-36) contains notes of cases by both King and Talbot.

Of all the great lawyers who have administered equity Lord Hardwicke admittedly stands at the head. The desirability of an authentic collection of his perspicuous and invaluable opinions prompted an undertaking some years ago to reprint his cases, revised and corrected from original manuscript.2 Unfortunately the work was abandoned after completing the first three years. Meanwhile our main reliance for Hardwicke’s work is Atkyns (1736-54), Vesey, senior (1746-56), and Ambler (1737). These reports, although much improved in subsequent editions, are extremely unsatisfactory; their statement of facts is often defective, their reports of the arguments of counsel are far from lucid, and sometimes they give an incorrect report of the decree. Dickens’s brief reports (1559-1798), which deal for the most part with the last half of the eighteenth century, are the work of a registrar of the court. Other decisions by Lord Hardwicke are scattered through 9th Modern, Ridgeway, Lee, Kenyon and Cox.

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The services of Lord Keeper Henley are recorded by Eden (1757-66), and much more satisfactorily than by the brief and inaccurate reports of Ambler, which also extend through this period. Unfortunately, the second part of Ambler is our main reliance for Lord Camden’s work. Most of Lord Thurlow’s service is covered by Cox’s perspicuous and accurate reports (1783-96). These volumes, which may be termed the first complete reports in chancery, also record part of Lord Loughborough’s service as chancellor, as well as Kenyon’s decisions as master of the rolls. Brown’s reports (1778-94), extending over part of the same period, are not so trustworthy; but they have been improved by the annotations of Eden and Belt. The first five volumes of Vesey, junior, cover the last years of Thurlow’s service, all of Loughborough’s, and include Sir Pepper Arden’s decisions as master of the rolls.

Lord Eldon’s herculean labors are preserved in some thirty volumes, of which the reports of Vesey, junior (1789-1816), record nearly one half. These very important reports were much improved by Belt’s subsequent annotations and corrections. They contain also most of Sir William Grant’s decisions as master of the rolls. Lord Eldon’s other reporters are Vesey and Beames (1812-14), Cooper (1815), Merivale (1815-17), Swanston (1818-19), Jacob and Walker (1819-21), Jacob (1821-22), and Turner and Russell (1822-24).

The strong personalities of Lyndhurst and Brougham did not suffice to conceal their deficiencies in special learning, and their administration of equity, as recorded in Russell’s reports, failed to add to their reputation. Lord Cottenham, on the other hand, was deeply learned in the principles and practice of the chancery jurisdiction, and the ten volumes of reports of his decisions by Messrs. Mylne, Craig, Phillips, Macnaghten and Gordon are among the most authoritative expositions of technical equity. But the twenty volumes of reports by De Gex and his several associates (1851-65) have probably been cited oftener in later times, and have carried more weight than any of the contemporary chancery reports. Their standing is not due entirely to the ability of the chancellors during this period—although the list includes, in Edition: current; Page: [153] addition to Cranworth, Campbell and Chelmsworth, such eminent equity lawyers as St. Leonards and Westbury,—but also to the fact that they record the labors of Lords Justices Knight-Bruce and Turner in the Court of Appeal in Chancery.

The decisions of the masters of the rolls, which have been regularly reported in a separate series since 1836, are, as a whole, inferior to those of the vice-chancellors. Lord Langdale’s work, as reported by Keen (1836-38) and Bevan (1838-66), is eminently respectable; but the last twenty-three volumes of Bevan’s reports, containing Lord Romilly’s decisions, have not been highly esteemed, although the labors of a very able bar supplied many deficiencies.

The seventy volumes of reports of the proceedings of the vice-chancellors vary considerably in authority. Beginning in mediocrity, they advance steadily in value. The work of the first vice-chancellors, Plumer and Leach, as reported by Maddock (1815-22) and Simons and Stuart (1822-26), carries little weight. The same may be said of Smale and Giffard’s reports of Vice-Chancellor Stuart’s decisions. The services rendered by their successors, Shadwell and Kindersley, reported by Simons (1826-52) and Drewry (1852-65), show much improvement. The labors of Knight-Bruce, as recorded in Younge (1841-43), Collyer (1844-45), and De Gex (1846-52), and of Wigram and Turner, in Hare (1841-53), were of a very high order, often outranking in the estimation of the profession the determinations of the chancellor himself. Probably the most substantial contribution to equity was made by Vice-Chancellor Page-Wood, whose very able discharge of the duties of this position led to his subsequent elevation to the woolsack as Lord Hatherley. The reports of Hare, Kay, Johnson and Hemming, from 1853 to 1865, covering most of his service as vice-chancellor, have probably been cited oftener than any other reports from this court.1

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The ecclesiastical and admiralty courts and the appellate jurisdiction of the House of Lords and the Privy Council present no great difficulties. As a system of judicial precedents the ecclesiastical and maritime jurisdictions practically date from Lord Stowell’s time; since then the proceedings of these courts have been quite fully reported. The judgments of the House of Lords during the eighteenth century are recorded by Brown and Tomlins; the reasons upon which some of these judgments are based may occasionally be found in the common law and chancery reports of the time. Complete reports of appeal cases date from 1812; since then, with a single break between 1825 and 1827, the judicial proceedings of the House have been admirably reported. Regular reports of the judicial proceedings of the Privy Council practically begin with the organization of the Judicial Committee.

The present method of systematic reporting dates from 1865. The “authorized” reports, conducted in each court separately as commercial undertakings, were costly and dilatory. Aside from frequent duplication in particular courts, several legal newspapers issued reports of their own which were cheaper, more prompt, and often superior to their rivals. This competition involved an immense waste of time, labor and money. At length, in 1863, a committee of the Bar devised the present system of coöperative reporting, which soon superseded the old reports. The regular reports are now issued under the general supervision of the Incorporated Council of Law Reporting, assisted by the General Council of the Bar.

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APPENDIX A: LIST OF PRINCIPAL SOURCES OF MEDIAEVAL EUROPEAN LAW1

I.: Leges Barbarorum (Folk Laws)

Lex Salica, ed. Hessels and Kern. London, 1880.

Lex Burgundionum. Monumenta Germaniæ Historica, Fo. Leges, tom. iii. pp. 497-578; and ibid., 4° Leges, sect. i. tom. ii. pp. 1-122.

Lex Ribuaria. Ibid., Fo. Leges, tom. v. pp. 185-268.

Lex Wisigothorum, ed. Bluhme. Paris. 1847.

Leges Langobardorum. Mon. Germ. Fo. Leges, tom. iv. pp. 1-225.

Lex Alamannorum. Ibid., tom. iii. pp. 1-182; and ibid., 4° Leges, sect. i. tom. v. pp. 1-176.

Leges Baiuwariorum. Ibid., Fo. Leges, tom. iii. pp. 183-496.

Lex Frisionum. Ibid., Fo. Leges, tom. iii. pp. 631-711.

Lex Thuringorum. Ibid., Fo. Leges, tom. v. pp. 103-144.

Lex Saxonum. Ibid., Fo. Leges, tom. v. pp. 1-102.

Lex Francorum Chamavorum. Ibid., Fo. Leges, tom. v. pp. 269-276.

Leges Anglo-Saxonum, ed. Schmid (Die Gesetze der Angelsachsen), Leipzig, 1858.

[Also ed. Liebermann, Die Gesetze der Angelsachsen. Halle, 1897-1907.]

Leges Sveonum, ed. Collin and Schlyter (Samling af Sveriges gamla lagar). Stockholm and Lund. 1827-1877.

The Westgötalag has also been edited, with a French translation, by Beauchet. Paris. 1894.

Leges Norvegorum, ed. Keyser, Munch, and Storm (Norges gamle Love.) Christiania. 1846-1895.

Leges Danorum, ed. Kolderup-Rosenvinge (Samling af gamle danske Love.) 1821-1846.

There does not appear to be any separate collection of Icelandic Folk Laws; but most of them will be found in the Norwegian and Danish collections.

Edition: current; Page: [156]

2.: Capitula

Capitularia Regum Francorum. Mon. Germ. Fo. Leges, tom. i. and ii. pp. 1-16, and 4° Leges, Sect. ii. tom. i. and ii.

Capitularia Regum Langobardorum. See Leges Langobardorum.

3.: Canon Law

Corpus Juris Canonici, ed. Friedberg. Leipzig. 1879. Containing—

  • 1. Decretum Magistri Gratiani.
  • 2. Decretales Gregorii Noni.
  • 3. Constitutiones Bonifacii Octavi. (The “Sext.”)
  • 4. Constitutiones Clementis Quinti. (“The Clementines.”)
  • 5. Extravagantes.

4.: Roman Law

Codex Theodosianus, ed. Hänel. Bonn. 1839-1842.

Lex Romana Wisigothorum (“Breviarium Alaricianum”), ed. Hänel. 1849.

Edictum Theoderici. Mon. Germ. Fo. Leges, tom. v. pp. 145-179.

Lex Romana Burgundionum. Mon. Germ. Fo. Leges, tom. iii. pp. 579-624, and 4° Leges, Sect. i. tom. ii. pp. 123-188.

Corpus Juris Romani Justinianei. Berlin. 1895. Containing—

  • 1. Institutiones, ed. P. Krueger.
  • 2. Digesta, ed. Mommsen.
  • 3. Codex Justinianus, ed. P. Krueger.
  • 4. Novellae, ed. Schoell and Kroll.

5.: Statutes

English: Statutes of the Realm from Magna Carta to the end of the Reign of Queen Anne. 11 vols. 1810-1828.

Scottish: The Acts of the Parliaments of Scotland. 11 vols. 1814-1824.

German: Constitutiones et Acta Regum Germanicorum. Mon. Germ. Fo. Leges, tom. ii. pp. 16-582, and 4° Leges, Sect. iv. tom. i. and ii.

Collectio Constitutionum Imperialium, ed. Goldast. 4 vols. 1609-1615.

Neue . . . Sammlung der Reichsabschiede, ed. Koch. 4 vols. 1747.

French: Ordonnances des rois de France de la troisième race, ed. Laurière, etc. 21 vols. 1723-1849.

Spanish: Teatro de la Legislacion Universal de España et Indias.

This edition also contains extracts from the other Sources of Spanish Law, analytically arranged.

Scandinavian.

Swedish: Diplomatarium Suecanum, Liljegren and Hildebrand. 1829-1878.

Volume II. of Hadorph’s Rym-Krönikor. Stockholm. 1674, also contains statutes of later date than those given in the Diplomatarium.

Norwegian: Diplomatarium Norvegicum, Lange and Unger. 12 vols. 1848-1888.

A good many of the older statutes will also be found in Keyser and Munch, Norges gamle Love. Christiania. 1846-1895.

Danish: Aarsberetninger fra det kongelige Geheimearchiv, vol. v.

Corpus Constitutionum Daniae, Secher, 1887.

Edition: current; Page: [157]

6.: Text-books

A.: England.1

B.: Scotland.

Regiam Majestatem, in Acts of the Parliament of Scotland, vol. i. pp. 597-641.

Quoniam Attachiamenta. Ibid., pp. 645-659.

Iter Camerarii. Ibid., pp. 693-702.

C.: Italy.

Concordia, in Mon. Germ. Fo. Leges, tom. iv. pp. 235-288.

Liber Papiensis. Ibid., pp. 290-585.

Expositio. Ibid. (as a commentary on the Liber Papiensis.)

Lombarda. Ibid., pp. 607-638.

Libri Feudorum. See De Feudis Libri Quinque of Cujacius. Lyons. 1566.

(The Libri Feudorum are sometimes printed as an Appendix to the Corpus Juris Civilis, as Decima Collatio Novellarum.)

D.: Germany.

Codex Babenbergensis, in Eccard, Corpus Historicum Medii Aevi. 1723. Vol. ii.

Auctor Vetus de Beneficiis. in

Sachsenspiegel, ed. Homeyer. 1842-1861.

Summa Prosarum Dictaminis, ed. Rockinger. Quellen und Erorterungen zu bayrische Geschichte, ix. 203.

Deutschenspiegel, ed. Ficker, Der Spiegel deutsche Leute. 1859.

Schwabenspiegel, ed. Lassberg. 1840.

Summa Curiae Regis, ed. Stobbe, in Archiv. fur Oesterreichische Geschichte, xiv. 307.

Kleine Kaiserrecht, ed. Endemann. 1846.

Bambergensis (Johann v. Schwartzenberg), ed. Mentz. 1510.

E.: France.

Très Ancien Coutumier de Normandie, ed. E. J. Tardif, Coutumiers de Normandie, Part I. 1881.

Establissemens le Roy (St. Louis), in Laurière, Ordonnances, vol. i., and ed. Viollet. 3 vols. 1881-1883.

Coutumes de Toulouse, ed. A. Tardif. 1884.

Grand Coutumier Normand. ed. Gruchy, L’ancienne Coutume de Normandie, 1881; and E. J. Tardif, op. cit., vol. ii. 1896.

Charte aux Normands, in Coutume reformée de Normandie, ed. Basnage. 1694.

Très Ancienne Coutume de Bretagne, in Bourdot de Richebourg.

Grant Coustumier de France, ed. Dareste and Laboulaye. 1868.

Style de du Breuil, ed. Lot. 1877.

Grant Coutumier de France. ed. Dareste and Laboulaye. 1868.

Coutume de Poitou, ed. Beautemps-Beaupré. 1865.

Coutume de Berry, ed. Thaumassière. 1701.

The following text-books, though influential, can hardly be regarded as Sources:

Assises de Jérusalem. Beugnot. 1841-1843. 2 vols.

Le Conseil de Pierre de Fontaines. ed. Marnier. 1846.

Le Livre de Justice et de Plet. ed. Rapetti. 1850. (Collection des documents inédits.)

Edition: current; Page: [158]

Coutumes de Beauvoisis par Philippe Beaumanoir, ed. Beugnot. 2 vols. 1842.

La Somme Rurale de Jean Boutillier, ed. Charondas, 1603.

F.: Scandinavia.

Sjallandske Love (the so-called “Waldemar’s” and “Erik’s”) in Kolderup-Rosenvinge, Samling af Gamle danske Love, 1821-1846, vol. ii.

Thord Degn’s Artikler. Ibid., vol. iii.

7.: Official Custumals

A.: England.

Most of the early charters affecting English Law will be found collected in Stubb’s Select Charters . . . of English Constitutional History. 1870.

A.: Scotland.

Leges inter Scottos et Brettos, in Acts of the Parliament of Scotland, vol. i. pp. 663-665.

Use of Merchis. Ibid., pp. 713-716.

B.: Germany.

Oesterreichisches Landrecht, ed. Hasenöhrl. 1867.

Leges Upstalsbomicae, in Richthofen, Friesische Rechtsquellen. 1840.

Bairisches Landrecht of 1516, ed. Munich. 1520.

Schlesisches Landrecht, ed. Gaupp. 1828.

Dithmarsisches Landrecht, ed. Michelsen. 1842.

Wurtemberger Landrecht, ed. Reyscher. 1834.

Pfalzer Landrecht, ed. Vögelin. 1611.

C.: France.

All the important official Coutumiers are to be found in Bourdot de Richebourg, Coutumier Général. 1724.

D.: Spain.

El Fuero viejo de Castilla, ed. Asso and Rodriguez. 1771.

Espejo de todos los Derechos, in Opúsculos Legales del Rey Don Alfonso el Sabio, 1836, vol. i.

El Fuero Juzgo. Madrid, 1815 (by Royal Academy); the Latin text also in Monumenta Portugalie, vol. i.

El Fuero Real. ed. Montalvo, 1544, and in Opúsculos Legales, vol. ii.

Las Siete Partidas, ed. Lopez. 1555. 3 vols., and ed. Nys. 1883.

Ley de Toro, ed. Castello. 1527.

Neuva Recopilacion, ed. 1592 (Alcala).

E.: Scandinavia.

Sweden: Magnus Eriksson’s Landslag, in Collin and Schlyter, Samling af Sveriges gamla lagar, vol. X.

Christopher’s Landslag. Ibid., vol. xii.

The code of Charles IX., though not coming in our period, may be of value as an illustration. It was published in a Latin translation by Loccenius. Stockholm. 1672.

Norway: Magnus Haakonson’s (“Lagabotir’s”) Landslög, in Keyser and Munch. Norges gamle Love, vol. ii.

Almost contemporary with the Code of Charles IX. for Sweden is the Code of Christian IV. for Norway, ed. by Hallager and Brandt. Christiania. 1855.

Edition: current; Page: [159]

8.: Municipal Codes

A.: Scotland.

Leges Quatuor Burgorum, in Acts of the Parliament of Scotland, vol. i. pp. 703, 704.

Articuli in itinere Camerarii. Ibid., pp. 680-682.

B.: Germany.

The chief collections of medieval German Town Laws are those of—Gaupp. Deutsche Stadtrechte des Mittelalters. 1851-1852.

Gengler. Id. 1852.

Bischoff. Oesterreichische Stadtrechte und Priveligien. 1857.

C.: France.

Etablissemens de Rouen, ed. Giry. 1883.

Statuts de Montpellier.

Statuts de Marseilles.

Statuts d’Avignon, ed. De Maulde. 1879.

Statuts d’Arles.

Coutume de Toulouse, in Bourdot de Richebourg, op. cit.

D.: Scandinavia.

Sweden: The old Swedish Town Laws are printed in the collection of Collin and Schlyter, so often referred to.

Norway: The “old” and the “new” Bylov for Norway are printed in vols. i. and ii. respectively of Keyser and Munch. Norges Gamle Love.

Denmark: The Sleswig, Flensborg, Aabenra, and Haderslev Laws are edited by Thorsen (Jydske Lov, etc.). 1855.

9.: Precedents

A.: England.1

B.: Germany.

Weisthümer, gesammelt von J. Grimm. 1840-1878.

C.: France.

Recueil des jugements de l’Echiquier de Normandie, ed. Delisle. 1864.

Plaids de l’Echevinage de Reims, ed. Varin, in Archives Administratives de Reims, vols. i. and ii.

Les Olim (du Parlement de Paris), ed. Beugnot. 1839.

Registre Criminel du Châtelet, ed. Société des Bibliophiles français. 1861. 2 vols.

Parloir aux Bourgeois, ed. Le Roux. 1846.

D.: Spain.

Leyes del Estilo, in Opúsculos Legales del Rey Don Alfonso el Sabio, 1836, vol. ii.

E.: Scandinavia.

Udvalg af gamle Danske Domme. Kolderup-Rosenvinge. 1842. 4 vols.

Edition: current; Page: [160]

SUPPLEMENTARY LIST OF REFERENCES1

General

Bibliography and General Reference.

Gavet, G., Sources de l’histoire des institutions et du droit français; manuel de bibliographie historique, 1899 (the best general bibliographical and critical survey of European law).

Dareste, R., Etudes d’histoire du droit; 1st ser. 1889, 2d ser. 1902, 3d ser. 1906.

Commercial and Maritime Law.

Goldschmidt, L., Handbuch des Handelsrechts; Part I, Universal-geschichte des Handelsrechts (3d ed. 1891).

Desjardins, A., Introduction historique à l’étude du droit commercial maritime, 1878.

Pardessus, J. M., Collection des lois maritimes antérieures au XVIIIe siècle, 6 vols., 1828-45.

Monumenta Germaniae Historiae. Quarto Edition. More recent volumes have appeared as follows:

Sect. I, Tom. I, Leges Visigothorum, ed. Zeumer, 1902.

Sect. IV, Tom. III, Constitutiones ad 1273-1298, ed. Schwalm, 1904-6.

In Brunner’s Deutsche Rechtsgeschichte, ed. 1906 (infra under Germany) is the latest and most authoritative examination of these sources.

Roman Mediaeval Law.

In Professor Maitland’s English Law and the Renaissance (Essay No. 6, ante. Vol. I, p. 168) will be found bibliographical data, including the subject of the Reception of Roman Law; to which may be added:

Flach, J., Etudes critiques sur l’histoire du droit romain au moyen âge, 1890.

Halban, A. v., Das romisches Recht in den germanischen Volkstaaten, 1899-1901.

Wilmanns, Die Reception des römischen Rechts und die sociale Frage des Gegenwarts, 2d ed., 1896.

Austria

Ficker, J., Untersuchungen zur Rechtsgeschichte, 1891-99.

Oesterreichische Weisthümer; pub. by Kaiserliche Akademie der Wissenschaften, Wien, 8 vols., 1870-1906.

Belgium

Recueil des anciens Ordonnances et Coutumes de la Belgique; pub. by Commission Royale, etc., 86 vols., 1868-1906.

Edition: current; Page: [161]

France

Beaune, H., Introduction à l’étude historique du droit coutumier, etc., 1880.

—, Droit coutumier français, 3 vols., 1882-89.

Brissaud, J., Manuel d’histoire du droit français, 2 vols., 1898-1907 (this contains profuse bibliographies).

Brunner, H., Ueberblick über die Geschichte der französischen, normannischen, und englischen Rechtsquellen (in Holtzendorff’s Encyclopädie, 3d ed., 1877).

Esmein, A., Cours elementaire d’histoire du droit français, 1895.

Flach, J., Les origines de l’ancienne France, 3 vols., 1886-1904.

Fournier, M., Histoire de la science du droit en France, 6 vols., 1892-1902.

Glasson, E., Histoire du droit et des institutions politiques de la France, 8 vols., 1887-1903 (specially useful for bibliography).

Tardif, A., Histoire des sources du droit français, 1890.

Viollet, P., Histoire du droit civil français, 1893.

—, Histoire des institutions politiques et administratives de la France, 3 vols., 1890-98.

Germany

Amira, K. v., Grundriss des germanischen Rechts, 1901 (this, with Brunner’s works, gives the latest and most comprehensive bibliographies).

Brunner, H., Deutsche Rechtsgeschichte (1st ed., 1887-92, 2d ed., vol. I., 1906).

—, Forschungen zur Geschichte des deutschen und franzosischen Rechts (1894).

—, Grundzüge der deutschen Rechtsgeschichte (1st ed., 1901, 2d ed., 1905).

—, Quellen und Geschichte des deutschen Rechts (in Holtzendorff’s Encyclopädie, 6th ed., 1904).

Daniels, Gruber, Kuhns, and Massman, Rechtsdenkmaler des deutschen Mittelalters, 3 vols., 1857-63.

Gengler, H., Germanische Rechtsdenkmaler, 1875.

—, Deutsche Stadtrechtsalterthümer, 1882.

Gierke, O., Rechtsgeschichte der deutschen Genossenschafts, 3 vols., 1868-1881.

Grimm, J., Deutsche Rechtsalterthümer, 2 vols., 4th ed. by Heusler, 1889.

Hensler, A., Institutionen des deutschen Privatrechts, 2 vols., 1883-85.

Lehmann, H. O., Quellen zur deutschen Reichs- und Rechtsgeschichte, 1891.

Loersch and Schroeder, Urkunden zur Geschichte des deutschen Privatrechts, 2d ed., 1881.

Maurer, K. v., Geschichte der Mark-, Hof-, Dorf-, und Stadt-Verfassung, 9 vols., 1854-1877.

Rozière, E. de, Recueil général des formulaires usitées dans l’empire des Francs du Ve au Xe siècle, 3 vols. 1859-71.

Schroeder, R., Lehrbuch der deutschen Rechtsgeschichte, 4th ed., 1902.

Stintzing, R., Geschichte der deutschen Rechtswissenschaft, 3 vols., 1880-98.

Stobbe, O., Geschichte der deutschen Rechtsquellen, 2 vols., 1860-64.

Waitz, G., Deutsche Verfassungsgeschichte, 8 vols., partly 2d ed., 1844-1896.

Wasserschleben, H., Sammlung deutscher Rechtsquellen, 2d ed., 1892.

Wattenbach, W., Deutschlands Geschichtsquellen im Mittelalter, 2 vols., 7th ed., 1904.

Edition: current; Page: [162]

Zeumer, K., Quellensammlung zur Geschichte der deutschen Reichsverfassung, 1904.

Zoepfl, H., Altertumer des deutschen Reichs und Rechts, 3 vols., 1860-61.

Italy

Calisse, C., Storia del diritto italiano, 3 vols., 2d ed., 1902-07.

—, Storia del diritto penale italiano, 1895.

Ficker, J., Forschungen zur Reichs- und Rechtsgeschichte Italiens, 1868.

La Mantia, V., Storia della legislazione italiana, vol. i, 1884.

Padelletti, G., Fontes juris italici mediaevi, 1877.

Pertile, A., Storia del diritto italiano, 6 vols., 2d ed., 1903.

Salvioli, G., Manuale di storia del diritto italiano, 4th ed., 1903.

Schupfer, F., Manuale di storia del diritto italiano, 3d ed., 1904.

Netherlands

Oude Vaderlandsche Rechtsbronnen; pub. by Vereeniging tot de Uitgaaf der Bronnen, etc., 1st ser., 20 vols., 1880-1903, 2d ser., 7 vols., 1903-1906.

Fockema-Andreae, S. J., Bijdragen tot de Nederlandsche Rechtsgeschiedenis, 4 vols., 1892-1900.

—, Het Oud-Nederlandsche Burgerlijk Recht, 2 vols., 1906.

Richthofen, K. v., Untersuchungen über friesische Rechtsgeschichte, 3 vols., 1880-1886.

Scandinavia

General. Amira, K. v., Nordgermanisches Obligationenrecht, 2 vols., 1882-95.

Aagesen, A., Fortegnelse over Retssamlingar og Retsliteratur, i Danmark, Norge, Sverige, og til dels Finlands, 1876.

Maurer, K. v., Ueberblick uber die Geschichte der Nordgermanischen Rechtsquellen (in Holtzendorff’s Encyclopädie, 3d ed., 1877).

—, Vorlesungen über altnordische Rechtsgeschichte, 1906-7.

Norway. Norges gamle Love, ed. Kayser and Munch, is continued in a second series, ed. Taranger, vol. i, 1904.

Taranger, Udsigt over den norske Retshistorie, 1898.

Iceland. Sigurdsson, Diplomatarium Islandicum, 8 vols., 1857-1906.

Stephenson and Sigurdsson, Lovsamling for Island, 1832.

Spain and Portugal

Alcubilla, M. M., Codigos antiguos de España, 2 vols., 1855 (reprints of the principal ones from Fuero Juzgo to Novisima Recopilacion).

Hinojosa, E. de, Historia general del derecho español, vol. i, 1887 (with bibliography of the early period, and list of prior historians).

Marichalar, A., and Manrique, C., Historia de la legislacion y recitaciones del derecho civil de españa, 9 vols., 1861-1868.

Ureña, R. de, Historia de la literatura juridica española, 2 vols. (not completed), 2d ed., 1906 (the most comprehensive and critical bibliographical work).

Visigothic law, new editions:

Leges Visigothorum antiquiores, ed. Zeumer, 1894.

Lex Romana Visigothorum, ed. Regia Historiae Academia Hispana, 1896.

Portugal. Collection complète des ouvrages sur l’histoire du droit portugais, Freirius, 7 vols., 1827-49.

Edition: current; Page: [163]

Switzerland

Huber, E., System und Geschichte des Schweizerischen Privatrechts, 4 vols., 1886-93.

Sammlung Schweizerischer Rechtsquellen, 6 vols., 1890-1906.

Segesser, P. A., Amtliche Sammlung der älteren eidgenossischen Abschiede, 3 vols., 1843-74.

Edition: current; Page: [164]

APPENDIX B: A SHORT BIBLIOGRAPHY OF AMERICAN COLONIAL LAW1

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

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

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

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

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

—. The American Judiciary. New York, 1905.

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

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

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

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

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

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

Benedict. American Admiralty. Ch. 9.

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

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

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

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

Edition: current; Page: [165]

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

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

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

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

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

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

Calendar of Virginia State Papers.

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

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

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

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

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

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

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

Century of Law Reform. New York, 1901.

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

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

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

Collections of the Historical Soc. of South Carolina.

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

Commonwealth vs. Knowlton, 2 Mass. 530.

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

Dallas (Pennsylvania) Reports.

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

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

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

Delaware Historical Soc. Papers, Vol. II.

De Lovio vs. Boit, 2 Gallison 470.

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

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

Documents relative to the Colonial History of New York.

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

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

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

Etting. Admiralty Jurisdiction in America. Philadelphia, 1879.

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

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

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

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

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

Field, Henry M. Field Family History.

Edition: current; Page: [166]

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

First National Bank vs. Kinner, 1 Utah 106.

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

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

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

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

Grants and Concessions of New Jersey.

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

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

Hening. Statutes at Large of Virginia.

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

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

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

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

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

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

Hutchinson Papers. Prince Society Publications. Albany, 1865.

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

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

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

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

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

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

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

Laws of Pennsylvania. Edition of 1810.

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

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

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

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

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

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

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

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

Maryland Archæological Society Proceedings.

Maryland Archives, Proceedings and Acts of the General Assembly.

—. Proceedings of the Council.

Massachusetts Historical Society Collections.

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

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

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

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

Edition: current; Page: [167]

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

Morgan vs. King, 30 Barbour 13.

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

Meyers vs. Gemmel, 10 Barbour 541.

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

New York Historical Society Collections.

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

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

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

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

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

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

Quincy (Massachusetts) Reports.

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

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

Records of New Amsterdam. New York, 1897.

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

Roberts. Digest of British Statutes in force in Pennsylvania.

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

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

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

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

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

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

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

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

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

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

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

Story, On the Constitution. Sections 146-198.

