THE STUDENT'S LEGAL HISTOBY 
 
 FOURTH EDITION 
 
THE STUDENT'S 
 
 LEGAL HISTORY 
 
 BY 
 
 R. STOREY DEANS 
 
 h 
 
 OF GRAY'S INN, BABKISTEB-AT-LAW, LL..B., , 
 
 / 
 
 Sometime Holder of Inns of Court Studentship; Arden Scholar of Gray's Inn, 
 
 FOURTH EDITION 
 
 LONDON 
 
 STEVENS & SONS, LIMITED 
 
 119 & 120 CHANCERY LANE 
 
 3Law {publishers 
 
 1921 
 
PREFACE 10 FOURTH EDITION 
 
 MY thanks are due to my friend Mr. de Freitas 
 for his assistance in the preparation of this 
 edition. 
 
 R. STOREY DEANS. 
 
 3 ELM COURT, 
 TEMPLE, 
 1921. 
 
TABLE OF CONTENTS. Vll 
 
 TABLE OF CONTENTS. 
 
 PAGE 
 
 INTRODUCTION 1 
 
 CHAPTER I. BEFORE THE NORMAN CONQUEST ( 1066) 
 
 Treason The Saxon Land Laws Socage Modes of Convey- 
 ance Livery Dower Curtesy The King's Peace Modes 
 of Trial Wager of Law Punishments and Penalties 
 Outlawry Summary 2-10 
 
 CHAPTER II. WILLIAM I. TO HENRY III. (10661272). 
 
 Tenure of Land Military Tenure Socage Villeinage 
 Tenants in Capite Distress Dower The Curtesy of 
 England Descent and Succession, and Testamentary Dis- 
 position Alienation of Land Mortmain Centralized 
 Justice Rise of the Three Common Law Courts Justices 
 in Eyre : Assizes Separation of Ecclesiastical and Civil 
 Jurisdiction Common Law The King's Peace Criminal 
 Law Treason Criminal and Semi-criminal Procedure 
 Main Prize Bail Punishments : Crimes and Torts Real 
 Actions Writ of Right Writ of Entry Assizes Real and 
 Personal Property Leaseholds Personal Actions Debet et 
 Detinet Covenant : Trespass Account Writ Pleadings 
 Modes of Trials : Abolition of Ordeal Duel Appeal of 
 Felony Duel in Civil Actions Trial by Jury : Grand 
 Jury : Inquests Trial by Jury in Criminal Cases Jury in 
 Civil Cases Functions of the Jury Summary 11-36 
 
 CHAPTER III. EDWARD I. TO RICHARD III. (12721485). 
 
 General Real Property : Statute de Donis : Estates Tail 
 Fines and Recoveries Quia Emptores : Alienation of Land 
 Mortmain Writ of Waste The Law of Real Property 
 settled Copyholds Procedure Prescriptions in Real 
 Actions Other Reforms Statute of Westminster II. Land 
 Liable for Debts : Elegit Actions on the Case The Law of 
 Simple Contract The Law Merchant: Statutes Merchant 
 Imprisonment for Debt Sedition Pleadings Indict- 
 
Vlll TABLE OF CONTENTS. 
 
 PAGE 
 
 ments in Writing Certainty of Criminal Pleading Com- 
 missioners of Assize The Court of Chancery Writ of 
 Subpoena Uses Procedure in Chancery : Petition : Bill 
 Discovery : Interrogatories Injunction to restrain Action 
 at Common Law Justices of the Peace : 1 Edw. III. c. 16 : 
 4 Edw. III. c. 2 : 34 Edw. III. c. 1 Conservators, now 
 called Justices of the Peace Appeal from Justices to the 
 King's Bench: 1 Edw. IV. c. 2: Quarter Sessionsr The 
 King's Peace: Extention of the Theory Summary 37-61 
 
 CHAPTER IV. HENRY VII. TO ELIZABETH (14851603). 
 
 General The Statute of Uses Summary of the Statute 
 Tyrell's Case Trusts The Statute of Uses and Conveyancing 
 The Law of Wills of Land Statutes of Bankruptcy, 34 & 
 35 Hen. VIII. c. 4, and 13 Eliz. c. 7 Statutes to prevent 
 Fraud The Star Chamber 3 Hen. VIII. c. 1 Criminal 
 Jurisdiction The Privy Council as a Court Civil Juris- 
 diction of the Star Chamber Its Decline Treason The 
 Court of Wards and Liveries High Commission Court 
 Exchequer Chamber Appeals from King's Bench Appeals 
 from Exchequer Trials at Nisi Prius The Action of 
 Assumpsit The Action of Ejectment The Action of Trover 
 and Conversion Summary 62-80 
 
 CHAPTER V. JAMES I. TO JAMES II. (16031688). 
 
 General The Law of Real Property Abolition of Knight- 
 service Tenure Wills of Land Charters of Conveyance 
 Leases Personal Property : Statute of Distributions The 
 Law of Patents The Common Law The Action of Eject- 
 ment The Statute of Frauds The Law Merchant 
 Criminal Law Treason Seditious Libel Seditious Words 
 Writ of Habeas Corpus and the Habeas Corpus Act, 1679 
 The Court of Chancery Juries The Jurisdiction of the 
 House of Lords Summary 81-102 
 
 CHAPTER VI. WILLIAM AND MARY TO THE END OP LORD 
 ELDON'S CHANCELLORSHIP (1688 1827). 
 General Real Property Wills of Copyholds The Law of 
 Copyright The Law Merchant International Law The 
 Law of Gaming and Wagering The Law of Bankruptcy 
 Common Law Procedure Equity : Development Criminal 
 Law Habeas Corpus : Further Legislation Treason : Pro- 
 cedure Riots : The Riot Act Development of the Law of 
 Libel Justices of the Peace and Quarter Sessions 
 Summary 103-125 
 
TABLE OF CONTENTS. IX 
 
 PAGE 
 
 CHAPTER VII. GEORGE IV. TO PRESENT DAY (1827 1921) 
 
 General Real Property Feoffment with Livery Wills 
 Married Women's Separate Property Equity Joint Stock 
 Companies and Limited Liability The Law Merchant 
 Bankruptcy Criminal Law Criminal Appeals Treason : 
 Treason Felony Act Libel Evidence Procedure 
 in the Common Law Courts Procedure since the 
 Judicature Act, 1873 Trial by Jury in Civil Cases 
 Women in the Law Courts Fusion of Law and Equity 
 County Courts The Court of Probate The Divorce Court 
 The Courts of Bankruptcy Fusion of the Courts The 
 Court of Appeal The House of Lords The Privy Council 
 Summary 126-162 
 
 CHAPTER VIII. COURTS OF JUSTICE. 
 
 Anglo-Saxon Period After Norman Conquest The Court 
 of Exchequer The Court of Common Pleas The Court of 
 King's Bench Fictions by which the Common Law Courts 
 extended their Jurisdiction The Court of Exchequer and 
 the Writ of Quo Minus The Bill of Middlesex The Writ 
 of Latitat The Court of Exchequer Chamber The Court 
 of Chancery Masters in Chancery The Central Criminal 
 Court Court of Criminal Appeal Inferior Courts : Court 
 of Piepoudre : The Court Baron : Hundred Court : County 
 Court Ecclesiastical Courts: Archdeacon's Court: Pre- 
 rogative Courts : Court of Arches : Court of Peculiars : 
 Courts of Delegates : Commission of Review Admiralty 
 Courts .165-189 
 
 CHAPTER IX. THE HISTORY or LAND TENURE IN ENGLAND.. 
 Before the Conquest After the Conquest Knight-service 
 Castleward Cornage Grand and Petit Serjeanty 
 Wardship Marriage Aids Reliefs Socage Tenure .... 190-196 
 
 CHAPTER X. THE KING'S PEACE 197-200 
 
 APPENDIX. SUMMARIES 201-207 
 
 INDEX . . 209-218 
 
THE HISTORY 
 
 OF 
 
 LAW. LEGAL PKOCEDURE, AND THE 
 LAW COURTS IN ENGLAND. 
 
 INTRODUCTION. 
 
 IN considering the Legal History of England, it will be 
 convenient to deal with the subject in seven periods, out- 
 lining as concisely, and at the same time as correctly, as 
 possible the leading features of each era. The division 
 will be as follows: 
 
 1. Before the Norman Conquest ( 1066). 
 
 2. William I. to Henry III. (10661272). 
 
 3. Edward I. to Richard III. (12721485). 
 
 4. Henry VII. to Elizabeth (14851603). 
 
 5. James I. to James II. (16031688). 
 
 6. William III. and Mary to George IV. (16881827). 
 
 7. George IV. to the present day (18271921). 
 
 This will form the first part of the book. 
 
 I shall next treat with more particularity the history 
 of certain branches of the subject which seem to be of 
 special importance, and this will form the second part 
 of the volume. 
 
 S.L.H. 1 
 
CHAPTER I. 
 
 BEFORE THE NORMAN CONQUEST ( 1066), 
 
 OF this period very little is certainly known. There is a 
 plentiful lack of authority, and an immense amount of 
 conjecture. There is no book which contains indisputable 
 internal evidence of genuine contemporary knowledge of 
 the Saxon laws; and such learning as we possess is con- 
 
 'sf-ructef]/ Irpm- ancient chronicles and from tradition. It 
 is .not a.lways easy, to distinguish between law of Norman 
 
 ''origin-' and IA V that had its beginnings before the Conquest. 
 This is because the Normans and the Saxons, being of 
 kindred origin, had, doubtless, much the same legal system 
 at the time when the one people settled in France and the 
 other in South Britain. They developed on different lines; 
 because the Normans came in contact with the Feudal 
 System of Europe, and the Franco-Roman law; while the 
 Saxons developed their institutions almost entirely from 
 within. At the same time, it must not be forgotten that 
 the people were essentially the same, and their institutions 
 similar in origin. The facts visible, more or less plainly, 
 through the mists of time are, shortly, these. Our Anglo- 
 Saxon ancestors had very rude ideas of law and legal 
 procedure. The Courts of Justice were local, consisting of 
 the Shire-moot, the Sheriff's Tourn, the Hundred-moot, 
 and the Tun-moot. Of these the Hundred-moot was the 
 principal. These Courts had jurisdiction over all kinds of 
 cases, and were presided over by the reeves of the shire, 
 hundred, and town respectively, assisted, as to the shire, 
 by the bishop. The Courts were essentially popular, verdict 
 
BEFORE THE NORMAN CONQUEST ( 1066). 3 
 
 (and probably sentence) being awarded by the popular vote. 
 As to the law therein administered, it seems to have been 
 mostly customary, varying-, especially in civil causes, in 
 different localities. 
 
 From the " Dooms," as the laws of the Saxon kings were 
 called, it can be gathered that the jurisdiction of the Courts 
 was local Alfred hanged a judge for trying and sentencing 
 a man for a crime committed in another jurisdiction that 
 there was an appeal to the king on a denial of justice 
 (./Ethelstane) ; that the sheriff's tourn was held once a 
 month; that tithes were enforceable at law; that all those 
 attending the Shire Court were sworn to do justice; that 
 compurgation and ordeal (see pp. 7 et seq., infra) were the 
 modes of trial ; that certain land (bocland) was transferable 
 by written charter; that wills were established; that all 
 legal transactions were to be done before some sworn men 
 of the hundred, so that they might be ready to try any sub- 
 sequent disputes. The last provision is, by some, thought 
 to be the remote ancestor of the jury system. If necessity 
 arose, these witnesses were sworn in the Hundred or Shire 
 Court, and practically decided the dispute on their own 
 knowledge. 
 
 In addition to these matters, there was established (by 
 Alfred) a system of frankpledge, by which all persons within 
 the law (i.e. not outlaws) were compelled to band together 
 as mutual pledges. Every ten men formed a tithing, 
 mutually responsible to deliver up to justice any of the 
 number charged with a crime; and ten of these tithings 
 formed a hundred, under the same kind of responsibility. 
 If a member of a hundred committed crime, and his 
 fellow-members could not produce him to take his trial 
 at the Shire Court, the whole hundred was amerced in 
 a fine. 
 
 Besides the Courts already mentioned, there were others 
 of a private nature, held by thanes within their own land. 
 Within such land, the administration of justice was abso- 
 
4 THE STUDENT'S LEGAL HISTORY. 
 
 lutely in the hands of the lord ; though, possibly, the Shire 
 Court had a kind of appellate jurisdiction. It appears, 
 however, from the laws of ^Ethelstane, 1 that there was an 
 appeal to the king; but whether this right was first estab- 
 lished by that king, or whether it was merely an assertion 
 of existing law, is not known. 
 
 It is stated, by Blackstone, Reeve, and others, that 
 Edward the Confessor compiled a code ; but this is doubtful 
 (Finlason's note to Reeve, vol. i. p. 44, 2nd edition). It is 
 certain that William the Conqueror, Henry I., and Stephen 
 promised to adhere to " the Confessor's laws " ; but this may 
 mean merely the laws which obtained in the Confessor's 
 time not any body of law promulgated by him. 
 
 Treason. One piece of legislation to be found amongst 
 the Dooms of the great Alfred is of considerable historical 
 value. It is an enactment on the subject of treason, and by 
 it any one who " plots to take the king's life either himself, 
 or by harbouring the king's men " (i.e. those outlawed by 
 the king), is declared liable to forfeit " his life and all that 
 he has." The word "treason" is of Norman origin, but 
 the foundation of the present law was thus laid as early as 
 the reign of Alfred. 
 
 The Saxon Land Laws. We discover, from a study of 
 such records as still remain to us, that the Saxon system of 
 land laws was a simple one. Opinions differ as to whether 
 tenures (see post, p. 11) were known to the Saxons. Coke, 
 Selden, and others think that they were. The opinions of 
 Hale, Spelman, and the auctores diverse? scholce are on the 
 other side. Blackstone adopts a middle opinion, and says 
 that there were no real tenures, but only holdings very like 
 tenures, before the Conquest. This much may with certainty 
 be said, that the land was subject to the trinoda necessitas 
 
 1 It is very doubtful whether these are genuine. 
 
BEFORE THE NORMAN CONQUEST ( 1066). 5 
 
 (threefold burden) of military service, construction of for- 
 tresses for the defence of the country, and construction of 
 bridges. Some land, called bocland (bookland), i.e. land 
 granted to the grantee by written instrument, called 
 gewrite, was hereditary; but probably no other kind. It is 
 submitted that the trinoda necessitous has been confounded 
 with the services to the lord, which are the keynote of the 
 feudal system of tenures. 
 
 Socage. Undoubtedly freeholders, or socmen, existed in 
 Saxon times, but their socage right was one of absolute 
 ownership of the land, and the Norman kings, as will be 
 shown hereafter, 1 retained only the name of socage, but 
 altered the substance. 
 
 Modes of Conveyance. It is the general opinion amongst 
 legal historians, 2 that the Saxons used deeds of conveyance 
 of land; the use of the word " &0oland " certainly indicates 
 something of the sort; and as veiy few people could write in 
 those days, in all probability the sealed deed came early into 
 use. Indentures i.e. deeds written in duplicate on the same 
 parchment, and then cut through with a knife, so as to make 
 two parts, each with an indented edge were also known, 
 but the word " indenture " does not seem to have been used. 
 Sealing deeds with wax is said to have been introduced by 
 Edward the Confessor from Normandy. At all events, it is 
 a legal custom existing in the country before the Conquest. 
 
 Livery. But land could be conveyed without charter or 
 writing, so long as "lawful men" of the hundred were 
 present as witnesses. From this verbal conveyance, no 
 doubt, is to be traced " livery of seisin," which was a 
 symbolical ceremony accompanied by words of gift in the 
 presence of witnesses. The conveyer (afterwards called the 
 
 1 Infra, p. 12. 
 
 2 Bee Beeves' Hist, of Eng. Law, vol. i. p. 21 (2nd edition). 
 
6 THE STUDENT'S LEGAL HISTORY. 
 
 feoffor) put into the hand of the conveyee (feoffee) a clod 
 of earth or a twig, and said words to this effect : " I liver 
 this to you in the name of seisin of Whiteacre [describing 
 it] to have and to hold to you and your heirs for ever [or 
 heirs of the body, or as the case Tnay fee]." The name 
 livery of seisin is Norman. 
 
 Dower. It is probable that dower was a Saxon institu- 
 tion. As we know it, it is the right of the wife in her 
 husband's estates of inheritance after his death; but the 
 Saxon institution was in the form of an express gift by the 
 husband to the wife immediately before or after the 
 marriage. If the husband did not specify any particular 
 part of his lands as dow r er, the wife took one-third. (See 
 p. 13 for development of the law of dower.) 
 
 Curtesy, or the interest of a widower in his deceased 
 wife's lands, may have been of Saxon origin also. It is 
 always called tenens per legem Anglice, or tenancy by the 
 curtesy of England, and this would seem to indicate for the 
 custom an English origin. 
 
 The King's Peace, a term extensively used by early 
 criminal lawyers, and even to the present time, comes to us 
 from the Saxons. The origin of it is to be traced to the 
 notion that a stranger who broke the peace of a house must 
 make atonement to the head of that house. We find the 
 same idea even now current in society; for it is considered 
 a gross social offence for a guest to insult his host; and an 
 injury is thrice aggravated if done to you in your own home. 
 In Saxon times, he who offered violence to another in the 
 king's house was considered so gross an offender, that his 
 life was forfeit to the king; and it was only by the royal 
 grace that he escaped by paying a wite, or fine. 
 