Suffolk Deeds. Boston, 1880-1897.

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

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

—. Miscellaneous Essays, 1908.

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

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

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

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

Van Ness vs. Packard, 2 Pet. 144.

Virginia Historical Collections.

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

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

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

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

Wilson, James. Law Lectures.

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

Edition: current; Page: [169]

26.: AN HISTORICAL SURVEY OF ANCIENT ENGLISH STATUTES1

Chap. I.

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

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

In Queen Elizabeth’s Reign ad 1557, Sir N. Bacon, Lord Keeper, drew up a short plan for reducing, ordering, and printing the Statutes of the Realm. The following are the heads of this plan:3 “First where many lawes be made for one thing, the same are to be reduced and established into one lawe, and the former to be abrogated.—Item, where there is but one lawe for one thing, that these lawes are to remain in case as statutes.—Item, where part of one acte standeth in force and another part abrogated, there should be no more printed but that that standeth in force.—The Edition: current; Page: [170] doing of these things maie be committed to the persons hereunder written, if it shall so please her Majesty and her Counsell, and daye wolde be given to the committees until the first daie of Michaelmas terme next coming for the doing of this, and then they are to declare their doings to be considered of by such persons as it shall please her Majesty to appoint.” Then follow lists of twenty committees of four each, in which the judges, sergeants, attorney and solicitor general, &c. are named; One judge, &c. and three counsel forming a committee, to each of which it was proposed that a title or division of the statute law shall be referred.

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

In the year 1610 a digest and repeal of the penal law was expressly stipulated for by the House of Commons, and acceded to by the House of Lords, in their joint transaction of the great contract with the Crown;7 and in the same reign Sir Francis Bacon, Lord C. J. Hobart, Serjeant Finch, Mr. Noy, and others, by the King’s command, made considerable progress in the general work of reforming and recompiling the statute law, which Lord Bacon describes8 as Edition: current; Page: [171] “an excellent undertaking, of honour to his Majesty’s times, and of good to all time;” and recommends, in imitation of the statutes of 27 Hen. VIII. c. 15, and 3 & 4 Edw. VI. c. 11, for appointing commissioners to examine and establish ecclesiastical laws, that commissioners be named by both houses for this purpose also, with power not to conclude, but only to prepare and propound the matter to Parliament.

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

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

During the usurpation, the same undertaking was resumed with ardor. In 1650, a Committee was named, one of the members whereof was Bulstrode Whitelock, then first Lord Commissioner for the Custody of the Great Seal: the purpose was “to revise all former statutes and ordinances, now in force and consider as well which are fit to be continued, altered, or repealed, as how the same may be reduced into Edition: current; Page: [172] a compendious way and exact method, for the more ease and clear understanding of the people.” And the committee were empowered “to advise with the judges and to send for and to employ and call to their assistance therein, any other persons whom they should think fit, for the better effecting thereof, and to prepare the same for the further consideration of the house, and to make report thereof.”1 But no such report has been preserved.

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

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

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

This plan it will be useful to state at length: And this we are enabled to do by the preservation of the papers, containing his original scheme, among Sir Robert Cotton’s manuscripts in the British Museum.1 In one of these papers the design is set forth: it is indorsed, in a hand frequent among the Cottonian manuscripts, “concerning Mr. Pulton’s suite;” and has no other title, mark or description at the beginning or end; though by another article referring to it, there is proof of its date being in or previous to 1611. “Mr. Pulton seeketh to print the statutes at large. He promiseth to set down which statutes or parts of statutes are repealed, and which, being at the first but temporary, are since expired and void, because not revived. This he Edition: current; Page: [174] hath already done in his late abridgement, for which he had a recompense of the printer. Now, to make this new book at large saleable, he promiseth to print the statutes first in the language the same were first written; and such as were originally in French or Latin, he will translate and print likewise in English. Where the statute has no title, he will devise a title out of the body, and print it with the statute. He will set down which statutes are warranted by the record, and which not. He will correct the printed book by the record. For which purpose he requireth free access at all times to the records in the Tower. Being very aged, viz. almost four score, he desireth that for his ease and better enabling in his work, the keeper of the records within the Tower of London, may every day deliver unto him, when he shall so require, one Parliament Roll, to be by him and his clerk perused and viewed, in a lodging which he hath taken near unto the said office; the same afterwards to be redelivered by them to the said keeper thereof. That the clerk do help further, and assist him in this service by all the means he can.”

Several objections to the prosecution of this plan were made by Bowyer and Elsyng, keepers of the Tower records; among others, that they and their predecessors had actually prepared materials for the work in question, and that they then had ready written five volumes of statutes copied from the records. These were perhaps the volumes alluded to in Lord Bacon’s letter before mentioned.1 The dispute between the parties was continued for some time; but there remains among the Cottonian manuscripts2 a draft of an award for its determination by Sir Robert Cotton himself, to whom they referred their differences; and from a paper in the British Museum, among the manuscript of Mr. Madox,3 it appears that an order of Council passed on the 24th October, 1611, granting license to Pulton to have the use of the records in the manner asked. It recites that he undertook the work by persuasion of the judges and others learned Edition: current; Page: [175] in the laws, and requires the keepers of the records, on account of the importance of the work, and for the benefit of the learned, to assist and further him all they can.

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

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

The defects of Pulton’s publication, as a general collection of statutes, are chiefly these: 1st. As to the statutes preceding Henry VII., it is a translation in English, and does not exhibit the text in the original language of the records, as might have been expected from his proposal: 2dly. Though it had the permission, it had not the authority of the king, by whom all acts of legislation are to be communicated to the subject; and was only the private work of an individual for his own benefit: 3dly. It is a partial Edition: current; Page: [176] selection of such statutes as in the judgment of the author, were fittest to appear in his book; their authority and use, whether in force or repealed, depending on his opinion: 4thly. It is not, nor does it purport to be, a correct and examined copy from the original records, of all those acts which are given at large; but of such only as the author thought necessary so to examine and correct: and it is left uncertain, which, and how many of them were taken from printed or written books. It has, therefore, though in a less degree, the same faults as all the collections and editions of statutes printed before; and it was particularly unfortunate that the author did not execute that part of his proposals which made their greatest merit, namely, the giving an accurate copy of the original text of the antient statutes from the record.

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

From the preceding statement, the necessity and use of an authentic publication of the statutes of the realm will appear: For, although the defects of all former collections have been long complained of by learned and eminent men, and although various propositions have been offered at different times, for an authentic publication of the statutes, none such has yet been executed. At length, however, a select committee, appointed by the House of Commons of Great Britain, in the year 1800, to enquire into the state of the public records of the kingdom, having reported upon this branch of the matters referred to their consideration, that in their opinion, it was “highly expedient for the honour of the nation, and the benefit of all his Majesty’s subjects, that a complete and authoritative edition of all the statutes should Edition: current; Page: [177] be published;” in pursuance of their recommendation the present work has been undertaken and executed; under the authority and direction of commissioners specially appointed by his Majesty to carry into effect the several measures which were by that committee recommended to the attention of Parliament.

CHAP. III.

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

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

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

2. Other matters of a parliamentary form and character have been recognized at different periods of our history, as appearing to have legislative authority. It has been observed by Lord Coke, that “Acts of Parliament are many Edition: current; Page: [178] times in the form of charters or letters patent;”1 and many such have been inserted in all editions of the statutes: and that there are “many acts of Parliament that be in the rolls of Parliament and never yet printed:”2 In the report also of the select committee of the House of Commons, in the year 1800, upon the subject of the public records, it is stated, that many statutes and ordinances in the rolls of Parliament are not inserted in the printed statute book; and it is certain that many Acts and matters not found on any statute roll, nor contained in any printed edition of the statutes, are found on the Parliament Rolls, which appeared to have received the threefold assent of King, Lords, and Commons, or to have such qualities, as have been allowed by courts of law to imply that assent.3

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With a view therefore to a consideration of the question, whether matters of this nature should be comprehended in the present work, lists of a great number of them were prepared, not only from the Parliament Rolls, but also from other records, particularly the Close Rolls and Patent Rolls, which were examined for the purpose with great care and diligence, and transcripts and collations of many of them were made for the examination of the Commissioners. In the progress of this labour, however, it appeared that the matters which came within the description above mentioned, were so numerous, that the indiscriminate insertion of all of them would constitute a mass, the very bulk of which would prove inconvenient. But, what was of still greater importance, Edition: current; Page: [180] upon examination, it became with respect to many of them, a subject of discussion, from which no certain conclusion could be derived, to what extent they had in fact received sanction, and whether therefore they were, in any degree, entitled to be considered as of legislative authority.1 It was obvious, at the same time, that to have made a selection only of such matters as in the opinion of the commissioners were the least doubtful, was in effect encountering the same difficulty only in a smaller degree; and the sources, from which they were to be taken, not being in themselves conclusive evidence,2 that the matters contained in them were statutes, the selection in each instance necessarily could be nothing more than the result of private judgment; without the authority of that “general received tradition,” which, as Lord Hale observes,3 attests and approves those statutes which are not properly extant of record.

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

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From these considerations therefore, upon mature deliberation, it has been deemed advisable that this collection should include all such instruments as have been inserted in Edition: current; Page: [182] any general collection of statutes printed previously to the edition by Hawkins; with the addition, only, of such matters of a public nature, purporting to be statutes, as were first introduced by him or subsequent editors, and of such other new matters of the like nature, as could be taken from sources of authority not to be controverted; namely, Statute Rolls, inrollments of Acts, exemplification, transcripts by writ, and original Acts.

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

Sect. II.: Of the Sources from whence the several Matters have been taken.

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

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

The materials for the several periods during which no Statute Rolls or parliamentary records exist, can only be collected from records on which copies or extracts of statutes have been entered; or from other manuscripts not on record; or, in default of other authority, from the oldest printed editions in which such matters were first inserted. With respect to entries of record, in these periods, that has been judged to be the most authentic evidence of a statute, which has been preserved as a record or authentic copy from antient times, in the custody of the highest courts authorized for that purpose. Such are copies or extracts of particular statutes found in the Close, Patent, Fine, and Charter Rolls, being records of chancery. Such also are the Red Books of the Exchequer of Westminster, and Dublin. On failure of these records, recourse has, of necessity, been had to manuscripts not of record preserved in the custody of courts of justice, public libraries, or other public repositories. Such are some antient books of statutes in the exchequer at Westminster, in the town clerk’s office, London, in the several cathedrals, in the public and other libraries of the several Edition: current; Page: [184] universities of Oxford, Cambridge, and Dublin, and in the British Museum: When all these sources have proved deficient, and in such case only, a copy has been admitted, from the oldest printed edition, with various readings from subsequent printed editions.

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

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

1. Statute Rolls.—These are records of chancery, of the highest authority, on which were entered the several statutes, when drawn up in form, for the purpose of being proclaimed and published; these statutes being framed upon such original petitions and answers, or entries thereof on the Parliament Rolls, as related to public concerns. The earliest Statute Roll now known to exist, is that which commences with Edition: current; Page: [185] the statute of Gloucester, 6 Edw. I. ad 1278. From that period to 8 Edw. IV. inclusive, ad 1468, with an interruption after 8 Hen. VI. until 23 Hen. VI. inclusive, the statutes are preserved in the Tower of London in a regular series, on 6 separate rolls, each roll consisting of several membranes tacked together. The contents of each roll are as follows, viz:

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

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

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

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

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

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

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

2. Inrollments of Acts of Parliament.—These are records containing the acts of Parliament certified and delivered into chancery. They are preserved in the Chapel of the Rolls, in an uninterrupted series from 1 Ric. III. to the present time; except only during the Usurpation. By the officers of chancery they are commonly termed “Parliament Rolls;” and they are variously endorsed, some with the Phrase “Inrollments of Acts.” From 1 Ric. III. to 3 Car. 1. inclusive, they comprehend several other proceedings of Parliament besides the Acts enrolled; (sometimes for instance, the commissions for giving the royal assent to bills are found entered on them;1) thus partaking of the qualities Edition: current; Page: [187] of rolls of Parliament, and including nearly the same contents: until, the miscellaneous matters disappearing by degrees, the Acts inrolled only occur: After 5 Hen. VII. they may be considered in effect, as coming in the place of the Statute Roll. To 25 Hen. VIII. they contain all Acts, public and private, which were passed in every session, each with an introductory and concluding form of their being presented and assented to: From 25 Hen. VIII., to 35 Eliz. several of the private Acts, and afterwards to 3 Car. 1. all the private Acts, are omitted, their titles only being noticed. From 16 Car. 1. to 31 George II., the inrollments contain nothing but public Acts, and the title of the private Acts, with the several forms of assent, without any other parliamentary matter. And from 32 George II. their contents are the same, with the omission of the titles of the private Acts.

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

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

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3. Exemplifications; and transcripts by writ.—Exemplifications are copies sent out of chancery under the King’s seal; either to sheriffs of counties and cities in England, or Edition: current; Page: [189] to the Chancellor or Chief-Justice of Ireland, or to other courts or places, for the safe custody and for the proclaiming and confirming of the statute; or in other cases for Edition: current; Page: [190] affording authentic evidence of the statute. In the Tower of London, copies of the statutes 9, 10, 11, 14, 15, 18 and 20 Hen. VI. (for some years to the number of two, three, six, or seven copies) are preserved on separate skins of parchment, which appear to have been prepared as exemplifications, for the purpose of proclaiming the several statutes; and these serve to supply the deficiency of the Statute Roll during that period. One similar copy of the statutes 13 Ric. II. is also preserved in the Tower.

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

Transcripts by writ were copies sent into chancery in answer to the King’s writ or mandate, calling for a copy of the statute from the officer in whose custody it was preserved. A transcript of the statutes of Wales, 12 Edw. I. is preserved in the Tower of London, with the writ annexed, by which that transcript was required from the exchequer at Westminster, where it was entered of record, according to the usage which formerly prevailed of sometimes inrolling statutes in courts of justice. Transcripts and exemplifications Edition: current; Page: [191] of statutes have also been occasionally found in various other depositories.

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

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

5. Rolls of Parliament.—These contain entries of the several transactions in Parliament; when complete they include the adjournments, and all of the common and daily occurrences and proceedings from the opening to the close of each Parliament, with the several petitions or bills, and the answers given thereto, not only on public matters, on which the statute was afterwards framed, but also on private concerns. In some few instances the statute as drawn up in Edition: current; Page: [192] form is entered on the Parliament Roll; but in general the petition and answer only, are found entered; and in such case the entry of itself furnishes no certain evidence, that the petition and answer were at any time put into the form of a statute.1

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

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

7. Books of record, containing entries of statutes and parliamentary proceedings.—Of this sort is, the Red Book of the Exchequer of Westminster, some of the early part of which was compiled by Alexander de Swereford, first a clerk and afterwards a baron of the exchequer, in the reign of Henry III. It seems afterwards to have been considered and used as an authorized repository by the court itself; and contains entries and inrollments of many charters and antient acts of Parliament, as well as other instruments relating to the King and the rights of the Crown, from the time of William the Conqueror to the end of Edw. III.: the originals of several of these Acts and instruments are preserved in the Tower of London, and in the Chapter House at Westminster, with references to inrollments in this book, or to the circumstance of the Act being sent into the exchequer. The Red Book of the Exchequer at Dublin is considered as of the same authority: it contains entries of Magna Carta, 1 Hen. III. especially granted to the people of Ireland; of the Statute of Westminster the first, 3 Edw. I. (which is not to be found on the Great Roll of statutes in the Tower of London, being prior in date to the present commencement of that roll,) and also of the Statutes of Gloucester, 6 Edw. I. de Viris Religiosis, 7 Edw. I., and Westminster the second, 13 Edw. I., agreeing in general to the text of those statutes on the Statute Roll in the Tower. There is reason to conclude that these Edition: current; Page: [194] statutes were entered in the Red Book at Dublin, from an exemplification sent over from England in the 13th year of Edw. I., as is noticed in a memorandum on the Close Roll of that year. A register book marked “A” preserved at the Chapel House at Westminster, as in the custody of the treasurer and chamberlains of the exchequer, contains entries or inrollments made in the time of Edw. I. Among these are the Statute of Gloucester, 6 Edw. I., and the Statute of Westminster the second, 13 Edw. I. The originals of the several statutes and instruments, it is stated in the register, were deposited in certain chests in the Chapter House; but these originals had not been discovered.

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

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

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

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

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

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

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

Of the several manuscripts not of record, an extensive and careful examination has been made in preparing for the present edition: and it has been ascertained that, although they differ from each other considerably in their degrees of antiquity and correctness, yet the credit of no single Edition: current; Page: [196] one is entirely to be relied on; for scarcely any manuscript has yet been discovered, in any repository, in which there are not some material errors perverting or altogether destroying the sense of the text. In some instances, however, such as Cott. Claud. D II. in the British Museum, and M m. v. 19, in the library of the University of Cambridge, several of the instruments contained in the manuscripts purport to be examined by the roll. In Liber Horn, in the town clerk’s office, London, several are marked as examined ‘per Ceram;’ ‘per Ceram Gildaule;’ ‘per Statutum Gildaule London in Cera;’ ‘cum brevi cum eisdem in Gildaula adjunct’; all which signify that the entry in the book has been examined with an exemplification of the statute or instrument under the Great Seal, sent to the mayor and sheriffs of London with or without a writ for publication thereof. The Rawlinson Manuscript No. 337 in the Bodleian Library at Oxford, and the Harleian Manuscript No. 5022 in the British Museum, refer to the inrollment on the Statute Roll, of several articles inserted in those volumes, but do not profess that the articles themselves were examined by that roll.

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

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

But for such statutes as, during the period of the existence of the Statute Rolls, do not appear on those rolls; and for statutes made in any period of which the Statute Roll is not now in existence namely, previous to 6 Edw. I.; after 8 and before 25 Hen. VI.; and after 8 Edw. IV.; and also for the correction of manifest errors or omissions in the text, whether taken from Statute Rolls or elsewhere the following sources have been recurred to in regular gradation; preference being given to them according to the following order, but all being used and collated, where necessary: viz. 1. Inrollments Edition: current; Page: [197] of Acts.—2. Exemplifications and transcripts.—3. Original Acts.—4. Rolls of Parliament.—5. Close Patent, Fine and Charter rolls.—6. Entries and books of record.—7. Books and manuscripts not of record.—And finally, 8. The printed copies; the earliest of which was not published until more than 200 years subsequent to the present commencement of the Statute Rolls.

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

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CHAPTER IV.

Sec. I.: Of the Original Language of the Charters and Statutes.

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

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

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

The statutes of Edward I. are indiscriminately in Latin or French; though the former language is most prevalent. But the Statute of Gloucester 6 Edward I. which on the Statute Roll is in French, appears in many contemporary manuscripts in Latin. In several manuscripts, particularly Register A. in the Chapter House at Westminster, this statute is given at length both in Latin and French. On the other hand the statute of Westminster the second, 13 Edition: current; Page: [199] Edw. I., which is in Latin on the roll, appears in many manuscripts in French; and Chapter 34 of this latter statute, as to violence against women, which on the roll appears in French, is given, like the rest of the statute, in Latin, in several manuscripts.1 The French Chapter, 49, as to champerty by Justices, is omitted in the Tower Roll, and in many other copies, which give the statutes in Latin, but is found in the copies which give the statute in French.2

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

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

The earliest instance recorded of the use of the English language in any parliamentary proceeding, is in 36 Edw. III. The style of the roll of that year is in French as usual, but it is expressly stated that the causes of summoning the Parliament were declared “en Englois,”3 and the like circumstance is noted in 37 and 38 Edw. III.4 In the fifth year of Richard II.,5 the Chancellor is stated to have made ‘un bone collacion en Engley’s (introductory, as was then sometimes the usage, to the commencement of business) though he made use of the common French form for opening the Parliament. A petition from the “Folk of the Mercerye of London,” in the 10th year of the same reign,6 is in English; and it appears also, that in the 17th Edition: current; Page: [200] year1 the Earl of Arundel asked pardon of the Duke of Lancaster by the award of the King and Lords, in their presence in Parliament, in a form of English words. The cession and renunciation of the Crown by Richard II. is stated to have been read before the estates of the realm and the people in Westminster Hall, first in Latin and afterwards in English, but it is entered on the Parliament Roll only in Latin.2 And the challenge of the Crown by Henry IV. with his thanks after the allowance of his title, in the same assembly, are recorded in English; which is termed his maternal tongue.3 So also is the speech of Sir William Thirnyng, the Chief Justice of the Common Pleas, to the late King Richard, announcing to him the sentence of his deposition, and the yielding up, on the part of the people, of their fealty and allegiance. In the sixth year of the reign of Henry IV.4 an English answer is given to a petition of the commons, touching a proposed resumption of certain grants of the Crown, to the intent the King might the better live of his own. The English language afterwards appears occasionally, through the reigns of Henry IV. and V.5

In the first and second, and subsequent years of Hen. VI. the petitions or bills, and in many cases the answers also, on which the statutes were afterwards framed, are found frequently in English; but the statutes are entered on the roll in French or Latin. From the 23rd year of Hen. VI. these petition or bills are almost universally in English, as is also sometimes the form of the royal assent: but the statute continued to be inrolled in French or Latin.6 Sometimes Latin and French are used in the same statute, as in 8 Hen. VI.; 27 Henry VI.; and 39 Henry VI. The last statute wholly Edition: current; Page: [201] in Latin on record is 33 Henry VI.; the last portion of any statute in Latin is 39 Henry VI.; chapter 2.

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

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

Attempts have been made by many learned persons to explain this variety of languages in the earlier periods of our legislation; and some have referred the preference of the one language or of the other, to the operation of particular causes.2 Nothing, however, is known with certainty on this subject; and at the present day it is utterly impossible to account, in each instance, for the appearance of the statute in French or in Latin. It seems on the whole to be highly probable that for a long period of time, charters, statutes, Edition: current; Page: [202] and other public instruments were drawn up indiscriminately in French or Latin, and generally translated from one of those languages into the other,1 before the promulgation of them, which in many instances appears to have been made at the same time in both languages.2

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

CHAPTER V.

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

The Promulgation of the Statutes, which formerly took place within the realm of England, as well as in Scotland and Ireland, has been wholly superseded by the practice of modern times. Before the introduction of printing, the publication of the statutes of England was made by means of exemplifications thereof, sent to the sheriffs, under the Great Seal, out of chancery, with writs annexed, requiring the proclamation and publication of the same by them,3 and sometimes Edition: current; Page: [203] also directing copies to be made and distributed, and the sheriffs to return what was done by them thereupon. The earliest statutes were published in this manner; as appears not only by copies of the writs subjoined to the records and manuscripts of the respective statutes, of the thirteenth century, but also by original writs still preserved in the Tower of London.

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

In Scotland it was the exclusive privilege and official duty of the Lord Clerk Register to enter the acts of Parliament in the proper record, and to give authentic copies of them to Edition: current; Page: [204] the sheriffs, magistrates of boroughs, and such as might demand them. A precept is extant for proclaiming and publishing the statutes of Robert I. in the year 1318; and there exists also a parliamentary ordinance made in the reign of David II., 1366, by which the Acts of that Parliament are directed to be sent under royal seal to each sheriff to be by him publicly proclaimed. The earliest printed publication of statutes in Scotland took place in the year 1540-1.

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

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

In Great Britain the public inconvenience experienced from the defective promulgation of the statutes, led to the adoption of new measures in the year 1796; by which, the Acts printed by the King’s printer, whose authority had been long deemed sufficient to entitle his printed copies to be received in evidence, in all courts of law,2 were distributed Edition: current; Page: [205] throughout the kingdom as speedily as possible after they had received the royal assent: and the experience of the good effects of those measures led soon afterwards to their execution in a much greater extent.

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

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

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PART II.: THE COURTS, THEIR ORGANIZATION AND JURISDICTION

  • 27. The Courts as Established under Edward I.

    Frederick Andrew Inderwick.

  • 28. The History of the Court of Chancery.

    George Spence.

  • 29. The Ecclesiastical Courts and Their Jurisdiction.

    William Searle Holdsworth.

  • 30. The History of the Admiralty Jurisdiction.

    Thomas Lambert Mears.

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27.: THE COMMON LAW COURTS AS ESTABLISHED UNDER EDWARD I1

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

In the meantime, however, dissatisfaction had arisen with the proceedings of the Curia Regis itself. This Court followed the King not only theoretically but actually. Where the King went to hold a Court there also went the Curia in both departments; the Curia Regis with the Justiciar, the Chancellor and the Justices, and the Exchequer with the Treasurer, the Chamberlain, the officers and the treasure. And thus the King in his progresses was accompanied not only by his great and smaller officers of State, but by carts and wagons loaded with bullion,3 with gold and silver plate, with jewels, and all the personal treasures of the King not deposited Edition: current; Page: [210] in the Abbey or in the treasury at Winchester. Numerous hanapers, or hampers of plaited rushes or straw, formed part of the baggage, and held the writs, the records, and the tallies necessary for carrying on the business of the courts. And thither in the wake of the King followed the suitors whose plaints waited determination in the King’s Court. These perambulations of the monarch reached their culminating point in the reign of King John. When he was out of the kingdom, Archbishop Hubert Walter acted as Chancellor and sat in the King’s place at Westminster. When he was at home, he was in constant progress through the country, and in the year 1211 it is said that he sat at no less than twenty-four separate towns.1 To all these resting-places the unhappy suitors followed, or lost the chance of their causes being tried. And accordingly it was provided, by the 17th clause of Magna Carta, that for the future, common pleas, or causes between party and party, as distinguished from Crown and Revenue cases, should not follow the King in his wanderings, but should be heard and determined in some ascertained and well-known place. “Communia placita non sequantur curiam nostram, sed teneantur in aliquo loco certo.” This ascertained place was Westminster Hall, and the Court of Common Pleas retained the name, down to its abolition as a separate jurisdiction in 1875, of The Court of Common Pleas at Westminster.

Here then we have the origin of the Court of Common Pleas, for although that Court was not actually constituted at the time of King John, nor was there any prohibition against common pleas being heard by the Curia and by the Exchequer, as had hitherto been the practice, yet the provision of the Charter involved the continued retention in London, or in the ascertained place to be afterwards fixed, of a sufficient number of justices and barons to compose a court for the hearing of the subjects’ causes. And thus it frequently happened that one division of the Curia was sitting at Westminster while another division was travelling about the country, either with or without the King, as the case might be; the Justiciar being sometimes with the judges Edition: current; Page: [211] in the county and sometimes with the judges in London.1 Numerous instances also occurred where, the Justiciar being absent, questions of law were left for him to decide on his arrival, or were sent to be discussed before him at Westminster. One of the questions so reserved was whether on proof of his ancestor’s absence for twenty years, an heir at law could enter upon the land of the missing owner, and take possession of the freehold, on the presumption that his ancestor was dead.2

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

The natural dissatisfaction which was felt with the Curia Regis rapidly extended to the appointment of Chief Justiciar. The position of this great officer of State was that of a politician and a soldier as well as, or perhaps more than, that of a creator and administrator of the law. Many statesmen of great eminence had held the post. Odo of Bayeux was the first, Hubert de Burgh was among the last. Henry, Duke of Normandy, afterwards Henry the Second, during the later years of King Stephen, was Chief Justiciar and sat regularly in the court. Henry III. also sat in person and Edition: current; Page: [212] delivered a judgment, which is reported.1 Ranulph de Glanvil, and possibly Henry de Bracton, also occupied the post of Chief Justiciar. Latterly, however, the office had fallen into less competent hands, and when the latter years of King Henry III. showed the scandal of two Chief Justiciars, one appointed by the king and one appointed by the barons, professing to exercise judicial functions at one and the same time as they were leading armies against each other in the field, it was felt that the moment had arrived when the office, with its inconsistent combination of statesman, soldier, lawgiver, and judge, should be brought to an end. Philip Bassett and Hugh le Despencer were the two so contending, and after the death of le Despencer on the field of Evesham, in 1265, and the subsequent resignation of Bassett, the King’s nominee, the Curia Regis and the Chief Justiciar ceased to exist.

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

The accession of Edward I. (ad 1272-1307) found the Courts of King’s Bench, Common Bench and Exchequer sitting in Westminster Hall. No Act of Parliament or royal edict had abolished the Curia Regis, but it had come to an end, like many another English institution, because it had done its work and was no longer suitable to the times. The Constitutions of Clarendon (ad 1165) had recognised the Curia Regis as a tribunal of common resort,2 where the Bishops sat with the Justiciars and the Barons until cases of blood required them to depart. But since then its jurisdiction Edition: current; Page: [213] as a Supreme Court had been much impaired. The distribution of its business over the country, through the appointment of itinerant justices, who sat in their several counties as justices of the Curia Regis,1 had tended to this result, and at the same time the prerogative of the Chief Justiciar had been gradually encroached upon by the growing power of the Chancellor as a lawyer and a statesman. Its end was gradual, and the exact moment of its termination cannot be ascertained, for it actually overlapped the new system. The Justiciar and his colleagues held office for some years after the description of the King’s justices had been changed from the general appellation of justiciars to the limited title they still hold of justices assigned to hold pleas, coram rege, before the King.

The courts thus established, which from that time forward for six hundred years, under the familiar title of the Courts of Common Law, transacted the business of the country, reflected the condition of the English people at the period of their institution. The Normans, who had invaded but not overrun the country, impressed upon its surface their thoughts and traditions; but the Norman Inquisition had only emphasized the Anglo-Saxon practice of open trial by freemen and neighbours. Inter-marriages and territorial settlements had, also, by this time amalgamated the two races into one, so that there was no longer any recognised distinction between Norman and Anglo-Saxon, but all were equally English. And though the Norman blood was thought the more noble, and those families whose ancestors came over with the Conqueror regarded themselves as of a more patrician class, yet the great mass of the people were still of the Anglo-Saxon strain, whose manners and customs still survived. The language of the country was also in a state of transition—Latin was specially that of the learned, English was that of the common people, while French was gradually coming into use by all classes. The polyglot jargon of the courts and the law books belongs to a later date. Thus though the Norman system of Chief Justices and trained lawyers as Presidents of courts was accepted as safe and satisfactory in Edition: current; Page: [214] principle, yet the Anglo-Saxon method of local trials and the judgment of neighbours remained undisturbed, and was recognised as an essential feature of the new procedure. As the county in the Anglo-Saxon times was the unit for judicial administration, so also it remained under the Normans. And as the shire-gemote, formerly presided over by the Sheriff, who convened the suitors and arranged the details of business, was held twice in the year as the Supreme Court of the district for the trial of causes and of criminals, so also under the new system the county remained the unit, the Sheriff summoned the jurors and witnesses and arranged the business, and twice in the year the King’s justices, superseding the Sheriff in his office of President, visited each county and tried all causes and offences arising within its limits. Hither also came the witnesses and the suitors, collected from the county, who judged the law and the facts, and found their verdicts from their knowledge of the party’s reputation, and of the circumstances into which they had to inquire.

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

The Courts accordingly sat as the King’s Bench, the King’s Exchequer, and the Common Bench, otherwise the Common Pleas. The King’s Bench was presided over by the Lord Chief Justice with certain puisne or assistant judges, the Exchequer by the Lord Treasurer with the Chancellor Edition: current; Page: [215] of the Exchequer and other barons, and the Common Bench by the Chief Justice and other justices from time to time appointed by the King. It appears that for some time after the division of the Curia into these three separate courts, the Exchequer continued to try pleas between party and party, but in ad 1300 that court was ordered by Statute1 to refrain from hearing such causes as contrary to the Great Charter, and to confine itself to matters touching the King’s revenue. Shortly afterwards, in 1303, William de Carleton, a justice of the Common Pleas, was appointed Chief Baron of the Exchequer.2 This office he held concurrently with that of a puisne judge of the Common Bench, and was the first person so appointed. From this date, as vacancies in the office of Chief Baron from time to time occurred, they were usually but not invariably filled from the justices of the Common Bench. The justices so appointed continued to hold the two offices of Justice and Chief Baron, their duties at that period being in no way inconsistent, as the barons could not try causes or hear appeals, and the Common Bench had no jurisdiction over affairs of the revenue.

The business was divided in the following manner. The King’s Bench had exclusive jurisdiction in all pleas of the Crown, and in all appeals from inferior courts. The Common Bench had exclusive jurisdiction in all real actions or suits relating to land and in actions between private persons to try private rights, while the jurisdiction of the Exchequer was limited to causes touching the King’s revenue with which it had exclusive power to deal. All these judges went Circuit twice a year, the barons of the Exchequer only trying cases on the revenue side, and no baron being permitted to try a prisoner or a civil cause unless he happened also to be a justice of the Common Bench, when he tried prisoners and causes in the latter capacity. The Assizes were held in the County Courts, and those tribunals were for many years after the end of the Curia Regis constituted as before with bishops, abbots, earls, barons, knights and freeholders of the county, the reeve and the burgesses of each township in the Edition: current; Page: [216] county and all those who of old were accustomed to be summoned to attend the business of the court. Itinerant Justices were appointed from time to time for some generations after the accession of King Edward I., and they went circuits equally with the justices of the Courts of Common Law. But the practice was found to be inconvenient. All courts, including those of the Itinerant Justices, were closed so long as the King’s Judges of either Bench held their Justice Seat within the County. The Justices in Eyre had accordingly an inferior position and less authority, in public estimation, than the justices in the King’s Courts; there were great complaints of the expense and burthen cast upon the counties for the escort and entertainment of these numerous justices, and in 1335 they ceased to be appointed.

This division of the business of the courts, which was however much interfered with by various devices of the lawyers at a later period, had the inevitable result of throwing the greater portion of the work upon the Common Bench, which became, as it was called by Sir Edward Coke,1 “the lock and key of the Common Law,” or, more familiarly by Sir Orlando Bridgman, “the Common Shop for Justice.”2 Crown cases were limited in number, and the justices of the King’s Bench, after a time, were not only put into an easy position as regarded the work they were called upon to perform, but as in those days their principal source of income was from the suitors’ fees, they correspondingly suffered in pocket. The Common Bench, on the other hand, was always full of work, which rapidly increased, with the result that whereas the justices of the King’s Bench seldom numbered more than three or four, those of the Common Bench were frequently seven or eight and sometimes amounted to as many as nine. Thus under Edward I. there were at times four, five and six justices of the Common Bench in addition to the Chief.3 Under Edward II. the Court was ordered to sit in two divisions by reason of the multitude of pleas.4 Under Richard II. and under Henry IV. there were three Edition: current; Page: [217] justices of the King’s Bench and five of the Common Bench.1 Under Henry V. there were four justices of the King’s Bench and six of the Common Bench, in addition to the Chiefs.2 Under Henry VI. and Edward IV. there were four justices of the King’s Bench and seven3 and at one time eight4 of the Common Bench. The latter court had also this great advantage, that it sat always at Westminster, while the King’s Bench, the Exchequer, and the Chancery were liable to follow the progresses of the King. And although it soon became the practice to dispense with the attendance of the judges and the barons, unless the King had some special need for their assistance, yet when he was located for an indefinite period at some provincial town, and had there established his Royal Court, the King’s Bench and the Exchequer with their clerks, their secretaries, their treasure and their baggage moved from London in the wake of the Sovereign. Thus from 1277 to 1282 the Law Courts were at Shrewsbury,5 while the King was fighting in Wales, and from 1298 to 1305 they were at York,6 while the King was on his expeditions into Scotland. On the latter of these occasions a square chequer board with the necessary seats and fittings was erected in the yard of York Castle for the use of the barons and the accountants of the Exchequer.

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

The immediate reason for the permanent establishment of Quarter Sessions, as recited in the preamble to the Statute, Edition: current; Page: [218] appears to have been the misconduct of the sheriffs, who packed the juries, compelled the payment of excessive fees, and by various extortionate devices held unhappy suitors to ransom. And here again, the Anglo-Saxon system of self-government seems to have been recognised, by the removal of these trials from the Sheriff or officer of the Crown to the resident gentry and landowners of the county.

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

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28.: THE HISTORY OF THE COURT OF CHANCERY1

IT has always been held by the great oracles of the law, that the principles of the Common Law are founded on reason and equity;3 and so long as the Common Law was in the course of formation, and therefore continued to be a lex non scripta, it was capable—as indeed it has ever continued to be, to some extent—of not only being extended to cases not expressly provided for but which were within the spirit of the existing law,4 but also of having the principles of equity5 applied to it by the judges in their Edition: current; Page: [220] decisions,1 as circumstances arose which called for the application of such principles. This was more especially open to the judges as regards defences to actions which were not founded on writs, and were therefore under their own control. But in course of time, a series of precedents was established by the decisions, or responsa, as Bracton calls them, of the judges, which were considered as of almost equally binding authority on succeeding judges as were the acts of the legislature; and it became difficult to make new precedents without interfering with those which had already been established. Hence (though new precedents have ever continued to be made), the Common Law became, to a great extent, a lex scripta, positive and inflexible; so that the rule of justice could not accommodate itself to every case according to the exigency of right and justice.2

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

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Hadrian, as we have seen, compiled from the previous Edicts a code of Equitable Jurisprudence,1 and that code was expounded by the commentaries and responsa of the Jurisconsults, so that it became, like the Common Law of England, though by a different process, a lex scripta. But even the jus honorarium, when thus reduced to system, was found to be insufficient to answer every exigency. It appears that the judges and persons intrusted with the administration of the law, assumed authority to apply principles of equity, or natural justice, to the particular cases which seemed to require such an interposition. However, probably from a fear of the uncertainty and inconvenience which might have resulted from such a course being pursued, Constantine, ad 316, and after him Valentinian, as has already been adverted to,2 prohibited the judges from exercising any such discretion, reserving to themselves alone, in their consistory or council, the application of principles of equity, as distinct from the received rules and maxims of the law.3 From that time cases were continually referred to the Emperors, either originally, or by way of appeal; and their decisions, thus pronounced, as well as their less formal rescripts, became part of the written law.4 If such a deficiency was found to exist after Hadrian’s Edict, we cannot be surprised at its having been experienced in England at the time when the Court of Chancery first came into existence as a distinct Court of equity.5 A very large infusion of equitable principles had been incorporated in the Roman law by means of the Perpetual Edict. In those important branches of the law, particularly, which related Edition: current; Page: [222] to contracts, a system of equitable jurisprudence had been introduced, which left little, if anything, to be supplied. Equitable principles were applied to every contract of sale and purchase, pledge, letting, hiring, and the like;1 whether the contract were executory, or perfected. In the former case, if there were a want of complete bona fides, the jus honorarium furnished a good defence to any attempt to enforce it at law;2 in the latter, by the same law the party complaining might, by a rescissory action, avoid the transaction,3 and a purchaser, who had been in any way defrauded, might bring an action for compensation, if that would afford a more appropriate remedy than a rescission of the transaction:4 express stipulation on the part of a contracting party for exemption from any such liability was of no avail.5 Provision was also made for the correction of mistakes, without rescinding the transaction.6 In every case, particularly in respect of transactions which were classed as bonæ fidei,7 Fraud might be taken advantage of by way of defence;8 and where a person sustained an injury or loss by means of a fraud, for which he could not obtain redress by any recognized form of action, the Perpetual Edict gave him a remedy according to the circumstances of the case.9 Edition: current; Page: [223] These were the remedies which might be obtained before the ordinary tribunals; but, large as they were, it was found that proceedings by action in cases of fraud and circumvention, would not afford in all cases an adequate remedy;1 and that there were many cases calling for relief, which could not properly be provided for by any form of proceeding in the ordinary tribunals. Hence by a Prætorian Edict, which was incorporated in the Perpetual Edict, liberty was given to every person who had been led into doing any act by which his rights were affected, through fear, surprise, circumvention or trickery, or by mistake, “justum errorem,” to resort to the extraordinary jurisdiction2 of the Prætor for a Restitutio in integrum, that he might be restored to his rights, and placed in the same position as if no such transaction had taken place.3

The provisions of the Common Law of England, both as regards its principles and mode of procedure, but more especially the latter, at the period above alluded to, namely, the reign of Edward III., as will have been in part observed from the preceding sketch, fell far short of the lex scripta of the Roman jurisprudence. In many of the cases above enumerated, for which provision was made by the Roman law, no remedy, or at least no adequate remedy, could be obtained. Even as regards such of the principles of equity belonging to the Roman jurisprudence as were admitted into the Common Edition: current; Page: [224] mon Law, no adequate means for carrying them out were provided.

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

However, it was possible to attempt a remedy of a corresponding nature to the Jus honorarium by means of the legislature, and that attempt was made, as has already been noticed, by the statute of Westminster the Second (13 Edward I.).4 This statute opened the measn of obtaining remedies in numerous cases, which were before excluded by Edition: current; Page: [225] the rules of the common law; and other statutes were passed to supply many of the deficiencies in the common law, as new circumstances, unprovided for by the law, arose.

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

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

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

The Norman Sovereigns, like their Anglo-Saxon predecessors,2 were advised in the exercise of their prerogatives in respect of matters political and judicial,3 by a Council always in attendance on the king’s person, which was distinct from the Great Council or Parliament,4 though, as Edition: current; Page: [226] it would appear, forming part of the Great Council when assembled. The king presided in both, and they had the same general appellation, namely, “The Council,” till the reign of Edw. I., from which time the Great Council, which usually was called together four times in the year, obtained the settled name of “The Parliament.”1

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

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

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

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

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

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

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

It appears that in early times, probably down to the reign of Edward III., as will be more particularly noticed hereafter, it was in this council, presided over by the king himself, or some person delegated by him when absent, that all applications for the special exercise of the prerogative in Edition: current; Page: [228] regard to matters of judicial cognizance, criminal and civil, were discussed and decided upon.

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

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

Mr. Hardy, in his Introduction to the Close Rolls, has set out a passage from Benedict Abbas, from which it would appear that, so early as the time of Henry I., the council took cognizance generally of those cases which the ordinary judges were incapable of determining.3 From the records of the proceedings of this council in after times, we learn, that the council by delegation from the king, advised as to the exercise of the prerogative on all applications to obtain a remedy for injuries and acts of oppression, where from the heinousness of the offence, or the rank or power of the party, or any other cause, there was likely to be an impediment to a fair trial, or to the attainment of appropriate redress, in the ordinary tribunals; so also when by force and violence, justice was prevented taking its ordinary Edition: current; Page: [229] course.1 The council on such applications either took the case into their own hands, or gave specific directions in regard to it according to the circumstances of the case.2 Where a party was suffering imprisonment by the process of an inferior court, the double remedy of a subpœna against the pursuing party, and a writ of Habeas Corpus cum causa was sometimes given.3 The council had the power of issuing writs into all special Jurisdictions or Franchises, as Wales and Ireland,4 which, with their other extraordinary powers, gave them surpassing capabilities beyond those of any other court, except the Court of Chancery. The poor appear to have been the objects of their particular care.5 “For God and in work of charity” generally concluded all the petitions to the council.6

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

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

The interference of the Prerogative with the ordinary course of justice to the extent and in manner above described, appears to have been recognized in early times as constitutionally unobjectionable; but to provide against abuse, the Barons at various times claimed to have a voice in the appointment of the Chancellor, Judges, and great officers of state, who were ex-officio members of the select Edition: current; Page: [230] council, and which at times they exercised in Parliament.1 By the articles agreed on in the eighth year of Henry VI. it was provided, that all Bills forwarded to the council that embraced matters terminable at the common law should be sent there to be determined, unless there were too much might on one side, or there were other cause reasonable moving the council to retain them.2 By the statute 5 Rich. II. stat. 1, c. 8, those who had lost their deeds in the late troubles were authorized to present petitions to the king and his council, when such remedy was to be provided as was just; in this we may recognize an old Anglo-Saxon custom.

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

If the case required a new law, an award was made by the king and barons, who alone at this time, as already observed, interfered in regard to matters connected with the administration Edition: current; Page: [231] of justice.1 This award in early times had the force of a statute; afterwards the Commons, as has already been mentioned, established the right of concurring in all legislative Acts, and, by consequence, in these awards, which then became what are now called Private Acts of Parliament.2

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

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

Thus Matthew Paris, incidentally mentioning Radulphus de Neville, Bishop of Chichester, who was Chancellor to Henry III., says, “qui erat Regis fidelissimus Cancellarius, et inconcussa columna veritatis, singulis sua Jura, precipue Edition: current; Page: [233] pauperibus, juste reddens et indilate.”1 There are earlier notices of a similar kind. The panegyrics composed in honor of the famous Thomas à Becket, Chancellor of Henry II., by Fitzstephens, and of the Bishop of Ely, Chancellor of Richard I., ad 1189, by Nigel de Wetekre, refer to each, in the following terms,—

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

As to the latter it is added—

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

In the reign of Edward I., the English Justinian in more than one sense, we begin to observe unequivocal marks of an extraordinary jurisdiction exercised in the Chancery in civil cases. It was a custom with this monarch to send certain of the petitions addressed to him praying extraordinary remedies, to the Chancellor and Master of the Rolls, or the Chancellor or the Master of the Rolls alone, by writ under the privy seal, (which was the usual mode by which the king delegated the exercise of his prerogative to the council,) directing them to give such remedy as should appear to be consonant to honesty (honestati).3 There is reason to believe that this was not a novelty.4 Considering what was the constitution of the council, great inconvenience and uncertainty must have resulted from leaving the correction and extension of the law in civil cases to such a tribunal; Edition: current; Page: [234] though it would appear from an ordinance issued in the 8 Edward I., that the Chancellor was not necessarily the person to whom the exercise of the prerogative of grace even in matters purely civil was committed. When the Chancellor administered relief independently of the council, it was by express delegation from the king, and given, as it would seem, by the advice of the council.1 It will be remembered, that it was in the 13th year of the same king that the stat. of Westminster the Second, which authorized the granting of writs in consimili casu, was enacted, by which the necessity for many of these applications must have been superseded.

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

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

The Chancellor also held jurisdiction on appeals of false judgement, when any lord would not do right to those under his jurisdiction.7 He was visitor of colleges, etc., of royal Edition: current; Page: [235] foundation, and had jurisdiction1 as to the king’s wards;2 he also took security for keeping the peace.3

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

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

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

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

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

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

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

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

One great engine for the discovery of truth, which, as Edition: current; Page: [238] before observed, was unknown to the common law, namely, the examination of the parties on oath, was employed by this tribunal, as it was by the council from which this court was now branching off.

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

The increased importance of the ordinary and extraordinary jurisdiction of the Chancellor5 appears to have attracted the attention of the people at large; all would naturally be anxious that the office should be filled by competent persons. It seems to have been considered by some that the extraordinary jurisdiction might, if left in the hands of persons not versed in the common law,6 be converted to the destruction of the law. Urged, probably, by some such suggestions, Edw. III. in the 15th year of his Edition: current; Page: [239] reign appointed Robert Parning, King’s Serjeant, his Chancellor. “This man,” says Lord Coke, “knowing that he who knew not the common law could never well judge in equity, which is a just correction of law in some cases, did usually sit in the Common Pleas, which court is the lock and key of the common law, and heard matters in law there debated, and many times would argue himself.”1 He died two years afterwards.

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

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

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

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

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

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

Early in the reign of Richard II. it was found necessary to provide some further measures for repressing forcible entries on lands. By the 5th Richard II. stat. 1, c. 8, persons so offending were subjected to imprisonment; by the 15th Richard II. c. 5, in case of forcible entry, any Justice Edition: current; Page: [241] of the Peace might take the power of the country, posse comitatus, and put the offender in jail.1

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

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

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

In the reign of Richard, the unsettled state of the country tended to encourage every sort of violence; the necessity for more than the ordinary means of protection from oppressions and spoliation was obvious; the Justices were overawed, and in some instances the very powers which were confided to them, were employed as instruments of oppression, so that in a subsequent reign it was found necessary to place the Edition: current; Page: [242] Justices themselves under the especial supervision of the Chancellor.1

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

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

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

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

The Commons reiterated their petitions against this growing Edition: current; Page: [244] jurisdiction.1 The particular grounds of their remonstrances were, that persons were called to this court, not upon any specific complaint, but quibusdam certis causis; that persons were required to answer as to their franc tenement, (which was something almost sacred in the minds of land-owners,) and to disclose their titles, which the Commons denounced as being contrary to law; that the course of proceeding was not according to the Common Law, but the practice of the Holy Church; and that the process of these extraordinary tribunals was abused by being employed as the means of extortion.2 The answer to these remonstrances generally was, that the king would preserve his prerogative.

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

The Commons not succeeding in their attempts to extinguish this extraordinary jurisdiction, they addressed their petitions to its due regulation, and in consequence, by the statute 17 Rich. II. c. 6, it was enacted, that where persons were compelled to appear before the Council or the Chancery on suggestions found to be untrue, the Chancellor should have the power to award damages according to his discretion; and though it was not until the statute or ordinance Edition: current; Page: [245] of the 15th Henry VI. c. 4, that it was directed that no writ of subpœna should issue until surety should be found to answer the party his damages if the matter contained in the bill could not be made good, sureties had been in fact required in the reign of Rich. II.1

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

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

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

In this reign we find some matters delegated to the Chancellor by authority of Parliament. In the 15 Rich. II. two petitions were addressed to the King and the Lords of Parliament; the answer to each was the same, that the petition be sent to the Chancery, and by authority of Parliament the Chancellor was to cause the parties to come before him in the said Chancery, and there, the matter contained in the petition, to diligently view and examine, and hear the reasons of the one party and the other; “and further, let there be done by authority of Parliament that which right and Edition: current; Page: [246] reason and good faith and good conscience demand in the case.”1

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

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

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

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

In the reign of Richard II. the barons protested that they would never suffer the kingdom to be governed by the Roman law, and the judges prohibited it from being any longer Edition: current; Page: [247] cited in the common law tribunals.1 Perhaps one object on the part of the judges might have been to exclude the doctrine as to fidei commissa, or trusts, which, as we shall see, first came distinctly into notice in this reign. The effect, however, of the exclusion of the Roman law from the common law tribunals, was, as will be more particularly noticed when I come to treat of Trusts, that a distinct code of laws was formed and administered in the Court of Chancery, by which the enjoyment and alienation of property were regulated on principles varying in many essential particulars from the system which those who originated and carried into effect the exclusion of the Roman law, were so anxious to preserve.

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

It may well be doubted, whether, but for this last circumstance, the system of equitable jurisprudence which we find established in the reign of Henry VIII., on which the doctrine of Uses, and much of the modern jurisdiction of the court is founded, would then have existed. The antipathy to the Roman law, which in the reign of Elizabeth was extended as regards a considerable portion of the community, to everything Roman, and the intensity of which has scarcely yet subsided, broke forth in the latter end of the reign of Edition: current; Page: [248] Elizabeth, and in that of James I., in a way that leaves little doubt as to what would have become of the equitable principles of the Court of Chancery, if that court in its infancy had been permanently committed to Common Law Judges as Chancellors. Although a little in anticipation, I cannot but here notice, as some confirmation of the conjecture which is hazarded above, that a writer of the reign of James I., who, if not as he styles himself, a Serjeant, was evidently speaking the sentiments of that order,1 says, “The Common Law commandeth all that is good to be done.2—“The suit by subpœna is against the common weal of the realm.”3 The whole of the system which formerly prevailed in the Court of Chancery as to Uses, and which was then applied to Trusts, is also denounced by him in terms,4 which show Edition: current; Page: [249] that, under Chancellors taken from the professors of the Common Law merely, the modern system of Equitable Jurisprudence (whether for good or for ill others will judge) would never have been reared, at least in the Court of Chancery.

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

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

In the reign of Henry V. the Commons repeated their remonstrances against the obnoxious subpœna, but without effect.4 However, it was admitted by the Commons in the most angry of their petitions, that there were some cases in respect of which no remedy, or at least no effectual remedy could be obtained, by the ordinary course of law, and over which the Court of Chancery might justifiably exercise jurisdiction.5 Nor was this altogether denied by the judges Edition: current; Page: [250] of the courts of Common Law.1 The Council still exercised an extraordinary jurisdiction concurrently with, but distinct from, the Court of Chancery.2 Applications were also still made to Parliament, in cases where justice was obstructed in the courts of Common Law, or where those courts had not the means of affording relief. There are some instances of such applications on the subject of Trusts.3

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

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

In the reigns of Henry V. and VI. various statutes were passed, which expressly delegated to the Chancellor, in particular Edition: current; Page: [251] cases, some branches of the jurisdiction which had been claimed or exercised both by the Council and by Parliament in aid of the Common Law, to be exercised with the advice of the Chief Justice of either bench, or of the Chief Baron of the Court of Exchequer.1

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

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

It has already been noticed that in the reign of Edward III. the Council were in the habit of sitting in what was called the Starred Chamber. After it became the habit to depute to the Chancellor a portion of the business of the Council, namely, that which related to civil rights, the Council usually sitting in the Star Chamber entertained jurisdiction over those cases which were not sent to the Court of Chancery. At length the Court of Star Chamber was established. This Court, like the Court of Chancery, derived its origin from the Royal prerogative.2 The Court of Star Chamber by continued usage, and as ultimately regulated by the stat. 3 (Clarendon says 10th) Henry VII. c. 1, and 21 Henry VIII. c. 30, had jurisdiction in cases of oppression and other exorbitant offences of great men, (where, as Lord Coke observes, inferior judges and jurors, though they should not, would in respect of the greatness of the offenders be afraid to offend,) bribery, extortion, maintenance, champerty, embracery, forgery, perjury, dispensers of false and dangerous rumors, news, and scandalous libeling; false and Edition: current; Page: [252] partial misdemeanors of sheriffs and bailiffs of liberties; frauds, deceits,1 great and horrible riots, routs, and unlawful assemblies, single combats, challenges, duels, and other heinous and extraordinary offences and misdemeanors;2 leaving ordinary offences to the courts of common law.3 Thus a jurisdiction founded on the inefficiency of the ordinary tribunals to do complete justice in criminal matters, and other offences of an extraordinary and dangerous character, arose almost concurrently with the establishment of the Court of Chancery and entirely analogous in principle and procedure to that Court, but confining its jurisdiction to cases partaking of a criminal character;4 “and whilst it was gravely and moderately governed,” says Clarendon, “it was an excellent expedient to preserve the dignity of the king and the peace and security of the kingdom.”

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

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

The Court of Requests

It has generally been supposed that the Court of Requests, which was a minor Court of Equity, had its origin from the Edition: current; Page: [253] writ or proclamation of the 22d of Edward III., before referred to;1 but the more probable origin is an order of the 13th Rich. II., for regulating the Council, by which the Lords were to meet between eight and nine o’clock, and the bills of the people of lesser charge were to be examined and dispatched before the Keeper of the Privy Seal, and such of the Council as should be present for the time being. From this time, at least, the Lord Privy Seal held a Court of Equity called the Court of Requests. The course of procedure was the same as in the Court of Chancery. The bills of complaint filed there, ordinarily contained the one or the other of these two suggestions, namely, that the plaintiff was a very poor man not able to sue at common law, or that he was one of the King’s servants or ordinarily attendant on his person;—it was the poor man’s Court of Equity.2 The Lord Privy Seal, and the Masters of the Requests, who exercised similar functions to those of the Masters in Chancery, presided. This court continued to be resorted to down to the 41st of Eliz. when it ceased to exist, having been virtually abolished by a decision of the Court of Queen’s Bench.3 Greater facilities were from that time given to the poor for enabling them to proceed in the superior courts in formâ pauperis, which will be noticed hereafter in treating of the course of procedure in the Court of Chancery.

Special Commissioners of Oyer and Terminer

The King was frequently applied to, as has been before observed, to grant a more certain and speedy remedy in criminal cases than could be obtained by the ordinary proceedings of the Common Law Courts. In answer to these applications, Special Commissioners of Oyer and Terminer were frequently awarded by the Council, to whom such applications were usually referred, directed to persons specially Edition: current; Page: [254] named, who usually, as it would appear, were not justices of the one bench or the other.1

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

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

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

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

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

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29.: THE ECCLESIASTICAL COURTS AND THEIR JURISDICTION1

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

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

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

(a) The Pre-reformation period.

Throughout this period political and religious ideas were dominated by the theory of the survival of the Holy Roman Empire. It may be that in the common affairs of life, in the smaller associations in which men were grouped in a feudal state, this theory played little direct part. But in the law of the church, as administered in the Ecclesiastical Courts throughout Latin Christendom, it was all important. The Roman Empire had not perished. The Roman Emperor, Edition: current; Page: [256] represented by the emperor of Germany, still ruled the world in matters temporal; the Pope in matters spiritual. “The Pope, as God’s vicar in matters spiritual, is to lead men to eternal life; the Emperor, as vicar in matters temporal, must so control them in their dealings with one another that they may be able to pursue undisturbed the spiritual life, and thereby attain the same supreme and common end of everlasting happiness. In the view of this object his chief duty is to maintain peace in the world, while towards the Church his position is that of Advocate, a title borrowed from the practice adopted by churches and monasteries of choosing some powerful baron to protect their lands and lead their tenants in war. The functions of Advocacy are twofold: at home to make the Christian people obedient to the priesthood, and to execute their decrees upon heretics and sinners; abroad to propagate the faith among the heathen, not sparing to use carnal weapons. Thus the Emperor answers in every point to his anti-type the pope, his power being yet of a lower rank, created on the analogy of the papal, as the papal itself had been modelled after the elder Empire.”1 To Pope and Emperor the other rulers of the earth were subordinate.

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

The changing condition of Europe did not so obviously Edition: current; Page: [257] affect the dominion claimed by the Pope in matters spiritual. The claim of the Pope to be the head of a universal church was, in the Middle Ages, far less a mere theory than the parallel claim of the Emperor to be the head of a universal state. The Pope wielded a real authority over the faithful; and, of the fate of those who sought to cut themselves off from the communion of the faithful, the Albigenses and Southern France could tell. At the beginning of the 14th century Boniface VIII. could claim that the Pope held the chief place, that the Emperor was but his feudatory.1

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

Roman civil law had never wholly perished. But the revival of interest in its study begins in the early years of the 12th century, when Inerius began to lecture upon the Digest at Bologna. “Roman law was living law. Its claim to live and to rule was intimately connected with the continuity of the empire.”2 A famous school of law was founded. The systematic study of the civil law produced a desire to reduce to a similar system the scattered rules of the canon law. Gratian, a monk of Bologna (1139-1142), gathered them up into a systematic treatise.3 The nature of his work is well illustrated by the name applied to it when it first appeared. It was called the “Concordia Discordantium Canonum.” Later it was known as the Decretum Gratiani. Henceforth the Canon Law stood side by side with the Civil Law. The University of Bologna possessed two faculties of law—the civil and the canon. The students were decretistæ or legistæ.4 Edition: current; Page: [258] There were doctores decretorum, doctores legum, or doctores utriusque juris.