 The first extension of the Pax Regis beyond the royal 
 residence was by a proclamation that the king's peace 
 
BEFORE THE NORMAN CONQUEST ( 1066). 7 
 
 should be observed in all the land during the week of 
 the coronation, and at Christmas, Easter, and Whitsuntide 
 every year. The next step was, that the king could pro- 
 claim his peace in any particular locality. Offences 
 against the king personally, e.g. treason, were always 
 breaches of his peace. 1 
 
 Modes of Trial. The Saxon modes of trial were Corn- 
 purgation and the Ordeal. Computation was this : any one 
 sued in a civil action, or accused of crime, could bring 
 eleven men of the hundred to swear on his behalf that they 
 believed his account of the case. In matters of contract or 
 conveyance, as I have indicated (supra, p. 6), witnesses 
 were necessary to the validity of the transaction, and prob- 
 ably these, or some of these, formed some of the com- 
 purgators. In cases of tort or crime, it is probable that the 
 witnesses of the affair (if any) would be included in the 
 number of the compurgators called by the complainant or 
 the defendant; but save to this extent, they seem to have 
 been very much like witnesses to character. 
 
 Ordeal was the essentially Saxon method of proving facts, 
 and it consisted, after the manner of those times, in an 
 appeal to the supernatural. The person accused first 
 solemnly swore to his innocence. He then had to undergo 
 one of three tests, the ordeal by water, the ordeal by fire, or 
 the " accursed morsel. 3 ' One put to the fire ordeal had 
 either to grasp with his hand a red-hot iron, or to walk bare- 
 foot over burning plough-shares. The scarred and blistered 
 members were bound up by a priest, with some ointment 
 consecrated for the purpose; and if the scars were healed at 
 the end of three days the sufferer was innocent. If not, he 
 was guilty. Of the water ordeal there were also two forms : 
 hot water, when the accused plunged his arm into boiling 
 water, and was treated in the same manner as in the ordeal 
 
 1 " The King's Peace " is dealt with more fully infra, Chap. X. 
 
8 THE STUDENT'S LEGAL HISTORY. 
 
 by fire ; and cold water, when he was tied hand and foot and 
 thrown into a pond or river. If he floated he was guilty; 
 if not, he was innocent. 
 
 The accursed morsel was a piece of hard, dry bread, 
 specially consecrated by the priest. The accused first called 
 on the Deity to make the bread stick in his throat if he 
 were guilty; and then proceeded to eat the morsel slowly 
 If he swallowed it freely he was innocent; but should he 
 choke in any way he was guilty. Numerous instances are 
 cited by old writers of the efficacy of this mode of trial, and 
 it is not improbable that a perjured man, extremely super- 
 stitious, would find the "accursed morsel" very hard to 
 swallow. The great Earl Godwin is said to have been 
 choked in this way. 
 
 Wager of Law. Compurgation was never formally 
 abolished ; and survived, under the name of Wager of Law, 
 in actions of debt until 1833, when it was abolished by 
 3 & 4 Will. IY. c. 42. 
 
 Punishments and Penalties. No account of the Saxon 
 jurisprudence would be even approximately complete with- 
 out some description of their system of punishments and 
 penalties for crimes and wrongs. Let us first explain the 
 phraseology of the time : 
 
 Wer was the pecuniary value set on a man's life, increas- 
 ing with his rank. It was also the measure of the fines 
 payable by him for his own offences; for as the life of an 
 earl was more precious than that of many choerls, so his 
 offences were the more grave. 
 
 Wite is the usual word for a penal fine payable to the 
 king for a breach of his peace. 
 
 Bot is a more general term, expressing compensation of 
 any kind for a wrong done. By Alfred's Law of Treason 
 that offence was made botleas (^bootless), i.e. incapable of 
 being compounded for by a money payment. In a special 
 sense, hot was used to mean the compensation to be paid to 
 
BEFORE THE NORMAN CONQUEST ( 1066). 9 
 
 the injured party; as distinguished from the wite payable 
 to the king. 
 
 Outlawry. The early English punished crime by out- 
 lawry, which was a negative, not a positive, punishment. 
 The offender was merely declared to be outside the protec- 
 tion of the laws he had broken; and being " out of the law " 
 he became a " wolf's head " whom any one could kill. To 
 outlawry succeeds 
 
 The blood-feud. Here the offender was only left unpro- 
 tected by the law as against those who had suffered by his 
 misdeed not as against the world at large as in outlawry; 
 and to blood-feud succeeds 
 
 The Bot, the Wite, and the Wer. It is a notable feature 
 of the Anglo-Saxon law, this assessment of all criminal 
 wrongs at a price in money. A complicated tariff was 
 formed every wound had its price: for a broken arm so 
 much, for a damaged leg so much; even life had its price, 
 for the slayer must pay to the relative the iver of the slain 
 man. The wite was a compensation to the king for having 
 broken his peace ; and only in rare instances did the majesty 
 of the law demand punishment instead of compensation. 
 
10 THE STUDENT'S LEGAL HISTORY. 
 
 SUMMARY. 
 
 1. Property: 
 
 (a) In the law of property there seems to have been 
 
 little distinction between land and moveables. 
 Property in land was allodial, that is, in full ownership. 
 
 (b) The inheritance was divided amongst all the 
 
 children. 
 
 (c) A kind of dower and curtesy were in vogue. 
 
 2. Criminal Law : 
 
 (a) The king's peace was established in a limited form. 
 
 (b) Distinction between crime and tort was not well 
 
 established. A fine must be paid to the king 
 for breaches of his peace. All injuries to private 
 persons could be compounded for by paying bot. 
 
 3. The Courts of Justice were all local. 
 
 4. Procedure: 
 
 (a) Sworn recognitors " presented " criminals for trial. 
 
 (b) All issues of fact were tried by compurgation or 
 
 ordeal. 
 
CHAPTER II. 
 
 WILLIAM I. TO HENRY III. (10661272). 
 
 FROM this time more records of legal progress are extant; 
 but during the whole time the country was in an unsettled 
 condition, and it is difficult, therefore, to be exact. 
 
 Tenure of Land. The first thing to be noted is the 
 introduction of the theory of tenure of land, and of the 
 
 feudal system. By theory of Law in England to this day 
 all land is holden either directly or indirectly of the Crown. 
 The theory may be described thus : all lands belongs to the 
 king; no subject can be the owner of a single acre, but he 
 can be a tenant (holder) ; the king grants land to his tenants, 
 who are called tenants in capite, and the tenants in capite 
 owe him services in return; the sovereign's tenants may 
 now subinfeudate to other tenants who hold on similar terms 
 of their immediate lord, but all owe allegiance and homage 
 to the king as lord paramount. Hereditary tenures were 
 made the rule, and tenure by knight-service was established. 
 As to the particular kinds of tenure established by the 
 Conqueror, they can be divided into two classes, free and 
 servile. The free tenures were again of two kinds, those 
 held by the rendering of certain, and those by uncertain 
 services. Servile tenants also held either by certain or 
 uncertain services. 
 
12 THE STUDENT'S LEGAL HISTORY. 
 
 Military Tenure. The free but uncertain tenures were 
 
 knight-service, grand serjeanty, and petit serjeanty (see 
 p. 193). Although the services here were uncertain, they were 
 riot unlimited. For instance, a tenant by knight-service 
 was bound to serve the lord in war, for forty days a year, if 
 called upon; he might never be called upon, so that his 
 service in this respect was uncertain, and it was always 
 uncertain when he would be called upon. But he was not 
 compellable to serve more than forty days. 
 
 Socage. Free and certain tenure was generally payment 
 of a fixed rent in money. The Domesday Book, in the 
 dog-Latin of the period, calls these tenants socmanni, or 
 tenants in socage. 
 
 Villeinage: 1. Privileged. Servile but certain tenure 
 
 was called privileged villeinage. The tenants were bound 
 to render services of such a kind as, for instance, ploughing 
 or manuring the lord's land for so many days in the year. 
 From this kind of tenure is descended the modern copyhold 
 (see p. 42). 
 
 Servile and uncertain tenure was where the tenant was 
 bound to do whatever the lord ordered him to do. In the 
 words of an old writer, "he knew not at night what he 
 should do in the morning," and was practically a serf. The 
 tenant in villeinage, whether pure or privileged, was, 
 during the whole of the period now under consideration, 
 merely tenant at will of the lord. How he obtained fixity 
 of tenure will be told in a subsequent page (p. 42). 
 
 Tenants in Capite. The great land-holders held directly 
 of the Crown, and they in their turn subinfeudated, that 
 is, granted out the land to their various tenants. The lord 
 was called mesne-lord, and the whole of his holding, 
 together with the waste lands, manors, rights of jurisdiction 
 over his tenants, and of advowson, &c., were comprised in 
 
WILLIAM I. TO HENRY III. (10661272). 13 
 
 the term manor. The learned Editor of Reeves' History of 
 English Law expresses a strong opinion that the manorial 
 system existed before the Conquest; indeed, he goes so far 
 as to say that the Saxons found it established here as it had 
 been left by the Romans. This view is founded on the 
 analogy between the Roman Colonia and the manor as we 
 know it from Domesday Book; but the opinion is not of 
 great value, and the analogy is remote. 
 
 Distress. The right of distraining or impounding goods 
 of a wrongdoer was known to the Saxons, but it is in 
 Norman times that the right was restricted to that of dis- 
 training on the goods of a tenant for non-performance of 
 the services upon which he held his tenements. The Statute 
 of Marlebridge regulates the law of distress, and it is from 
 this time that we must date the modern distress for rent. 
 It should be noticed, however, that the goods distrained 
 could not be sold, but only detained (see p. 104). 
 
 Dower. The subject of dower in the time of the Saxons 
 has been dealt with in a previous page (p. 6), and we have 
 seen how at that stage of the law dower depended on express 
 gift. 
 
 At the time of Glanville (Henry II.), dower still de- 
 pended upon express gift, and was quite in the power of the 
 husband, for he could sell or alien his wife's dower in any 
 way he pleased with her assent. Moreover, she only took 
 her dos in such lands as the husband had the seisin of at the 
 time of the marriage, but the wife could not alienate her 
 dower. If the widow was wrongfully deprived of her dower 
 she had a real action called writ of right of dower. If she 
 was kept out of the whole of it she had the writ of dower 
 unde nihil habet. It is not certain when the wife obtained 
 the right to dower independently of any endowment by her 
 husband, but probably about the time of Henry III. the law 
 on this subject was almost the same as it was in 1843, 
 
14 THE STUDENT'S LEGAL HISTORY. 
 
 namely : that a widow lias the right to one-third of her hus- 
 band's lands of which he was seised during the coverture, 
 unless he provided for her by giving her a jointure or agreed 
 part of his freeholds. Magna Charta, c. 7, declares " for 
 her dower shall be assigned unto her the third part of all 
 the lands of her husband which were his during the 
 coverture, except she were endowed of less at the church 
 door." Until the Statute of Marlebridge the dower was 
 forfeited if the widow were unchaste, but that Act (52 
 Hen. III. c. 7) altered the law in this respect. 
 
 The Curtesy of England. Tenancy by the curtesy 
 
 appears to have been established law in the time of 
 Bracton (Hen. III.), for he gives a summary of the law 
 practically as it exists at the present time. He says, " if 
 any one has married a wife who had an estate of inherit- 
 ance, and they had children born of the marriage, and the 
 wife predeceases the husband, the inheritance shall remain 
 tc the husband for life, whether any or all of the children 
 are surviving or are dead." 
 
 Descent and Succession, and Testamentary Disposition. 
 
 To this period also belongs the origin of our present rules of 
 descent, our law of testamentary disposition of personalty, 
 and our rules of succession to personalty ab intestato. 
 
 Realty. It is doubtful whether, before the Conquest, 
 wills of land were legal. William I. declared all lands to 
 be held jure hereditario, by hereditary right ; and it seems to 
 have been held upon this, that the tenant could not defeat 
 the right of his heirs by alienation either inter vivos or by 
 will. But the rules of descent, and particularly the rule 
 of primogeniture, were of gradual introduction. It seems to 
 have been common, before the reign of Henry II., for land 
 to be divided equally amongst children, but in that reign 
 it became settled law that the inheritance of feudal lands 
 
WILLIAM I. TO HENRY III. (10661272). 15 
 
 should go in all cases to the eldest son, though, as it appears 
 from the arguments put forward in support of John's claim 
 to the Crown, the doctrine of representation (i.e. that the 
 son of an elder son should succeed to the place of such elder 
 son on the latter's decease) was not settled law. Glanville, 
 writing in temp. Henry II., gives it as a doubtful point. 
 There are numerous instances, more or less well authenti- 
 cated, to show that before the time of Henry II. it was 
 customary for the eldest son to take the principal fee of his 
 deceased father, the next son taking the next best fee, and 
 so on ; and it was by an argument based on this view of the 
 law that William II. succeeded to the English Crown, while 
 his elder brother Robert took the dukedom of Normandy. 
 The rule of the succession of all children to socage lands 
 continued to the time of John, when it gave way in favour 
 of the law of primogeniture. 
 
 Succession to Personalty. By the Charter of Liberties 
 (sect. 7) issued by Henry I. at his coronation (1100), it was 
 enacted that testamentary disposition of personalty was not 
 to be interfered with, showing that this was only a statutory 
 confirmation of the common law. The same charter also 
 declared that the personalty of an intestate should be 
 divided amongst " his wife, or children, or kin, or lawful 
 men." We find a similar provision in Magna Charta (cap. 
 26) as to the property of intestates. These rules are sub- 
 stantially the same as those of the present day, save so far 
 as they were altered by the Statutes of Distribution (see 
 pp. 86 et seq.) and by the Intestates Estates Act, 1890. 
 
 Alienation of Land. It may also be noted that in the 
 period under consideration it was a moot point whether or no 
 a fee could be alienated inter vivos. The authorities seem 
 to establish this point : A father could not alienate his land. 
 According to some, he might alienate all his purchased 
 land, but not a fee which he had inherited. According to 
 
16 THE STUDENT'S LEGAL HISTORY. 
 
 others, lie must not alienate even all his purchased land, so 
 as to leave his eldest son without any. Others, again, said 
 that the father could alienate a reasonable part of his 
 inherited land. Magna Charta (cap. 39 of the edition of 
 1217) prohibits alienation of land by a freeman, " but so 
 that of the residue of the land he may sufficiently render to 
 the lord the service due to him which appertaineth to the 
 fee." 
 
 Mortmain. Magna Charta also contains the germ of the 
 law of mortmain * in the following passage : " It shall not 
 be lawful ... to give lands to any religious house. . . . 
 Nor shall it be lawful to any religious house to take the 
 lands of any and to lease the same to him. ... If from 
 henceforth any so give his lands . . . the gift shall be 
 utterly void, and the land shall accrue to the lord of the 
 fee." (Cap. 43.) 
 
 Centralized Justice. William the Conqueror centralized 
 the administration of justice. The English local Courts 
 were left standing, nominally without curtailment of their 
 former powers. But the king gave to his Curia, or Council, 
 original civil and criminal jurisdiction over all matters, and 
 suitors frequently preferred to come to the Curia because it 
 was a body unbiased by local influence and prejudices : and 
 it had, moreover, what the Hundred and County Courts fre- 
 quently had not the power to enforce a judgment against a 
 powerful wrongdoer. (See also Chapter VIII.) 
 
 Rise of the Three Common Law Courts: Henry II. 
 Before the end of this period, the three Common Law 
 Courts had been fully formed; and the members of the 
 justiciary separated definitely from the main body of the 
 Council. By Magna Charta, the Court of Common Pleas 
 
 1 See also for law of Mortmain, infra, p. 40. 
 
WILLIAM I. TO HENRY III. (10661272). 17 
 
 ceased to follow the King's Court, and became stationary at 
 Westminster. (See Chap. VIII.) 
 
 Justices in Eyre : Assizes. Another most important legal 
 change, leading more, perhaps, than any other thing to 
 uniformity of law throughout the kingdom, was the institu- 
 tion of a system of itinerant justices. (Justices in Eyrv, 
 from Itinera.) These travelling judges were first sent on 
 circuit by William I. They were appointed from time to 
 time by royal commission, and any person could be sent by 
 the king; but as a rule, in order, it is supposed, to give 
 greater authority, and that their decisions should command 
 more respect, justices of the Curia Regis were sent. The 
 Eyre, or journey, of each of the judges generally lasted for 
 seven years ! At first, the criminal jurisdiction of the local 
 Courts (Sheriff's Tourn) was left untouched, save that when 
 a Justice in Eyre was within the county, he and not the 
 sheriff presided as judge. The circuits were, in the begin- 
 ning, irregular. By the Assize of Clarendon (Henry II., 
 1166), the law relating to the itinerant justices was some- 
 what regulated. Inquests were to be held by twelve lawful 
 men of each hundred and four of each township into 
 robberies, murders, thefts, and other crimes; and the 
 criminals to be presented to the Justices in Eyre and the 
 sheriff for trial. The Assize of Northampton, ten years 
 -later, directs the itinerant justices to hold assizes of mart 
 d' ancestor and novel disseisin (actions to try title to land), 
 to exact the king's dues from half a knight's fee and under, 
 and to make inquiry concerning escheats, churches, and 
 lands in the gift of the king. From this it appears that the 
 Justices in Eyre had the same jurisdiction as the three 
 Common Law Courts, except that their Exchequer jurisdic- 
 tion was limited to half a knight's fee. 
 
 Magna Charta (1216) still further altered and improved 
 the law. By cap. 23, sheriffs, constables, coroners, and all 
 bailiffs of the king were forbidden to hold pleas of the 
 
 S.L.H. 2 
 
18 THE STUDENT'S LEGAL HISTORY. 
 
 Crown. In this manner Criminal jurisdiction was reserved 
 almost exclusively in the hands of the justices. Moreover, 
 circuits were fixed and made regular, for it was provided by 
 sects. 18 and 19 that two justices should be sent to each 
 county four times yearly, and should there hold assizes of 
 novel disseisin, darrein presentment, and mort d'ancestor. 
 While in the county on this business, they would, and did, 
 try all criminals presented to them by the various present- 
 ment juries of the hundreds. 
 