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

The canon law was received in England, as in other parts of Europe, as the jus commune of the church. The English provincial constitutions formed but a small part of the law of the church. “They contain little that is new, and are only a brief appendix to the common law of the universal church.”5 William Lyndwood—the official principal of the Archbishop of Canterbury—wrote a commentary upon them in 1430, which has always been reckoned a leading authority Edition: current; Page: [259] in ecclesiastical law.1 He clearly regards them as a supplement merely to the jus commune of the church. The decretals of the pope are the edicts of a sovereign legislator whose authority it is heresy to question. Provincial constitutions are valid only in so far as they interpret or enforce these papal decrees.2 The test exacted of persons suspected of Lollardry was subscription to the Decretum, the Decretals, the Sext, and the Clementines.3

The canon law recognised the pope not only as the supreme legislator, but also as supreme judge of the Church, possessed not merely of appellate, but also of original jurisdiction. He could be called in by a litigant at any stage in the suit; and not merely the judgments he pronounced, but also any dicta he might be inclined to express, had the force of law.4 He could delegate his powers to legates a latere, who, by virtue of their commission, superseded all the ordinary courts. “The metropolitan must plead as plaintiff before the suffragan, the superior before the inferior, if the princeps will have it so.”5 In fact the Pope could, and did to a large extent, make himself the “Universal Ordinary.” He has, says Bracton,6 ordinary jurisdiction over all in things spiritual, as the king has ordinary jurisdiction over all in his realm in things temporal. It is clear from books of practice on the canon law that whenever any considerable sum was at stake in an action the usual course was to “impetrate” an original writ from Rome nominating papal delegates to hear the case.7 In the 13th century the number of English cases which came before the pope was larger than that from any other country in Europe.8 The methods by which, as we Edition: current; Page: [260] shall see, the Archbishop of Canterbury has attracted much of the business of the ordinary courts to his provincial courts, have been suggested by the practice of the Roman Curia.1

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

The precocious growth of the state in England brought this necessary antagonism between the claims of Church and State into prominence at a comparatively early period. The controversy about investitures was settled in England in 1106. It was not till 1122 that a smilar controversy in Germany was ended by a similar compromise. In the royal writ of prohibition the royal courts had a weapon of precision which in the end secured for them the jurisdiction which they claimed. All questions touching lay fee, all questions concerning advowsons, all criminal cases, save cases of felony where a clerk was the culprit, all cases of contract and tort, were gradually drawn into the royal courts. They were drawn into the royal courts in spite of the protests of churchmen. Though churchmen sitting as royal justices helped to secure the victory of the common law, it is clear that the canon law and the churchmen qua churchmen must have regarded them as encroachments.2 Similarly, statutes, Edition: current; Page: [261] like the statutes of Provisors and the two statutes of Præmunire, attempted to check, in the interests of patrons and of the state, the abuses of papal patronage. The aim of the statute of Provisors1 was to protect spiritual patrons against the pope. If the pope attempted to appoint, the right of presentation lapsed to the crown. The bishops took no public part in the enactment of this statute. The first statute of Præmunire2 punished those who drew “any out of the Realm in Plea whereof the cognisance pertaineth to the king’s court, or of things whereof judgments be given in the king’s court, or which do sue in any other court to defeat or impeach the judgment given in the king’s court.” The statute plainly says nothing of cases over which the king’s court never claimed jurisdiction. The second statute of Præmunire3 was aimed at those who “purchased or pursued, in the Court of Rome or elsewhere,” any “Translations, processes, and sentences of Excommunications, Bulls, Instruments, or any other things whatsoever which touch the king, against him, his crown, and his regality,”4 whereby the king’s court was hindered in its jurisdiction over pleas of presentment. The guarded answer returned by the bishops, in reply to the question addressed to them as to the papal power in this respect, shows an obvious desire to conciliate the Parliament without committing themselves to any statement contrary to canon law.5 It is clear that such legislation is as “antiecclesiastical” as the issue of writs of prohibition. To argue from such legislation, or from the issue of such writs, that Edition: current; Page: [262] the Ecclesiastical Courts imagined that they were independent of the Pope or the canon law, would be about as reasonable, as to argue from the Grand Assize, and the possessory assizes that the feudal courts admitted the royal claim to jurisdiction over all cases of ownership or possession of freehold.

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

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

The claims made by these rival systems produced much friction. But the prevailing theories as to the relations between church and state made it impossible for either of these rival powers to do without the other. Papal dispensations from the rules of the canon law acknowledged the power Edition: current; Page: [263] of the pope; but they enabled the crown to use the revenues of ecclesiastical benefices for the maintenance of his civil service. Diplomatic reasons demanded some kind of arrangement; and at the latter end of the Middle Ages an arrangement was arrived at on a profit-sharing basis. Such an arrangement produced peace; but it was a peace which made reform impossible. Abuses were allowed to spring up unchecked until an entirely new theory as to the relations between Church and State materially altered both the law administered in the Ecclesiastical Courts, and their relation to the English judicial system.

(b) The Post-Reformation period.

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

England, like the rest of Europe, felt these influences. Cases like that of Hun1 bore witness to the unpopularity of ecclesiastics, their courts, and officials. We can see from the case of Standish2 that Henry VIII., backed by popular opinion, was minded to assert a larger control over ecclesiastics. Wolsey, who was perhaps the most far-seeing statesman of the day, was already taking measures to reform the corruption of the church. But neither Henry nor England had any desire to separate from the general system of the Western church. There were but few adherents to Protestant doctrine. If the pope would consent to Henry’s demands for an increased control over the clergy; if the church had been reformed as Wolsey desired, there appeared to be no necessity for a break with Rome. The Anglican church might Edition: current; Page: [264] have had a history very similar to that of the Gallican church.1

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

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

The Reformation Parliament met in 1529 after the fall of Wolsey. The first acts of that Parliament, carried in spite of the opposition of the clergy, were directed against certain abuses in the church and its courts.3 The clergy also (1531) recognised the royal Supremacy “so far as the law of Christ allows.”4 In 1532 it was so clear, from the unsatisfactory progress of the divorce, that there would be legislation aimed more directly at Rome, that Warham, the archbishop of Canterbury, drew up a formal protest against all statutes to be passed in the ensuing session, which should prejudice the ecclesiastical or papal power.5 An act was passed against the payment of Annates. But the act is still respectful to “our Holy Father the Pope”; who was still allowed to charge certain fees for the consecration of bishops; and the Edition: current; Page: [265] king was given a discretion as to its enforcement.1 In 1533 the Statute of Appeals was the necessary consequence of the king’s marriage and of the divorce proceedings taken before Cranmer.2 In the preamble to that statute the new relations between Church and State were sketched by the king himself. We have in it the first clear statement of the new Anglican position. “By divers sundry old authentic histories and chronicles it is manifestly declared . . . that this realm of England is an empire . . . governed by one supreme head and king . . . unto whom a body politic, compact of all sorts and degrees of people, divided in terms and by names of spirituality and temporality be bounden and owe to bear next to God a natural and humble obedience; he being also institute . . . with plenary whole and entire power, pre-eminence, authority, prerogative and jurisdiction to render and yield justice and final determination to all manner of folk, residents, or subjects within this his realm in all causes . . . happening to occur . . . within the limits thereof without restraint or provocation to any foreign princes or potentates of the world. The body spiritual whereof having power when any cause of the law divine happened to come in question or of spiritual learning, it was declared . . . by that part of the said body politic called the spirituality (now being usually called the English Church) which . . . is sufficient and meet of itself, without the intermeddling of any exterior person . . . to declare and determine all such doubts and to administer all such offices and duties as to their rooms spiritual doth appertain . . . : and the laws temporal for trial of property of lands and goods for the conservation of the people of this realm in unity and peace . . . was and yet is administered . . . by sundry judges and administers of the other part of the said body politic called the temporality, and both their authorities and jurisdictions do conjoin together in the due administration of justice the one to help the other: and . . . the king his most noble progenitors and the nobility and commons of this said realm at divers and sundry Edition: current; Page: [266] Parliaments as well in the time of king Edward I., Edward III., Richard II., Henry IV., and other noble kings of this realm made sundry . . . laws . . . for the entire and sure conservation of the prerogatives, liberties, and pre-eminences of the said imperial crown of this realm, and of the jurisdictions Spiritual and Temporal of the same, to keep it from the annoyance as well of the see of Rome as from the authority of other foreign potentates.”1 The king is supreme in his realm. His courts, spiritual and temporal, can decide for themselves all cases which occur within the realm. This has always been the law. The anti-ecclesiastical statutes of the Middle Ages are vouched to support the historical theory put forward by the state. When the state’s theory has been accepted by the church, it will be an appropriate statutory foundation for the modern ecclesiastical claims of the church, now part of the state, and subject to the royal supremacy.

Later statutes of Henry’s reign further amplified and defined the supremacy which he claimed. The Act of Supremacy recognised the king as “the only Supreme Head in earth of the Church of England,”2 having full power to correct all “errors, heresies, abuses, offences, contempts, and enormities” which by any manner of spiritual authority ought to be reformed; and the oath taken in accordance with this act denies to the pope any other authority than that of bishop of Rome.3 It was in accordance with this act that Henry gave an extensive commission to Cromwell to act as his Vicar-General. It is clear that Henry is beginning to regard himself as possessing all that “usurped” authority which once belonged to the pope. This is shown by the act of 15454 which declares that the king has power to exercise all ecclesiastical Edition: current; Page: [267] jurisdiction, “and that the archbishops, bishops, archdeacons, etc., have no manner of jurisdiction ecclesiastical but by, under, and from the king.” In accordance with this theory the bishops and archbishops took out commissions to exercise their ordinary powers and authorities.1

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

Thus it may be said that the great work of Henry’s reign was to effect an entire change in the relations between church and state. The church ceased to form part of the Western church in communion with Rome. The law of the church Edition: current; Page: [268] ceased to be the canon law of Rome. But beyond that there was little change. The Act of the Six Articles reaffirmed most of the leading doctrines of the Roman Catholic Church.1 The existing organization of the Ecclesiastical Courts was maintained. The king had put himself in place of the pope. The king’s ecclesiastical law administered by civilians was put in place of the canon law of Rome. “The Reformation,” says Archdeacon Hale,2 “if under that general term we may include the whole series of events by which this country was freed from the authority of the Bishop of Rome, was in its commencement nothing more than a legal and political Reformation; a renunciation of the intrusive power of the Pope over the King’s subjects, and an assertion of the competency of the Anglican Church to decide by her own tribunals all questions relative to Divine Law and to spiritual learning. A Reformation in religion soon followed; but it was a providential and not a necessary consequence.”

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

Elizabeth’s reign is marked by a recurrence to Henry VIII.’s principles, both as regards the relation between Edition: current; Page: [269] church and state, and as regards the position and jurisdiction of the Ecclesiastical Courts. “The policy of Elizabeth and her ecclesiastical settlement is historically linked on directly to that of her father.”1 The church was given a more definitely Protestant character, but with as little change of the older order as was possible. In the Acts of Supremacy and Uniformity the relations between church and state are permanently and definitely ascertained.

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

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

Some attempts were made to pursue the plan of revising the canon law. But though the revision had been completed by Cranmer and Peter Martyr, it never obtained legislative sanction.7 The canon law, so far as it was in harmony with Edition: current; Page: [270] the new settlement, still continued to be administered by the civilians, who combined their practice in the Ecclesiastical Courts with their practice in the court of Admiralty.1 As the exercise of the jurisdiction of the court of Admiralty was controlled by the writ of prohibition, so (in spite of all protests)2 was the exercise of the jurisdiction of the Ecclesiastical Courts.

Administered in this way, the law of the church, like the maritime law, has ceased to possess an international character.3 It has become national like the church itself. “The ecclesiastical law of England,” said Lord Blackburn,4 “is not a foreign law. It is a part of the general law of England—of the common law—in that wider sense which embraces all the ancient and approved customs of England which form law, including not only that law administered in the courts of Edition: current; Page: [271] Queen’s Bench, Common Pleas, and Exchequer, to which the term common law is in a narrower sense confined, but also that law administered in Chancery and commonly called Equity, and also that law administered in the courts Ecclesiastical, that last law consisting of such canons and constitutions ecclesiastical as have been allowed by general consent and custom within the realm, and form . . . the king’s ecclesiastical law.”

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

This settlement has been fully accepted both by the judges and the bishops. In Caudrey’s Case4 “It was resolved that the said Act (the Act of Supremacy) . . . concerning ecclesiastical jurisdiction was not a statute introductory of a new law, but declaratory of the old.”5 The relations between church and state were explained almost in the words of the preamble of Henry VIII.’s statute of Appeals; and the historical argument, as to the continuous independence of the church, hinted at in that preamble, was expanded and improved. Though the Canon law had been laid under contribution it never was the law of the Church of England. “As the Romans fetching divers laws from Athens, yet being approved and allowed by the state there, called them notwithstanding jus civile Romanorum: and as the Normans borrowing all or most of their laws from England, yet baptized them by the name of the laws and customs of Normandy: so, albeit the kings of England derived their ecclesiastical laws Edition: current; Page: [272] from others, yet so many as were proved, approved, and allowed here by and with a general consent, are aptly and rightly called the King’s Ecclesiastical Laws of England.”1 In 1851 the two archbishops and the twenty bishops of England declared the “undoubted identity of the church before and after the Reformation”; and that though severed from Rome the church had in no respect severed her connexion “with the ancient Catholic Church.”2

Neither the legal nor the doctrinal theory should blind us to the fact that a very real change had been made at the Reformation. The relations between church and state, and the position of the Ecclesiastical Courts were fundamentally altered. The church was brought within the state. It was subjected to the power of the crown. That has involved in the course of time other consequential changes. Having been brought within the state, its position has been modified with changed ideas as to the balance of powers within the state, and as to the limits of state control. The court of High Commission wielded the royal supremacy, when the royal supremacy over the church conferred powers as large and indefinite as the royal prerogative in the state. That court disappeared, with the court of Star Chamber, when so large a prerogative was found incompatible with liberty.3 Similarly the royal supremacy conferred a wide dispensing power. Edition: current; Page: [273] That too was limited at the Revolution when it was found to put too large a discretionary power in the hands of the crown.1 In later times the proper sphere of ecclesiastical jurisdiction has been curtailed. Membership of the church is not considered a necessary qualification for full rights in the state. The members of other religious communities have been admitted to share them. The jurisdiction of the Ecclesiastical Courts has necessarily been weakened by the disappearance of the idea that it is the duty of the state church to use coercive measures to secure, pro salute animæ, the morality of all the members of the state. On the other hand later statutes have provided new courts or new machinery for the more effective discipline of the clergy in communion with the church.2

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

The lawyer has deduced from the uncertain utterances of Anglo-Saxon history, and from the anti-ecclesiastical legislation of the Middle Ages, the existence, from the earliest times, of an independent national church. The theologian has conferred upon it an unique Catholicity. The benches of judges Edition: current; Page: [274] and bishops have enunciated the same doctrines in language only technically different. In fact the Reformation did in a similar manner for the church, what the Revolution did for the state. Macaulay says of the Revolution, “the change seems small. Not a single flower of the crown was touched. Not a single new right was given to the people. The whole English law, substantive and adjective, was in the judgment of all the greatest lawyers, of Holt and Treby, of Maynard and Somers, almost exactly the same after the Revolution as before it. Some controverted points had been decided according to the sense of the best jurists; and there had been a slight deviation from the ordinary course of succession. This was all; and this was enough.” The same sentiments, applied to the church, are both good law and sound doctrine. But if we look a little beyond the immediate consequences of either the Reformation or the Revolution we can see that the changes involved are very far reaching. The result of the Revolution was the transference of control over the executive from the prerogative to Parliament through the growth of the cabinet system. The result of the Reformation was the abolition of the dual control of church and state, the transference to the state of complete control over the church, and the substitution for the canon law of the King’s Ecclesiastical Law. The crown’s prerogative still retains traces of its origin in a feudal society; and it could be described by Blackstone in terms which might have commanded the approval of a Stuart king, or the censure of a Stuart Parliament. The Church still retains her courts with some remnants of their ancient jurisdiction, and in her formularies some traces of a Catholicism older than that of Rome.

(ii) The Ecclesiastical Courts.

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

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

(2) The High Court of Delegates.

(3) The Court of High Commission.

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

Edition: current; Page: [275]

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

(a) The Diocese.

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

Each archdeacon in the diocese held a court for his archdeaconry.4 The ordinance of William I., removing ecclesiastical pleas from the hundred court, mentions both the archdeacon and the bishop as persons who held pleas in the hundred court.5 In its origin the office of archdeacon was ministerial. He held a court as a deputy of the bishop, just as the steward held the manorial court as a deputy of his lord. “But the tendency of all such institutions is to create new jurisdictions, and, early in the 12th century, the English archdeacons possessed themselves of a customary jurisdiction.”6 It was possibly with a view to stop the encroachments of the archdeacon that the bishops adopted the plan Edition: current; Page: [276] of exercising their jurisdiction through officials. An appeal lay from the archdeacon’s court to the Consistory Court.1

(b) The Peculiar.

The tendency in all feudal states was to vest jurisdiction in any considerable landowner. This tendency was felt in the church as well as in the state. Just as in the state the jurisdiction of the ordinary communal courts was displaced by the franchise jurisdiction, so in the church the jurisdiction of the ordinary Diocesan courts was displaced by the jurisdiction of the Peculiar Courts. One cause for the growth of these Peculiar Courts was the conflict between the bishops and their chapters, which resulted in the apportionment of the land, and jurisdiction over the land, between the bishop and the chapter. Thus both the bishops and the deans of the chapters possessed Peculiar Courts. A second cause was the exemption of the greater abbeys from episcopal jurisdiction. A third cause was a similar exemption of the king’s chapels royal.2 The variety of these Peculiar Courts can be seen from the statement of the ecclesiastical commissioners of 1832,3 that “there are Peculiars of various descriptions in most Dioceses, and in some they are very numerous: Royal, Archiepiscopal, Episcopal, Decanal, Subdecanal, Prebendal, Rectorial, and Vicarial; and there are also some Manorial Courts.” Some of these Peculiars were wholly exempt from Episcopal, and even from Archiepiscopal control. But there was an appeal from them in earlier days to Edition: current; Page: [277] the Pope; in later days to the High Court of Delegates. Recent legislation has abolished most of these courts.1

(c) The Province.

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

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

(β) The Court of Audience. Just as the bishop did not deprive himself of all jurisdiction by delegation to an official or commissary, so the archbishop did not originally deprive himself of all jurisdiction by delegation to the official principal. He possessed a jurisdiction concurrent with that of the Court of the Arches, which was exercised in the Court of Audience. In later times this jurisdiction was exercised by Edition: current; Page: [278] the judge of the Court of Audience.1 At one time the archbishop may have exercised a considerable part of his jurisdiction in this court. It is mentioned in a 17th century account of the Ecclesiastical Courts; but it does not appear to have been revived as a separate court after the Restoration.2 It has now fallen into disuse. It must not be confused with the personal jurisdiction which the archbishop has over his suffragan bishops.3

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

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

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

The provincial courts of the archbishop of York were the Chancery Court, the Prerogative Court, and the Court of Audience. These courts corresponded to the Court of the Edition: current; Page: [279] Arches, the Prerogative Court, and the Court of Audience of the archbishop of Canterbury.1

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

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

(2) The High Court of Delegates.

In the pre-Reformation period there was practically an unlimited right of appeal to the pope in all cases which fell Edition: current; Page: [280] within the jurisdiction of the Ecclesiastical Courts. This right was fettered to a slight degree by the rules made by the pope himself,1 and by the statutes of præmunire, in those cases in which the civil tribunals claimed exclusive jurisdiction. But where it existed the system of appeals and rehearings was, or might be, never ending. “Not only might a matter in dispute be treated over and over again, delegacy superseding delegacy, and appeal being interposed on every detail of proceeding one after another, but even after a definitive decision a question might be reopened and the most solemn decision be reversed on fresh examination. On this system of rehearing there was practically no limit, for, however solemn the sanction by which one pope bound himself and his successors, it was always possible for a new pope to permit the introduction of new evidence or a plea of exceptions. In this way the Roman Court remained a resource for ever open to litigants who were able to pay for its services, and the apostolic see avoided the imputation of claiming finality and infallibility for decisions which were not indisputable.”2

The Statute for the restraint of appeals3 prohibited all appeals to Rome, and provided that certain4 appeals should go from the archdeacon to the bishop, and (within 15 days) from the bishop to the courts of Arches or Audience, and from those courts to the archbishop himself. His decision was final except in cases touching the king. In that case there was an appeal from any of the Ecclesiastical Courts to the upper house of Convocation. This act was superseded by one passed in the following year which provided a new court of appeal for all ecclesiastical causes.5 The court created by this act becomes known as the High Court of Delegates. The act provided as follows:—“For lack of justice at or in any of the courts of the archbishops of this realm, or in any of the king’s dominions, it shall be lawful Edition: current; Page: [281] for the parties grieved to appeal to the King’s Majesty in the King’s court of Chancery; and that upon every such appeal a commission shall be directed under the Great Seal to such persons as shall be named by the King’s Highness his heirs and successors, like as in case of appeal from the Admiral’s court, to hear and definitively determine every such appeal, and the causes concerning the same. And that such judgment as the said commissioners shall make and decree . . . shall be good and effectual, and also definitive.”1 An appeal to the same body was provided from such peculiar jurisdictions as were exempt from episcopal or achiepiscopal control.2

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

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

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

The crown had an absolute discretion as to the persons to be appointed. But, as the lawyers of Doctors’ Commons were the only lawyers acquainted with canon or civil law and procedure, certain of them were usually included in the commission. In some of the earlier cases bishops and judges were included. In the 18th century the bishops are rarely included, and are at length entirely excluded.5 It was stated in 1832 that in ordinary cases the delegates were three puisne Edition: current; Page: [282] judges and three civilians, though, in special cases, temporal peers, and other judges might be added.1

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

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

(3) The Court of High Commission.

The Court of High Commission was created, as we have seen, under powers given to the crown by the Act of Supremacy.5 The first commission was issued in 1559 to Parker, Grindal, and seventeen others. Their duties were to enforce the Acts of Supremacy and Uniformity, and to deal generally with ecclesiastical offences. They could conduct their enquiries with or without a jury. They could summon persons on suspicion. They could examine any one on oath.6 The later commissions are all formed on the model of the first. But they show a tendency to increase the jurisdiction of the commissioners. They were entrusted with the acts for the Edition: current; Page: [283] protection of the Establishment passed later in the reign. The qualifying clause, “according to the authority and power limited, given, and appointed by any laws or statutes of the realm,” which is inserted in the earlier commissions, was omitted in 1596. The authority given to the commissioners was not diminished under James I. and Charles I. In 1613 they were empowered to execute the Star Chamber rules as to the censorship of the press, and to hear complaints of wives against husbands. In the commission of 1625 it was provided that, during the session of Convocation, their powers should be exercised only by the bishops in Convocation. But this clause was dropped in the following reign.1

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

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

A strong court of this nature was necessary to support the Established Church against its Puritan and Catholic enemies.5 It was not at first unpopular. But, as Mr. Prothero points out, “The efficiency of the system . . . and the general results produced, depended mainly on the views and characters of the archbishops and their episcopal colleagues, on whom fell almost all the burden of carrying the commission into Edition: current; Page: [284] effect.”1 In the Stuart period, as we have seen, the state was divided into two camps.2 Just as the supporters of the Council, the Admiralty, and the court of Chancery, relying on the prerogative, opposed the common lawyers, who led the parliamentary opposition; so the supporters of the State Church relied upon the court, which exercised the Royal Supremacy, in their efforts against sectaries of all kinds. The Puritans necessarily found themselves in alliance with the common lawyers; and in this manner a religious element was imported into the political and legal controversy, which was destined to prove, for an interval, fatal to the constitution. Though Coke had, in Caudrey’s case,3 unduly magnified the Royal Supremacy, he found, in his Fourth Institute, many reasons for showing that the Court of High Commission had exceeded its powers. He denied it the right to fine and imprison.4 He commented upon the lengthy provisions of the more recent commissions and the denial of all right to appeal.5 He contended that it should deal only with important cases.6 The common lawyers followed his lead. The action of the court was fettered by writs of prohibition. Persons imprisoned by it were released by writs of habeas corpus.7 It was attacked by Parliament in 1610,8 and necessarily fell with the victory of the Parliamentary party in 1640.9 The same act abolished all the other Ecclesiastical Courts. The court of High Commission was not restored at the Restoration with the other Ecclesiastical Courts.10

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

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

The procedure of the Ecclesiastical Courts had become so Edition: current; Page: [285] dilatory and expensive that much difficulty had been found in bringing to justice clergy guilty of immoral conduct. The ecclesiastical commissioners reported in 1832 that, “some cases of a flagrant nature, which have occurred of late years, have attracted the attention of the Public to the corrective Discipline of the Church, as administered by the Ecclesiastical Courts, and have at the same time exhibited in a strong light the inconveniences which have attended the application of the ordinary process of the Courts to such suits; namely, an injurious delay in effecting the desired object of removing Ministers of immoral and scandalous lives from the administration of the sacred offices of the Church; and the large expense incurred in such suits.”1

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

In cases where a clerk is charged with an offence the bishop, may, on the application of a complainant, or of his own motion, issue a commission to five persons to inquire. They must report to the bishop whether there are prima facie grounds for instituting proceedings.5 With the consent of the party accused, the bishop may pronounce sentence without further proceedings.6 If he does not consent, articles are drawn up against the party accused.7 If he admits the truth of the articles the bishop (or his commissary specially appointed for that purpose) may pronounce sentence.8 If not, either the bishop assisted by three assessors may hear the case, or the bishop may send the case to be tried by the court of the Province.9 But the letters of request for this purpose must have been sent before the filing of the articles.10 An appeal is provided to the court of the Province and to the Privy Council.11 In order to avoid the double Edition: current; Page: [286] appeal, most cases were sent by the bishop to the court of the Province in the first instance.1

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

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

In 1874 the Public Worship Regulation Act10 gave to the Edition: current; Page: [287] existing Ecclesiastical Courts a new machinery for the trial of offences against the ceremonial law of the church. An archdeacon, a churchwarden, or any three parishioners of the archdeaconry or parish within which a church or burial ground is situate, may represent to the bishop that unlawful additions have been made in the fabric or ornaments of the church, or that there has been use of unlawful ornaments, or neglect to use prescribed ornaments, or that there has been failure to comply with the rules of the book of Common Prayer, as to the conduct of services.1 The bishop may, if he pleases, refuse to institute proceedings.2 If he thinks that proceedings should be taken, he may himself, with the consent of both parties, deal finally with the case.3 If they do not consent, the case is heard by the judge of the court of the Province.4 From his decision an appeal lies to the Privy Council.5

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

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

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(iii) The jurisdiction of the Ecclesiastical Courts.

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

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

(1) Criminal and corrective jurisdiction.

(a) Criminal jurisdiction.

In the 12th century the Church claimed that all clerks should be exempt from any kind of secular jurisdiction, and, in particular, that “criminous clerks” should be subject to the jurisdiction of the Ecclesiastical Courts alone.1 In answer to this claim Henry II., in 1164, propounded the scheme contained in the third clause of the Constitutions of Clarendon.2 He contended that that scheme represented the laws in force in the time of Henry I. According to the clause the Edition: current; Page: [289] clerk is accused before the temporal court. He must there plead his clergy. He will then be sent to the Ecclesiastical Court for trial, and a royal officer will attend the trial. If he is found guilty and degraded the royal officer will bring him back, as a layman, to the temporal court to suffer the layman’s punishment. Becket objected to this scheme on three grounds:—(1) A clerk ought not to have been accused before the temporal court; (2) a royal officer ought not to have been present in the Ecclesiastical Court; (3) further punishment by the lay court involved an infringement of the rule that no man ought to be punished twice for the same offence. The first two of these objections were good according to the canon law. As to the third the canon law was not at that date clear; but the principle for which Becket contended was shortly afterwards condemned by Innocent III.1 The results of Becket’s murder were curious. The temporal courts maintained their claim to bring the criminous clerk before them. They abandoned their claim to punish the degraded clerk. This abandonment gave rise to the Privilege or Benefit of Clergy.

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

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

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

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

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

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

In 15769 the necessity for proving innocence in the Ecclesiastical Court by compurgation was abolished. But the judges could imprison persons (not being peers or clerks in orders), who had taken the Benefit of Clergy, for any term Edition: current; Page: [291] not exceeding a year. In 17171 it was enacted that persons convicted of clergyable larcenies (not being peers or clerks in orders) should be transported for seven years.

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

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

In 18274 the Benefit of Clergy was abolished.

(b) Corrective jurisdiction.

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

We may divide the extensive jurisdiction thus exercised Edition: current; Page: [292] by the Ecclesiastical Courts into two heads:—(α) offences against religion, (β) offences against morals.

(α) Offences against religion.