 There is other legislation of this period relating to this 
 subject : e.g. the Statute of Marlborough (1267) declares 
 death by misadventure not cognizable by the justices, thus 
 marking off their jurisdiction from that of the coroner. 
 
 Separation of Ecclesiastical and Civil Jurisdiction. 
 
 Immediately after the Conquest, the ecclesiastical and civil 
 jurisdictions became separate. The County Courts ceased to 
 decide matters of ecclesiastical law, the jurisdiction being 
 vested in the archdeacon and the bishop of the diocese. The 
 Ecclesiastical Courts took cognizance of suits affecting the 
 validity of marriages, legitimacy, payment of church dues, 
 wills (Henry II.), heresy and schism, validity of holy orders 
 and the like, suits between clerks, and in the time of 
 Henry II. usurped exclusive jurisdiction over all cases, 
 whether civil or criminal, in which one of the parties was a 
 clerk. The Constitutions of Clarendon (1164) regulated the 
 jurisdiction of these Courts. Disputes as to advowsons and 
 presentations were not to be decided there, nor disputes be- 
 tween clergy and laity as to the tenure of land, nor pleas of 
 debt. The appeal to Rome was taken away; but this clause 
 was entirely disregarded, and the appeal to the Pope con- 
 tinued down to Henry VIII. To this separation of the 
 ecclesiastical and civil jurisdictions is due the fact that our 
 law relating to wills of personalty, to divorce, and to validity 
 of marriages, is, in the main, canon law, though it has been 
 modified recently by statute. (See pp. 154 et alia.} One 
 
WILLIAM I. TO HENRY III. (10661272). 19 
 
 thing in this connection is notable. The clergy wished to 
 introduce into England the canon law of legitimation per 
 subsequens r matriinoniu r m\ but at a Great Council held in 
 the reign of Henry III. the barons refused to alter the 
 common law, which did not allow any child to be legitimate 
 unless born in lawful wedlock. The spiritual Courts, having 
 jurisdiction to pronounce upon the validity of testaments of 
 personalty (there were no wills of realty), soon acquired the 
 right to decide in cases of intestacy, and thus arose the 
 power of granting letters of administration. Magna Charta, 
 sect. 27, gives the personalty of intestates to the next-of-kin, 
 under the supervision of the Church. In the reign of 
 Henry III. they also established the right of pronouncing 
 upon questions of legacies. 
 
 The Common Law is post-Norman. By the Common Law 
 is meant the law administered by the King's Courts as 
 distinguished from the various local customs administered 
 by the older Saxon tribunals. It had its origin in the King's 
 justices. What practically happened was this a man who 
 had a grievance applied to the Chancery, which was the 
 official department of the Curia, for a writ to be directed to 
 his adversary. If such a writ was granted the parties came 
 before the justices, and the justices then decided whether or 
 not they would grant relief. In such decision they really 
 consulted their own notions of justice, or perhaps it would 
 be better to say, equity, with a reference to the whole Curia 
 when in doubt. In fact, the history of writs is the history 
 of the Common Law, for the writ precedes the judgment, 
 and the judgment is the law. As in every other business, 
 custom was formed by practice : so that it is true to say, 
 " The custom of the King's Court is the custom of England 
 and becomes the Common Law." l To assist the determina- 
 tion of questions, the justices who knew the canon law and 
 the law of Rome frequently applied its principles, where 
 
 1 Pollock and Maitland, vol. i. p. 163. 
 
20 THE STUDENT'S LEGAL HISTORY. 
 
 such principles were not adverse to any assize or proclama- 
 tion of the King- and Council, or to any practice of the Court. 
 Common Law is, in fact, judge-made. Some forms of writ 
 soon became of general use, and were granted as of course 
 (writs de cursu); and we find that in Henry III. (1258) it 
 was resolved or enacted that the clerks in Chancery should 
 only issue these writs de cursu, that is, that they should stop 
 inventing new writs, which meant extending the law. The 
 consequence was a crying evil, and the enactment of the 
 statute In Consimili Casu a few years later. 1 The reader 
 should, however, bear in mind the fact that every new writ 
 practically meant an addition to the Common Law of 
 England ; and when we find, as in the Statute of Gloucester, 
 that a writ of waste is to be granted against limited owners, 
 it is only expressing in another way the fact that devasta- 
 tion of land by such owners was made a wrong as against 
 remaindermen. 2 But from Edward I. the Common Law 
 became less flexible. 
 
 The King's Peace. The Saxon theory of the King's 
 Peace was allowed to remain by the Conqueror, and was 
 extended by him. Either at his coronation, or shortly after, 
 the whole country was put under the Pax Regis. The 
 consequences were very great and far-reaching, for it became 
 an offence against the Crown for anyone to commit an act 
 of violence within the realm. When such an act was com- 
 mitted the king was entitled to prosecute the offender, who 
 could not in that case claim the combat, because he could 
 not offer to fight the king his adversary. The term Pleas of 
 the Crown was applied to these cases, and we find in Magna 
 Charta a clause prohibiting sheriffs, bailiffs, and other 
 inferior officers holding pleas of the Crown. It must not 
 be thought that all criminal jurisdiction was taken away 
 from these persons, because there were some crimes not 
 
 1 Infra, p. 45. 2 Infra, p. 43. 
 
WILLIAM I. TO HENRY III. (10661272). 21 
 
 breaches of the peace; and in any case the person injured 
 had his remedy by " appeal," 1 in which the object was the 
 recovery of bot. 
 
 Criminal Law. The criminal law in Norman times was 
 simple, and very much the same as now, except that there 
 was a strong inclination to impose the capital penalty for 
 offences now regarded as slight. The law of murder, and 
 other kinds of homicide, of rape, assault, robbery and theft, 
 were practically the same as the law of England to-day. 
 
 Treason. There were very stringent laws known as 
 " Forest Laws," imposing heavy penalties for killing the 
 king's deer; and the law of treason was, by the subtle inter- 
 pretation of Norman lawyers, and the introduction of the 
 civil idea of Icese-majeste, altered very much from the 
 simple law of Alfred. Norman lawyers began with the idea 
 of the feudal tie between the lord and his vassal, and, as the 
 king was the overlord of everyone in the country, they 
 were inclined to treat all offences personally distasteful to 
 royalty as treason. One of them held, about the time of 
 Henry II., that it was treason to kill the king's deer. It 
 was also held treason to have illicit connections with the 
 king's wife, or the wife of his eldest son; and, speaking 
 generally, during the period under consideration, the law of 
 treason varied very much according to the prejudices of the 
 reigning sovereign and the sturdiness or flexibility of the 
 judge who tried the case. Treason was then a very 
 uncertain offence, and it remained so for a considerable 
 period. (See p. 48.) 
 
 Criminal and Semi-criminal Procedure. As in the Saxon 
 period, the detection of crime and the arrest of the offender 
 was left a good deal in private hands. Anyone who 
 
 1 See p. 31. 
 
22 THE STUDENT'S LEGAL HISTORY. 
 
 captured a person accused of crime took him to the sheriff or 
 hundred reeve, and the latter imprisoned him until the time 
 of the next sheriff's tourn or the next visit of the justices. 
 But it might happen that the sheriff would refuse to bring 
 up the prisoner to be tried at the next tourn, or it might 
 happen that between the visits of the king's justices a long 
 interval will elapse. It was contrary to the principles of 
 law maintained by our ancestors, and eloquently, though 
 tersely, expressed in the Great Charter, for justice to be 
 delayed. There were, it appears, four kinds of writs 
 invented to protect the liberty of the subject by securing 
 that in no case should he remain long in prison without 
 being brought to trial. These writs were all invented dur- 
 ing the period of the Norman and early Plantagenet kings. 
 They were the writ de odio et atia, issued out of the king's 
 bench to the sheriff, commanding him to hold an inquiry 
 whether a prisoner in custody on charge of murder was com- 
 mitted upon reasonable suspicion or only for malice (propter 
 odium et atiam), and if he found the latter, to admit him to 
 bail. By the Great Charter (cap. 36), it is provided that 
 the writ of inquest of life or limb shall be given gratis and 
 not denied, a provision generally supposed to refer to the 
 writ de odio. 
 
 Main Prize. There was also a writ of main prize sent in 
 like manner to the sheriff, directing him to take pledges for 
 the prisoners; there was* a difference between main prize 
 and bail in that the former was always in a fixed sum, while 
 the latter was not always so. Again, in the case of main 
 prize, " he that is delivered is out of custody, but he that is 
 bailed is in supposition of law still in custody." 1 The two 
 other writs of this kind were de homine replegiando, which 
 was a writ addressed to the sheriff commanding him to 
 " re-pledge," or take bail, for a prisoner in his custody, and 
 
 1 Hale, P. C. H. p. 125. 
 
WILLIAM I. TO HENRY III. (10661272). 23 
 
 also the high prerogative writ of habeas corpus cum causa 
 (commonly called habeas corpus). 
 
 The effect of the last-mentioned writ was somewhat 
 different from that of the other three. They were directed 
 to the sheriff commanding him to accept bail or pledges. 
 The habeas corpus was directed to the jailer, and ordered 
 him to bring up the body of the prisoner, with the cause 
 of his detention, to the Court of King's Bench, so that the 
 judges might determine whether the imprisonment was 
 lawful or no, and if it was lawful whether the prisoner 
 ought or ought not to be allowed bail. No instance of a 
 writ of habeas corpus is to be found until Edward I., but, 
 as it is evident that the writ was then not a novel one, it 
 is not unreasonable to suppose that the common opinion 
 which traces the safeguard of liberty back to Magna Charta 
 is the correct one. Tradition is of ten 'unreliable, especially 
 in the study of legal history; but this one may claim the 
 support of Coke, Mackintosh, and, indeed, of almost every 
 respectable historian who has written on the subject. 1 
 
 Bail. But although in theory of law no free man could 
 be long imprisoned without trial, in fact it was far other- 
 wise. Bail was an indefinite term, and we have it on the 
 authority of Glanville's De Corona that the sheriff had a 
 discretion in regard to bailing accused persons, and there 
 seems to have been no check upon him to prevent him 
 demanding unreasonable or excessive bail. 
 
 Punishments: Crimes and Torts. In the early days of 
 the Norman kings the wer, the wite, and the bot, 2 ran side 
 by side with punishments of death and mutilation; but 
 from our earliest judicial records we find that iver had been 
 altogether abolished, and that wrongs were looked on from 
 two points of view : (1) the public wrong, or breach of the 
 
 1 For a fuller account of the Law of Habeas Corpus, see infra, pp. 90 et 
 seq., 114 et seq. 
 
 2 Supra, p. 8. 
 
24 THE STUDENT'S LEGAL HISTORY. 
 
 king's peace; and (2) the private wrong, or loss to the in- 
 dividual. As early as Glanville it was settled law that no 
 compensation could be made by a homicide to the relatives 
 of the slain. And from this time the distinction between 
 crime and tort began. A crime was a breach of the king's 
 peace, a disturbance of the order of good government, pro- 
 secuted by the Crown, and in the name of the Crown, 
 though at the instance of a private accuser; hence criminal 
 cases were called Pleas of the Crown. A tort was a wrong 
 committed against an individual; the same act might be a 
 crime, but not necessarily so; if it were, it must be tried 
 separately, and any penalty imposed for the crime was quite 
 distinct from the compensation payable to the individual 
 sufferer. It is from Henry III. that we must trace the 
 final separation of tort from crime, for in that reign was 
 invented the writ of trespass, which issued either for an 
 invasion of another's property or a violation of his right 
 of personal security. Thus, to walk on your neighbour's 
 land was trespass. To assault and batter him was trespass. 
 To seize his goods wrongfully was, trespass. And in the 
 writ of trespass it was always stated that the defendant had 
 acted vi et armis by force and arms. Thus the old idea of 
 a breach of the peace was still kept up, but although the 
 plaintiff alleged force and arms, he was not obliged to prove 
 that any force had been actually used. 
 
 Real Actions. The period from William I. to Henry III. 
 is the period when the "real actions" were established. 
 Real actions were those in which the plaintiff claimed the 
 res, and not merely damages for dispossession; and they 
 were five in number, namely : Writ of right, writ of entry, 
 assize of mnort d 9 ancestor 9 assize of novel disseisin, and 
 assize of darrein presentment. 
 
 Writ Of Right. The history of the writ of right, both as 
 to its origin and and as to its exact use, is wrapped in 
 
WILLIAM I. TO HENRY III. (10661272). 25 
 
 obscurity. It was, it appears, a writ issued out of the Curia 
 Regis at a very early period, and is supposed to date from 
 the reign of the Conqueror. It was of fairly long standing 
 at the time of Magna Charta, by c. 34 of which it is enacted : 
 " The writ called * praecipe ' shall not issue concerning any 
 freeman's free tenement whereby he shall lose his own 
 court." The writ of right was called " prsecipe " because 
 it was addressed to the sheriff in these terms : " Eex vice- 
 comiti salutem. Prcecipe A. (the defendant) quod sine 
 dilatione," &c. By " his own Court " is meant the Court of 
 the feudal lord. The lords were very jealous of the King's 
 Writs, which deprived them of their power over their 
 tenants. After 1216, tenants-in-chief only sued out the 
 writ in the Common Pleas. Sub-tenants could only sue 
 there either when the lord did not hold a court, or when he 
 gave permission to his tenant to sue in the King's Court a 
 permission which was very often taken for granted by the 
 judges of the Common Pleas. The writ of right was issued 
 to try title to freeholds not merely possessory title, and 
 trial thereon took place by duel or by sworn recognitors. It 
 had an infinite number of variations to meet different cases. 
 
 Writ of Entry. The writ of entry was similar to the 
 writ of right, except that it was only a claim of possession, 
 and this also was introduced before the time of Glanville 
 (Henry II:). How long before is not known, but the writ 
 is probably even older than the writ of right. 
 
 Assizes. Besides the writ of entry, there were three 
 other real actions, called assizes, to try the right of posses- 
 sion of freeholds. The assize of mort d' ancestor seems to 
 have originated in 1176 by the assize o3C Northampton, 
 cap. 4 : "Si dominus feodi negat haeredibus defuncti saisi- 
 nam ejusdem defuncti quam exigunt, justitise doniini regis 
 faciant inde fieri recognitionem per duodecim legales 
 homines, qualem saisinam defunctus inde habuit die qua 
 
26 THE STUDENT'S LEGAL HISTORY. 
 
 fuit vivus et mortuus . . ." * The assize of novel disseisin 
 (recent dispossession) is also mentioned in the assize of 
 Northampton (cap. 5), but in terms such as to indicate that 
 novel disseisin was then a known remedy, and not a new 
 one. The assize of darrein presentment is not mentioned 
 earlier than Magna Charta, but from the way it is spoken of 
 there it is justifiable to infer that it was in existence before 
 that time. It was a mode of determining the right of pre- 
 sentation to a living, and the inquiry was as to who made 
 the last presentment. Magna Charta (cap. 18) orders the 
 justices itinerant to hold assizes of novel disseisin, mort 
 d'ancestor, and darrein presentment four times a year in 
 each county. It will be observed that the assize takes the 
 form of an inquest by " twelve lawful men." 
 
 Real and Personal Property. It will be seen from this 
 account that the only cases in which a real action would lie 
 were those in which freeholders had been deprived of their 
 land. Hence the term " real " property came to be applied 
 to that kind of property which could be recovered by real 
 action, i.e. to freehold interests only. It is because no real 
 action would lie by a leaseholder to recover possession of his 
 leasehold that leaseholds were regarded not as realty, but 
 personalty. There can be little doubt that if long leases had 
 been in vogue at that period of legal history, as they are now, 
 real actions would have been given for their recovery; but 
 the earliest " term " was usually only for a year or two, and 
 it was not worth while to give a man such a great remedy 
 for so small a thing. Our present distinction, then, between 
 realty and personalty may be said to date from the Conquest. 
 
 Leaseholds. But although the freeholder was the only 
 person who had a right in rem in the land, the leaseholder, 
 
 1 Translation : "If the lord of the fee deny the seisin to the heir of 
 the deceased, let the king's justices make recognition by twelve lawful men 
 what seisin the deceased had on the day of his death." 
 
WILLIAM I. TO HENRY III. (10661272). 27 
 
 who held for a definite term of years, came in course of time 
 to have his possession protected. At first, if he were turned 
 out of possession, his only remedy was in an action for 
 damages. But Bracton l records a change, evidently made 
 in his own time, by which the lessee was allowed to have a 
 writ out of the King's Court to recover the land itself. The 
 action was in form personal, and not real, being for forcible 
 ejectment-, but the judges could order the wrongdoer to give 
 up the land, and so the effect was the same as a real action. 
 And the leaseholder had the advantage of a much quicker 
 procedure, less expensive, and not so tedious. At this stage 
 of the law a lease could be, and commonly was, by word of 
 mouth, even though it might be for a long term. 
 
 Personal Actions. Besides real actions there were per- 
 sonal actions and mixed actions, and in the time of Bracton 
 the division of actions into real, mixed, and personal was 
 fully established. Personal actions were, as far as can be 
 gathered from a study of the text, debt, detinue, trespass 
 m et armis, accompt, and covenant. 
 
 Debet et Detinet. In Glanville's time (Henry II.) debt 
 and detinue were one and the same action, in the name of 
 de-bet et detinet. The writ ran in this manner : " That the 
 sheriff should summon A. B. to answer to X. Y. in the sum 
 of 100 marks (or, for the two oxen), which the said A. B. 
 ought to give him, and unlawfully detains. " This action 
 would lie not only where A. B. owed X. Y. a debt, as, for 
 instance, for the price of goods sold, but also where A. B. 
 was in possession of chattels belonging to X. Y., and refused 
 to give them up, as, for instance, where A. B. had borrowed 
 a horse from X. Y., and wrongfully refused to return it. 
 In the time of Bracton the two actions were separated. Debt 
 would lie in respect of a certain or liquidated amount in 
 
 1 Bk. iv. c. 36, folio 220. 
 
28 THE STUDENT'S LEGAL HISTORY. 
 
 money, and was therefore an action of contract. Detinue 
 was brought only when the defendant wrongfully detained 
 the chattel belonging to the plaintiff, and refused to give it 
 up after lawful demand made. The action is therefore 
 primarily one arising out of delict, but it is easy to see how 
 the minds of the early lawyers confused the causes of action. 
 They did not see the difference between the man who had 
 refused to pay a debt due and a man who refused to give up 
 a horse that did not belong to him. They regarded the 
 debtor, in fact, as though he had been a man with another 
 person's money in his pocket, and refusing to give up that 
 money to its proper owner. The difference between actions 
 arising ex contractu and actions ex delicto was therefore not 
 strongly marked in the early law of England, and the recog- 
 nition of the difference by a separation of debt from detinue 
 marks a distinct stage of progress in English legal history, 
 and this distinction, as we have said, had been recognized as 
 early as the time of Bracton, if not before. 
 
 Covenant : Trespass. The action of covenant would lie to 
 enforce any promise or obligation under seal, and in this 
 case a defendant was not permitted to "wage his law," 
 while the action of trespass, or trespass m et armis, as it 
 was called, was the proper remedy for a multitude of wrongs 
 such as trespass to land (trespass quare clausum fregit = 
 trespass by breaking the close (enclosure) ), the wrongful 
 taking of goods, assault, battery, false imprisonment. All 
 these were called trespass. 
 
 Account. The writ of Accompt was issued in actions 
 against agents to make them account for the goods or money 
 received by them on the principal's behalf in the course of 
 the agency. The Statute of Marlebridge gave the principal 
 whose bailiff refused to account a summary remedy against 
 the bailiff's person; but the judges, construing the statute 
 strictly, refused to extend this process of committal to other 
 agents not bailiffs. . The procedure in the writ of Accompt 
 
WILLIAM I. TO HENRY III. (10661272). 29 
 
 was peculiar to itself. The accounts were not investigated 
 by the judge, but by auditors or compulsory arbitrators 
 appointed by the Court such auditors not necessarily being 
 officials of the Court. It is probable that from this proce- 
 dure the Chancellor in late times borrowed the idea of 
 referring all matters of account, and questions involving 
 long and minute inquiry, to his clerks and secretaries, the 
 old Masters in Chancery; and, to come to times still more 
 recent, the official referees of the High Court of Justice 
 have very much the same functions as the auditores formerly 
 appointed under the writ of Accompt. 
 
 Writ. The procedure in both real and personal actions in 
 the King's Courts was by writ (except in the cases tried by 
 assize). The word "writ" is of English origin, but the thing 
 is Norman, and, seems to have been introduced immediately 
 after the Conquest on the establishment of the Curia Regis 
 as a central court of law. In the Saxon days of local courts, 
 the plaintiff simply made a verbal complaint to the sheriff or 
 hundred reeve, or other local judge; but when cases were 
 taken up to the Central Court to be tried, the matter was 
 very different. The king's justices were obliged to secure 
 the attendance of the defendant by the help of the sheriff 
 of the county where he lived ; and as in travelling from the 
 Court to the sheriff, which might be the whole length of 
 England, a verbal message might easily have miscarried or 
 been misinterpreted, there was issued by the chancellor 
 (who then acted as a kind of secretary to the Curia), a docu- 
 ment containing a brief statement of the case set up by the 
 plaintiff, together with a command in the name of the king 
 to summon the defendant to appear and answer the com- 
 plaint made against him. 1 This document was officially 
 called breve (from Latin = short), but it soon received the 
 Saxon name of writ (writing), a name bestowed by the 
 
 1 See p. 146. 
 
30 THE STUDENT'S LEGAL HISTORY. 
 
 English to distinguish it from the verbal complaints still in 
 use in the local courts. 1 
 
 Pleadings. If we are to judge from Bracton, whose 
 treatise indeed seems the only reliable source of information, 
 in his time actions were tried in a roughly scientific way. 
 The plaintiff came into court and by himself or his attorney, 
 or advocate, stated his cause of action. To this the defendant 
 replied either taking objection on a point of law, or deny- 
 ing some or all the facts alleged. The plaintiff again 
 answered, and the defendant again replied, and so on, until 
 they had arrived at an exitus or issue, 2 an expression used to 
 indicate the fact that the parties had definitely arrived at 
 the point of difference between them it was no longer a 
 vague indefinite quarrel, but a dispute on a particular point. 
 In Brae ton's time the judges were very careful to separate 
 issues of fact from issues of law, the former being triable by 
 wager of law, or duel, or jury, and the latter by the judge 
 alone. Moreover, in order that the issues might not be con- 
 fused, a man was only allowed one, either of fact or of law. 
 He could not say : " I deny the plaintiff's facts, but I say 
 that, even if he is right in fact, he is wrong in law." He 
 had either to say : " the plaintiff is wrong in law," or " the 
 plaintiff is wrong in fact." He could not do both. These 
 verbal altercations between the parties preliminary to the 
 trial afterwards developed into a system of written pleadings. 
 
 Modes of Trial: Abolition of Ordeal. William I. left 
 standing the old Saxon modes of trial by ordeal and coin- 
 purgation, though before the end of the period under 
 consideration compurgation was beginning to fall into 
 desuetude, and the ordeal was abolished in 1218, after being 
 condemned by the Lateran Council in 1215. 
 
 1 In the old Norman-French reports, "writ" is translated " brief." 
 a Literally meaning "way out." 
 
WILLIAM I. TO HENRY III. (10661272). 31 
 
 Duel. The Conqueror introduced from Normandy the 
 Wager of Battle, or trial by duel, of which a spirited 
 picture is given by Sir Walter Scott in his novels of Ivanhoe 
 and The Fair Maid of Perth. 
 
 The Charter of William ran thus : " It is decreed that if a 
 Frenchman appeals an Englishman of perjury, or murder, 
 theft, homicide (manslaughter), or rape, the Englishman 
 may defend himself as he shall elect, either by ordeal or the 
 duel. But if the Englishman is infirm he may provide a sub- 
 stitute. The one who is vanquished shall pay sixty shillings 
 to the king. If an Englishman appeals a Frenchman, and 
 is unwilling to submit to the ordeal or the duel, the French- 
 man must clear himself by oath " (compurgation?). 
 
 Appeal of Felony. In cases of murder and manslaughter, 
 any blood relation of the slain man could " appeal " against 
 the slayer. The latter then threw down his glove and 
 claimed the combat, and unless the accuser took up the 
 challenge the accused went free. But if, as usually hap- 
 pened, the challenge was accepted, a speedy day was 
 appointed for the trial of arms, and on that day, in lists 
 presided over by the sheriff, or the itinerant justices, the 
 combat took place with all due solemnity. The charge was 
 read over, and the accuser (appellant) swore to his belief in 
 it on gospels, while the accused in his turn avouched his 
 innocence in the same manner. Then, armed in manner 
 suited to their rank, the duellists began the encounter; the 
 hour fixed for the commencement of proceedings was gener- 
 ally sunrise. If the accused could disable his adversary, or 
 make him cry " craven," or prolong the fight until the stars 
 appeared in the evening, he was declared guiltless of the 
 charge, and the accuser was fined and declared infamous. 
 But if the accused lost, he was, if still alive, hanged. 
 
 Wager of battle could not be claimed if the accuser was 
 a woman, a priest, an infant, or an old man of over sixty. 
 
 By Magna Charta (s. 54), a woman could not bring 
 
32 THE STUDENT'S LEGAL HISTORY. 
 
 " appeal of felony," except for the death of her husband. 
 The reason for this curious law is not known. In these 
 cases the ordeal, or compurgation, or (after the reign of 
 John) the jury, was the mode resorted to. " Appeal of 
 felony " continued side by side with trial by jury until the 
 Tudor period. It then fell more and more into desuetude, 
 until in Stuart times it was practically lost sight of. In 
 1817 the wager of battle was claimed by a man named 
 Thornton, accused of murder, and as the accuser declined 
 the challenge, Thornton had to be acquitted. Two years later 
 the appeal of felony was abolished (59 Geo. III. c. 6). 
 
 The wager of battle did not obtain in other criminal cases, 
 except in " affairs of honour ' ' ; and these were under 
 the control of the king, the constable, and the earl 
 marshal. 
 
 Duel in Civil Actions. There is no charter extant actually 
 establishing the duel in civil cases; but it is known from 
 the Conquest this was a mode of trying issues of fact in 
 actions commenced in the King's Court. There was a 
 difference between this and the case of crime, however, 
 because in civil cases champions, or vrocheins amys (next 
 friends), of the parties fought a necessary precaution, for 
 if either party to a civil action was slain, the suit was at an 
 end. Before the end of Henry III.'s reign the wager of 
 battle in civil actions had almost died out, giving way to 
 trial by jury; but it was not formally abolished, and only 
 fell into disuse because the writ of right itself ceased to be 
 used. There is a case on record as late as Elizabeth. It 
 may be remarked that, in England, amongst the native 
 English, it never found favour; and many boroughs obtained, 
 as a special favour from the Crown, exemption from wager 
 of battle within their jurisdiction. 
 
 Trial by Jury : Grand Jury : Inquests. As we have seen 
 (pp. 3 et seq.), the Saxons had established the system of 
 
WILLIAM I. TO HENRY III. (10661272). 33 
 
 frankpledge, i.e. of presentment of criminals for trial by 
 sworn men of the hundred, and in that way the grand jury 
 probably originated. But it is to the Normans that we owe 
 trial by jury as we know it to-day. In compiling the 
 Domesday Book, William I. introduced into England the 
 sworn inquest^ or inquiry by the oath of a certain number 
 of men. A specimen of the Domesday inquest, given in 
 Stubbs' Select Charters (p. 86), shows that the sheriff and 
 certain selected men from each district had to hold a sworn 
 inquiry into the local customs, tenures, and so on, and to 
 take a kind of census. Sworn inquests (surviving to this day 
 in the coroner's inquest) were utilized by all the Norman 
 kings for fiscal and administrative purposes; e.g. by the 
 assize of arms certain lawful men were to swear to all who 
 possessed a certain amount of property (1181), and in 1188 
 it was enacted that four or six lawful men of each parish 
 were to be sworn to assess the proper amount payable by 
 each individual to the Saladin tithe. There was also the 
 assize inquest, per duodecim le gales homines (p. 26). 
 
 Trial by Jury in Criminal Cases : Peine Fort et Dure. 
 
 When the Lateran Council, in 1215, abolished the ordeal, 
 there was no way left to try issues of fact, except wager 
 of battle and of law. But wager of battle did not apply 
 to pleas of the Crown, because the sovereign could not be 
 challenged to fight. From this date trial by jury begins. 
 But there is no way of compelling a man to be tried " by 
 the country." He must consent to be so tried. But the 
 jury at that time seems to have been composed of witnesses 
 and other persons of the district who might be supposed to 
 know something about the matter. If a man refused to be 
 tried by his neighbours the practice seems to have differed. 
 According to Prof. Maitland, he was in the earliest times, 
 after 1215, tried by a second jury, something like the jury 
 of presentment; but in later years he was asked to plead, 
 and if he refused to do so he suffered peine fort et dure, that 
 S.L.H. 3 
 
34 THE STUDENT'S LEGAL HISTORY. 
 
 is, a weight was put upon his body, and if he continued con- 
 tumacious he was pressed to death. In the time of Bracton, 
 when a prisoner put himself upon the country after he had 
 been presented by the hundred- jury, a jury of twelve, which 
 may be called an inquest- jury, was impanelled to try the 
 question of guilt or innocence. They were sworn to tell all 
 they knew, bringing in a verdict. At that time, also, the 
 jurors, or some of them, were witnesses, and brought in a 
 verdict of their own knowledge, and not on evidence adduced 
 before them as they do now. They might be cross-examined 
 by the judge as to their reasons for their verdict; and if 
 these reasons were unsatisfactory, the verdict might be 
 disregarded, and a new jury impanelled. 
 
 Whether these jurors were the same as those who pre- 
 sented the prisoner for trial is doubtful. Mr. Maitland 
 thinks they were the same; Sir Fitzjames Stephen thinks 
 otherwise. Instances have been found in the thirteenth 
 century where a second jury has been impanelled after the 
 first jury (of presentment) has found a verdict of guilty. 
 This practice grew insensibly into the modern one of 
 impanelling a second jury (petty jury) in every case. But 
 it was not until a long time after, that the petty jury lost 
 their character of witnesses and became judges who decided 
 on evidence given in open court. 
 
 Jury in Civil Cases. The sworn inquest, if it was not the 
 direct ancestor of the petty jury in pleas of the Crown, is, at 
 all events, the origin of the jury in civil causes. 1 The assize 
 of mort d'ancestor and the other real assizes, raising the 
 question of right to possession of land, were decided as to 
 fact by twelve sworn recognitors, and the itinerant justice 
 only decided points of law connected with the case. A writ 
 of right might also be tried out by recognitors (jurymen) 
 instead of by duel. 
 
 i 
 
 1 Digby, Hist, of B. P., p. 95. 
 
WILLIAM I. TO HENRY III. (10661272). 35 
 
 Functions of the Jury. But it cannot be too strongly 
 borne in mind that though these juries decided the facts, 
 they did so of their own knowledge, and not according to 
 evidence adduced before them by witnesses. Sir James 
 Fitzjames Stephen says that trial by jury in civil cases, as 
 we know it, was firmly established by the middle of the 
 fifteenth century, 1 but how long before that is doubtful. 
 
 SUMMARY: William I. Henry III. (inclusive). 
 
 1. Real Property: 
 
 (a) The distinction between realty and personalty is 
 
 made, founded on the difference between the 
 remedies for dispossession. 
 
 (b) Tenure takes the place of ownership, and the theory 
 
 of tenure becomes the basis of the land laws. 
 
 (c) Military tenures introduced. 
 
 (d) Dower and curtesy made absolute legal rights of 
 
 wife and husband respectively. 
 
 (e) The law of primogeniture gradually introduced, 
 
 and the rules of descent. 
 
 (f) Alienation checked by Magna Charta. 
 
 2. Personal Property receives little attention. 
 
 (a) Testaments of personalty freely allowed. 
 
 (b) Intestates' effects to go to wife and relatives. 
 
 (c) Intestates' effects to be administered by the 
 
 ordinary, and ecclesiastical courts pronounce on 
 the validity of testaments and legacies. 
 
 3. Criminal Law: The King's Peace is declared to extend 
 
 over the whole realm. 
 
 1 Stephen's Hist. Crim. Law, vol. i. 
 
36 THE STUDENT'S LEGAL HISTORY. 
 
 4. The Courts of Justice : 
 
 (a) Curia Regis established, to some extent super- 
 
 seding and supervising ancient local courts. 
 
 (b) The three Courts of Common Law are established 
 
 separately, and the Common Pleas fixed at West- 
 minster. The other Courts follow the king. 
 
 (c) Justices in Eyre appointed. 
 
 5. Procedure: 
 
 (a) Real action begins. 
 
 (b) Personal actions are few, only four of the kind 
 
 cognizable in the King's Courts, viz. trespass, 
 debt, covenant, and detinue. 
 
 (c) Writs in the King's Courts took the place of verbal 
 
 complaints. 
 
 (d) Trial by duel introduced from Normandy. 
 
 (e) Sworn inquest also introduced in civil matters, 
 
 leading up to trial by jury; but as yet the 
 jurors are witnesses, and not, in the proper 
 sense, judges. 
 
 (f) Habeas corpus (perhaps) introduced. 
 
 6. The law is nationalized, and the common law of 
 
 England obtains instead of most of the local 
 customary laws, though the latter were not all 
 superseded. 
 
CHAPTER III. 
 
 EDWARD I. TO RICHARD III. (12721485). 
 
 General. Speaking of the reign of Edward I., Reeves, in 
 his History of the English Law, remarks : " We now enter 
 upon a period when the law made a very great and sudden 
 advancement. It is generally agreed that this is, in no 
 small degree, to be ascribed to the wisdom and activity of 
 the prince on the throne, who, through his long reign, and, 
 indeed, within the first thirteen years of it, laboured more 
 than any of his predecessors to improve our judicial polity 
 in all its parts. So successful were his endeavours, and so 
 permanent have been their effects, that Edward I. has 
 obtained with posterity the distinguished title of the 
 English Justinian." 
 
 And, indeed, Edward I. fully deserved the eulogium of 
 Chief Justice Herle, who pronounced him " the wisest king 
 who ever was." 1 
 
 The reign is marked in the history of the constitution. 
 It is even more memorable in the history of law, as the 
 enumeration of the statutes will show. Quia Emptores, the 
 first and second Statutes of Westminster, De Donis Con- 
 ditionalibus , the Statute of Acton Burnel, De M ercatoribus , 
 and the Statute of Mortmain do not exhaust the list of 
 important legal enactments of this reign. 
 
 After Edward I. there was little legislation of interest 
 or value to the lawyer until after the Wars of the Roses. 
 The legal history of the rest of the period we are now con- 
 
 1 Year Book, 5 Edw. III. 14. 
 
38 THE STUDENT'S LEGAL HISTORY. 
 
 sidering consists for the most part of the development and 
 interpretation of the law as it was left by the English 
 Justinian. There is only one other piece of legal history 
 of the first importance, and that is the evolution of the 
 Court of Chancery, under Edward III. 
 
 Real Property: Statute De Donis: Estates tail. Two 
 important alterations were made in the law of real property. 
 