Of such offences the most important is heresy. It was regarded as a species of high treason against the church. “A man who did not begin by admitting the king’s right to obedience and loyalty, put himself out of the pale of the law. A man who did not believe in Christ or God put himself out of the pale of human society; and a man who on important subjects thought differently from the church, was on the high road to disbelief in Christ and in God, for belief in each depended ultimately upon belief in the testimony of the church.”1 The infrequency of heresy, down to the time of Wicklif and the Lollards, makes it somewhat uncertain in what manner the Ecclesiastical Courts could deal with it. The case of the deacon, who was burnt at Oxford because he apostatized for the love of a Jewess, is the only undoubted case mentioned in the older books.2 But heresy was known on the continent, and there is no doubt that the canon law distinctly laid it down that the penalty was death by burning.3 It is to this rule of the canon law that Lyndwood refers as authority for the proposition the heretics must be burnt.4 The accounts we have of the story of the deacon and the Jewess are too obscure to make it an authority for any distinct legal proposition. But the case of Sawtre (1400) is a clear case in which the rule of the canon law Edition: current; Page: [293] was applied. He was convicted of heresy before the bishop of Norwich and recanted his heresy. He fell again into heresy, and was condemned by the archbishop and his provincial council, as a relapsed heretic. On this conviction the king issued a writ de hæretico comburendo.1

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

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

Henry VIII.’s legislation necessitated some changes in the law relating to heresy. By an act of 15334 it was declared that speaking against the authority of the pope, or against spiritual laws repugnant to the laws of the realm, should not be heresy. The act of 2 Henry IV. c. 15 was repealed, and the bishops were thereby deprived of the power to arrest and imprison on suspicion. The tourn and the leet, as well as the justices of assize and the quarter sessions, were given power to receive indictments of heresy. Thus an accusation for heresy must, as a rule, begin by an indictment before some recognised temporal court. The result was a great cessation in prosecutions for heresy.5 The act of the Six Articles6 (1539) made the holding of certain opinions felony; Edition: current; Page: [294] and it was provided that commissions should issue to the bishop and other persons to inquire into these offences four times a year.

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

Elizabeth’s Act of Supremacy authorised the establishment of the court of High Commission for the trial of ecclesiastical offences.3 But it considerably limited their powers to declare opinions heretical.4 If, however, a man was convicted of heresy by the court he might be burnt according to the rule of the common law. Heretics were burnt in 1575 and 1612. In the latter case Coke’s opinion was against the legality of the issue of the writ de hæretico comburendo, but four judges were against him.5 In 16776 “all punishment of death in pursuance of any ecclesiastical censures” was abolished. But the act contained a proviso that nothing in it shall “take away or abridge the jurisdiction of Protestant archbishops or bishops, or any other judges of any Ecclesiastical Courts, in cases of atheism, blasphemy, heresy, or schism, and other damnable doctrines and opinions, but that they may proceed to punish the same according to his Majesty’s ecclesiastical laws, by excommunication, deprivation, degradation, and other ecclesiastical censures not extending to death.” Many of these offences can now be punished in the temporal courts: but by virtue of this saving it is probably theoretically possible that persons guilty of such offences Edition: current; Page: [295] may be excommunicated, and imprisoned for six months by an Ecclesiastical Court.

(β) Offences against morals.

The Ecclesiastical Courts exercised a wide disciplinary control over the moral life of the members of the church. The criminal precedents published by Archdeacon Hale in 1847 illustrate the nature of the jurisdiction. They consist of a collection of extracts from the Act Books of six Ecclesiastical Courts between the years 1475 and 1640. The offences dealt with are varied and numerous. They comprise, adultery, procuration, incontinency, incest, defamation, sorcery, witchcraft, behaviour in church, neglect to attend church, swearing, profaning the Sabbath, blasphemy, drunkenness, haunting taverns, heretical opinions, profaning the church, usury, ploughing up the church path.1 The methods by which the Ecclesiastical Courts proceeded were well calculated to produce evidence of the commission of such offences. They might proceed:—(1) By inquisition. In this case the judge was the accuser. He might proceed upon his own personal knowledge or on common fame. As a rule Edition: current; Page: [296] the apparitors or other officers supplied the information. They used their powers in many cases in the most corrupt manner. Chaucer probably represented the popular view when he makes the Friar say of the “sompnour”—

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

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

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

The ordinary Ecclesiastical Courts and their jurisdiction were restored in 1661;4 and there is no legal reason why at the present day they should not try cases of adultery or fornication. But between the Restoration and the present day their jurisdiction has been much curtailed, and has Edition: current; Page: [297] finally altered its shape, not only because men’s ideas upon methods of moral government have changed, but also because the state has interfered to punish offences which were once left to the Ecclesiastical Courts. In 1533 unnatural offences, and in 1541 witchcraft were made felonies.1 In 1603 bigamy was made felony.2 In 1823 jurisdiction in cases of perjury was taken away from the Ecclesiastical Courts.3 In 18554 suits for defamation, and in 18605 suits against laymen for brawling in church were similarly removed. It was a principle laid down by Coke, as an established maxim in law, “that where the common or statute law giveth remedy in foro seculari (whether the matter be temporal or spiritual), the conusance of that cause belongeth to the king’s temporal courts only; unless the jurisdiction of the spiritual courts be saved, or allowed by the same statute, to proceed according to the ecclesiastical laws.”6 The result is that while the jurisdiction of the Ecclesiastical Courts over certain kinds of immorality still in theory remains, in practice these courts are only called upon to act in the case of the clergy. In this respect, as we have seen, their jurisdiction has been improved.7 They are no longer “courts of law having authority over the sins of all the subjects of the realm.” They are “courts for enforcing propriety of conduct upon the members of a particular profession.”8

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

(2) Matrimonial and Testamentary causes.

(a) Matrimonial.

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

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

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

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

The anomaly of this state of the law was striking. It practically made divorce the privilege of the very rich. This was forcibly expressed by Maule, J., in his address to a prisoner who had been convicted of bigamy, after his wife had committed adultery, and deserted him. “Prisoner at the bar,” he said, “you have been convicted of the offence of bigamy, that is to say, of marrying a woman while you have a wife still alive, though it is true she has deserted you, and is still living in adultery with another man. You have, therefore, committed a crime against the laws of your country, Edition: current; Page: [300] and you have also acted under a very serious misapprehension of the course which you ought to have pursued. You should have gone to the Ecclesiastical Court and there obtained against your wife a decree a mensa et thoro. You should then have brought an action in the Courts of Common Law and recovered, as no doubt you would have recovered, damages against your wife’s paramour. Armed with these decrees you should have approached the legislature, and obtained an act of Parliament, which would have rendered you free, and legally competent to marry the person whom you have taken on yourself to marry with no such sanction. It is quite true that these proceedings would have cost you many hundreds of pounds, whereas you probably have not as many pence. But the law knows no distinction between rich and poor. The sentence of the court upon you therefore is that you be imprisoned for one day, which period has already been exceeded, as you have been in custody since the commencement of the assizes.”

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

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

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

(b) Testamentary.

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

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

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

(a) Jurisdiction over grants of Probate.

The origin of this jurisdiction is difficult to discover. Neither the civil nor the canon law sanctioned it.2 We hear nothing of it in England in the 12th century; and Selden says “I could never see an express probate in any particular case older than about Henry III.”3 Testators rather sought Edition: current; Page: [302] the protection of the king or of some powerful individual; and the effect might be somewhat similar to that of a grant of probate in later law.1

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

In a constitution of Archbishop Stratford of 1380, the jurisdiction is said to belong to the Church, “consensu regis et magnatum regis.”6 Lyndwood says “de consuetudine tamen hæc approbatio in Anglia pertinent ad judices ecclesiasticos.”7 Selden, too, considers that it rests upon immemorial custom; though he conjectures that it may have been handed over to the Church by a Parliament of John’s reign.8 Edition: current; Page: [303] We shall see that this is more probably true of the jurisdiction over grants of the administration to one who has died intestate. But the fact that about this time the Ecclesiastical Courts got jurisdiction over grants of administration, over legacies, and, in some cases, over debts due by or to a deceased testator, may have been decisive in favour of this closely allied branch of the same jurisdiction.

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

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

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

A canon made at a council held at St. Paul’s before Othobon4 (1268) speaks of “a provision made as to the goods of intestates which is said to have emanated from the prelates of the realm with the consent of the king and barons.” In the opinion of Selden5 and of Professor Maitland6 this refers to § 27 of Magna Carta, which provides that the goods of an intestate shall be distributed by the hands of his near relations and friends “per visum ecclesiæ salvis unicuique debitis.”7 This was the rule known to Bracton. “Ad ecclesiam et ad amicos pertinet executio bonorum.”8 A claim to superintend the distribution made by the kinsfolk will without much difficulty become a claim to administer. And the claim was here peculiarly strong. The man who dies intestate will probably have died unconfessed.9 There could be no sure and certain hope as to the state of such a person. The Church should obviously see that the property, of which Edition: current; Page: [304] he might have disposed by will, is distributed for the good of his soul. Distribution by the kinsfolk “pro anima ejus” of Henry I.’s Charter; distribution “per visum ecclesiæ” of Magna Carta; actual administration by the Ordinary, perhaps mark the stages by which the Ecclesiastical Courts acquired jurisdiction. Up till Edward III.’s reign the court actually administered and made the distribution among those relatives of the deceased who were entitled. But its conduct was so negligent and even fraudulent that the legislature interfered.1 The court was obliged to delegate its powers to administrators, whom it was obliged to appoint from among the relatives of the deceased.2 Instead of distributing the estate the Ecclesiastical Court merely grants administration. These administrators were by the statute assimilated in all respects to executors. Like executors they are the personal representatives of the deceased.

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

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

According to the civil law the bishop had a concurrent jurisdiction with the lay courts over legacies left in pios usus.3 There is a vague provision made by some council of Mentz which seems to give the bishop an indefinite right of interference.4 But in other countries this does not appear to have given to the Ecclesiastical Courts any jurisdiction beyond that over legacies left in pios usus. In Glanvil’s time Edition: current; Page: [305] legacies could be recovered in the king’s court.1 Selden gives specimens of writs of the time of Henry III. ordering executors to fulfil the wills of their testators.2 But it is possible that the royal courts assumed jurisdiction in some of these cases for special reasons. It is probable that, even in Henry II.’s reign, the Ecclesiastical Courts had a jurisdiction concurrent with that of the temporal courts. No writ of prohibition issued if a suit for legacies was begun in the Ecclesiastical Court. Selden said that he had seen none on the plea rolls of either Richard I., John, or Henry III.3 Both Bracton and Fleta state definitely that no prohibition lies in such a case.4 In 1230 it was decided that a legatee could not recover in the king’s court, but must sue in the Ecclesiastical Court.5

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

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

When Glanvil wrote, the heir is the person liable to carry out the will and to pay the debts.7 In Bracton’s time the heir must pay the debts to the extent of the chattels which he has received from the deceased, and he can sue the deceased’s creditors.8 In the time both of Glanvil and Bracton the heir sues and is sued in the king’s court. In the time of Bracton, however, the executor can sue on debts acknowledged in the testator’s lifetime, because such debts are substantially the testator’s goods. He can be sued if he has been directed in the will to pay the debts, because such direction Edition: current; Page: [306] amounts to something very like a legacy.1 Britton and Fleta limit the liability of the heir to cases where he has been specially bound to pay by the deed of his ancestor, or where the debt is owed to the king.2 It is clear that the heir is ceasing to be the person primarily liable to pay the debts of the deceased.

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

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

This new position taken by the executor or the administrator tended to develop the jurisdiction of the Ecclesiastical Courts over the administration of the estate. The executor or administrator was amenable to them; and he was now the personal representative. Thus we find that the Ecclesiastical Courts laid down rules intended to secure the creditors, the legatees, or those entitled on intestacy. The executor or administrator was compelled to make an inventory.7 He must account at the close of the administration;8 and in Edition: current; Page: [307] some cases he must give a bond to secure the production of the account.1 He was given remedies against those who detained the property of the deceased.2 Penalties were denounced against him if he appropriated the deceased’s property.3 Like the tutor suspectus of Roman law he could be removed by the court if good ground of suspicion were shown.4

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

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

We have seen that, in the 14th century, the executor and the administrator had been granted rights of action, and had been rendered liable to be sued in the king’s court for the debts due to and by the deceased. But the remedies given Edition: current; Page: [308] by the king’s courts were by no means complete, till, at the end of the 16th and beginning of the 17th century, it was definitely decided, that executors and administrators could sue and be sued by the action of assumpsit.1 The extension of what was in its origin a quasi delictual action to the representative was no doubt caused by the fact that he would otherwise have had recourse to the court of Equity.2 This move on the part of the Common Law Courts made a recourse to the court of Equity unnecessary in this particular class of case. But, it was the extension of the equitable jurisdiction in other directions, which finally deprived the Ecclesiastical Courts of all effective jurisdiction, except that over probate and grants of administration. This extension was necessitated by the jealousy felt by the Common Law Courts for any rival jurisdiction. The jurisdiction of the Ecclesiastical Courts was crippled; and, as the court of Equity had succeeded in defeating the attempts made by the Common Law Courts to treat it,3 as they had treated the court of Admiralty,4 and the Ecclesiastical Courts, it was able to offer more complete and better remedies.

The Common Law Courts had made it almost impossible for the Ecclesiastical Courts to act at all. They would not allow the truth of the inventory to be enquired into.5 They would not allow the creditors to examine into the truth of the executor’s accounts because he had a remedy at common law.6 They issued writs of prohibition against all who sued upon the bonds taken to secure the production of a proper account.7 We are not surprised, therefore, to find that applications were made at the end of the 15th century to the Chancellor in cases which involved the taking of accounts.8 The Chancellor could also assist the plaintiff by enforcing discovery against the executor.9 The extension of the doctrine Edition: current; Page: [309] of trusts enabled the court to control the personal representative in the interest of all who claimed under a will or an intestacy, whether they were creditors or legatees.1 It was therefore in the court of Chancery, and not in the Ecclesiastical Courts, that the rules relating to the powers, rights and duties of the personal representative have grown up. The court followed the rules of the Ecclesiastical Courts and of the Common Law Courts respectively when they were applicable.2 But it was the procedure of the court of Chancery which made it possible to distinctly conceive the complicated equities which arise in the administration of an estate. It was the rules evolved by the court which provided for their adjustment.

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

The Act of 1857 established a court of Probate, presided over by a single judge, to whom was given the rank and precedence of the puisne judges of the superior courts.6 It was provided that he should be the same person as the judge of the court of Admiralty.7 He was given the jurisdiction to make grants of probate and administration formerly Edition: current; Page: [310] exercised by the Ecclesiastical Courts.1 An appeal from his decision lay to the House of Lords.2

(3) Jurisdiction over matters of exclusively ecclesiastical cognisance.

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

The process by which the Ecclesiastical Courts enforced obedience to their decrees was excommunication. It was to the spiritual courts what outlawry was to the temporal courts. If the excommunicate did not submit within 40 days, the Ecclesiastical Court signified this to the crown, and thereon Edition: current; Page: [311] a writ de excommunicato capiendo1 issued to the sheriff. He took the offender and kept him in prison till he submitted. When he submitted the bishop signified this, and a writ de excommunicato deliberando issued.

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

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30.: THE HISTORY OF THE ADMIRALTY JURISDICTION1

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

The title of admiral,3 to indicate the custos maris4 of earlier times—that is, the officer exercising the jurisdiction of the Crown in respect of the command and charge of the sea, either during a particular expedition or over a particular district—was not used in England as an official description Edition: current; Page: [313] before the year 1286,1 and the first patent of Admiral of England conferred upon a subject would appear to date from 1386.2 The command of the English seas was then divided, as had previously been the case with the custodes maris, between several admirals, with limits to the north, south or west from the mouth of the Thames;3 but owing to the necessity for the defence of the coast, especially of the county of Kent, which was particularly liable to invasion, and the importance of commanding the eastern entrance of the English Channel, special privileges, liberties and franchises were from early times bestowed on the so-called Cinque Ports, Dover, Hastings, Romney, Hythe and Sandwich, to which the two ancient towns of Winchelsea and Rye were added in the time of Richard I.4 In 1294 Gervoise Alard, Edition: current; Page: [314] of Winchelsea, was Capitaneus and Admirallus of the fleet of the Cinque Ports, and of all other ports from Dover to Edition: current; Page: [315] Cornwall.1 It is said that “the office of Admiral of the Cinque Ports is more ancient than the office of Lord High Admiral,” and that he had “all the authorities, rights, and royalties belonging to an admiral annexed to his office.”2 The Court of Admiralty of the Cinque Ports, locally situated at Dover,3 still exists, as it was not included in the sweeping changes effected by the Municipal Reform Act.

The authority of a Lord High Admiral depended upon his commission.4 He was sometimes instituted for life and sometimes during pleasure,5 and it would follow from his Edition: current; Page: [316] position in command of the fleet1 that his jurisdiction was originally of a disciplinary and administrative character, limited to the crews of the vessels under his direct orders, offenders being brought before him to “undergo and receive what the law and custom of the sea wills and requires”;2 whilst commissioners were appointed to try offences committed by others on board the ships of the fleet; but it is alleged that, before the time of Henry I.,3 in the case of indictments for felony, the admiral or his lieutenant sent a capias to the marshal of the court, or to the sheriff, to take the offender, and a procedure is indicated similar to that described by Bracton4 as applicable to cases of homicide where the accused person has taken flight. It is further stated5 that in the same reign (Henry I.) the admirals6 Edition: current; Page: [317] of the north and west were summoned to Ipswich, and ordinances were made, with the concurrence of the temporal lords, respecting the criminal jurisdiction to be exercised by the commanders of the fleets within the seas belonging to the Kings of England.1

The perquisites to which the admiral was entitled, in addition to his pay, were so numerous as to require separate Edition: current; Page: [318] investigation, and “a suit in the Admiralty was originally an inquisition of office for ascertaining and securing to the Lord High Admiral such part of his revenue as consisted of droits,”1 the suit being analogous to the inquisition of office concerning the droits of the Crown, which, being part of the King’s casual revenue, was restricted to the Court of Exchequer.2 The droits or perquisites formerly attaching to the office of Lord High Admiral, as enumerated in their later patents,3 consisted of flotsam, jetsam, ligan,4 treasure, Edition: current; Page: [319] deodands,1 derelicts found within the admiral’s jurisdiction, all goods picked up at sea, all fines, forfeitures, ransoms, recognizances and pecuniary punishments, all sturgeons, whales, porpoises, dolphins, and grampuses, and all such large fishes, all ships and goods of the enemy coming into any creek, road, or port by stress of weather, mistake, or ignorance of the war, all ships seized at sea, salvage, together with a share of prizes.2

Some writers assert that the starting point of the admiral’s jurisdiction in civil suits dates from an ordinance of Edward I., to the effect that “any contract made between merchant and merchant, or merchant or mariner beyond the sea, or within the flood mark, shall be tried before the admiral and nowhere else”;3 but half a century more was spent in efforts by reference to arbitration, and by treaty, to meet the difficulties which arose with foreign sovereigns over cases of alleged piracy and spoil, and it was not until the battle of Sluys, in 1340, gave Edward III. temporary maritime supremacy, that he was in a position to constitute an independent Edition: current; Page: [320] Court of Admiralty with power to deal with causes for which, in the case of a plaintiff foreigner, the Courts of common law afforded no redress.1

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

In the case of piracy, of which suits now became frequent in the Court of Admiralty, the criminal aspect was disregarded, the proceedings being for restitution,3 and no preliminary Edition: current; Page: [321] conviction was required, as was the case where the Lord High Admiral proceeded pro interesse suo, upon his royal grant of bona piratarum.1

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

The law of the sea, to which the attention of Edward III. was now directed, consisted of those unwritten usages of seafaring men, combined with lingering memories of the so-called law of Rhodes, filtrated through the law of Rome,3 which, in Edition: current; Page: [322] the course of centuries, by the agency of the Consular Courts of the Mediterranean, had crystallised into “customs of the sea.”

The growth of this law, or usages of the ports, was favoured by its recognition from early times as distinct from the law of the land, and, on the downfall of the Western Empire, the so-called barbarians who settled in Gaul, Spain, Africa, and Italy, did not interfere with the existing Roman law, but the legislation took the peculiar turn of becoming personal instead of territorial—that is, each individual, in matters not provided for by the laws of the conquerors, was judged according to the laws and customs of the nation to which he belonged.1 In this way the municipal institutions which had been fostered by the Romans themselves Edition: current; Page: [323] preserved their vitality, and tended to strengthen the force of the local customs, so that they even overrode the law in matters in which they were deemed exclusive; but as time went on difficulty seems to have been experienced in keeping up these cherished customs by oral tradition, so that about the eleventh century a general tendency exhibited itself to reduce them to writing.1

That Courts of the sea followed a law distinct from that of the land is recognised in the Assises of Jerusalem, which date from the reign of Godfrey de Bouillon, the contemporary of Henry I. of England.2 These chapters on maritime law embody the customs of the sea of the Levant, and were drawn up for the benefit of the immigrant Frankish people who followed in the wake of the first Crusade, and established themselves in Syria at the beginning of the twelfth century. The Courts of the sea were presided over by burghers of the same nationality as the litigants. They followed a different procedure to that of the Courts of the land, and they adjudicated in civil disputes on maritime matters3 without regard Edition: current; Page: [324] to the usual mode of proof by wager of battle, which was unknown in the Levant. Where the plaintiff’s were merchants suing other merchants not possessing (like the Genoese, Venetians, or Pisans) the privilege of special Courts of the sea of their own nationality, they were required to sue in the Court of the King, that is, in the “Court of the chain,” which took cognizance of maritime matters and was in the nature of an instance Court of Admiralty with a procedure of its own.

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

Concurrently with this borough system, which in England transformed the personal union known as the guild into a local association, the communal system was growing up on the other side of the channel, and increased in importance in the western provinces of France after they became subject to the Kings of England. In particular King John, as Duke of Acquitaine, granted a charter to Oleron,2 confirming the liberties of that commune, and under these privileges the probi homines, who assisted the judge in questions arising Edition: current; Page: [325] out of the law of the land, were, in the case of the law of the sea, nautical men (prud’hommes) familiar with the customs of the sea. The Coutumier of the Commune of Oleron1 shows that there was a Court administering the law maritime not only in suits between foreigners and burgesses of Oleron, but in causes where both litigants were foreigners.2 The judgments of this Court were reduced to writing by the prud’hommes of the commune in the twelfth century. They are the earliest extant mediæval sea laws we possess after the ordinances of Trani;3 and it may be assumed that these judgments of the sea, or customs of Oleron, were the outcome of the privileges granted by the Dukes of Guienne to the commune of Oleron prior to the marriage of Eleanora, daughter of William, Duke of Guienne, with Henry II. of England, when the island passed into the possession of the British Crown. Amongst these privileges was that of the prud’hommes of the commune exercising jurisdiction in maritime matters, and adjudicating upon them in the Court of the mayor according to the usages of the sea and the custom of merchants and mariners.4 Some difficulty has been raised as to the time when these judgments of Oleron were introduced into England owing to the terms of the above-mentioned record, known as the Fasciculus, according to which it would seem that part of the object of the consultation which King Edward III. had with the Commissioners was the upholding of the laws and statutes, “which were by the Lord Richard, formerly King of England, on his return from the Holy Land, corrected, interpreted, and declared, and published in the island of Oleron”;5 but whether these judgments Edition: current; Page: [326] were so published as laws at that time or not, it seems clear that, prior to the consultation in question, the judgments of Oleron were in use in the City Courts which administered the law merchant and the law maritime, as two copies exist in the archives of the City of London, the writing of which is as early as the reign of Edward II.1

The judgments of Oleron are inserted in Part C. of the Black Book of the Admiralty as a code of maritime law.2 They are preceded by thirty-nine rules or orders relating to the Admiralty, some of which go back to the reign of Henry I.3 and Richard I.,4 and which were probably translated from Latin into French by the compilers of the Black Book, as French was the language of seafaring men in the time of Edward III.5 After Article 39 in Part C. follow thirty-four articles, of which twenty-four are identical with the most ancient version of the rolls or judgments of Oleron,6 whilst the ten following seem peculiar to the English Edition: current; Page: [327] Admiralty, unless these were deemed part of the laws of Oleron, as seems possible from the record of an appeal from the Mayor’s Court of Bristol1 in 24 Edward III., in which two of these articles would appear to be relied on as part of those laws. The next eighteen articles of the Black Book, lettered D., are stated in the recital in the preamble to be articles of a maritime inquest held at Queenborough in 49 Edward III. (1375) to ascertain and settle certain points of maritime law “as they have been used in ancient times”; and the jurats, in answer to the sixteenth article of inquiry in respect of the right of lodemanage (pilotage), return that “they know of no better advice or remedy, but that if it be from this time used and done in the manner which is contained in the law of Oleron.” The first twenty-four articles of the laws of Oleron as set out in the Black Book do not contain any provision for the punishment of a pilot for failure of duty; but the thirty-third and thirty-fourth articles specially provide for the payment of damages by a pilot, and for his punishment in the event of the loss of the ship through his default.2 It would, therefore, appear that these Edition: current; Page: [328] ten articles were regarded as part of the laws of Oleron in the time of Edward III.1

From the records it would seem that, at this time, the civil jurisdiction in Admiralty included torts and offences on the high seas, on British seas, and in ports within the ebb and flow of the tide, matters of prize,2 contracts within the Edition: current; Page: [329] laws of Oleron1 and causes arising on the seashore and in ports. In 1361 the Council held that, by the common law, felonies, trespasses, and injuries done on the sea should be tried by the admiral by the law maritime, and not according to the common law;2 but the extension of the admiral’s jurisdiction, founded on the theory accepted by the common lawyers at this time, that all matters arising outside the jurisdiction of the common law—that is, outside the body of a county3—were inside the jurisdiction of the Admiralty,4 led to disputes between the Admiral’s Court and the “Courts of the Seaports” exercising a franchise jurisdiction,5 these Edition: current; Page: [330] disputes being heightened by the irregularities committed by the Court of the Earl of Huntingdon, Admiral of the West;1 and in 1389 and 1391 two statutes were passed defining and limiting in favour of the common law courts, first, the things with which the admiral might meddle, and, secondly, the places to which his jurisdiction might extend. The 13 Rich. II. st. 1, c. 5, refers to the complaints made of encroachments by the admirals and their deputies and of their holding sessions in divers places within and without franchises, impoverishing the common people. It then proceeds to enact that they “shall not meddle from henceforth Edition: current; Page: [331] of anything done within the realm, but only of a thing done upon the sea.” This was followed two years later by the statute 15 Rich. II. st. 2, c. 3, by which it was declared that “the admiral’s court shall have no manner of cognizance, power, nor jurisdiction” . . . “of contracts, pleas, and quereles and all other things done or arising within the bodies of counties as well by land as by water, nor of wreck of the sea,”1 nevertheless “of the death of a man and Edition: current; Page: [332] of mayhem done in great ships being hovering in the main stream of great rivers, only beneath the bridges of the same Edition: current; Page: [333] rivers nigh to the sea (infra primos pontes), and in none other places of the same rivers, the admiral shall have cognizance, Edition: current; Page: [334] and also to arrest ships in the great flotes for the great voyages of the king.”

As it was found that these limitations were not duly Edition: current; Page: [335] observed, the Commons petitioned against the admiral,1 and a statute was passed in 1400 (2 Hen. IV. c. 11) providing a remedy for the party aggrieved by proceedings against him in the Admiralty Court, in cases not clearly within the jurisdiction of that Court, not only against the plaintiff but against the judge and the officers of the Court, by action in the common law courts with double damages; the statute further enacted that the statutes of Richard “be firmly holden and kept and put in due execution.”2

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

As a magistrate, the judicial powers of the Lord High Admiral as defined by patent3 were extravagantly large, and included the power to take cognizance of all causes, civil and maritime, within his jurisdiction; to arrest goods and persons; Edition: current; Page: [336] to preserve public streams, ports, rivers, freshwaters and creeks whatsoever within his jurisdiction, as well for the preservation of the ships as of the fishes; to reform too strait nets and unlawful endings and punish offenders; to arrest ships, mariners,1 pilots, masters, gunners, and any other persons whatsoever able and fit for the service of the ships, as often as occasion shall require and wheresoever they shall be met with; to appoint vice-admirals, judges, and other officers durante bene placito; to remove, suspend, or expel them and put others in their places as he shall see occasion; to take cognizance of civil and maritime laws and of death, murder, and mayhem.2

The patent of the Lord High Admiral also specially gave Edition: current; Page: [337] him the power to act by deputy, and according to the opening paragraph of the Black Book of the Admiralty,1 “When one is made admiral, he must first ordain and substitute for his lieutenants,2 deputies, and other officers under him, some of the most loyal, wise, and discreet persons in the maritime law and ancient customs of the seas3 which he can anywhere find, to the end that by the help of God and their good and just government the office may be executed to the honour and good of the realm”; and according to the documents connected with the Admiralty of Sir Thomas Beaufort, 13 Hen. IV.:4 “In the first place the lieutenant-general shall make oath to the high admiral to do right and due justice to all manners of parties complaining in the court of admiralty, as well to plaintiffs as to defendants, without having to do more for one party than the other, and he ought to make summary and hasty process from tide to tide, and from hour to hour, according to the law marine and ancient customs of the sea, without observing the solemnity of the law, and without mixing law civil with law maritime there where it may be equitable, knowing the right of the parties.” He is further directed to imprison or otherwise punish those putting themselves in opposition to the Admiralty, to appoint deputies, surveyors, and guardians of the office of Admiralty for all the coasts of the sea,5 and hold inquests upon the coasts of the sea touching the law marine, and if there is Edition: current; Page: [338] an Admiral of the North and another of the West, they shall each have a lieutenant-general.