 The first was, by the first chapter of the Statute of West- 
 minster II., generally called the Statute De Donis Condi- 
 tionalibus (Edw. I.), which created estates tail. It was a 
 common form of gift of real estate " to the feoffee and the 
 heirs of his body," by which limitation the donor sought to 
 keep the land in the family of the donee, and if the donee 
 had no family, for the land to revert to the donor. But the 
 lawyers interpreted these words to mean that if the donee 
 had an heir of the body born alive the estate became his in 
 fee simple; in other words, the gift was a conditional fee 
 simple. The Statute De Donis reversed the interpretation 
 of the lawyers, declaring that in future " the will of the 
 donor, according to the form manifestly expressed in the 
 charter of gift, shall be observed," so that the donee should 
 not be able to prevent the land going to his issue so long as 
 there were any who could take under the charter; and on 
 failure of such issue, the land should revert to the donor or 
 his heir. Henceforth a limitation to "A. and his heirs of 
 his body " gives an estate tail, absolutely alienable by the 
 tenant. 
 
 Fines and Recoveries. There was a method of convey- 
 ance known in very early times as a fine, which was a 
 fictitious action used either to convey land or to strengthen 
 the title of the holder by having his title recorded on the 
 rolls of a court of justice. Recoveries were also fictitious 
 actions used for alienation or for the alteration of titles and 
 estates. A fine had the effect of a judgment by default on 
 
EDWARD I. TO EICHARD III. (12721485). 39 
 
 a compromise, and it bound only the parties to the suit and 
 their heirs and all who claimed through them; it did not 
 bind any other person. A recovery, on the other hand, was 
 a judgment in a real action, and, therefore, bound the land; 
 nor could it be disputed by anyone whomsoever. Feigned 
 recoveries were very much in use by the clergy to evade the 
 mortmain laws, as is evidenced by the statute 13 Edw. I. 
 c. 32, which was passed to prohibit the practice by " religious 
 men." How far, or when first, recoveries and fines were 
 used to evade the Statute De Donis is not precisely known, 1 
 but we know that in Taltarum's Case, recorded in the Year 
 Book, 12 Edward IV., a tenant in tail converted his estate 
 into a fee simple by this means. The process was this : A 
 friendly plaintiff pretended that he had a better title to the 
 land than the original donor in tail; he accordingly brought 
 action by writ of right against the tenant in tail ; the latter 
 pleaded that the land had been given to him in tail by X., 
 a person who had nothing at all to do with it, who had 
 warranted his title. X. was made a party to the suit by a 
 process called " vouching to warranty," and it became his 
 duty to defend the action; but he was then " imparled " by 
 the friendly plaintiff, that is, they went out of Court 
 together and the " vouchee " did not return. The case was 
 called on for trial, and as the vouchee did not return, judg- 
 ment was given against him in this fashion, that the 
 (friendly) plaintiff recover the land in fee simple, and that 
 the tenant in tail recover against X. (supposed original 
 donor of the estate tail) other land of equal value. 
 
 The whole proceeding was a series of transparent fictions, 
 but it was allowed by the judges, it is said, at the instance 
 of the king himself. The effect of the judgment against 
 the tenant in tail was to bar his issue from claiming the 
 land under the gift, and the special virtue of the " vouchee " 
 
 1 In the reigns of Henry IV. and Henry V. some doubt began to be 
 entertained whether a recovery suffered by a tenant in tail was not good 
 against the issue : Beeves' Hist. Eng. Law, ii. 578. 
 
40 THE STUDENT'S LEGAL HISTORY. 
 
 seems to have been to destroy any claim by the real donor 
 of the estate. It is to be noted that Taltarum's Case was 
 not a recovery, nor was it an action brought to contest the 
 validity of recoveries in general, but it established by 
 implication the right of a tenant in tail to suffer judgment 
 to go against him in one of these suits. Thus we see, that 
 in the period under consideration, estates tail were created, 
 and after remaining in full force for 200 years were allowed 
 by the courts of law to be evaded. 
 
 Quia Emptores : Alienation of Land. The second statute 
 of cardinal importance is 18 Edw. I. c. 1, commonly called 
 the Statute Quia Emptores, 1 so called because the statute 
 begins with those two words. It has been elsewhere stated 
 (p. 12) how a freeholder holding of the king or of any other 
 lord might subinfeudate, i.e. enfeoff another freehold 
 tenant to hold the land of him, and thus in turn to become 
 a lord. It has also been shown (p. 15) how the right of 
 alienation was doubtful, and what restrictions were placed 
 upon it by Magna Charta. The statute now under con- 
 sideration was simple but far-reaching. It enacted, (1) " It 
 shall be lawful to every freeman to sell at his pleasure his 
 own lands or tenements, or any part thereof," provided (2) 
 that " the feoffee (purchaser) shall hold that land or tene- 
 ment of the same chief lord, and by the same service and 
 customs, as his feoffor held before." The effect of the first 
 part of the Act is obvious; the effect of the second part is 
 this: A. is the tenant by knight service of X. A. sells 
 to B. B. becomes the tenant of X., on the same terms that 
 A. held by. Before Quia Emptores A. might enfeoff B., 
 eo that B. would hold of A. and A. would hold of X. 
 
 Mortmain. Two statutes of Edward I. deal with mort- 
 main. Mortmain (dead hand) was applied to the holding of 
 
 1 Literally = " whereas purchasers." 
 
EDWARD I. TO RICHARD III. (12721485). 41 
 
 lands by religious persons who were dead in law, and also 
 by, corporations, whether ecclesiastical or not. The reason 
 of the dead-set made against allowing land to be given or 
 even sold to religious houses was that these bodies were not 
 liable for the services due to the lord of the fee, and we can 
 understand the feeling of the great lords against allowing 
 their " fees " to become the property of the Church. An 
 attempt to check the practice had been made by Magna 
 Charta, but this only applied to "religious men," and it 
 had been plentifully evaded by means of recoveries. The 
 Statute De Viris Religiosis 1 (7 Edw. I. st. 2, c. 13) men- 
 tions these evasions, and provides against colourable gifts 
 and leases, and " craft or engines " to defeat the law. No 
 gift or sale in mortmain is to be made without the licence 
 of the lord of the fee, and the penalty is forfeiture of the 
 land in the first instance to the immediate lord of the fee, 
 or if he does not claim it, then to next chief lord and so on; 
 and if none of the mesne lords claim, then to the Crown. 
 But still the religious men found ways and means, especially 
 by collusive actions, to "drive a coach and six" through 
 the statute, until six years later, by the 32nd chapter of the 
 Statute of Westminster II., the justices were ordered to 
 impanel a jury whenever " religious men and other 
 ecclesiastical persons " claimed land and the defendant did 
 not appear to defend the suit. The jury were to try 
 whether the " religious men ' ' really had the title which 
 they set up, or whether it was only a friendly and collusive 
 suit. After this drastic measure the clergy had to try 
 another tack, and in course of time they discovered Uses 
 (see p. 54). The law as Edward I. left it, remained practi- 
 cally the same down to modern times. 
 
 Writ Of Waste. % the Statute of Gloucester (1278) 
 owners of land not in possession were protected from waste 
 
 1 Literally = " concerning religious men." 
 
42 THE STUDENT'S LEGAL HISTORY. 
 
 or destruction of the property by tenants who had only a 
 limited interest. Writ of Waste was to be granted against 
 tenants by the curtesy, tenants in dower, and tenants for 
 life or for years ; and the penalty to be exacted from them 
 was threefold the amount of the damage done. 
 
 The Law of Real Property settled. Beyond the statutes 
 just referred to, there was no legislation of importance on 
 the subject of real property until Henry VIII. Littleton's 
 Tenures, written in the reign of Henry IV., is invaluable 
 as showing' the law of the time on this subject, and should 
 be consulted by all who desire a true knowledge of English 
 real property law. 
 
 Copyholds. From it we learn that by decisions of the 
 Courts when is not precisely settled the tenant in vil- 
 leinage, who held purely at the will of his lord, 1 had become 
 a tenant by copy of court roll according to the custom of 
 the manor. Fixity of tenure had been secured to him so 
 that, as it was forcibly put by Coke, " copyholders stand on 
 sure ground; now they weigh not their lord's displeasure, 
 they shake not at every sudden blast of wind, they eat, 
 drink, and sleep securely; only having a special care of the 
 main chance, to perform carefully what duties and services 
 soever their tenure doth exact, and custom doth require." 
 In Littleton's time, indeed, far from being a mere tenant at 
 will, the copyholder had an alienable interest in the land. 
 In form, the vendor of a copyhold surrendered the land to 
 the lord, but it was to the use of the purchaser, whom the 
 lord was bound to admit, and if he did not he could be com- 
 pelled by suit before the Chancellor. Littleton quotes 
 Brian, C. J. : " His opinion hath always been and ever shall 
 be, that if tenant by custom paying his services be ejected 
 by the lord he shall have an action of trespass against 
 
 1 Supra, p. 12. 
 
EDWARD I. TO RICHARD III. (12721485). 43 
 
 him." 1 " And so was the opinion of Danby, C.J., in 
 7 Edward IV.," 2 which seems to show that the opinions 
 of these judges were delivered on points then not free from 
 controversy. 
 
 Procedure. The legislation of Edward I. was also 
 directed to reform the procedure of the Courts. No suit for 
 trespass to goods could lie in the King's Court for less than 
 forty shillings damages : this was intended to prevent men 
 being put to the expense of attending the Courts in West- 
 minster to answer trifling charges (Statute of Gloucester, 
 c. 8). To prevent collusion, whereby the ends of justice 
 were defeated, inquests of murder are to be taken by lawful 
 men chosen by oath, and of no affinity to the prisoner. 
 
 Prescription in Real Actions. Periods of Prescription 
 
 were prescribed for the real actions in order to defeat stale 
 claims. The Writ of Right was not to issue where the 
 claim was older than Richard I. ; Novel Disseisin, where 
 the claim arose before the first voyage of Henry III. to 
 Gascoign, and so on; but there was no prescription or 
 limitation of personal actions (Statute of Westminster I., 
 c. 39). 
 
 Other Reforms. The champion in the Writ of Right 
 should not be compelled to swear that he or his father saw 
 the seisin of his lord or his ancestor, and that his father 
 commanded him to defend that right (Statute of West- 
 minster I., c. 40). Penalties were imposed on sheriffs and 
 defendants who caused delay in suits; and we find three or 
 four clauses in the Statute of Westminster I. (cc. 45, 46 et 
 seq.) evidently intended to check the law's delay. By c. 42, 
 suitors were allowed to sue by attorney, thus obviating tlie 
 necessity of personal attendance in court on each stage of 
 the action. 
 
 1 Year Book, 21 Edw. IV. a Ibuf., 7 Edw. IV. 
 
44 THE STUDENT'S LEGAL HISTORY. 
 
 Statute of Westminster II. By the Statute of West- 
 minster II. (1285), a long 1 statute of fifty clauses, many 
 other legal changes were made. By c. 15, an infant Tnay 
 sue by his next friend : a provision construed to mean that 
 an infant must sue by next friend. By c. 19, when there 
 is no executor to administer the deceased's effects, the 
 Ordinary (an official of the bishop's court) must pay the 
 debts, as the executor would have been bound to do. The 
 action of waste may be maintained by one tenant in common 
 against another (c. 22). 
 
 Land liable for Debts : Elegit. But the more important 
 clauses are 1, 18, 24, and 30. Cap. 1, generally called the 
 Statute De Donis, has already been dealt with. The 
 eighteenth clause gives to creditors who have obtained judg- 
 ment for their debts the right to have the land of the debtor 
 taken in execution to satisfy the judgment. The writ of 
 execution against land was called elegit, because the 
 creditor might elect to take the land, a remedy that has 
 remained to the present day. 
 
 Actions on the Case. A still more important change was 
 made by cap. 24 of this famous statute. The common law, 
 even at this early stage, was highly inflexible. The judges 
 interpreted the maxim, " Where there is a wrong there is a 
 remedy ' ' into meaning that where there is no remedy there 
 is no wrong. The clerks in Chancery, who issued the writs, 
 at a very early period decided that where they could not find 
 a precedent they would not grant a writ. Those who have 
 had any experience of Government departments will at once 
 recognize this trait of the official mind. The consequence 
 was that an unfortunate suitor who could not bring his 
 complaint within the four corners of an official writ had no 
 redress. The evil was so great as to cry aloud for a remedy, 
 and accordingly was dealt with by a clause of the Statute 
 of Westminster II. " Whensoever from henceforth it shall 
 
EDWARD I. TO RICHARD III. (1272 1485). 45 
 
 fortune in the Chancery that in one case a writ is found, 
 and in like case, 1 under like law and requiring like remedy, 
 is found none, the clerks of the Chancery shall agree in 
 making the writ; or the plaintiffs may adjourn it until the 
 next Parliament, and let the cases be written in which they 
 cannot agree; and let them refer themselves until the next 
 Parliament, that by consent of men learned in the law a 
 writ shall be made, lest it might happen after that the 
 Courts should long time fail to minister justice unto com- 
 plainants." From this time arose "actions on the case," 
 so called because the writs were framed in consimili casu. 
 If the Common Law Courts had taken full advantage of the 
 powers given them by enactment, there would probably 
 have been no need for the Court of Chancery; but they did 
 not seize the opportunity, and more than once refused to 
 allow the validity of new writs. 
 
 Nevertheless, many actions on the case were allowed. 
 For instance, in the case of trespass, which was a malfeas- 
 ance, or wrongful invasion of the plaintiff's property or 
 person, the writ of trespass on the case extended the remedy 
 to a misfeasance, or improperly or negligently performing 
 what had been agreed to be performed. E.g. A. had agreed 
 to carry B.'s horse across the Humber, and by overloading 
 the boat the horse was lost. At common law B. had no 
 remedy. He could not have the writ of trespass, because A. 
 had not taken possession of the horse wrongfully. He could 
 not have the writ of covenant, because the agreement was 
 not by deed. There was, in fact, no common law writ to 
 meet the case; but in 22 Edw. III. the judges allowed a 
 writ of trespass on the case because the facts were similar 
 to those of trespass. Out of this grew 
 
 The Law of Simple Contract. Up to this time no action 
 
 would lie for breach of a simple contract, i.e. a promise not 
 
 * 
 
 1 The original Latin is " in consimili casu." 
 
46 THE STUDENT'S LEGAL HISTORY. 
 
 contained in a sealed deed, except for debt. 1 But in the 
 forty-second year of Edward III. we find a dictum to the 
 effect that if A. promised B. 10 if B. married A.'s 
 daughter, an action of trespass on the case would lie if A. 
 did not perform the contract. One is surprised to find this 
 adjudged to be " a like case " to trespass. The reasoning 
 was if A. wrongfully seized B.'s property (malfeasance) it 
 was trespass. If A. promised to do something for B., and 
 did it so negligently (misfeasance) that B. suffered loss 
 thereby, it was like trespass. If A., by promising to do 
 something for B., induced B. to do something and then A. 
 failed to do his part (non-feasance), B. had sustained loss 
 by relying on A.'s promise, and this was also like trespass. 
 On such an ingenious, though scarcely convincing, piece of 
 judicial reason rests the whole of the English law of simple 
 contracts, by which a promise given for valuable considera- 
 tion is enforceable by the Courts. For if there were no 
 valuable consideration that is, if B. had not put himself 
 in a worse position, either by doing something, or paying 
 or promising to do or pay something, he had suffered no 
 damage, and therefore had no action. It was not long 
 before the Action on the Case almost entirely superseded 
 the action of debt. The reason was that in Debt the defen- 
 dant could wage his law (see p. 8), and so escape paying a 
 debt at the expense of perjury; while in an action on the 
 case wager of law was not allowed. Coke says, 2 " Wager of 
 law lieth not when there is a specialty or deed to charge the 
 defendant, but when it groweth by word, so as he may pay 
 or satisfy the party in secret, whereof the defendant having 
 no testimony of witnesses may wage his law, and thereby 
 the plaintiff is perpetually barred, as Littleton, sect. 514, 
 saith; for the law presumeth that no man will forswear 
 himself for any worldly thing; but men's consciences do 
 grow so large (specially in this case passing with impunity) 
 
 1 Vide, supra, p. 27. 2 Co. Litt. 295 a. 
 
EDWARD I. TO RICHARD III. (12721485). 47 
 
 as they choose rather to bring an action upon the case upon 
 his promise, wherein (because it is trespass sur le case) he 
 cannot wage his law, than action of debt." 
 
 The Law Merchant : Statutes Merchant. Mercantile law 
 
 of this period is very scanty, probably because commercial 
 transactions were in the hands of a limited class, who were 
 all members of various trades' and merchants' guilds, who 
 had either courts of their own or preferred to pursue each 
 other before certain local courts. The Mayor's Court, 
 London, and the Court of Passage, Liverpool, are survivors 
 of these ancient jurisdictions. It is obvious that, at a time 
 when even the King's Courts had a difficulty in executing 
 their judgments, these local tribunals had a much greater 
 difficulty. Especially was it the case when a judgment 
 debtor did not live in the locality. By the Statute of Mer- 
 chants (1285), amending the Statute of Acton Burnel 
 (1283), a simple way of enforcing mercantile debts was 
 provided. The merchant could summon his debtor before 
 the Mayor of London, York, or Bristol, to acknowledge the 
 debt and day of payment. A recognizance was to be entered, 
 and the mayor's clerk to make out a bill obligatory, sealed 
 by the debtor and the king's seal. This was called a Statute 
 Merchant, and is the first instance, so far as we know, of 
 the royal authority being extended to validate mercantile 
 contracts. If the debtor did not pay on the day named, 
 the creditor must produce the bill to the mayor, " who shall 
 incontinent cause removeables of the debtor to be sold to 
 pay the debt." We find, also, in the Year Books of Edward 
 III. cases where the assistance of the Chancellor and the 
 Council is invoked in cases where alien traders were con- 
 cerned. In one case, in 1389, * a merchant of Genoa who 
 had his ship lying in the Thames petitions the Lord Chan- 
 cellor for justice against three other Genoese merchants 
 
 1 Select Gas. in Ch., p. 9 (Selden Society's Publications, vol. x.) ; see 
 also, same volume, p. 3. 
 
48 THE STUDENT'S LEGAL HISTORY. 
 
 who owe him large sums of money, and craves a speedy 
 remedy. The petitioner states that his ship is lying un- 
 freighted, that certain creditors of his in London are unpaid, 
 and that he cannot afford to wait the length of time neces- 
 sary to prosecute an action at common law. The order made 
 on the petition was to command the defendants to appear 
 before the King in his Council in his Chancery " on Friday 
 next." 
 