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

In 1509 and subsequent years, Henry VIII. made treaties with France providing for special tribunals to speedily try piracy claims, which had become very frequent. In England, the Earl of Surrey (Lord High Admiral), Cuthbert Tunstall (Master of the Rolls), and Christopher Middleton (judge of the Admiralty Court) were appointed judges. In the commission (1519) appointing them5 the procedure is directed to be, in accordance with the terms of the treaty between Henry VIII. and the French King, speedy and informal, and the same words are employed to indicate this procedure in Edition: current; Page: [339] the patents of the Lord High Admiral of this period. Similar terms are used in the so-called Valencian Regulations, in which the Consuls of the Sea were directed to decide the causes brought before them “briefly, summarily, and forthwith, without the noise or formality of a judgment, looking solely to the truth of the facts, according as has been accustomed to be done after the usage and custom of the sea”;1 and Mr. Justice Story says2 “that the Admiralty of England, and the maritime Courts of all the other powers of Europe, were formed upon one and the same common model, and that their jurisdiction included the same subjects as the Consular Courts of the Mediterranean . . . described in the Consolato del Mare,3 these consular Courts proceeding Edition: current; Page: [340] according to the forms of the civil law, and being regulated by the ancient customs of the sea.”

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

In exercising jurisdiction “over all contracts which had to be determined according to the usage and custom of the sea,” the Court,2 under the Valencian Regulations, allowed oral proceedings up to and including judgment, and in the case of mariners’ wages and bonds they always were oral; but in the case of claims propounded in writing, a copy was transmitted by the officer of the Court to the defendant to be answered within a fixed term either by way of defence or counterclaim, unless the defendant objected to the jurisdiction, Edition: current; Page: [341] in which case, after consultation, the consuls either overruled the objection or remitted the parties to the competent judge; and if the defendant was a stranger the plaintiff could require security to meet the judgment, otherwise the defendant was liable to imprisonment, and the consuls were themselves liable to satisfy the judgment if they had failed to take security and the defendant absented himself. If the cause proceeded, the plaintiff replied or answered the counterclaim, and for the conduct of these proceedings assignations were made every three or more days as convenient. An oath that the action or defence was not based on false pretences could, if demanded, be then put to either party.1 In respect of matters denied, a first delay of ten days was allowed for proof, or four times that period if necessary, that is, four delays from ten to ten days, if an oath was taken that the fourth delay was not for the purpose of protracting the cause, and a reasonable time was granted if required for the production of witnesses who were at a distance. When these periods had elapsed, and the evidence had been published, the consuls, subject to exceptions to the character of the witnesses produced, and subject to the production of written evidence, appointed a day to give judgment, and caused the pleadings and proceedings to be read to mercantile experts, viz., the prud’hommes of the merchants, and to maritime experts, viz., the prud’hommes of the sea, and if their advice was the same they proceeded to pronounce sentence; but if, after the two sets of prud’hommes had consulted together, they did not agree, the consuls decided according to the written customs of the sea under the advice of the prud’hommes of the sea.2 There was no condemnation in the costs of the proceedings unless (after ad 1460) one of the parties had been guilty of bad faith, and the judgment was conclusive unless the party aggrieved appealed within ten days, either orally or in writing, to the judge of Edition: current; Page: [342] appeal to whom the proceedings were transmitted. After taking counsel with a different set of prud’hommes of the merchants and of the sea, the judge of appeal within thirty days gave a final judgment in writing (whether the proceedings were oral or not) and condemned the appellant in the respondent’s costs of the appeal if he confirmed the sentence of the consuls.

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

At this period the customs of the sea, as collected in the book of the Consulate of the Sea of Barcelona in 1494, together with the Gotland sea laws,1 called the maritime laws of Wisby,2 and the judgments of Oleron,3 formed a continuous chain of maritime law from the ports of the Baltic, through the North Sea, and along the coast of the Atlantic to the eastern shores of the Mediterranean, and the practice detailed above in the case of the Valencian Regulations may be assumed to indicate generally the mode in which suits in maritime matters were conducted on the continental seaboard. In England the records of the High Court of Admiralty Edition: current; Page: [343] do not begin until 1524,1 and details of the early practice are not forthcoming; but it seems probable that the Praxis Curiae Admiralitatis Angliæ of Clerke2 deals with a state of things that had been in force for a considerable period before the first edition of his work. He states that the actions instituted in the Admiralty Court were commonly between merchants of this country, or foreigners, or masters of ships and mariners, and that all the proceedings in civil and maritime causes were summary.3 The action, he says,4 commenced with the judge’s warrant obtained by the plaintiff, made out in the name of the Lord High Admiral,5 drawn up by the registrar and directed to the marshal to arrest the defendant6 and keep him in custody until he appeared on the day and place specified before the Lord High Admiral or his deputy the judge. The warrant was executed by the marshal, if the defendant resided in London or the suburbs, otherwise by an officer of the city, town, or village where he dwelt, and the defendant was released on giving security by bond for his appearance, the amount for which the sureties were liable being fixed by the sum for which the action was instituted, e. g., five pounds. The warrant was then returned to the judge indorsed with the person’s name who executed it, together with the day and place. On the day appointed the defendant, or his proctor, appeared with his sureties, but if without the sureties the defendant was imprisoned during the pending of the suit, or until he gave security, or unless his oath was accepted. A proctor was then appointed, as in ecclesiastical causes, to carry on the cause, with power to produce sureties and to obtain same from the adverse party. The proctor of the plaintiff exhibited his proxy in writing,7 and if the defendant had not Edition: current; Page: [344] appeared accused him of contumacy. The defendant was then called three times by the marshal, and on non-appearance the judge decreed the penalty of the bond and ordered the defendant into custody until he had satisfied the penalty, of which the plaintiff was allowed a reasonable sum in consideration of the suit being retarded. If the plaintiff did not appear, the defendant or his proctor applied to have the case dismissed with costs and his bond cancelled. The judge then, after the plaintiff had been called three times, either decreed accordingly, or that the plaintiff should not be heard until the costs were paid, or allowed the case to stand over to another court day, or (usually) summoned the plaintiff for a convenient day on pain of final dismissal, with costs. If both parties appeared, the defendant claimed a libel with sureties to be given by plaintiff, and the judge assigned the next court day for both parties to bring in their sureties, the defendant’s sureties being jointly and severally bound by bond to the judge or to the registrar for the appearance of the defendant as often as his presence was required until judgment, for the payment of costs, to confirm the acts of the proctor, to submit to the jurisdiction of the Court, renouncing all privileges and exemptions, and acknowledging themselves indebted to the plaintiff in the sum for which the action was brought, or such smaller sum as the judge fixed, conditioned that if the plaintiff cast the defendant, the defendant would pay the principal sum and taxed costs.1 The plaintiff was required to give sureties that he would prosecute the suit, and if cast pay the defendant’s costs, that he would ratify the acts of his proctor, and appear personally as often as required. The proctors of both parties could protest against the sureties produced by the opposite side as unknown and insufficient, and the principal party entered into a bond, usually in double the sum, in respect of all the matters for which his sureties were bound, and undertook to indemnify them. The plaintiff’s proctor gave in the libel, and asked for a decree, that is, a citation, for the defendant Edition: current; Page: [345] to answer the articles of the libel. If the defendant absconded, his sureties were called upon to produce him under the penalty of their bond, which the judge could either enforce or require further steps to be taken to give the defendant notice of the citation. Similar steps could be taken against the sureties of the plaintiff if he did not proceed. The grant of a commission to examine witnesses within or without the kingdom was applied for if necessary, and at the discretion of the judge the oath of calumny could be administered to either of the parties. The principal party and his witnesses were produced and sworn, as in ecclesiastical causes, to undergo their examination at the time appointed by the judge, under a pecuniary penalty, such as fifty shillings or five pounds, according to the gravity of the case. If a witness on being tendered his expenses refused to appear, a decree for his imprisonment until he should appear was issued, and the judge could commit the proctor, the principal party, or a witness for contempt. Matters of defence and of exception were then proceeded with, and the suppletory oath was usual in maritime causes. After sentence the proctor of the successful party applied to have the sentence put in execution and the costs taxed, but if the defendant had absconded the monition would be addressed to the bail to pay the thing adjudged and costs within a given time or to be taken into custody; or if the defendant lived beyond the sea or had no fixed domicile, so that he could not be admonished, the judge could cite the bail to show cause why the sentence should not be put in execution.

By Title 24 of Clerke’s Praxis, if the defendant could not be personally arrested in a civil cause by reason of being out of the kingdom, or because he had absconded, and he had any goods, wares, ship, or part of a ship, or vessel upon the sea, or within the flux and reflux of the sea, a warrant could be taken out to arrest such goods or such a ship belonging to the defendant debtor, in whose hands soever they were; and upon the attachment of such goods the debtor was cited specially in respect of the goods, and generally all others who had or pretended to have any right to, or interest in, the Edition: current; Page: [346] said goods, to appear on such a day to answer the plaintiff in a certain maritime and civil cause.1

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

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

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

To prevent the plaintiff being put in possession of the goods and to obtain their release, the defendant or a third person, to whom the goods arrested belonged, must appear and give security before the first decree in contumacy was Edition: current; Page: [347] pronounced. The goods were then returned to the defendant or the intervener, and the action proceeded as in an ordinary maritime cause for debt. If goods had been taken by enemies or pirates, and afterwards brought into this kingdom, or goods were taken possession of by another, or goods consigned from an agent abroad were detained by another, the owner could obtain a warrant to arrest the goods as his own proper goods, citing the detainers and all others pretending to any interest in them to answer in a civil and maritime cause. The warrant was then executed and returned, and after security had been given by the owner, and the goods had been appraised, they were on the fourth default adjudged to the owner as his own proper goods, and he was put in possession of them. If the goods arrested did not belong to the plaintiff, the owner could plead his possessory right and apply to have the arrest taken off. If the plaintiff justified, the question of the right of possession was tried and possession decreed by a definitive sentence to the person proving his right to the possession; but the party aggrieved or a third person intervening could, on giving security, claim in petitorio, and, proceeding as in other maritime causes, prove his interest in the goods and obtain a decree with costs, the goods in the meantime, whilst the proceedings in possessorio or in petitorio were going on, being sequestrated by the Court, and, if perishable, appraised and sold, the proceeds being handed to the successful party.

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

Appeals lay from inferior judges or vice-admirals to the Lord High Admiral and his High Court of Admiralty, and an appeal lay to the King’s Majesty and the Court of Chancery1 from a definitive sentence of the judge of the Edition: current; Page: [348] Admiralty Court, or from an interlocutory decree having the force of one, the application to be made either at the time vivâ voce before the judge, or within ten days before a notary public.

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

The mode of exercising jurisdiction in the Admiralty Court was, therefore, “in the manner familiar to . . . all Courts regulated by the civil law (that is) either by an arrest of the person of the defendant if within the realm, or by the arrest of any personal property of the defendant within the realm, whether the ship in question or any other chattel,”1 that is to say, the procedure described by Clerke recognises Edition: current; Page: [349] no distinction between actions in rem and actions in personam, for where the person against whom a warrant was issued could not be found, or lived in a foreign country, and goods were seized (Roscoe’s Ad. Prac. p. 40) by the Court to answer the debt, these goods were not specific goods subject to a lien; but the seizure was made for the purpose of compelling appearance, in a way analogous to the proceedings by foreign attachment under the charters of the cities of London and Dublin. Hence if a foreigner owed money in England, and any ship of his came into a British harbour,1 or any goods of his were found in these realms, they were seizable by his creditors, the process of attachment going not only against goods in the actual possession of himself, his factors or agents, but also against those in the hands of his debtors; but the process was a proceeding in rem in the sense that if the defendant did not appear the “suit could go on without in any way touching the person,”2 and that by the operation of the judgment the defendant was deprived of his property in the chattel,3 unless he appeared, in which case the proceedings went on in the ordinary course as an action in personam.4

Edition: current; Page: [350]

During the next few years of the reign of Henry VIII. the Admiralty Court acquired considerable addition to its Edition: current; Page: [351] power in civil suits, for though the trial of criminal causes Edition: current; Page: [352] was withdrawn in 1537,1 there was a stronger assertion by the admiral, in virtue of the royal prerogative, of a jurisdiction in maritime and commercial matters,2 which was expressed in plain terms in his patent, the usual limitations under the statutes of Richard II. being omitted and the clause inserted “statutis in contrarium non obstantibus.” In 1541, by statute 32 Hen. VIII. c. 14, cognizance was expressly given to the Admiralty to try summarily questions of charter-parties and affreightments arising from the negligence of mariners, including the trial of cases on contracts Edition: current; Page: [353] made abroad, bills of exchange, insurance, average, freight, non-delivery of cargo, damage to cargo, negligent navigation, and breach of warranty of seaworthiness.

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

In 1570 the Admiral complained that the common law courts were encroaching, and Queen Elizabeth wrote to the Mayor and Sheriffs of London that this was “very strange” and that they were to forbear from intermeddling with causes arising out of contracts upon and beyond the seas.1 In 1575 a special commission was issued to the Admiralty empowering it to hear cases on charter-parties, bills of lading, bills of exchange, insurance, freight, bottomry, necessaries for ships and contracts binding ships, others being prohibited from taking cognizance of such pleas, and an agreement2 is alleged to have been come to between the Admiralty Court and the common law judges as to the limits of jurisdiction, according to which, after sentence pronounced by the Admiralty Court, no prohibition was to be granted at common law unless applied for within next term, and the judge of the Admiralty Court was to be allowed to appear and show cause against the prohibition, and further that the judge of the Admiralty, according to ancient order, as hath been taken by King Edward I. and his Council, and according to the letters patent of the Lord High Admiral for the time being, and allowed by other kings of the land ever since, and by custom time out of memory of man, may have and enjoy cognition of all contracts and other things, arising as well beyond as upon the sea, without let or prohibition, and the Admiralty Court was to have cognizance of breaches of charter-parties made to be performed upon and beyond the Edition: current; Page: [354] seas according to 32 Hen. VIII. c. 14, though such were made within the realm.1

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

In 1586 the power of the Court of the admiral was strengthened by 28 Eliz. c. 11, which enacted that all the offences therein mentioned “as thereafter should be done upon the main sea, or coasts of the sea, being no part of any county, and out of any haven or pier, shall be tried by the Lord High Admiral;” but the power exercised by the admiral was regarded by the nation as a dangerous unconstitutional usurpation, and in particular in respect of contracts the right of proceeding by process in personam was resisted, so that the jurisdiction asserted by the Admiralty over claims as to the supply of necessaries and materials to ships and over charter-parties was steadily undermined, for unless the contract was actually made or the goods actually supplied upon the high seas, a prohibition issued, as in Cradock’s Case,3 in the reign of James I., where a prohibition was granted on the ground that the suit in personam in the Admiralty by a material man in respect of necessaries supplied to a ship was in respect of a contract made at 5, Katherine’s Stairs, London, in the body of a county, though by the statute of 13 Richard II. the admiral could only meddle with things upon the sea. The rivalry, amounting to jealousy between the Common Law Courts and the Admiralty, was accentuated by the hostility of Sir Edward Coke, who evinced, with considerable show of reason, a dislike to both Chancery and Admiralty. In the controversy, Edition: current; Page: [355] though it may be open to question whether the original statutes of Richard were not directed principally to torts, they were construed literally by Coke, and in his answers to the complaints addressed to the Crown early in the reign of James I. by the Lord High Admiral, against the restraints imposed by the Common Law Courts upon his jurisdiction, Coke cites a number of authorities1 to show that charter-parties, policies of insurance and maritime contracts, though of foreign origin, were not within the Admiralty jurisdiction, and lays down a rule to determine whether or not any given contract is within the Admiralty jurisdiction, viz.: whether the Common Law Courts have exercised, and can exercise, jurisdiction over the same contract, that is to say, whether the party had a common law remedy. The civilians vainly urged, on behalf of the Admiralty, that, consistently with the statutes of Richard, its jurisdiction extended (1) over torts and injuries committed upon the high seas, in ports within the ebb and flow of the tide, and in great streams below the great bridges, that is, that the jurisdiction should depend upon locality; (2) over all maritime contracts arising at home or abroad, that is, that the jurisdiction should depend upon subject-matter; (3) over matters of prize and its incidents; but the Courts of Common Law held that the words “infra primos pontes,” in respect of the water of rivers, applied only to death or mayhem, and not to actions;2 that the words “upon the sea” referred to the water below low-water mark when the tide was out, and up to high-water mark when the tide was in (infra fluxum et refluxum maris), and divided the jurisdiction between the admiral and the common law accordingly, that is, on the sea coast, the water between high and low water mark, when the tide is in, is not in Edition: current; Page: [356] the body of a county,1 and, whilst not attempting to prohibit the Court of Admiralty with reference to wrongs committed on the high seas, they enforced by prohibition2 the construction of the statutes of Richard, so as to limit the jurisdiction of the Admiralty to contracts made upon the high seas, to be executed upon the high seas, in respect of matters in their nature maritime, and even as to prize the exclusive authority of the Admiralty was not finally admitted until the case of Lindo v. Rodney.3

Coke further attempted to destroy the Admiralty jurisdiction over contracts made beyond the seas by alleging that Edition: current; Page: [357] they were cognizable by the Court of the Lord High Constable and Earl Marshal (Court of Chivalry),1 but it would seem that the judicial functions of this Court were limited by stat. 13 Rich. II. c. 2, to contracts touching deeds of arms and war, and the Admiralty Court succeeded in maintaining its right to entertain suits to enforce the judgments of foreign Admiralty Courts, and to proceed in rem upon bottomry bonds executed in foreign parts.2

Coke retired from public life in 1629, and, though a heated contest went on with respect to prohibitions between the Admiralty Court and the common law judges, a compromise was effected in 1632 by the concurrence of the twelve judges of England to certain resolutions, which contained a very favourable interpretation of the extent of the Admiralty jurisdiction, and which, after adoption by the Privy Council, were approved by the King.3 They were to the effect that:—“(1) If suit shall be commenced in the Court of Admiralty upon contracts made, or other things personal, done beyond the seas, or upon the sea, no prohibition to be awarded. (2) If suit be before the admiral for freight, or mariners’ wages, or for breach of charter-parties, for voyages to be made beyond the seas; though the charter-party happen to be made within the realm, so as the penalty be not demanded, a prohibition is not to be granted: but if the suit be for the penalty; or if the question be, whether the charter-party were made or not, or whether the plaintiff did release or otherwise discharge the same within the realm; this is to be tried in the King’s Courts at Westminster, and not in his Court of Admiralty. (3) If suit be in the Court of Admiralty for building, amending, saving, or necessary victualling of a ship, against the ship itself, and not against any party by name, but such as for his interest makes himself a party, no prohibition is to be granted, though this Edition: current; Page: [358] be done within the realm.1 (4) Although of some of those causes arising upon the Thames beneath the first bridge, and divers other rivers beneath the first bridge, the King’s Courts have cognizance; yet the Admiralty has jurisdiction there, in the points specially mentioned in the statute of 15 Richard II. And also, by exposition of equity thereof, he may enquire and redress all annoyances and obstructions in these rivers, that are any impediment to navigation or passage to or from the sea; and also may try personal contracts, or injuries done there, which concern navigation upon the sea, and no prohibition is to be granted in such cases. (5) If any be imprisoned, and upon habeas corpus brought—if it be certified that any of these be the cause of his imprisonment, the party shall be remanded.”

During the Commonwealth the office of Lord High Admiral was abolished and the above resolutions disregarded; but it was subsequently found convenient to define the jurisdiction, and, accordingly, an ordinance (to continue for three years), in 1648, after referring to the public inconvenience to trade through “the uncertainty of the jurisdiction in maritime causes,” enacted “that the Court of Admiralty shall have cognizance and jurisdiction against the ship or vessel with the tackle, apparel, and furniture thereof, in all causes which concern the repairing, victualling, and furnishing provisions for the setting of such ships or vessels to sea, and in all cases of bottomry, and likewise in contracts made beyond the seas concerning shipping or navigation or damages happening thereon, or arising at sea in any voyage; and likewise in all cases of charter-parties, or contracts for freight, bills of lading, mariners’ wages, or damages in goods laden on board ships, or other damages done by one ship or Edition: current; Page: [359] vessel to another, or by anchors, or want of laying of buoys, except always that the said Court of Admiralty shall not hold pleas, or admit actions upon any bills of exchange, or accounts betwixt merchant and merchant or their factors.”1

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

The common law judges seem to have discovered that the Crown and the Admiralty had gained a decided advantage in the interpretation put upon the statutes of Richard II., and accordingly the above resolutions were treated as not being a correct exposition of those statutes, and also as a nullity by reason of their not being an adjudication on any particular case before the Court.3 In spite of the presentation of numerous petitions in support of the Admiralty jurisdiction and of the efforts of the judge of the Admiralty Court, Sir Leoline Jenkins,4 in the reign of Charles II., the effect of the denial of the authority of these resolutions, coupled with the refusal to allow parties to proceed in Admiralty who were summoned at common law to answer as to maritime matters, and the issue of prohibitions to the Admiralty Court against proceeding on any contract made on land to be performed at sea, or made at sea to be performed on land—that is, not wholly and exclusively done on the sea—so limited the actual jurisdiction in Admiralty at this time that Sir Matthew Hale says5 that it “is confined by the laws of this realm to things done upon the high sea only: as depredations and piracies upon the high sea, offences of Edition: current; Page: [360] masters and mariners upon the high sea; maritime contracts made and to be executed upon the high sea; matters of prize and reprisal upon the high sea; but touching contracts, or things made within the bodies of English counties, or upon the land beyond the sea,1 though the execution thereof be in some measure upon the high sea—as charter-parties, or contracts made even upon the high sea—touching things that are not in their own nature maritime, as a bond or contract for payment of money, &c., these things belong not to the admiral’s jurisdiction; and thus the common law and the statutes of 13 Rich. II. c. 5, 15 Rich. II. c. 3, confine and limit their jurisdiction to matters maritime, and such only as are done upon the high sea.” On the other hand, Chief Justice Holt speaks of the common law as “too severe against the Admiralty.”2

Another mode of ousting the Admiralty jurisdiction in contract was that of putting down by prohibition the practice of the Admiralty Court, which, in order to get cognizance of a cause, feigned that contracts really made on land were made at sea. This was in fact only imitating the fictitious venue introduced at common law to remove the technical difficulty, which embarrassed the common law Courts, arising from the necessity of laying a venue to every action. In this way a concurrent jurisdiction was obtained by the Courts of common law in all cases of marine contracts as the conusance of contracts and other things done upon the sea was “made triable at the common law, by supposing the same to have been done in Cheapside,”3 and as the locality of the matter or contract was not essential to the merits, the fiction was not traversable. Blackstone (in whose time the jurisdiction in Admiralty, besides being excluded within the body of a county, only extended to causes of action, in their nature maritime, arising on the high seas)4 observes5 that “it is no Edition: current; Page: [361] uncommon thing for a plaintiff to feign that a contract, really made at sea, was made at the Royal Exchange, or other inland place, in order to draw the cognizance of the suit from the Court of Admiralty to those of Westminster Hall.”

In the exercise of the jurisdiction in prize causes, the great reputation of Lord Stowell,1 who was appointed judge in 1798, drew public attention to the Admiralty Court.2 Still, in respect of the instance Court, Browne, 3writing in 1802, is driven to admit that the Admiralty jurisdiction in contract was limited to marine contracts, that is, contracts (1) made upon the sea, (2) whose consideration was maritime,4 and (3) not ratified by deed, nor under seal; and, with reference to personal contracts, he says that “at present the Admiralty acts only in rem, and no person can be subject to that jurisdiction but by his consent, expressed by his entering into a stipulation.” He then refers to Keble5 for the statement “that without a stipulation the Admiralty has no jurisdiction at all over the person”; and he quotes Godbolt6 that “the first process in the Admiralty is against the ship and goods, and the libel must not be against the person.” He adds the observation of Mr. Justice Buller—who accounts for the Admiralty being allowed to proceed on an hypothecation bond sealed abroad by the fact that the common law could give no remedy, there being no personal covenant for the payment of the money—that “in the struggles between the Court of Admiralty and the common law Courts respecting the extent of their respective jurisdictions, the common law Courts have said, that if the parties have bound themselves to answer personally, the Admiralty cannot take cognizance Edition: current; Page: [362] of the question”;1 and in a suit in the Admiralty by one part-owner to oblige another to sell a ship, Chief Justice Lee said (on an application for a prohibition), “that Court has no such power, for that would be proceeding in personam.2 Browne supplements this by further admitting3 that “the Admiralty has in a great measure dropped its claim to taking cognizance of charter-party and freight, and suits by material men, and almost all other proceedings upon contract, except those for recovery of seamen’s wages, or enforcing bottomry bonds”; in a word, it may be said that personal contracts had ceased to be cognizable in Admiralty, and that the principle contended for by the civilians (viz., that, in contract, the jurisdiction ought not to depend upon locality, nor upon the object affected, but upon the subject-matter, that is, whether the contract, though made upon land, or affecting the person, was in its nature maritime) had essentially failed;4 and Browne sums up5 the jurisdiction in the instance Court of Admiralty at the beginning of the nineteenth century as “confined in matters of contract to suits for seamen’s wages, or those on hypothecations; in matters of tort to actions for assault, collision, and spoil; and in quasi-contracts to actions by part-owners for security, and actions of salvage”; but where the ship had been sold for other claims, and the money was in the registry, so that the master could not raise money on the bottom of the ship to satisfy demands which had been legally incurred, the practice had grown up of allowing the claims of material men and shipwrights, and even of the master himself, to be paid out of the proceeds.6

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

These restrictions on Admiralty jurisdiction, and the inconvenience caused to litigants by the absence of any original jurisdiction over contracts under seal—so that the Court was unable to entertain questions of title or of mortgage, with the result that though the ship was under arrest or its proceeds in the registry, the rights of mortgagees were often adjudicated upon in a different cause in a different Court, together with the difficulties arising out of claims for salvage, questions of damage, demands for towage, which, if relating to matters within the body of a county were solely cognizable in the Courts of Common Law, and if proceeded with in the Admiralty Court subjected that Court to prohibition—led, Edition: current; Page: [364] in 1840,1 to the passing of the first of the Admiralty Court Acts, 3 & 4 Vict. c. 65, the object of which was to give jurisdiction in civil matters to the Admiralty in the body of a county, prevent the Court being prohibited, and by restoring the ancient jurisdiction of the Admiralty, give litigants the option of proceeding by the more summary process of that Court, instead of compelling them to resort to an action at law.

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PART III.: PROCEDURE

  • 31. The Older Modes of Trial.

    James Bradley Thayer.

  • 32. The King’s Peace in the Middle Ages.

    Sir Frederick Pollock.

  • 33. The Methods of the Royal Courts of Justice in the Fifteenth Century.

    Hubert Hall.

  • 34. Criminal Procedure, from the Thirteenth to the Eighteenth Century.

    Sir James Fitzjames Stephen.

  • 35. The Story of the Habeas Corpus.

    Edward Jenks.

  • 36. The History of the Register of Original Writs.

    Frederic William Maitland.

  • 37. An Action at Law in the Reign of Edward III.

    Luke Owen Pike.

  • 38. The Development of Oral and Written Pleading.

    William Searle Holdsworth.

  • 39. The Historical Development of Code Pleading in America and England.

    Charles McGuffey Hepburn.

  • 40. A General Survey of the History of the Rules of Evidence.

    John Henry Wigmore.

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31.: THE OLDER MODES OF TRIAL1

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

The Normans brought to England much else, and found that much of what they brought was there already: for the Edition: current; Page: [368] Anglo-Saxons were their cousins of the Germanic race, and had, in a great degree, the same legal conceptions and methods, only less worked out. Looking now at these and at the Norman additions, what were the English modes of trying questions of fact when the jury came in, and how did they develop and die out? Some account of these things will serve as a background in trying to make out the jury.

I. The great fundamental thing, to be noticed first of all, out of which all else grew, was the conception of popular courts and popular justice. We must read this into all the accounts of our earliest law. In these courts it was not the presiding officers, one or more, who were the judges; it was the whole company: as if in a New England town-meeting, the lineal descendant of these old Germanic moots, the people conducted the judicature, as well as the finance and politics, of the town. These old courts were a sort of town-meeting of judges. Among the Germanic races this had always been so; nothing among them was more ancient than the idea and practice of popular justice.1 This notion among a rude people carried with it all else that we find,—the preservation of very old traditional methods, as if sacred; a rigid adherence to forms; the absence of a development of the rational modes of proof. Of the popular courts Maine says, in the admirable sixth chapter of his “Early Law and Custom,” while speaking of the Hundred Court and the Salic Law: “I will say no more of its general characteristics than that it is intensely technical, and that it supplies in itself sufficient proof that legal technicality is a disease, not of the old age, but of the infancy of societies.” The body of the judicial business of the popular courts, seven and eight centuries ago, lay in administering rules that a party should follow this established formula or that, and according as he bore the test should be punished or go quit. The conception of the trial was that of a proceeding between the parties, carried on publicly, under forms which the community oversaw. They listened to complaints which often must follow with the minutest Edition: current; Page: [369] detail certain forms “de verbo in verbum,1 which must be made probable by a “fore-oath,” complaint-witnesses, the exhibition of the wound, or other visible confirmation. There were many modes of trial and some range of choice for the parties; but the proof was largely “one-sided,” so that the main question was who had the right or, rather, the privilege of going to the proof. For determining this question there were traditional usages and rules, and the decision of it was that famous Beweisurtheil,2 which disposed of cases before they were tried. Since the trial was a matter of form, and the judgment was a determination what form it should take, the judgment naturally came before the trial. It determined, not only what the trial should be, but how it should be conducted and when, and what the consequence should be of this or that result.

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

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

that of a call for the direct intervention of the divine justice (judicium Dei, Gottesurtheil); that of a convenient form or formula, sometimes having a real and close relation to the probable truth of fact, and sometimes little or no relation to it, like a child’s rigmarole in a game—good, at all events, for reaching a practical result; that of regulating Edition: current; Page: [370] the natural resort of mankind to a fight; that of simply abiding the appeal to chance. There was also, conspicuously and necessarily, the appeal to human testimony, given under an oath, and, perhaps, under the responsibility of fighting in support of it. But what we do not yet find, or find only in its faint germs, is anything such as we know by the name of a trial, any determination by a court which weighs this testimony or other evidence in the scale of reason, and decides a litigated question as it is decided now. That thing, so obvious and so necessary, as we are apt to think it, was only worked out after centuries.1

II. Something must be said of a preliminary matter, of that institution of the complaint-witness,—called also, as some other things were called, the Secta,2—which has been the source of much confusion. This had a function which was a natural and almost necessary feature of the formal system of proof.3 When the proof was “one-sided,” and allotted to this man or that as having merely the duty of going through a prescribed form to gain his case, it was a very vital matter to determine which party was to have it. If there was to be a trial, it might, indeed, be a privilege to go to the proof; and yet, as the form was often clogged with technical detail and had little or no rational relation to the actual truth of what was involved in the charge, it might be very dangerous and burdensome to be put to the necessity of going through with it. The forms of trial might also involve bodily danger or death. Not every complaint or affirmative defence, therefore, was allowed to put an antagonist to his proof: there must be something to support it. This notion is fixed in the text of John’s Magna Carta (art. 38), in 1215: Nullus ballivus ponat de cetero aliquem ad legem4 simplici loquela sua, sine testibus fidelibus ad hoc inductis.5

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This sort of “witness,” it must be noticed, might have nothing to do with the trial; he belonged to that stage of the preliminary allegations, the pleading, where belonged also profert of the deed upon which an action or a plea was grounded. But just as rules belonging to the doctrine of profert crept over in modern times, unobserved, into the region of proof, under the head of rules about the “best evidence”1 and “parol evidence,” so the complaint-witnesses were, early and often, confused with proof-witnesses—a process made easy by the ambiguity of the words “testis,” “secta,” and “witness.” The complaint-proof was thus confused with the old “one-sided” witness-proof, with the Edition: current; Page: [372] rational use of witnesses by the ecclesiastical courts, and with the proof by oath and oath-helper.

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

It was the office of the secta to support the plaintiff’s case, in advance of any answer from the defendant. This support might be such as to preclude any denial, as where one was taken “with the mainour” and the mainour produced in court,2 or where the defendant’s own tally or document Edition: current; Page: [373] was produced, or, as we have noticed, where a defendant chose to stake his case on the answers of the secta. Documents, tallies, the production of the mainour, the showing of the wound in mayhem, all belong under this general conception. The history of our law from the beginning of it is strewn with cases of the profert of documents. This last relic of the principle of the Saxon fore-oath and the Norman complaint-witness was not abolished in England until 1852.1

A few cases will illustrate what has been said about these things. In 12022 in the King’s Court, an appeal was brought for assaulting the plaintiff and wounding him with a knife in the jaw and arm, “and these wounds he showed,3 and this he offers to prove . . . by his body.” In 12264 William seeks to recover of Warren twelve marks on account of a debt due from his father for cloth, et inde producit sectam que hoc testatur. Warren comes and defends, and asks that William’s secta be examined. This is done, and the secta confess that they know nothing of it, and moreover they do not agree (diversi sunt in omnibus rebus); and William has no tally or charter and exhibits nothing, and it is adjudged therefore that the defendant go quit. In 12295 Ada demands of Otho eleven pounds, which her father had lent him, and makes profert of a tally, and produces a secta which testifies that he owes the money. Otho denies it, and is adjudged to make his proof with compurgators—defendat se duodecima manu.6 A case in 1323 draws attention Edition: current; Page: [374] to the exact effect of the complaint-proof.1 A woman claimed dower, alleging that her husband had endowed her assensu patris, and put forward a deed which showed the assent. The defendant traversed; some discussion followed as to how the issue was to be tried, and as to the effect of the deed. Counsel for the defendant said, “The deed which you show effects nothing beyond entitling you to an answer.” . . . Counsel for the plaintiff: “True, but . . . he can only have such issue as the deed requires.”

With the gradual discrediting of party proof and the formal procedure, the secta steadily faded out. The “Mirror,” which appears to have been written not long before 1290,2 says: “It is an abuse that a plaint should be received and heard where there are no suitors presented to testify that the plaint is true.”3 As early as 13144 we find counsel saying that the Court of Common Bench will not allow the secta to be examined. Yet ten years later,5 a demand for examining the secta reveals the fact that the plaintiff has none; and this defeats his claim, as it had defeated a plaintiff’s claim in 1199.6 Finally, in 1343,7 in an action of debt for money due, partly under a bond and partly by “contract,” the court refused an examination of the secta. We read: “Rich: As to the obligation, we cannot deny it; as to the rest, what have you to show for the debt? Moubray: Good suit (secta). Rich: Let the suit be examined at our peril. Moubray: Is that your answer? Rich: Yes, for you furnish suit in this case of contract in lieu of proof of the action. Moubray: Suit is only tendered as matter of form in the count; wherefore we demand judgment. Edition: current; Page: [375] Sh. (J.):1 It has been heard of that suit was examined in such cases, and this opinion was afterwards disapproved (reprove). Sh. (J.):1 Yes, the same Justice who examined the suit on the issue [pur issue] saw that he erred and condemned his own opinion. Gayneford: In a plea of land the tendering of suit is only for form, but in a plea which is founded on contract that requires testimony, the suit is so examinable [tesmoinable] that, without suit, if the matter be challenged, the [other] party is not required to answer. Sh. (J.): Certainly it is not so; and therefore deliver yourselves. Rich: No money due him,” etc. The thing is evidently antiquated by this time. And yet, as we saw, it continued as a form in pleading for nearly five centuries longer.

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

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

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

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

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

In a peculiarly interesting part of his great work on the jury, Brunner points out that the old witness-proof was in some cases transformed at the hands of the royal power into an inquisition, so that the witnesses were selected by the public authority, as they were in the ordinary jury.3 We seem to see this way of blending things in the English process de aetate probanda. In 13974 we read, after the statement that the king’s tenants, on coming of age, in order to recover their lands must sue out a writ of aetate probanda, that those who serve on the inquest must be at least forty-two years old, “and shall tell signs to prove the time of the birth, as that the same year there was a great thunder, tempest, or pestilence, and the like; and all these signs shall be returned by the sheriff.” And the reporter puts it as a query whether, since this is proof by witnesses (per proves), there may be less than twelve. The requiring Edition: current; Page: [379] of the age of forty-two points to the idea that they must have been of an age to be a witness when the child was born. By 15151 this doubt seems to have been settled: “It was agreed that the trial of his age shall be by twelve jurors; but in giving their verdict every juror should show the reason inducing his knowledge of the age, such as being son gossipe, or that he had a son or daughter of the same age, or by reason of an earthquake or a battle near the time of the birth, and the like.” Quaint illustrations of these examinations, of the year 1409, are found in the Liber de Antiquis Legibus.2 In one of these cases, relating to a woman’s age, each of the twelve makes his statement separately, and each is asked how he knows it. One, sixty years old, says that he fixes the age by the fact that he saw the child baptized; they had a new font, and she was the first person baptized from it. Another, a tailor of the same age, says that he held a candle in the church on the day of baptism, and also made the clothes which the mother wore at her purification. Two others, over fifty, fix the day by a great rain and flood which made the river overflow, and filled the hay with sand. Two others recollect that their hay from six acres of meadow was carried away by the flood. Two others remember it by a fire that burned a neighbor’s house. Another by the fact that he was the steward of the child’s grandfather, and was ordered by him to give the nurse who told him the news twenty shillings; and so on. Similar details may be found in a record of 12973 and in manorial documents of 1348.4 It is easy, then, to see how in this sort of case the old proof by witnesses should gradually fade out into trial by jury; for the old jury was nothing but a set of triers made up of community witnesses selected by the king’s authority. The old mode of trying age by the inspection of the judges, which we saw in 1219, was practised long; but the general rule became established Edition: current; Page: [380] in all such cases that the judges, if in doubt, might refer the matter to a jury.1

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

In 1234-53 there came up to the king’s court a record of proceedings in the hundred court of a manor of the Bishop of Salisbury. A mare had been picked up in the manor, and one William claimed her in the hundred court and took her, on producing a sufficient secta and giving pledges to produce the mare and abide the court’s order for a year and a day, according to the custom of the manor. One Wakelin de Stoke then appeared as claimant, and the steward required each to come on a day with his secta. They came, et Wakelinus producit sectam quod sua est, et similiter Wilhelmus venit cum secta sua, dicens quod sua fuit et ei pullanata (i. e., foaled). The hundred court, finding itself puzzled and not knowing cui incumbebat probacio, postponed judgment pro afforciamento habendo (i. e., semble, in order that the parties might increase their sectas). Then Wakelin Edition: current; Page: [381] appeared with a writ removing the case to the king’s court at Westminster. At Westminster William produced his secta, and they differed in multis, et in tempore et in aliis circumstanciis, some of them saying that William bought the mother of the mare four years ago, and she was then pregnant with her and had a small white star on her forehead; and some that it was six years ago and she had no star; and some agreeing in the time but differing about the mark,—some of them saying she had no star, but only some white hairs on her forehead, and some that she had no star at all. Wakelin produced a secta that wholly agreed, all saying that on such a day, four years back, Wakelin came and bought a sorrel (soram) mare with a sucking colt, and gave the colt to one John to keep. They were questioned about marks, and entirely agreed in saying that the colt had the left ear slit and part of the tail cut off, and that she was black. A view was taken of the colt, and she was not more than four years old at most, or three years and a half at least. Then an official of the manor, Thomas de Perham, said that Wakelin, before he saw the mare in question, told her color and all the marks by which she could be identified, and that William, when he was questioned, did not know her age, and said nothing distinct, except that she was foaled to him. The case, however, went down again for judgment, because the Bishop of Salisbury claimed his jurisdiction; et quia secta quam Wilhelmus producit non est sufficiens nec aliquid probat et quia loquela incepta fuit infra libertatem episcopi . . . concessa est ei et teneat unicuique justiciam.1

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

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In 13081 Alice brought a cui in vita, and Thibaud, the tenant, answered that the husband was living. The woman offered proof that he was dead, hanged at Stamford; the tenant the same, that he was alive, issint que celui que mend provereit mend avereit. “Alice came and proved her husband’s death by four juretz, who agreed in everything; and because Thibaud’s proof was mellour et greyneure than the woman’s proof, it was adjudged that she take nothing by her writ.” In Fitzherbert,2 what seems to be the same case is briefly referred to, and there we read that they were at issue, issint cesti que mieulx prove mieulx av.; and the tenant proves by sixteen men, etc., and the demandant by twelve; and because the tenant’s proof “fuit greindr than the demandant’s, it was awarded,” etc. If we take Fitzherbert’s account to be accurate, it might appear that the twelve men on each side cancelled each other, and left a total of four to the credit of the tenant, a result which made his proof the better.3 This old catch of qui mieulx prove mieulx av., a pretty certain badge of antiquity, appears again sixty years later. A woman brought an appeal for her husband’s death. The defendant said he was alive. The parties were directed to bring their witnesses, et celui qui meuch prova meuch av.4 In 1560, in the interesting case of Thorne v. Rolff,5 we have an instance where, in dower, issue was taken on the death or life, and the parties were called on to inform the court “per proves, [i. e., witnesses] ut oportet.” The demandant brought two, “who were sworn and examined by Leonarde, second prothonotary.” These statements are entered in full on the record, which is all given in Benloe’s report. The two statements occupy about a page of the folio. Then it is recorded that the tenant produced no witnesses, and the court admits what is offered, as bonam, probabilem et veram probationem, and gives judgment for the demandant. Dyer connects this with Edition: current; Page: [383] the old law by citing Bracton, 302, where he speaks of deciding in such cases according to the probatio magis valida. The number, rank, and position of the witnesses are what Bracton alludes to.1 But it is probable that by the time of Thorne v. Rolff the rational method of conducting the “trial by witnesses” had taken place; for Coke, half a century later,2 in enumerating “divers manners of trials,” designates this as “trial by the justices upon proofs made before them;” and so Comyns, a hundred years afterwards.3 Blackstone, however, later in the last century,4 and Stephen,5 pour back again this new wine into the old bottles and call this wholly modern thing by the old name of “trial by witnesses.” Blackstone’s explanation of it shows little knowledge of its history. At last this venerable and transformed relic of the Middle Ages was abolished in England, when real actions came to an end by the statute of 1833.

(2) Trial by Oath.—As the Anglo-Saxons required from a plaintiff the taking of a fore-oath, so the defendant was allowed sometimes to clear himself merely by his own oath; the case was “tried” by that alone. But the great mediæval form of trial by oath was where the party swore with oath helpers—compurgation. In the Salic Law, that “manual of law and legal procedure for the use of the free judges in the oldest and most nearly universal of the organized Teutonic courts, the court of the hundred,”6 in the fifth century, we find it.7 It continued among the Germanic people in full force. These fellow-swearers were not witnesses; they swore merely to the truthfulness of another person’s oath, or, as it was refined afterwards, to their belief of its truth. It was not requisite that they should have their own knowledge of the facts. Although constantly called by the ambiguous name testis, they were not witnesses. Edition: current; Page: [384] They might be, and perhaps originally should be, the kinsmen of the party.1

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

In criminal cases in the king’s courts, of the graver sort at any rate, compurgation is thought to have disappeared in consequence of what has been called “the implied prohibition” of the Assize of Clarendon, in 1166.4 But it remained Edition: current; Page: [385] long in the local and in the ecclesiastical courts.1 Palgrave2 preserves as the latest instances of compurgation in criminal cases that can be traced, some cases of 1440-1, in the Hundred Court of Winchelsea in Sussex. They are cases of felony, and the compurgation is with thirty-six neighbors. They show a mingling of the old and the new procedure. On April 4, 1435, Agnes Archer was indicted by twelve men, sworn before the mayor and coroner to inquire as to the death of Alice Colynbourgh. Agnes adducta fuit in pleno hundredo . . . modo felonico, nuda capite et pedibus, discincta, et manibus deligatis; tendens manum suam dexteram altam, per communen clericum arreinata fuit in his verbis (and then follows in English a colloquy): “Agnes Archer, is that thy name? which answered, yes. . . . Thou are endyted that thou . . . felonly morderiste her with a knyff fyve tymes in the throte stekyng, throwe the wheche stekyng the saide Alys is deed. . . . I am not guilty of thoo dedys, ne noon of hem, God help me so. . . . How wylte thou acquite the? . . . By God and by my neighbours of this town.” And she was to acquit herself by thirty-six compurgators to come from the vill of Winchelsea, chosen by herself.3

The privilege of defending one’s self in this way in pleas of the crown was jealously valued by the towns; it was easier and safer than the jury. London had it in its charters. In the few Anglo-Saxons words of the first short charter granted by the Conqueror and still “preserved with great care in an oaken box amongst the archives of the city,”4 there is nothing specific upon this. But in the charter of Henry I., s. 6, the right of a citizen is secured Edition: current; Page: [386] in pleas of the crown, to purge himself by the usual oath; and this is repeated over and over again in charters of succeeding kings.1 Henry III, in his ninth charter, cut down the right, by disallowing a former privilege of the accused to supply the place of a deceased compurgator by swearing upon his grave.2 There was the “Great Law,” in which the accused swore with thirty-six freemen (six times, each time with six), chosen, half from the freemen of the east side of the rivulet of Walbrook, and half from the west; they were not to be chosen by the accused himself, nor to be his kinsmen or bound to him by the tie of marriage or any other. The accused might object to them for reasonable cause; they were chosen and struck, much after the way of a modern special jury. The “Middle Law” and “Third Law” were like this, but had eighteen and six compurgators respectively.3 In civil cases of debt and trespass, compurgation with six others was the rule in London; or, if the defendant was not a resident, with only two others. If he had not two, then the foreigner was to be taken by a sergeant of the court to the six churches nearest, and to swear in each.4

In the king’s courts, the earliest judicial records have many cases of this mode of trial; e. g. in 1202, in the Bedfordshire eyre, where, in an action for selling beer in the borough of Bedford by a false measure, the defendant was ordered to defend herself “twelve-handed;” and she gave pledges to make her “law” (vadiavit legem.)5 In 1382,6 among the measures of relief from litigation following acts done in the recent insurrections, people charged with trespasses are allowed Edition: current; Page: [387] purgare se by three or four fellow-swearers. In Wales the assache was in existence in 1413, requiring the oath of three hundred persons, and it was found necessary in St. 1 Henry V. c. 6, to relieve those who had been loyal in a late rebellion from the hardships of so formidable a “trial.”

From being a favored mode of trial, this “law,” or, as it is commonly called, “wager of law,” from its preliminary stage of giving pledges to perform it, steadily tended to become a thing exceptional; not going beyond the line of the precedents,1 and within that line being a mere privilege, an optional trial alongside of the growing and now usual trial by jury. In the newer forms of action it was not allowed, and finally it survived mainly in detinue and debt.2 Yet within a narrow range it held a firm place.3 In 1440,4 in debt for board, Yelverton, for plaintiff, tried to maintain that the defendant could not have his law of a thing “which lies in the conusance of the pais.” But the court held otherwise and the defendant had his law. In 1454-5,5 there was a great debate among the judges over a demurrer to a plea of non-summons in a real action, with “ready to aver per pais.” It was insisted by Prisot (C. J.) that this lay in the knowledge of the pais, and that all such things should in reason be triable by the jury. He admitted, however, that the practice had been otherwise. His associates, Danvers and Danby, agreed with him; while Moile and Ayshton pressed strongly the more conservative doctrine. “This will be a strong thing,” said Moile; “it has not been done before.” “Since waging law,” said Ayshton, “has always been practised, and no other way, this proves, in a way, that it is un positive ley. All our law is directed (guide) by usage or statute; it has been used that no one wages his law Edition: current; Page: [388] in trespass, and the contrary in debt; so that we should adjudge according to the use,” etc. No decision in the case is reported. But Brooke, in his Abridgment, in the next century, gives the latter view as optima opinio.1

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

A century later, in 1587,4 when compurgation had become less usual, and, in the eyes of the Chancellor, almost archaic, we read that the Star Chamber refused to deal with one who was alleged to have sworn falsely in making his law; “the reason was because it was as strong as a trial. And the Edition: current; Page: [389] Lord Chancellor demanded of the judges if he were discharged of the debt by waging of his law; and they answered ‘yea.’ But Manwood (C. B.) said that it was the folly of the plaintiff, because that he may change his action into an action of the case upon an assumpsit, wherein the defendant cannot wage his law.” In his report of Slade’s Case (1602) Coke remarks1 that courts will not admit a man to wage his law without good admonition and due examination.

After another century this procedure still keeps its place, but it is strange, and the profession has lost the clue. In 1699, in the Company of Glaziers Case,2 in debt on a by-law, the defendant had his law. When he came with his compurgators, the plaintiff’s counsel urged that the court need not receive him to his oath if he were swearing falsely or rashly; “sed, per Holt, C. J., ‘We can admonish him, but if he will stand by his law, we cannot hinder it, seeing it is a method the law allows.’ ” The reporter takes the pains to describe the details of the proceedings, as if they were unfamiliar;3 and at the end of it all he adds: “Per Northey (plaintiff’s counsel), this will be a reason for extending indebitatus assumpsits further than before. Holt, C. J. We will carry them no further.” In the next case,4 where, in a similar matter, two or three years later, the court refused wager of law in debt on a by-law, Holt, C. J., said that the plaintiff’s counsel yielded too much in the Glaziers Case: “It was a gudgeon swallowed, and so it passed without observation.” Edition: current; Page: [390] In 1701-2 came a great case,1 where, in debt on a city bylaw, for a penalty for refusing to serve as sheriff, the defendant offered to make his law with six freemen of the city, according to the custom of London. The plaintiff demurred. Much that was futile was said of wager of law. We are told by Baron Hatsell2 that it lies only “in respect of the weakness and inconsiderableness of the plaintiff’s . . . cause of demand . . . in five cases: first, in debt on simple contract, which is the common case; secondly, in debt upon an award upon a parol submission; thirdly, in an account against a receiver; . . . fourthly, in detinue; . . . fifthly, in an amerciament in a court baron or other inferior courts not of record.” Holt rationalized the matter in a different way:3 “This is the right difference, and not that which is made in the actions, viz., that it lies in one sort of action and not in another; but the true difference is when it is grounded on the defendant’s wrong; . . . for if debt be brought and . . . the foundation of the action is the wrong of the defendant, wager of law will not lie.” And again,4 “The secrecy of the contract which raises the debt is the reason of the wager of law; but if the debt arise from a contract that is notorious, there shall be no wager of law.”

In the latter half of the eighteenth century it was nearly gone. Blackstone tells us: “One shall hardly hear at present of an action of debt brought upon a simple contract,” but of assumpsit for damages, where there could be no wager of law; and so of trover instead of detinue. “In the room of actions of account a bill in equity is usually filed. . . . So that wager of law is quite out of use; . . . but still it is not out of force. And therefore when a new statute inflicts a penalty and gives . . . debt for recovering it, it is usual to add ‘in which no wager of law shall be allowed:’ otherwise Edition: current; Page: [391] an hardy delinquent might escape any penalty of the law by swearing that he had never incurred or else had discharged it.”1

The validity of this ancient trial was, indeed, recognized by the Court of Common Pleas in 1805,2 but in 1824, when for the last time it makes its appearance in our reports,3 it is a discredited stranger, ill understood: “Debt on simple contract. Defendant pleaded nil debet per legem. . . . Langslow applied to the court to assign the number of compurgators. . . . The books [he says] leave it doubtful. . . . This species of defence is not often heard of now. . . . Abbott, C. J. The court will not give the defendant any assistance in this matter. He must bring such number of compurgators as he shall be advised are sufficient. . . . Rule refused. The defendant [say the reporters] prepared to bring eleven compurgators, but the plaintiff abandoned the action.” It had turned out, then, to be not yet quite a ghost; and so in 18334 it was at last enacted by Parliament “that no wager of law shall be hereafter allowed.” Palgrave5 had lately pointed out with accuracy the old and the later legal situation: “An inquest or jury, in civil causes, was never adopted according to the usual course of the popular courts of Anglo-Saxon Edition: current; Page: [392] origin, unless by virtue of the king’s special precept.” In an action begun there by the writ which empowered the sheriff to act as the king’s justiciar, an inquest might be summoned; “but if the suit was grounded upon a plaint the opinion of the suitors or the compurgatory oath constituted the common-law trial. . . . The same rule was observed in the manorial courts, in which by common right all pleas were determined by wager of law. . . . Even in the king’s court the incidental traverses in a real action, such as the denial of the summons by the tenant, were always determined by compurgators; and in all personal actions wager of law was the regular mode of trial, until new proceedings were instituted which enabled the judges to introduce the jury trial in its stead. But this silent legislation has not destroyed the Anglo-Saxon trial [his preface is dated Feb. 1, 1832]; it is out of use, but not out of force; and it may, perhaps, continue as a part of the theory of the law until some adventurous individual shall again astonish the court by obtaining his privilege, and by thus informing the legislature of its existence, insure its abolition.”

(3) The Ordeal.—Of trial by the ordeal (other than the duel) not much need be said. Nothing is older; and to this day it flourishes in various parts of the world. The investigations of scholars discover it everywhere among barbarous people, and the conclusion seems just that it is indigenous with the human creature in the earliest stages of his development.1 Like the rest, our ancestors had it. Glanvill,1 Edition: current; Page: [393] for instance (about 1187), lays it down that an accused person who is disabled by mayhem tenetur se purgare . . . per Dei judicium . . . scilicet per callidum ferrum si fuerit homo liber, per aquam si fuerit rusticus.2 This was found to be a convenient last resort, not only when the accused was old or disabled from fighting in the duel, but when compurgators or witnesses could not be found or were contradictory, Edition: current; Page: [394] or where for any reason no decision could otherwise be reached.

In our earliest judicial records the ordeal is found often. The earliest of these cases which is assignable to any precise year is one of 10 Rich. I. (1198-9),1 where, on an appeal of death, by a maimed person, two of the defendants are adjudged to purge themselves by the hot iron. But within twenty years or so this mode of trial came to a sudden end in England, through the powerful agency of the Church,—an event which was the more remarkable because Henry II., in the Assize of Clarendon (1166) and again in that of Northampton (1176), providing a public mode of accusation in the case of the larger crimes, had fixed the ordeal as the mode of trial. The old form of trial by oath was no longer recognized in such cases in the king’s courts. It was the stranger, therefore, that such quick operation should have been allowed in England to the decree, in November, 1215, of the Fourth Lateran Council at Rome. That this was recognized and accepted in about three years (1218-19) by the English crown is shown by the well-known writs of Henry III. to the judges, dealing with the puzzling question of what to do for a mode of trial, cum prohibitum sit per Ecclesiam Romanam judicium ignis et aquae.2 I Edition: current; Page: [395] find no case of trial by ordeal in our printed records later than Trinity Term of the 15 John (1214). We read then of several cases.1 One Ralph, accused of larceny, is adjudged to purge himself by water; he did clear himself, and abjured the realm. And so in another exactly like case of murder. It was the hard order of the Assize of Clarendon that he who had come safely through the ordeal might thus be required to abjure the realm, a circumstance which recalls the shrewd scepticism of William Rufus when he remarked of the judicium Dei that God should no longer decide in these matters,—he would do it himself.2 In a third case a person was charged with supplying the knife with which a homicide was committed, and was adjudged to purge himself by water of consenting to the act. He failed, and was hanged.

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

The “Mirror,” written, as Maitland conjectures, between 1285 and 1290, regrets that it has gone by. “It is an abuse,” says the writer, “that proofs and purgations are not made by the miracle of God where no other proof can be Edition: current; Page: [396] had.”1 In 1679 a defendant astonished the court by asking to be tried by the ordeal.2

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

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

(4) Trial by Battle.—This is often classified as an ordeal, “a God’s judgment,” but in dealing with our law it is convenient to discriminate it from the ordeals, for the battle has other aspects than that of an appeal to Heaven. Moreover, it survived for centuries the ordeal proper. It had, also, no such universal vogue. Although it existed among almost all the Germanic people, the Anglo-Saxons seem not to have had it;6 but with the Normans it came into England in full strength. In Glanvill, a century after the Conquest, we see it as one of the chief modes of trial in the king’s courts: “A debt . . . is proved by the court’s Edition: current; Page: [397] general mode of proof, viz., by writing or by duel.”1 “They may come to the duel or other such usual proof as is ordinarily received in the courts,” etc.2 Of the inferior courts, also, we are told that in a lord’s court a duel may be reached between lord and man, if any of the man’s peers makes himself a witness and so champion.3 He, also, who gave the judgment of an inferior court might, on a charge of false judgment, have to defend the award in the king’s court by the duel, either in person or by a champion.4 And so elsewhere.

There is sufficient evidence that it was, at first, a novel and hated thing in England. In the so-called “Laws of William the Conqueror,” it figures as being the Frenchman’s mode of trial, and not the Englishman’s. In a generation after the Conquest, the charter of Henry I. to the city of London grants exemption from it; and the same exemption was widely sought and given, e. g., in Winchester and Lincoln.5 The earliest reference to the battle, I believe, in any account of a trial in England, is at the end of the case of Bishop Wulfstan v. Abbot Walter, in 1077.6 The controversy was settled, and we read: “Thereof there are lawful witnesses . . . who saw and heard this, ready to prove it by oath and battle.” This is an allusion to a common practice in the Middle Ages, that of challenging another’s witness;7 or perhaps to one method of disposing of cases where adversary witnesses were allowed, and these contradicted each other. Brunner8 refers to this, with Norman instances of the dates 1035, 1053, and 1080, as illustrating a procedure which dated back to the capitulary of 819, quoted above.9 Thus, as among nations still, so then in the popular Edition: current; Page: [398] courts and between contending private parties, the battle was often the ultima ratio, in cases where their rude and unrational methods of trial yielded no results.