 Imprisonment for Debt. If the debtor had no moveables 
 within the mayor's jurisdiction, but had some within the 
 realm, the mayor must send the recognizance to the chan- 
 cellor, who shall send a writ of fieri facias to the sheriff in 
 whose county the goods were. If the debtor had no goods 
 he should be imprisoned. 
 
 Sedition. The criminal law also received attention in the 
 time of the Edwards. Edward I. enacted, " from hence- 
 forth none" should be "so hardy to tell or publish any 
 false news or tales, whereby discord, or occasional discord 
 or slander, may grow between the king and his people or 
 the great ones of the realm." l 
 
 The law of treason had, as has been shown, 2 been extended 
 by the subtlety of the Norman lawyers. The process was 
 checked by the famous Statutes of Treason of Edward III. 
 (1352). The offence was cut down to the following: 
 
 (1) Compassing or imagining the death of the king, 
 
 queen, or their eldest son. 
 
 (2) Violating the queen, the king's eldest unmarried 
 
 daughter, or his eldest son's wife. 
 
 (3) Levying war against the king in his realm or adher- 
 
 ing to his foes. 
 
 (4) Counterfeiting the king's coin or seal. 
 
 (5) Slaying the chancellor, treasurer, or judges while in 
 
 the discharge of their duty. 
 
 1 Statute of Westminster I. c. 34. * Supra, p. 21. 
 
EDWARD I. TO EICHARD III. (12721485). 49 
 
 Pleadings. Written Pleadings now came into use. In- 
 stead of the verbal altercations between the parties by 
 which they arrived at an " issue," the plaintiff put his case 
 in writing, and delivered it to the defendant. To this the 
 defendant replied, and the plaintiff then rejoined on the 
 reply. It seems that these written altercations might go- 
 on indefinitely; beginning with the plaintiff's declaration,, 
 followed by the defendant's plea, they went on through the 
 mazes of the reply, the rejoinder, the sur-re joinder, the re- 
 butter, the sur-rebutter, and so on alternately by each party. 
 
 Indictments in Writing. As the reader has seen, the old 
 way of putting a prisoner on his trial was for some men of 
 the vicinage to " present " him to the sheriff or the judges 
 in eyre, swearing that they believed him to be guilty of 
 some crime. This was called "indicting" the prisoner. 
 Under Edward I. the practice arose of putting all indict- 
 ments in writing, and until 1916 there might be seen at 
 assizes or sessions a parchment document almost exactly the 
 same as that used in 1320, save that at first it was writ in 
 Latin for the better understanding of the prisoner, it is 
 supposed and afterwards in English : 
 " Middlesex "} The jurors on their oath present William 
 to wit. ) Styles that he did on the tenth day of 
 March in the year of our Lord one thousand nine hundred 
 and seven one pair of boots of the value of fivepence sterling 
 the property of Thomas Smiles feloniously steal take and 
 carry away against the peace of our Sovereign Lord the 
 King his Crown and dignity." There is the same simplicity 
 of phrase, the same terseness of statement, the same allega- 
 tion of a breach of the peace, and the same entire absence 
 of punctuation as our forefathers, the grand jurors of 
 Edward I.'s time, exhibited. 
 
 Certainty of Criminal Pleading. Until 25 Edward III. 
 it was not uncommon for a man to be put on his trial as 
 S.L.H. 4 
 
50 THE STUDENT'S LEGAL HISTORY. 
 
 u a notorious thief " or a "general oppressor " or upon some 
 other vague and general charge. Edward III., carrying on 
 the policy inaugurated by Edward I., forbade 1 men to be 
 put on trial unless the indictment stated specifically the acts 
 which were going to be alleged as criminal. From that day 
 to this, uncertainty in an indictment is a fatal error, and the 
 principle has become well established that the prosecution 
 must let the prisoner know beforehand of what he is accused 
 in such a manner that he can properly prepare his defence. 
 
 Commissioners of Assize. " The great judge and the 
 little judge, The judges of assize, " as Hood calls them, first 
 appear in the reign of Edward I. The circuit, or assize 
 system, no doubt took its rise from the Justices in Eyre; 
 but the judges of assize as they exist at the present time 
 were developed in temp. Edward I., and are the creation of 
 the hereinbefore much-quoted Statute of Westminster II. 
 By clause 30 of that Act the justices itinerant were given 
 power to try all civil cases by means of the writ Nisi Prius. 
 Before this, the justices itinerant seem to have confined 
 themselves to pleas of the Crown and various real actions 
 known as assizes. But from this time the justices went on 
 circuit by virtue of a special royal commission of Gaol 
 Delivery, Oyer and Terminer, Assize, and Nisi Prius. This 
 gave them power to deliver all the gaols, i.e. by trying all 
 those who had been imprisoned on a charge of crime; to 
 hear and determine (Oyer and Terminer) all things affecting 
 the royal peace, crown, and dignity; and all writs of assize 
 (Mori d' Ancestor, Novel disseisin, nuisance, and the like) ; 
 and also try such cases as should be brought before them on 
 a writ of Nisi Prius. The commission could be issued not 
 only to the king's justices, but also to anyone else. In 
 fact, it was as commissioners they sat, even though they 
 might also be justices. 
 
 1 25 Edw. m. c. 3. 
 
EDWARD I. TO RICHARD III. (12721485). 51 
 
 The Writ of Nisi Prius. At Common Law, when an issue 
 was joined, the plea concluded "therefore of this the said 
 A. B. prays may be inquired of by the country," or " and 
 of this he puts himself upon the country." Thereupon the 
 Court awarded a writ addressed to the sheriff of the county 
 where the venue of the action was "that he cause to come 
 here " (i.e. to Westminster) on such a day, twelve libros et 
 legates homines that is, a jury. This was called the writ 
 of Venire Facias. The intolerable inconvenience of sum- 
 moning a jury from (say) Westmorland or Devon to try an 
 action at Westminster caused a practice to spring up of 
 continuing the cause from term to term until such time as 
 the justices in eyre were about to visit the county, and then 
 of transferring the cause to those justices. The Statute of 
 Westminster II., c. 30, ordered that in future there should 
 be inserted in the Venire Facias the words that the sheriff 
 should command the jurors to come to Westminster on such 
 a day in Michaelmas or Easter terms " nisi prius " (unless 
 before) that day the justices appointed to take assizes shall 
 come into his said county. To this day the justices of 
 assize, when they sit to try civil actions, are said to be 
 " sitting at Nisi Prius." In the time of Elizabeth the writ 
 of Nisi Prius was extended to actions tried at Westminster 
 (see p. 75). 
 
 THE COURT OF CHANCERY AND THE COUNCIL. 
 
 We have seen how in the preceding period the three 
 Courts of Common Law were established, all growing out 
 of the justices who, presided over by the Great Justiciar, 
 formed an essential part of the Curia Regis. 
 
 The formation of the separate Courts of Exchequer, 
 Common Pleas, and King's Bench, took away most of the 
 legal business from the Council ; but some was still left. It 
 consisted of appellate jurisdiction over the three Courts of 
 Common Law, and original jurisdiction, not bounded by the 
 
52 THE STUDENT'S LEGAL HISTORY. 
 
 law, but used to " give redress to all men according to their 
 deserts." It was, in fact, the remnant of the King's Pre- 
 rogative of Justice. This jurisdiction was exercised by the 
 King in his Council in his Parliament. The word Parlia- 
 ment simply means the magnates of the realm, earls, 
 barons, judges, prelates, and such councillors as the king 
 summoned to attend. The Council consisted of such of 
 these as the king called specially to advise him in judicial 
 business. It exercised the same functions as the House of 
 Lords and the Privy Council afterwards exercised. In 
 Richard II. the Council no longer sat in Parliament; and 
 the jurisdiction of the Lords and the Council became dis- 
 tinct. In course of time the Lords only heard appeals by 
 writ of error. The Chancellor was an influential member of 
 the Council in Parliament, and afterwards of the Council. 
 He was, in fact, the head of the legal department, for out 
 of his office all writs issued. The original procedure in the 
 'Council in Parliament was by petition. 
 
 These petitions were addressed to the King, and were 
 considered by him in Council. Some cases came within the 
 Common Law, and these would be met by the issue of a 
 writ ; others were matters of grace and favour, sometimes 
 contrary to the Common Law, and at others of a special 
 kind not within the Consuetudo Curies. The last kind would 
 be decided generally by the Council, with the chancellor 
 as the chief legal member of it. So that the chancellor's 
 jurisdiction was derived from the Council. 
 
 But the establishment of the Chancery as a court of 
 judicature did not take place until many years after. Until 
 Edward III. we find petitions made direct to the chancellor. 
 But it is very doubtful whether there was in this period a 
 Court of Chancery for the trial of causes as a separate 
 tribunal distinct from the Council. (See Chapter VIII.) 
 It is important to remember that the chancellor was an 
 administrator rather than a judge. His judicial duties only 
 arose in the course of his office as chief legal member of the 
 
EDWARD I. TO RICHARD III. (12721485). 53 
 
 Council, to which everyone was entitled to look for redress 
 of any and every grievance. His separate judicial position 
 grew upon him very gradually. It was not until somewhere 
 about the reign of Henry VI. that any distinction appears 
 to be made between the common law and the equity juris- 
 diction of the chancellor; and from about Henry VII. we 
 see the rise of the modern Court of Chancery. From this 
 time forth there was established in England a Court of 
 Equity concurrent with the Common Pleas, the Exchequer, 
 and the King's Bench. This Court of Equity invented new 
 doctrines, new processes, and new remedies. To it our legal 
 history owes uses and trusts, the specific performance of 
 contracts, injunctions to prevent the continuance of a 
 wrong, new principles governing the guardianship of 
 infants, the recognition of rights of property in married 
 women, and many other important doctrines, remedies, and 
 forms of procedure. 
 
 The Writ of Subpoena is said to have been invented by 
 John de Waltham, Bishop of Salisbury and Keeper of the 
 Rolls, in the reign of Richard II. As a matter of fact, 
 De Waltham did not invent the subpoena, he only adapted 
 it to the use of the Court of Chancery ; and it is by no means 
 certain whether he was the first person to adapt it. The 
 Writ of Subpoena was so called because it commanded the 
 person to whom it was addressed to appear in the Court of 
 Chancery on a certain day, and answer the complaint of the 
 plaintiff. It was a flexible kind of process, easily adapted to 
 any form that might be desired; and its efficacy was that, 
 if the defendant did not appear as he was ordered, he was 
 liable to be committed for contempt of Court. The device 
 was the more easily accomplished, forasmuch as all the 
 king's writs issued out of Chancery ; although until his time 
 they were all returnable in one of the three Common Law 
 Courts. Despite many remonstrances by the House of Com- 
 mons during the Lancastrian period, the new Court throve 
 apace, and speedily established two important doctrines. 
 
54 THE STUDENT'S LEGAL HISTORY. 
 
 The first was the doctrine of Uses. The second was the 
 right to issue injunctions to restrain acts not necessarily 
 prohibited by the common law, but contrary to good, con- 
 science. Indeed, the whole of the Chancellor's jurisdiction 
 was based on conscience, and this was necessarily so, seeing 
 that it took its rise from the delegation to it of the king's 
 conscience in matters of justice. 
 
 Uses. The Doctrine of Uses was based on the idea that 
 the person really entitled, as a matter of equity and good 
 conscience, to the enjoyment of property, was not of neces- 
 sity the person who had the actual possession of it, nor even 
 the person who had the actual legal possession of it. The 
 Court of Common Pleas could only recognize the person who 
 was seised, because the various Writs of Right and Assizes 
 were only framed so as to give relief to the person entitled 
 to the seisin. Now seisin could only be acquired in certain 
 stated forms: by descent from the person last seised, by 
 feofhnent with livery of seisin, or by one or two other pre- 
 scribed modes. But the Court of Chancery did not ask 
 whether or no a person claiming land had procured a formal 
 conveyance. Did the last real owner intend the claimant to 
 have the benefit of the property? If so, whoever had that 
 kind of possession which the common law recognized must 
 give the use and benefit of the land to him who had the 
 conscientious right to it. Thus came a separation between 
 the use and the seisin, the one being the ownership, recog- 
 nized in Chancery, and the other the sole estate known to 
 the ancient Courts of Common Law. The word user comes 
 not from usus, but from the Latin opus, old French os. Sir 
 Frederick Pollock and Mr. Maitland point out that before 
 the Norman Conquest we may find a man saying that he 
 conveys land to a bishop to the use of a church. 1 The earliest 
 reliable reference to the Use occurs in 50 Edward III. c. 6, 
 
 1 Pollock and Maitland, vol. ii. p. 226. 
 
EDWARD I. TO RICHARD III. (12721485). 55 
 
 giving creditors execution against lands and chattels in spite 
 of gifts to uses made in defraud of them. 7 Richard II. 
 c. 12 forbids aliens, and 15 Richard II. c. 5 forbids spiritual 
 persons and corporations, to hold lands by way of use-, and 
 1 Richard I. c. 1 makes all grants by, and executions 
 against, a settlor or grantor of lands binding on his heirs 
 and feoffees to uses. It will be seen that these statutes refer 
 to uses as already in existence ; and it is a traditional belief 
 that they were invented by the clergy in order to defeat the 
 Statutes of Mortmain. 1 However this may be, it is safe to 
 say that uses, or equitable estates, first came into prominence 
 in the period from Edward I. to Richard III., and were 
 fully established before the end of that period. After the 
 Statute of Uses (Henry VIII.) the use became a trust. Sir 
 Robert Atkyns, in the case of The Att.-Gen. v. Sands, 2 
 says, " a trust is altogether the same that a use was before 
 27 Henry VIII. (Statute of Uses), and they have the same 
 parents, Fraud and Fear, and the same nurse, a Court of 
 Conscience." The first recorded "bill" in equity which 
 turns upon a trust is Dodde v. Browning, reported in 
 I Calendars xiii. in one of the first four years of Henry V. 
 
 Procedure in Chancery : Petition : Bill. The procedure in 
 Chancery was entirely different from that at common law. 
 To begin with, all the proceedings were in English. No 
 writ was required to give the chancellor jurisdiction, because 
 he simply exercised the prerogative of the king to grant 
 relief in matters of grace and equity. 3 The party who 
 wanted redress for his wrong presented a Petition to the 
 Court, which petition was afterwards called a Bill. This 
 bill 4 commenced the proceedings. It contained a statement 
 
 1 Gilb. For. Rom. 17. 
 
 2 Hard. 491 (20 Car. II.). 
 
 * The word equity is here used in its widest sense a* meaning justice or 
 right, apart from any question of legal right. 
 4 From libellum = a, writing. 
 
56 THE STUDENT'S LEGAL HISTORY. 
 
 of the facts alleged by the plaintiff, and if it disclosed a case 
 for interference the subpoena was issued, commanding the 
 defendant to appear on such a day and make answer. At 
 first, no doubt, the defendant appeared in person, but gradu- 
 ally a practice arose by which he was allowed to submit a 
 written answer on oath. The power to compel a man to 
 answer a complaint on oath was one of the secrets of the 
 success of the new Court ; for at the common law the defen- 
 dant was not allowed to give evidence on his own behalf, 
 much less could he be compelled to submit to an examina- 
 tion by the plaintiff. 
 
 Discovery : Interrogatories. Hence arose the practice of 
 filing a bill in Chancery, in the form of a long string of 
 questions, to which the defendant had to reply in writing 
 and on oath. When a party to a common law action wanted 
 to get at evidence of facts known only to the other party, 
 he would file his bill of interrogatories in Chancery and read 
 the answers in the action at common law. The same thing 
 happened in the case of documents. If the other party had 
 documents in his hands, there was at common law some diffi- 
 culty in compelling him to produce them at the trial. For 
 one thing, you might not know quite what documents he 
 had, and you could not ask him, because he could not give 
 evidence. But in Chancery you could file a bill to compel 
 him to discover 011 oath and in writing what documents he 
 had in his possession relating to the case. This was called 
 a Bill for Discovery of Documents. 
 
 Injunction to restrain Action at Common Law. Before 
 the end of the Yorkist line the Chancery had grown in 
 power to a wonderful extent. It had invented the searching 
 procedure by bill : it had fostered the system of -uses ; it had 
 discovered the injunction; and had found out how, by that 
 formidable weapon, to override the common law, when the 
 latter was in conflict with the principles of good conscience. 
 
EDWARD I. TO RICHARD III. (12721485). 57 
 
 Suppose A. had a right of action against B. by the common 
 law and not by the rules of the Chancery, A. began his 
 action in the King's Bench or the Common Pleas, B. 
 promptly applied to the Lord Chancellor, by bill, stating the 
 facts; and the chancellor issued an injunction commanding 
 A. not to go on with his action at common law. If A. dis- 
 obeyed the injunction he was guilty of contempt, and the 
 Court of Chancery would send him to prison. 
 