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

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Selden has remarked upon the small number of battles recorded as actually fought.1 The society which bears his honored name is now bringing to light cases of which he probably never heard.2 Such traces of the duel and the ordeal in England as are found before Glanvill’s time are collected in Bigelow’s valuable Placita Anglo Normannica. Very early cases from Domesday Book, compiled by William within twenty years of the Conquest, are found here.3 Selden refers to a civil case in Mich. 6 Rich. I. (1194), as “the oldest case I have read of.”4 This may be the case in Vol. I. of the Rotuli Curiae Regis, 23-24, 26, which appears to be the earliest one reported in the judicial records. Although the demandant here hoc offert probare versus eum per Radulphum filium Stephani, qui hoc offert probare ut de visu patris sui per corpus suum sicut curia consideraverit, and the defendant came and defended the right and inheriting of (the plaintiff), et visum patris Radulphi filii Stephani, per Johannem . . . qui hoc offert defendere per corpus suum consideracione curiae,—yet the case appears to have gone off without the battle, on another point. But this record shows the theory of the thing. The plaintiff offers battle and puts forward a champion who is a complaint-witness, and who speaks as of his personal knowledge or, as in this case, on that of his father,5 and stands ready to fight for Edition: current; Page: [400] his testimony. Before the battle the two champions swear to the truth of what they say.

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

The Year Books indicate small use of the trial by battle in later days. One sign is the particularity with which the ceremonial is described, as if it were a curiosity. Thus in 1342-3, and again in 1407,2 in criminal appeals, the formalities of the battle oath and subsequent matters are fully given. And in 14223 the ceremony in a battle between champions is described with curious details, down to the defaulting of the tenant on the appointed day. In 1565 Sir Thomas Smith4 tells us, of this mode of trial, that it was not much used, but “I could not learn that it was ever abrogated.” This was only six years before the famous writ of right, in Lowe v. Paramour,5 which furbished up this faded learning. Dyer has a pretty full and good account of that case; but Spelman’s Latin6 is fuller and very quaint. The trial in a writ of right, he tells us, repeating with precision the doctrine of four centuries and a half before, is Edition: current; Page: [401] by duel or the assize; utrunque genus hodie insuetum est sed duelli magis.1 Yet, he goes on, it chanced that this last was revived in 1571, and battle was ordered, non sine magna jurisconsultorum perturbatione. Then comes a curious detailed account, setting forth, among other things, how Nailer, the demandant’s champion, in his battle array, to the sound of fifes and trumpets, on the morning of the day fixed for the battle, Londinum minaciter spatiatur. It has been said that Spelman was present at Tothill Fields on that day with the thousands of spectators that assembled; he does not say so, I believe, but he writes with all the vivacity of an eye-witness. The demandant made default. Another like case occurred as late as 1638, but again there was no fight.2 Efforts to abolish the judicial battle were made through that century and the next, but without result. At last came the famous appeal of murder in 1819,3 in which the learning of the subject was fully discussed by the King’s Bench, and battle was adjudged to be still “the constitutional mode of trial” in this sort of case. As in an Irish case in 1815,4 so here, to the amazement of mankind, the defendant escaped by means of this rusty weapon. And now, at last, in June, 1819, came the abolition of a long-lived relic of barbarism, which had survived in England when all the rest of Christendom had abandoned it.5

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

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

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32.: THE KING’S PEACE IN THE MIDDLE AGES1

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

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

We find it already established in the eleventh century3 that the king reserves a certain number of the greater crimes for his own jurisdiction. In the twelfth century the list is Edition: current; Page: [404] considerably increased, and may be said to include all serious offences against the person other than open manslaying, and also highway robbery, besides breaches of the king’s special protection, false moneying, and other contempts of his authority.1 The omission of homicide in general, so strange to modern ways of thinking, is accounted for by the fact that the rights of the kinsfolk were still supposed to be exercisible. Secret killing,2 especially by poison or supposed witchcraft, for to this the name of murder seems at first to have been attached, could easily be reserved for the king’s peculiar jurisdiction because the ancient process of an actual or commuted blood-feud, assuming as it did that the facts were notorious or at least easily verifiable, had no adequate means of dealing with such cases. But there can be little doubt that the anomaly of leaving open homicide to the kindred and the popular courts was already obsolete in practice by the time when the list in question was set down by an antiquary who perhaps would not have approved the innovation. Murder, indeed, had acquired the curious transitional meaning of a homicide committed by an unknown person for which the hundred had to pay a fine because the slain man was presumed to be a Frenchman, or more frequently, by a compendious technical usage, the fine itself.3

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

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

As to the name of the proceeding, “appeal” originally meant accusation. In its application to disputing the judgment of a court, it meant not seeking the judgment of a higher court, as it has come to do in modern times, but charging the judges personally with giving a wilfully false judgment, or the witnesses with perjury. The charge might in either case have to be made good by combat, and down to the end of the twelfth century this was a possible course in all inferior courts.2 Solemn acts of authority must stand, right or wrong; a judgment once made in due form is as the law Edition: current; Page: [406] of the Medes and Persians, which altereth not. You may have, at most, a personal remedy against individuals who have abused their office. A power vested in one court to reverse or vary the judgment of another was not within the conception of early English or Frankish law. Such a notion is of slow and comparatively modern growth in England. The modern usage of the word “appeal” as implying this notion seems to be not older than near the end of the thirteenth century, and to occur first, as might be expected, with reference to ecclesiastical procedure.1

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

Meanwhile the old public justice, applicable to cases where there could be no question of blood-feud—practically, that is, to theft—was becoming the king’s justice too. The men of the hundred who charged a suspected offender on the strength of their own knowledge, or of common fame, now acted under the direction of the king’s officers; and the withdrawal of religious sanction from the ordeal by the Edition: current; Page: [407] Church in 1215 brought the further proceedings under the same authority by the downright need of some new regulation. The action of the Lateran Council was promptly enough1 acknowledged by the king’s calling for appropriate measures. It seems likely that the ordeal was already discredited. In the twelfth century clerical narrators not only exalted the merits of the saints by whose intercession men were miraculously healed after having failed in the ordeal and suffered as felons, but almost went out of their way to assert the victim’s innocence, though the miracle might well enough have been represented as the reward of an offender’s subsequent contrition. The so-called judgment of God was now regarded as a possibly oppressive or fraudulent judgment2 which might call for supernatural redress. On the other hand the temporal power was not disposed to regard acquittal on a trial by ordeal as conclusive in the prisoner’s favour. A man of bad repute who had been sent “to the water” on a charge of murder or other grave crime by the witness of the county was not treated as innocent by the later twelfth-century practice. Under Henry II.’s ordinance, he had to leave the kingdom and be content not to forfeit his goods.3 A mode of trial so little respected had become untenable. When ordeal was put out of the way, to all seeming unregretted by any one, there was no method of final proof to set in its place other than the new and royal method of inquest. If the accusing body had been turned into the final judges of the fact, some sort of inquisitorial procedure would probably have been the result, and the Grand Jury might have become an official staff with a Public Prosecutor at its head. But the law maintained the old view that the indictment, as from this point we may begin to call it, was only the voice of common fame, which was enough to put a man in jeopardy but not to condemn him. The prisoner was entitled to call for a final vote of the lawful neighbours, to Edition: current; Page: [408] “put himself on the country.” The same men might now be asked for their definite opinion, but they were reinforced by jurors of another hundred and of four townships. If the combined jurors declared that they positively thought the prisoner guilty, he stood condemned. Only in the middle of the fourteenth century were members of the jury of indictment prohibited from serving on the jury of trial.1

It will be observed that the new process is brought into play, in point of form, by the prisoner’s action. He is not sent to a jury as he would have been sent to the ordeal; he puts himself upon its verdict. Before long the question arose what was to be done with a prisoner who would not put himself on the verdict of a jury in the case of either an appeal or an indictment; this is not a question directly before us now, but it was inevitable and gave much trouble. When the “judgment of God” by ordeal ceased to be available it seemed, on the whole, to the medieval English mind that the prisoner—except where the facts were too manifest to need further proof—could not be required, as matter of strict right, to submit himself to any form of human judgment. Bracton, as we saw, was bold on the side of common sense in the case of an appeal; as to an indictment he only says it seems the prisoner can be compelled to defend himself by the country for want of other manner of proof. Some bold and enlightened judges, probably Bracton among them, were prepared to dispense with consent or enter a fictitious consent to be tried by a jury on the prisoner’s behalf.2 But the formalist view prevailed: namely that trial by the country could not be without the prisoner’s submission, but refusal to submit was an independent offence, in the nature of contempt of the king’s authority, for which the recusant might be punished Edition: current; Page: [409] in any manner short of death: imprisonment, rigorous imprisonment under conditions barely compatible with living, or, as the practice appears to have been settled in the course of the fourteenth century, with aggravations amounting to death in fact though not in terms. In this way respect for the letter of the subject’s rights and dread of usurping jurisdiction led the judges to the clumsy and barbarous expedient of the peine forte et dure, which, to the law’s disgrace, remained possible, and was sometimes put in force, down to quite modern times.1 But, strange as were the limitations imposed by the logic of thirteenth-century lawyers on the king’s jurisdiction, the jurisdiction had in substance come to the king’s hands. What remained in Bracton’s time of the old system of private and vindictive prosecutions became absorbed in one or another of the new varieties of civil procedure devised by the clerks in the king’s chancery and sometimes by the judges themselves.

We have mentioned the exceptional case—perhaps not so very exceptional in days when open violence was frequent—of a crime being too manifest for any formal proof to be required. A few words of explanation must now be added. For more than a century after the Conquest, and much later in some local jurisdictions, the stern rule of the popular courts against open and notorious crime held its ground. A criminal taken red-handed was not entitled to any further defence or trial before the king’s justices, whether he were a murderer with his bloody weapon or a robber with the stolen goods, “seised,” as men then said, “of the murder or theft,” so that the fact was undeniable before the lawful men who apprehended him. This was deliberately confirmed as late as 1176:2 and the jurisdiction, as long as it existed, remained with the county court save in the case of crimes specially reserved for the Crown. In the Gloucestershire records of 1221 we read that certain evil-doers slew a servant of the Bishop of Bath in his master’s house. Four men charged with the killing were taken with stolen goods, the murder Edition: current; Page: [410] having, it seems, been incidental to theft or housebreaking. Records show this as a very common state of things: and, as there was nothing more to be lost by adding murder to robbery, already a capital offence, we need not be surprised. The men admitted the death, and were summarily hanged, not for the murder, which was not within the county court’s jurisdiction, but for the manifest theft, which was.1 The same rule was applied by the king’s judges to manslaying, down to the middle of the thirteenth century.2 It was not necessary that the judgment should be rendered immediately, but only that the damning circumstances of the offender’s arrest “super factum” should be promptly recorded by good witness. The written records of such cases are of a simplicity befitting the summary character of the proceeding: “Wakelin Ralph’s son slew Matilda Day with a knife, and was taken thereupon with the knife all bloody, and this is witnessed by the township and twelve jurors, and so he cannot deny it; let him be hanged; he had no chattels.”

An important exercise of the king’s increasing control over criminal business was the constitution or definition (it is not certain which, nor very material) of the office of coroner in 1194.3 The most important function of the coroner was from the first the holding of inquests on the bodies of persons who had died by violence or accident, or in circumstances giving rise to suspicion; and that function continues to this Edition: current; Page: [411] day as part of the machinery of our criminal law, side by side with the jurisdiction of justices of the peace and to some extent overlapped by it, but not superseded. In the Middle Ages the coroners also exercised judicial powers in criminal and sometimes in civil business, which did disappear, partly under the express prohibition of Magna Carta, whereby neither the coroners nor the county court were to hold pleas of the Crown,1 partly by disuse as the office of a justice of the peace was brought into working order. They supervised the execution of capital justice in the privileged jurisdictions of lords who had that franchise, and thus had more extensive rights than the sheriff, who, by the terms of such local privileges, was excluded from interference within their bounds. Being the king’s officers, but elected by the men of the county, the coroners formed a direct link between the Crown and the people and a check on the intermediate lords.2

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

For more than two centuries after the Conquest the king’s peace itself was liable to interruption by the death of the Edition: current; Page: [412] reigning king. It perished with him; the new king was not deemed to be fully king, nor so styled, until he had been crowned; and during this interregnum there was no power available to preserve order but the resources of the old popular jurisdiction, doubtless more and more enfeebled by the diminution of their importance in normal times. Evil-doers were not slow to seize such an opportunity when it came. We read in the English Chronicle, under the date of 1135, that on the death of Henry I. “there was tribulation soon in the land, for every man that could forthwith robbed another.” But when Edward I. succeeded to the throne in November, 1272, being then far away from England on the crusade, the danger and inconvenience of allowing such an interregnum were perceived to be intolerable; and the king’s council forthwith caused his peace to be proclaimed throughout the kingdom, declaring the reason in his name in these words: “for rendering justice and keeping of the peace we are now and henceforth”—not merely after coronation—“debtors to all and sundry folk of this realm.”1 It must have seemed a bold measure at the time, but its wisdom was so manifest that it was not merely accepted as a temporary and extraordinary remedy, but became a conclusive precedent for all future demises of the Crown. The doctrine of the king’s peace being put in suspense by the king’s death does not seem to have been ever heard of again.

One reason for the ease with which the reform was made may perhaps have been that its omission would have thrown the machinery of justice out of gear more extensively and conspicuously than at any previous time. The writ of trespass was fast coming into use in the course of Henry III.’s reign. During the twenty-two years between the middle of the century and his death it became common.2 We think of an action of trespass nowadays as a purely civil remedy, a means of recovering damages if the plaintiff succeeds; and that was no doubt its main object and advantage even from the first. But it was also a penal and semi-criminal proceeding, and preserved traces of this character down to modern times. The trespass was complained of and dealt with Edition: current; Page: [413] as a punishable breach of the king’s peace, and the plaintiff was bound to allege force and arms and breach of the peace in order to give the king’s court jurisdiction; without those words it was only a matter for the county court. In fact this action was, in its original form, closely connected with the distinctly criminal procedure by way of “appeal” for felony. One might almost regard it, using the analogy of modern French procedure, as the civil side of such an appeal, which became separated by some ingenious experiment or happy accident, and started on a new career of its own. To regard the king’s peace as capable of temporary suspension in 1272 would have been to deprive suitors of a remedy which was already becoming popular, and showing the first promise of its vast future developments. It belongs to another context and a later period to see how forms of action derived from the semi-criminal writ of trespass became the most ordinary and efficient instruments of purely civil justice in dealing with questions of property and contract.

It will be observed that there was no centralized authority, as indeed there still is none, for dealing with the prevention or detection of crime. Royal justice aimed not at superseding local administration, but at controlling and stimulating it. The work of the king’s officers in every department of public law, and of the local officers and courts who were bound to assist them, was kept up to a generally uniform standard by the periodical journeys of the king’s itinerant judges. The more general and searching visitations have to be distinguished from the minor judicial delegations. There were frequent missions of learned persons charged only to dispose of certain kinds of pending causes and matters, usually the “assizes” introduced in Henry II.’s time, and developed in the course of the thirteenth century, for the recovery of land from wrongful possessors. Judges might even be sent out to take only one particular named case, under a special commission as we should now call it.1 Their authority depended on the terms of the commission Edition: current; Page: [414] in each case, as the authority of justices of assize does to this day; the difference is that the commissions of justices of assize (who superseded the justices in eyre at a later time, and must not be confounded with them) have run in a fixed form for centuries, whereas the heads or articles of the eyre were subject to variation. Some sort of routine, however, was acknowledged early in the thirteenth century. More especially, there was a general and comprehensive mission with unlimited jurisdiction and a wide administrative authority to see that the Crown got its dues of every kind, which took place at intervals of some years in every part of the country. This may conveniently be called a general eyre; it involved a rigid scrutiny of the criminal records of the county since the last visitation, and commonly produced a good many fines. These, and the burden of entertaining the justices and their retinue, caused the advent of a general eyre to be anything but welcome. Attempts were made to establish a custom not to have it in the same place more than once in seven years.1 On these occasions the county court was summoned, but acted in the subordinate capacity of giving information and deputing its chief men to talk over business with the judges, and, we may well suppose, to be instructed by them in the latest royal improvements of procedure and finance.2 The men of the county were answerable for having all the Crown’s business properly brought before the itinerant justices; and that business would include everything, from forfeitures of felons’ goods to complaints of sales by unauthorized measure or petty extortions by bailiffs. Directly or indirectly, there was always an eye to the king’s dues. As Mr. Maitland says, “a distinction between the doing of penal justice and the collection of the king’s income is only gradually emerging. The itinerant judge of the twelfth century has much of the commissioner of taxes.”3 Failure to find criminals, Edition: current; Page: [415] what with murder-fines and amercements for failing to produce one’s townsmen, was more fruitful of revenue than judicial sentences. Unpleasant as the whole process was for the country-side, for it was a costly forced purchase of justice at best, there must have been a great deal of civic education in it.

So far we have only hinted at the transformation of the jury in criminal cases from a special commission of inquiry into a regular and necessary tribunal, and from a piece of superior administrative machinery into a popular and representative institution. Many details are still obscure, but we know that the process was substantially completed about the middle of the thirteenth century. What interests us just here is to observe that nothing but the king’s power, half consciously guided by the necessities of the time, could have accomplished this. There were no means available for reforming the hopelessly antiquated procedure of the old popular courts, and indeed there was still, in the modern sense, no legislature at all. Executive and judicial authorities, under the king’s direction, had to innovate for themselves in the lines of least resistance. As early as 1166,1 the old accusation by the common report of the country-side became a “presentment” by definite persons representing the local knowledge of all classes, who were bound to inform the king’s judges or the sheriff. In our time the Grand Jury no longer consists of twelve of the more lawful men of the hundred and four of the more lawful men of every township; but it still exists, it is still called a Grand Inquest as its most official and solemn name; the foreman is sworn “as foreman of this Grand Inquest for our Sovereign Lady the Queen and the body of this county.” The form of the oath still binds the grand jurors to present any crimes undiscovered by the officers of the law which may come to their notice otherwise than by being expressly given them in charge; that is, to accuse any one whom they suspect of having committed a crime even if no one has taken steps to prosecute him; and though there is no occasion to do this in modern times, grand juries not unfrequently make presentments of Edition: current; Page: [416] what they conceive to be the opinion of the county as to the increase or decrease of criminal offences, or desirable amendments of the criminal law in substance or administration. It is to be remarked that the form of the oath is not of Anglo-Saxon or popular, but of Frankish and official origin.1 There was nothing about the procedure in any way repugnant to popular tradition or habits; nevertheless it was new, royal, and in ultimate parentage exotic. Not the pretence of an impossible freedom from foreign elements, but the power of assimilating exotic material to serve its own purposes and to be leavened with its own constant spirit, was already, as it has ever since been, the real glory of our Common Law. Sometimes it is asked, what is the use of a grand jury nowadays? The question ought, perhaps, rather to be whether the saving of a little trouble and expense would be an adequate compensation for abolishing a dignified and at worst harmless function which has been part of the machinery of justice in England for more than eight centuries. However, the grand jury is sometimes able to stop an obviously malicious or frivolous prosecution and spare an innocent person the pain and scandal of going into the dock.

The petty jury acquired its modern position, that of a body of judges appointed to decide on the facts according to the evidence and not otherwise, only by a gradual process. As regards the criminal jury we still know little of the details. In the fifteenth century the functions of jurymen were coming near their present character; in the sixteenth we have a description of the course of a trial which, but for the prisoner not being allowed to employ counsel against the Crown, would be accurate in all essentials at this day. Sir Thomas Smith,2 writing chiefly for the information of learned foreigners, insists on the public and oral character of the procedure, a matter of commonplace to Englishmen but strange to men living under systems derived from the later Roman law. “All the rest” (except the written indictment) “is done openly in the presence of the judges, the justices” [of the peace], “the inquest, the prisoner, and so many as will or can come so near as to hear it, and Edition: current; Page: [417] all depositions and witnesses given aloud, that all men may hear from the mouth of the depositors and witnesses what is said.” As has already been hinted, there was nothing about the origin or the early forms of the jury, or in particular of the criminal jury, to make it in any sense a popular institution. There was no manifest reason why it should not become a mere instrument of official power, as indeed the Tudor sovereigns and their ministers tried to make it in affairs of state. There was no obvious probability that the verdicts of juries would be just, or independent, or free from corruption. Indeed they were far from satisfying all these conditions in the disorderly times of the later Middle Ages. No one could even have assigned any definite reason, down to the fourteenth century, why a jury should not hold a private inquiry out of Court; and while the procedure was unsettled, there were one or two practices tending that way which might conceivably have become the model instead of first being exceptional and then disappearing. But the national instinct for publicity prevailed. The most Norman and the most royal element in the machinery of justice became a security against royal encroachment, a bulwark of freedom so beloved of Englishmen that pious fable ascribed its introduction to the hero-king Alfred.

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33.: THE METHODS OF THE ROYAL COURTS OF JUSTICE IN THE FIFTEENTH CENTURY1

WESTMINSTER.—THE KING’S COUNCIL

THE following morning Richard de Anesti was awakened at an early hour by his brother, with a message from the Treasurer that he should lose no time in presenting himself in the Hall of Rufus, on account of the great concourse of barons and knights and clerks, learned in the civil law, who should be attracted by the grandeur and novelty of this ceremony. Without any delay, therefore, Richard donned the richly jewelled dress which it befitted one of his rank to assume on such an occasion, and taking advantage of his present familiarity with the clerks of the King’s Chapel, he enjoyed the privilege of hearing early mass, attended by the King and his household; after which he followed in the royal train that filed through the private entrance at the south end of the Great Hall. The lower part of the spacious building was already densely crowded with a brilliant company, but the upper end was kept clear by the marshals for the accommodation of the councillors and the distinguished suitors whose cause they were about to decide. Here the King took his seat on a lofty decorated throne prepared for the occasion, having on either side a bench richly draped, on which, Edition: current; Page: [419] and on two other benches at right angles to them, the prelates, earls, and barons who had received summonses to attend the Council, were placed in due order of precedence,—the Archbishop of Canterbury, the Justiciar, Richard de Luci, the Vice-chancellor, Master Thomas Brown, Ralph the physician, and several other distinguished persons, occupying seats on either side of the throne; whilst several clerks, furnished with material for writing, occupied a place where they could be easily overlooked by the Vice-chancellor and Master Thomas.

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

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

First came the referees, chosen by both parties indifferently, whose mission it was to guarantee the adherence of the two kings to the present arbitration on pain of forfeiture of several important castles on either side, while it was their further duty to convey an impartial and authoritative report of the decision of the English king to the two contending sovereigns. These referees were four in number—a bishop and a lord, with whom were joined two principals of the Orders of the Knights of the Temple and of St. John. These legates, in their robes of office, preceded by heralds and banners of both countries, and followed by a body of clerks bearing membranes of parchment and ink-horns, advanced slowly up the centre of the hall, and after making a deep obeisance to the King, took the places reserved for them on his right hand. They were immediately succeeded by the embassy of Castille, comprising a bishop and several nobles of high rank, with numerous clerks learned in the law, the Edition: current; Page: [420] rear being brought up by a mounted knight in complete armour, preceded by a herald and attended by two squires on foot, who appeared as the champion of Castille. The embassy of Navarre followed in like order at a convenient distance.

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

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

When the Castilian advocate had concluded his argument, an advocate on the side of the King of Navarre replied at length in similar style, denying the allegations of his adversary, and advancing a counter claim to other territories of which his master had been forcibly dispossessed by King Alphonso or his ancestors, supporting also his contention by reference to documentary evidence. In the course of both arguments, the King frequently interrupted, demanding an explanation in clerical Latin of certain passages. The councillors Edition: current; Page: [421] also seemed to exhibit marked signs of impatience from time to time, and at length, almost before the Navarrese had well concluded his speech, Richard de Luci addressed the King to the effect that, without any disrespect to the representatives of the powerful and virtuous princes here present, it was plain that the bishops and barons whom the King had summoned to assist in the decision of this cause were unable to comprehend the allegations of either side any more than if they were spoken in a barbarous tongue, and, therefore, it seemed to him desirable that the advocates should be required to use the Norman tongue, which, he added, was held in most esteem in the courts of divers Christian kingdoms. To this proposition the Bishop of London offered as an amendment that clerical Latin should be admitted; but this was negatived by a murmur of dissent amongst the lay nobility present, and a lively interchange of views followed on both sides. The King, however, put a stop to the discussion in a peremptory manner, and gave his decision in favour of admitting clerical Latin, but only in written allegations, with which each party was to furnish the Council within three days, in order that when these documents had been clearly explained and discussed by the Council, judgment might be given without further parley. Wherefore the present meeting was declared to be adjourned.

When the King had given this decision, the two embassies, without venturing any objection, withdrew in the same order as they had arrived, and their example was followed by the majority of those present. The chief topic of interest amongst the military part of the audience was the appearance of the two champions, of whose prowess in the wars against the Saracens many stories had been spread abroad, and the probabilities of the matter being referred to the battle was earnestly discussed on all sides. The clerical element, on the other hand, was anxious rather to argue the points of procedure that had arisen during the recent hearing, and especially the pretensions of the baronage that only the French tongue should be admitted. Concerning this subject, the Treasurer, who joined Richard as the King’s retinue was leaving the hall, had much to say, advancing Edition: current; Page: [422] many reasons on either side, but himself leaning somewhat to that of the barons, on the ground that the record of every plea should be made in the vulgar tongue, as being a proclamation more solemn than any deposition in writing; though now, he added, matters were somewhat altered, except in the ancient franchises.

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

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

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

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

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

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

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

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

“This then is the sum of that which you seek to know, Edition: current; Page: [424] that it is better, for the welfare of the whole community that there should be a constituted body, how small soever, to hear and resolve all causes at some fixed spot, rather than that the King should depute sundry of his courtiers to determine such matters, to whom the science of the Curia and of the Exchequer may perchance be wholly unknown. And it is certain that sooner or later these changes will become necessary, for in the multitude of our judges there is little wisdom and much guile. But concerning these things, I would desire you to hear Ranulph de Glanvill and his brethren, who have greater experience in them than we at the Exchequer.”

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

Richard, learning that his friend the Treasurer was disposed for study, readily joined himself with a company of the younger courtiers present, who purposed, according to custom, to repair to the playing fields beyond the city walls, in order to initiate the Lenten tournaments always held there on Sunday afternoon—when the Court happened to be at Edition: current; Page: [425] London—between the chivalry not yet dignified by knighthood and the noble youths of the city. Accordingly, not long afterwards a gay cavalcade wended its way along the Strand towards the city, where, having fallen in with an equal number of the youths of the city mustered in the great square before the Church of St. Paul, the two squadrons proceeded towards the fields, followed by an immense concourse of spectators, both on foot and horseback.

Arrived at the appointed spot, where spacious lists had been prepared for the occasion, the tournament was opened by single courses between champions on both sides,—the citizens being, according to custom, the challengers. In this mimic warfare, however, neither steed nor rider was protected by armour, the latter having only a shield and a headless lance. The encounter, however, though bloodless, was an equal test of horsemanship and skill in the use of the lance, whilst the risk of severe falls and contusions was a sufficient proof of hardihood. As soon as the single contests were exhausted, and the champion who had displayed the greatest prowess had been proclaimed victor by the umpires, and rewarded with the prize of a gold chain, with which he was decorated by the fair hands of the daughter of one of the city magnates, a general engagement followed, the opposing bands vying in their display of skilful manœuvres, forming and wheeling and charging in several ranks, until at a given signal the combat was suspended, and the result was declared to be in favour of the courtiers, a verdict which excited some murmurs from the populace. Indeed Richard, who had remained an interested spectator of the tournament, having won his spurs many years before in the expedition against Toulouse, observed that an evident rivalry existed between the courtiers and citizens, which was not confined, as he was reminded by a recent tragedy, to a harmless encounter like the present. For as the former, after a joyous carousal and ceremonious farewell of the civic potentates, were returning again towards Westminster, the young heir of Bigot, next to whom he rode, asked if he intended on the morrow to witness the trial of John the Elder and those citizens, his fellows, who stood accused of housebreaking and other crimes against the king’s Edition: current; Page: [426] peace; of which, doubtless, he added, the murder of the brother of his father’s old friend and companion in arms, the Earl Ferrers, when the Court first came to London, was one.

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

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

Long before the hour appointed for the trial, a crowd of citizens had assembled in front of the palace gates, while more privileged courtiers had taken their stand in the body of the Hall itself. At the hour appointed for the proceedings of the court to begin, the Justiciar, Richard de Luci, entered, attended by various serjeants and officers, and also by several clerks and scribes who were prepared to endite a report of the proceedings in the rolls of the court. The Justiciar took his seat on the broad bench at the summit of the Hall, and the clerks occupied benches at a table immediately in front. Next the king’s “prover” was brought in, unarmed, for, having lost his right hand in the manner before related, it was not intended that he should substantiate his accusation by a personal combat. After him followed the sheriff of London, William, son of Isabel, to whose custody the prisoners had been committed, and three or four of these wretches, Edition: current; Page: [427] half-naked and securely pinioned, under the escort of the sheriffs, serjeants, and the gaoler of the king’s prison, were next brought up to the bar which divided the judges and clerks from the body of the court.

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

The whole proceedings had not lasted ten minutes, and here were six men adjudged to a shameful death practically unheard, and with no appeal but to the justice of Heaven to work something like a miracle in their behalf, for such was the real meaning of the ordeal of water—a yet more desperate resource than the trial of the heated iron, though the Edition: current; Page: [428] accused had not even been permitted to choose between these implements of torture.

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

It is related that in the old days of simple piety and austere faith before the Conquest, the ordeal was always performed as a solemn religious mystery in the interior of a church, and the Divine interposition on behalf