 These instances have been given to show what, in the 
 early days of the Court of Chancery, were the motives of its 
 jurisdiction. (1) Where the common law had no remedy, as 
 in the case of uses; (2) where the Common Law Courts had 
 no procedure, as seen in discovery; (3) where the common 
 law, relying merely on some technical formal ground, 
 worked, a manifest hardship. In these cases the chancellor 
 would interfere. 
 
 At the time with which we are dealing the jurisdiction 
 of equity was very vague. Its principles were still more 
 undefined. " Equity is the length of the chancellor's foot," 
 said a wit ; and he was right. 
 
 Justices of the Peace. Besides the Chancery Court which 
 was concerned with civil matters, Edward III. set up in 
 every county a tribunal far from ostentatious, but in reality 
 of great power. This was the tribunal of the Justice of the 
 Peace. Long before Edward III. there had been certain 
 men in every county who were bound to preserve the king's 
 peace. They consisted of the sheriffs, the king's constables 
 and bailiffs, and a few others all ex officio. They could 
 arrest disturbers of public order, and hold them in prison 
 or bail them ; and from the nature of their duties were called 
 "Conservators (i.e. preservers') of the peace." 
 
 1 Edward III. C. 16. But Edward III. appointed in each 
 shire " good men and lawful, that were no maintainers of 
 evil or barrators in the county, to keep the peace." This, 
 
58 THE STUDENT'S LEGAL HISTORY. 
 
 the first Act on the subject, merely adds to the ex officio 
 conservators a number specially appointed by the crown. 
 
 4 Edward III. C. 2. The Jurisdiction was speedily ex- 
 tended ; for only three years after their creation, the keepers 
 of the peace were empowered to receive accusations, and act 
 on them by committing- the accused to prison to wait the 
 coming of the judges of assize, when such keepers were 
 ordered to send their indictments before the said judges. In 
 this we see the origin of the preliminary jurisdiction of 
 justices in petty session, i.e. the jurisdiction to inquire into 
 an allegation, and, without trying the prisoner, to see if 
 any primd facie case is made out against him. If the accu- 
 sation is altogether frivolous, or the evidence very flimsy, 
 the prisoner is allowed to go ; but if not, he is committed to 
 the assizes or sessions to be tried. 
 
 35 Edward III. C. 1. There are other statutes of the same 
 reign dealing with the powers of the Keepers of the Peace, 
 and conferring a more and more extended jurisdiction, and 
 we come at last to 1360, when a consolidating Act was 
 passed. In every county there shall be one lord, " and with 
 him some three or four of the most worthy in the county, 
 with some learned in the law," to keep the peace (s. i.). 
 They are to have power to " pursue, arrest, take, and chastize 
 them according to their trespass or offence" (s. ii.). They 
 may imprison or punish according to the law and custom of 
 the realm (s. iii.), and also inform offenders and " inquire 
 of all those that have been pillors ( ? pillagers) and robbers 
 in the parts beyond the sea, and be now come again, and go 
 wandering, and will not labour as they were wont in times 
 past " (s. iv.). They may arrest and imprison all those 
 they may find by indictment or suspicion, and take surety 
 or mainprize for the good behaviour of those " that be not 
 of good fame. To the intent that the people be not by such 
 rioters or rebels troubled nor endangered nor the peace 
 blemished " (ss. v. and vi.). We find in this clause one of 
 the most important functions of the new tribunal, namely, 
 
EDWARD I. TO RICHARD III. (1212 1485). 59 
 
 that of preventing crime by " binding people over " to keep 
 the peace or be of good behaviour. 
 
 Conservators, now called Justices of the Peace. Further, 
 the justices of the peace, as they now began to be called, 
 might hear and determine at the king's suit all felonies and 
 trespasses done in the county (s. vii.), but all fines imposed 
 by them for trespass must be reasonable and just (s. x.). 
 
 Appeal from Justices of the Peace to the King's Bench. 
 
 From the very creation of the office, the Court of King's 
 Bench assumed an appellate jurisdiction by means of the 
 writs of certiorari and mandamus. By means of these a 
 subject could always appeal to the King's Bench against a 
 conviction wrong in point of law, or against an unfair trial. 
 The first mandamus found in the books directed to justices 
 of the peace is in Edward IY. 
 
 1 Edward IY. c. 2: Quarter Sessions. The Statute 
 34 Edward III. c. 1 gave the justices of the peace the power 
 to take indictments. An Act of the next Edward greatly 
 enlarged this power by wholly denuding the Sheriff's Tourn 
 of all criminal jurisdiction and giving it to the justices of 
 the peace sitting in Quarter Sessions. The reason given in 
 the preamble of the statute is the corruption of the sheriffs, 
 who, it appears, allowed much licence to their menial ser- 
 vants to arrest people on their own responsibility. It is not 
 impossible that Parliament was easily persuaded to abolish 
 the ancient but tumultuous and popular Court of the Sheriff. 
 
 The King's Peace : Extension of the Theory. The King's 
 Peace: Before the end of this period the theory of the 
 Pax Regis had extended to its full limits. In the time of 
 Edward I. it was still law that there must be some violence 
 to constitute a crime a breach of the peace, and so a plea of 
 the Crown. But very soon after it became customary to 
 allege in all indictments that the offence was committed 
 " contra pacem domini regis," an allegation which the 
 
60 THE STUDENT'S LEGAL HISTORY. 
 
 accused was not allowed to deny, even when there was no 
 suggestion of violence having actually been used. Even 
 up to 1916, if some pupil of Fagin snatched a pair of 
 boots from a shop door and ran away with them, he was 
 indicted that he did " feloniously steal take and carry 
 away " the boots " against the peace of our Sovereign Lord 
 the King his Crown and dignity/' The effect of inserting 
 the allegation contra pacem, &c., was to enable every prose- 
 cution to be conducted in the name of the Crown. It is 
 owing to this, in great measure, that appeals of felony fell 
 into disuse, and were almost, though not quite, obsolete 
 before the reign of Henry VII. It was a displacement of 
 private vengeance by public justice. 
 
 SUMMARY OF THE PERIOD. 
 Edward I. Richard III. inclusive. 
 
 1. Real Property: 
 
 (a) Freeholds are made alienable inter vivos; but sub- 
 
 infeudation is put an end to (Quia Emptores, 
 Edward I.). 
 
 (b) Entails are established (De Donis, Edward I.), and 
 
 continue in full force and effect until Taltarum's 
 
 Case, when the courts emphatically decide in 
 
 favour of common recoveries as a means of barring 
 
 entails (Edward IV.). 
 (c). Copyholds, formerly tenants in villeinage, gain 
 
 security of tenure, and no longer hold at the will 
 
 of the lord, 
 (d) Various slight changes are effected, e.g. the writ of 
 
 waste is given against limited owners. 
 
 ; r X 
 
 2. Law of Treason is codified and simplified (Edward III.). 
 
EDWARD I. TO RICHARD III. (12T2 1485). 61 
 
 3. The Law of Simple Contract, i.e. that a party who has 
 
 given valuable consideration for a promise can 
 bring an action for damages if the promise is 
 broken, dates from this period (precise date not 
 known). 
 
 4. The Courts of Justice : 
 
 (a) The Council, sitting as the Court of Chancery, is 
 
 found established as a Court of Equity. 
 
 (b) Justices of the peace are created with a local 
 
 criminal jurisdiction. Quarter Sessions take the 
 place of Sheriff's Tourn. 
 
 (c) Justices of assize, i.e. with a commission of gaol 
 
 delivery, oyer and terminer, assize, and nisi 
 prius are appointed instead of justices in eyre 
 (Edward I.). 
 
 5. Procedure: 
 
 (a) Indictments begin to be in writing (Edward I.), 
 
 and are ordered to be certain and definite 
 (Edward III.). 
 
 (b) Written pleadings take the place of verbal alter- 
 
 cation between the parties in civil causes (about 
 Edward I.). 
 
 (c) Bills, petitions, and the subpoena are used in 
 
 Chancery (Richard II.). 
 
 (d) " Actions on the case ' J are introduced by virtue of 
 
 the Statute "In Consimili Casu " (Edward I.). 
 
( 62 
 
 CHAPTER IV. 
 HENRY VII. TO ELIZABETH (14851603). 
 
 General. The Tudor period, though one of the most im- 
 portant in the history of England, politically and 
 economically, presents a singular lack of material for the 
 purely legal historian. The legal changes were few. The 
 common law by this time was fairly well ascertained, thanks 
 to the labours of Britton, Fortescue, Hale, Littleton, the 
 author of the Fleta, and a few other diligent text- writers. 
 The decisions of the judges had begun to be recorded in the 
 Year Books, to the greater certainty of the law, and for the 
 better guidance of their successors. 
 
 During the reign of Henry VII. the attention of Parlia- 
 ment was fully occupied with measures for recruiting the 
 national energies, so seriously shaken by the prolonged 
 Wars of the Roses. Henry VIII. was busily and con- 
 tinuously engaged in consolidating the royal power, and in 
 domestic and religious undertakings. Mary's time was 
 taken up in trying to restore the religion so ruthlessly pulled 
 down by her father and brother; and in the reign of 
 Elizabeth men's minds were full of religion and of wealth. 
 
 Yet it must not be thought that the law stood still. 
 Some changes there were, one of them, at least, of the first 
 importance to lawyers. But the chief est feature of the legal 
 history under the Tudors was the steady consolidation of the 
 common law, as will be seen when it is stated that the great 
 works of Coke, embodying that consolidation, appeared 
 immediately after the end of Elizabeth's reign. 
 
HENRY VII. TO ELIZABETH (14851603). 63 
 
 The Statute of Uses (27 Hen. YIII. c. 10). The law of 
 peal property underwent considerable changes, the moving 
 cause being the Statute of Uses, an Act more important 
 to the conveyancer than any other so important, indeed, 
 that writers on real property law always call it " the 
 statute." The object of the statute can best be gathered 
 from its preamble, which, in the manner of those times, set 
 forth at great length the ills and grievances by which legis- 
 lation had been called forth. 
 
 Summary of Statute of Uses. Preamble : Whereas by 
 the common laws of this realm lands, tenements and 
 hereditaments be not devisable by testament, nor ought to 
 be transferred from one to another but by solemn livery and 
 seisin, matter of record (e.g. fines and recoveries), writing 
 sufficient made bona fide, . . . yet nevertheless divers and 
 sundry imaginations, subtle inventions and practises have 
 been used, whereby the hereditaments of this realm have 
 been conveyed by fraudulent feoff ments, fines . . . (&c.) 
 craftily made to secret uses, intents, and trusts, ... by 
 reason whereof, and by occasion of which, fraudulent 
 feoffments . . . (&c.) to uses, confidences, and trusts, 
 divers and many heirs have been . . . disinherited, the 
 lords have lost their wards, marriages, reliefs (and other 
 feudal incidents), . . . the king's highness hath lost the 
 profits of the lands of persons attainted, . . . and many 
 other inconveniences have happened . . . ; for the extirping 
 and extinguishment of all such subtle practised feoffments 
 (&c.) ... it is enacted : 
 
 (a) That where any person stand or be seised of and in 
 any . . . hereditaments, to the use, confidence, or trust of 
 any other person or persons, or of any body politick . . . 
 that in every such case that or those persons which have or 
 hereafter shall have any such use, confidence, or trust in 
 any such lands ... or hereditaments, shall from hence- 
 forth be deemed to have such estate, possession, and seisin 
 
64 THE STUDENT'S LEGAL HISTORY. 
 
 of and in the lands . . . and other hereditaments as he or 
 they had before in the use, confidence or trust of the same 
 lands ... or hereditaments. 
 
 The object of the statute was, it will be seen, utterly to 
 destroy the doctrine set up by the Court of Chancery of the 
 distinction between the seisin, or legal estate, in land, and 
 the use, or. beneficial estate. How it utterly failed to accom- 
 plish that object will be seen. Two or three points are to 
 be noticed : 
 
 (1) Some person must be seised of the land. The word 
 " seised " applied only to the possession of an estate of free- 
 hold; * therefore, if A. was possessed of a term of years, i.e. 
 a leasehold, to the use of B., the statute did not apply. For 
 the same reason it did not apply either to copyholds or to 
 goods and chattels. 
 
 (2) He must be seised to the use of another; therefore, 
 if there was a feoff ment "to A. and his heirs, to the use of 
 A. and his heirs, " the statute did not apply. 
 
 (3) There is nothing in the statute to take away or 
 diminish the jurisdiction of the Court of Chancery as a court 
 of conscience, which would enforce an obligation conscien- 
 tious though not legal. 
 
 (4) The statute did not destroy the "use." It only 
 clothed the use with the seisin, taking that seisin out of the 
 legal feoffee. E.g. if A. was seised in fee simple to the use 
 of B. for life, and after his death to the use of C. for life, 
 and after his death to the use of D. in fee simple, the 
 effect was: To B.'s use for life is added the seisin for life 
 (leaving the rest of the seisin in A.). When B. dies, C.'s 
 use for life receives a seisin for life to clothe it. When B. 
 and C. are dead, D.'s use arises, and it is clothed with a 
 seisin of the same magnitude, i.e. the use being in fee 
 simple, the seisin is of the fee simple, and as a fee simple is 
 
 1 Supra, pp. 25-27. 
 
HENRY VII. TO ELIZABETH (14851603). 65 
 
 the largest possible estate in land, the seisin given to A. is 
 exhausted. 
 
 As has been shown, the statute did not quite destroy the 
 equitable doctrine of the separation of legal and beneficial 
 estate (vide supra). That theory still took effect with 
 regard to copyholds and leaseholds, and goods and chattels. 
 
 Tyrell's Case: S & 5 Philip & Mary: Trusts. The old 
 
 doctrine was soon to be revived, under another name, it is 
 true, but of the same nature and substance, by one of the 
 most important cases to be found in the reports. One Jane 
 Tyrell, in the fourth year of Edward VI., for the sum of 
 400, bargained and sold to her son George Tyrell all her 
 manors, lands, tenements, &c., to hold the same to G. T. 
 and his heirs for ever. [The effect of the bargain and sale 
 was to give the use to G. T., and the statute gave him the 
 same seisin as he had use, viz. the fee simple.^ The limita- 
 tions continued to G. T. and to his heirs for ever, to the use 
 of Jane for life, and after her death to the use of the said 
 G. T. and the heirs of his body, i.e. in tail. 
 
 The bargain and sale to G. T. and his heirs gave G. T. 
 the use in fee simple, and the statute gave him the same 
 seisin. Then follow two other uses, one to Jane, and one to 
 G. T. in fee tail. The question arose whether the last two 
 uses were executed by the statute; that is to say, whether 
 by the Statute of Uses Jane, who had a use for life, took 
 also the seisin for life, and G. T. the same as to his estate 
 tail. " But all the judges of the C. B., and Saunders, C.J., 
 thought that the limitation of uses above is void, . . . 
 because an use cannot be engendered of an use." * 
 
 It is difficult to support the finding of Saunders, C. J., and 
 the other judges of the Common Bench, upon the reason 
 which is given in the judgment. Why " an use cannot be 
 engendered of an use " is more than a modern lawyer can 
 
 1 Tyrell's Case, Dyers' Rep. 155a. 
 S.L.H. 5 
 
66 THE STUDENT'S LEGAL HISTORY. 
 
 imagine. The effect of the decision, namely, that the statute 
 only applied to the first use, is generally expressed thus : 
 there cannot be a use upon a use. It is not impossible to 
 find a reason for the decision in Tyrell's Case. The best 
 argument seems to be that George Tyrell stood seised to the 
 use of himself, while the statute only refers to a person who 
 is seised to the use of another. Therefore the statute had 
 no application. 
 
 The Court of Common Pleas, as will be seen, declared all 
 the uses, except the first, void. 
 
 Trusts. This was the opportunity of the Court of 
 Chancery. As we have noted, the jurisdiction of that Court 
 was not directly diminished by the Statute of Uses. As 
 soon as the common law judges refused to take notice of any 
 use except the first, the chancellor took all the others under 
 his protecting cegis, and enforced the ultimate use in the 
 same manner as before the statute. To take an example : 
 X. enfeoffed A. to the ue of B., to the use of C. The 
 common law courts only took notice of the first use, which 
 carried the legal estate to B. C. went to the chancellor, 
 who compelled B. to hold merely as C.'s trustee, C. taking 
 the benefit. From about this time the use enforced by the 
 Court of Chancery was known as a trust, the word " use " 
 being applied only to that which took effect under the 
 statute, i.e. the first. 
 
 The Statute and Conveyancing. The Statute of Uses is, 
 perhaps, the most important to a conveyancer. By taking 
 advantage of it, means were invented to transfer the seisin 
 without the troublesome formality of " livery of seisin." By 
 taking advantage of the same peculiarity, namely, the 
 facility for transferring the seisin by merely conveying a 
 use, many inconvenient rules of the common law were 
 dexterously avoided, and, without going into details, which 
 
HENRY VII. TO ELIZABETH (14851603). 67 
 
 will be found in treatises on real property, it may be stated 
 that modern conveyancing dates from the Statute of Uses. 
 
 The Law of Wills of Land. Whatever may have been 
 the law before the Conquest, it is certain that after that 
 time no will of land was permitted to be made. It is not 
 clear why such a rule should have prevailed in the case of 
 non-military tenures, but one readily understands why it 
 should be enforced in the case of land held by knight- 
 service. For to allow a will of such land would have been 
 to deprive the lord of relief, wardship, and marriage, his 
 most valuable feudal rights. 
 
 In the early days of uses, it became the practice for 
 owners of land to convey their estates to a feoffee, to hold it 
 to such uses as the feoffor should appoint by his will. For 
 example, the owner of land desired to dispose of it by will. 
 He enfeoffed A. in fee simple. Then, by some writing to 
 take effect after his death, or even by word of mouth, he 
 declared his will that A. should hold to the use of B. and 
 his heirs. Thus, the full limitation would be to A. and his 
 heirs, to the use of B. and his heirs. This kind of disposi- 
 tion of land is generally called a will of uses. 
 
 When the Statute of Uses was passed, it incidentally 
 destroyed the will of uses, because when the feoffor enfeoffed 
 A., and did not immediately declare any uses, A. held to 
 the use of the feoffor, and the Statute of Uses clothing the 
 use with the seisin, A. had no estate at all. 
 
 Five years after the Statute of Uses, it was found im- 
 possible to continue the absolute restriction on the devise of 
 freeholds, and, therefore, an Act was passed allowing a 
 certain liberty of testation. The Statute of Wills (1540) 
 begins by reciting : " Our said sovereign lord, most vir- 
 tuously considering the mortality that is to every person at 
 God's will and pleasure most common and uncertain, of his 
 most blessed disposition and liberality, being willing to 
 relieve and help his said subjects in their said necessities 
 
68 THE STUDENT'S LEGAL HISTORY. 
 
 and debility, is contented and pleased that it be ordained 
 and enacted by authority of this present Parliament." 
 
 Sect. 1 gives power to all owners of socage lands to dis- 
 pose of by a last will and testament in writing or otherwise 
 by any act or acts lawfully executed during life. Sect. 3 
 reserves to the king, as against the devisee, the same reliefs 
 and other payments as were made by an heir. Sect. 4 
 allows a tenant by knight-service to devise two-thirds of 
 such land by will, saving to the king or the lord his rights 
 of wardship and primer seisin in the other third part. The 
 statute said nothing about copyholds, and as the Statute of 
 Uses did not affect copyholds, they were still devised by 
 wills of uses. By a further Act two years later it was 
 declared that married women, infants, and idiots, cannot 
 make a will of land. 
 
 It is important to notice that the Act does not provide any 
 particular form of will. Blackstone declares that under the 
 statute " bare notes in the handwriting of another person 
 were allowed to be good wills," because they came under the 
 designation of " other act lawfully executed in the testator's 
 life." A further point is, that a number of the rules which 
 formerly applied to wills and uses, were applied also to wills 
 under the Act, e.g. a will of uses only referred to such land 
 as had been given to the feoffee to uses. Without the same 
 reason, the new will only referred to such land as the testator 
 had when he made it. Thus, " I devise all my land to A. B." 
 did not give A. B. all the land the testator had when he died, 
 but only that which he had when he made the will. 1 
 
 Statutes of Bankruptcy, 3$ & 35 Hen. VIII. c. $, and 
 13 Eliz. c. 7. The Law of Bankruptcy took its rise in this 
 period. By a statute of Henry VIII. all persons who tried 
 to defraud their creditors either by fleeing the realm or by 
 "keeping house," i.e. stopping at home and refusing to 
 
 1 See also p. 130. 
 
HENRY VII. TO ELIZABETH (14851603). 69 
 
 allow admission to creditors, might be declared bankrupt. 
 All their property was to be forfeited and sold, and the pro- 
 ceeds rateably divided amongst the creditors. Unlike the 
 present law, however, the Act of Henry VIII. left the 
 bankrupt still liable for the balance of his debts, and he was 
 liable to imprisonment. A further statute of Elizabeth 
 amended the procedure and constituted a Court of Commis- 
 sioners in Bankruptcy. The statute of Elizabeth only 
 applied to traders. It is only necessary to say here that 
 under both the Acts bankrupts were treated as criminals. 
 
 Statutes to prevent Fraud. There are two famous Acts 
 of Elizabeth passed with the laudable view of preventing 
 frauds. They are both of the utmost importance to the 
 student, and are generally called 13 Eliz. c. 5, and 17 Eliz. 
 c, 4. The first is to protect creditors against fraudulent 
 debtors who put their^property out of the reach of execution. 
 By the statute all conveyances and dispositions of property, 
 made with intent to defraud creditors, are utterly void and 
 of none effect. The best opinion seems to be that this was 
 only an emphatic declaration of the common law, and no new 
 idea. 27 Eliz. c. 4 enacted that when a man fraudulently 
 made a voluntary gift of land in order to defraud a subse- 
 quent purchaser, the gift should be void. This Act was pro- 
 bably rendered necessary by the facility with which secret 
 gifts could be made by means of verbal uses and trusts. 
 
 Star Chamber. The Courts of Justice had already been 
 established almost exactly in the form which lasted to 1875, 
 but there was another Court established in the reign of 
 Henry VII. As I have shown on a previous page, the King 
 in Council always exercised a vast authority in all legal 
 matters. Especially they interfered to redress the grievances 
 of the poor against the powerful. From the time of 
 Henry VII. the judicial power of the Council was chiefly 
 exercised by the Committee of the Council called the Star 
 
70 THE STUDENT'S LEGAL HISTORY. 
 
 Chamber; and this Committee vastly extended the scope of 
 the Council's jurisdiction under the Tudors and the Stuarts. 
 In this period, also, the Chancellor, himself, had attained 
 jurisdiction in equity. In fact, he was the sole judge of the 
 Court of Chancery. 
 
 3 Hen. YII. C. 1. In the year 1488 was passed an Act 
 whose purpose can be best gathered from an extract from 
 its preamble : " The king, our said sovereign lord, remem- 
 bereth how by unlawful maintenance, giving of liveries, 
 signs, and retainders by indentures, promises, .oaths, 
 writings, or otherwise embraceries of his subjects, untrue 
 demeanings of sheriffs in making of panels and other untrue 
 returns, by taking of money by juries, by great riots and 
 unlawful assemblies, the policy and good rule of this realm 
 is almost subdued, and for the not punishing of these incon- 
 veniences, and by reason of the premises, little or nothing 
 may be found by inquiry, whereby the laws of the land in 
 execution may take little effect, to the increase of murders, 
 robberies, perjuries, and unsureties of all men, living, and 
 losses of their lands and goods to the great displeasure of 
 Almighty God." 
 
 There can be no doubt that at this time, notwithstanding 
 the abolition of much of the sheriff's ancient power, he had 
 still a great deal of authority, and that his authority was 
 often exercised mischievously and corruptly. As to the 
 corruption of jurors, and their intimidation by local 
 magnates or factions, there is abundance of testimony. It 
 is one of the reasons given in the preamble of 1 Edw. IY. 
 c. 2, 1 for the disestablishment of the sheriff's tourn and the 
 setting up of quarter sessions. It formed a parliamentary 
 grievance throughout the Middle Ages, and was the subject 
 of many a popular satirical ballad. 
 
 Criminal Jurisdiction. The statute goes on to ordain 
 that the chancellor, treasurer, and keeper of the privy seal, 
 
 1 Supra, p. 59. 
 
HENRY VII. TO ELIZABETH (14851603). 71 
 
 or two of them, with a bishop and a temporal lord of the 
 Privy Council, and the two chief justices of the King's 
 Bench and Common Pleas (or two other justices in their 
 absence), should have authority to call before them and 
 examine all those charged with " any misbehaviour before 
 rehearsed" (i.e. in the preamble), and to punish them on 
 conviction. 
 
 The Privy Council as a Court. It is shown in Chapter 
 VIII. how the Common Law Courts grew out of the Curia 
 Regis or King's Council. But it is certain that the Council 
 did not part with all right of jurisdiction. Sitting as an 
 administrative body, one of the duties it took upon itself 
 was to interfere upon occasion to prevent a manifest failure 
 or miscarriage of justice, especially where the offender was 
 too powerful to be dealt with by the sheriff, or where he was 
 the sheriff, or where the offence was followed by maintenance, 
 i.e. the perversion of justice by violence and intimidation. 
 It required a great deal of moral and physical courage for a 
 jury to return a verdict against a Percy or a Fenwick when 
 the case was tried in Northumberland. There were pretty 
 sure to be scores of armed retainers of the Percy or dozens of 
 the Fenwick sept in the Court; desperate men, only too 
 ready to risk life and limb on the bidding of their chief. 
 
 The Council seems to have had not only criminal but civil 
 jurisdiction; for from 1350 to 1422 there were at least ten 
 petitions presented by Parliament or by the Commons House 
 against the encroachments of the jurisdiction. In 1350, the 
 petition was that men should not be tried by the Council in 
 question touching their freeholds or life or limb; another 
 one prays that no Common Pleas be tried by the Council, and 
 so on. It is obvious, therefore, that long before 3 Henry VII. 
 there was plenty of jurisdiction in the Privy Council, and it 
 becomes difficult to say what was the effect of 3 Henry VII. 
 c. 1. It is suggested that the effect was to establish a 
 regularly constituted Court for the trial of the offences 
 
72 THE STUDENT'S LEGAL HISTORY. 
 
 specified. There had undoubtedly been some jealousy 
 between the Houses and the Council ; and Henry, who wished 
 to establish order, and saw that it could only be done by a 
 strong- central body with the power to strike hard and swiftly, 
 took it out of the power of Parliament to complain by in- 
 ducing them to pass an Act constituting the tribunal, which 
 was, after all, only a committee of the hated Privy Council. 
 
 Civil Jurisdiction of the Star Chamber. Besides the 
 
 criminal, there was a certain amount of civil jurisdiction 
 exercised by the Star Chamber. Certain admiralty cases, 
 actions by or ag-ainst aliens and between corporations were 
 cognizable. 
 
 Decline and Fall. The Court of Star Chamber was a 
 powerful instrument in the hands of the Crown; and not 
 long after Henry VII. it had ceased to be anything more 
 than a mere tool by which the prerogative was maintained. 
 The great complaint against it was its inquisitorial proce- 
 dure; i.e. instead of the prosecution being obliged to prove 
 guilt, the prisoner was brought up and examined by the 
 Court with a view to extracting admissions of his guilt from 
 his own mouth. It was abolished on account of its manifold 
 abuses, in 1640. 
 
 Treason. During the Wars of the Roses one of the 
 features that least commended itself to the English mind 
 was the series of executions and confiscations of property 
 by which every change in the fortunes of war was followed. 
 When the Yorkists were uppermost they tried, condemned, 
 and executed all those who had supported or assisted the 
 Lancastrians. When the Red Rose was in its turn trium- 
 phant, the process was reversed. It was useless for the 
 traitor to protest that in affording aid in men, money, or 
 counsel he had only obeyed the person who was at the time, 
 in fact, on the throne. The answer given was that though 
 
HENRY VII. TO ELIZABETH (14851603). 73 
 
 Edward was king de facto, Henry was king de jure; or, on 
 the other hand, that though Henry was king de facto, 
 Edward was king de jure. These were indeed perilous 
 times for honest men who cared not two straws for politics, 
 and had not the folly or the courage to brave death or exile 
 in defence of someone else's principles. 
 
 Henry VII. assented to an Act by which treason was 
 defined to be an offence committed only as against the king 
 de facto, and not as against the king de jure. Henry VIII. 
 passed an Act to enable treasons committed out of the realm 
 to be tried within the realm. 
 
 The Court of Wards and Liveries. The Court of Wards 
 
 was another body established by the Tudors (32 Henry VIII. 
 c. 46). An Act of the following year annexed to this Court 
 another, called the Court of Liveries, so that the tribunal 
 became known as the Court of Wards and Liveries. Its 
 functions were to manage the property of wards who held 
 in capite of the Crown and to act as guardian of the person 
 of such wards. The Court controlled the marriage of those 
 in its guardianship, levied fines for marrying without the 
 king's licence, and, when the heir attained his majority, 
 fixed the amount payable to the king for " suing out his 
 livery. " There was no jurisdiction except where the land 
 was held in chivalry, that is, not when the tenure was 
 socage. As far as related to all matters whatsoever con- 
 nected with the king's wards and their estates, the juris- 
 diction of the Court of Exchequer was taken away. When 
 tenure in chivalry was abolished, 1 the Court of Wards and 
 Liveries was discontinued. 
 
 High Commission Court. In Elizabeth's reign two new 
 Courts were created. The first was the Court of High Com- 
 mission, created by virtue of 1 Eliz. c. 1, the statute consti- 
 
 1 See p. 83, infra. 
 
74 THE STUDENT'S LEGAL HISTORY. 
 
 tilting 1 the Queen head of the national Church. Power was 
 given to the sovereign to appoint commissioners to exercise 
 jurisdiction in spiritual matters, such as heresies, schisms, 
 and all abuses and contempts of ecclesiastical authority. 
 The uses and abuses of this Court, its rigorous action under 
 Archbishop Laud, the hostility it excited, and its eventual 
 abolition by the Long Parliament, form an interesting 
 chapter in the political, religious, and constitutional history 
 of the country, but they have little interest for the lawyer. 
 
 Exchequer Chamber. There was another Court, how- 
 ever, established by Elizabeth, of great legal interest, and 
 that was the famous Court of Exchequer Chamber, which 
 was, and continued to be for nearly 200 years, the highest 
 Court of authority in the common law. Before this time 
 there had been a Court sitting in the Exchequer Chamber, 
 consisting of all the judges, i.e. the barons of the Exchequer 
 and the justices of either Bench, to try appeals on points of 
 law from the Common Pleas only. 
 
 Appeals from King's Bench. By 27 Eliz. c. 8, where 
 any judgment should be given in the K. B. in debt, detinue, 
 account, covenant, trespass, ejectment, or action on the case 
 first commenced there, except where the Crown was a party, 
 the party against whom judgment was given might appeal 
 on a point of law to the Court of Exchequer Chamber. The 
 proceeding was by writ of error, and the Court was to con- 
 sist of the barons of the Exchequer, and the justices of the 
 Common Pleas, or at least six of them. 
 
 Appeals from Exchequer. By another Act, four years 
 later, a similar appeal was allowed from the Court of Ex- 
 chequer to a Court consisting of the justices of the other two 
 Courts, or six of them at least. It appears to have been an 
 ancient practice for the judges of any Court in which a case 
 of special difficulty arose to adjourn it to a Court consisting 
 of all the common law judges sitting in the Exchequer 
 
HENRY VII. TO ELIZABETH (14851603). 75 
 
 Chamber. Instances are to be found in Shelley's Case, 1 and 
 in the famous Case of Shipmoney (Charles I.). 
 
 Trials at Nisi Prius. Another important reform was 
 effected in the trial of civil actions. Up to this time all 
 causes triable in Middlesex had been heard at bar, i.e. by 
 several of the justices or barons of the respective Courts. 
 By 18 Eliz. c. 12 trials in Middlesex were assimilated to 
 trials at assizes. The writ of Nisi Prius, 2 which had 
 hitherto only issued for actions triable by the judges of 
 assize, was to be granted also for issues triable in West- 
 minster Hall, and, consequently, any civil case could now 
 be tried by two judges and a jury. The saving of time 
 effected by this change was enormous. 
 
 The Action of Assumpsit. In a previous page 3 will be 
 found an account of dicta as early as Edward IV. in favour 
 of an action on the case for the non-performance of a 
 promise not under seal. These dicta were confirmed in the 
 succeeding reign (Henry VII.), when we find it declared by 
 the whole Court of King's Bench that an action would lie 
 for non-feasance as well as for raaZ-feasance, This action of 
 trespass on the case, viz. for breach of a contract not under 
 seal, and not a mere debt or liquidated sum for work and 
 labour, or for goods supplied, 4 was called assumpsit. The 
 name " assumpsit " was given because the plaintiff sued the 
 defendant quare cum assumpsisset, that is, because he had 
 undertaken. For instance, in Henry IV. an action was 
 brought against a carpenter quare cum assumpsisset to build 
 a house within a certain time, which he had not done. At 
 that time the action failed. But in the reign of Henry VII. 
 jusctices on the King's Bench took a contrary view. There 
 are two cases reported in the same Year Book in the twenty- 
 first year of Henry VII. One of them is as follows : " If 
 
 1 Coke's Reports, 106. 2 See page 51. 3 Supra, p. 45. 
 
 4 These would be covered by the common law action of debt. 
 
76 THE STUDENT'S LEGAL HISTORY. 
 
 one covenants to build me a house by such a day, and does 
 not do it, I have an action on the case for this nonfeasance 
 as well as if he builds it imperfectly. And so it is if one 
 makes a bargain with me that I shall have his land to me 
 and my heirs for 20, and he refuses to perform it : I shall 
 have an action on the case, and there is no occasion for a 
 subpoena." The judge (Chief Justice Fineaux) of the 
 King's Bench is, as it would seem, the real author of 
 assumpsit, and it is evident that his desire to give an action 
 on the case for the non-performance of a promise made for 
 valuable consideration was much influenced by the fear of 
 the growing jurisdiction of the Court of Chancery. The 
 common law judges were very jealous of the subpoena, as 
 they invariably style the process of the chancellor. 
 
 It was only from the end of Elizabeth's reign that the 
 action became of general use. When it did become common 
 it ousted the action of debt almost entirely from the Courts. 
 That action, like all other early forms, was highly technical, 
 formal, and cumbrous to a degree that made its use dan- 
 gerous. Moreover, it proceeded with a stately dilatoriness 
 extremely irritating to the plaintiff who wanted his money. 
 But the action of assumpsit, being in form an action to 
 obtain redress for a wrong done, was quicker, and not so 
 tedious. After it came into favour we scarcely hear of the 
 action of debt. 
 
 The Action of Ejectment. It has been indicated else- 
 where that by the common law, when a lessee was ousted 
 from his holding, his remedy was to bring an action of 
 trespass for damages. At some time or other, but certainly 
 in or before Edward IV., he could not only get damages, 
 but a writ of possession by which he was put back on his 
 land. Thus he stood in as good a position as a freeholder, 
 and was not put to the trouble and expense of a real action, 
 in which he might possibly have to stake his right on the 
 stoutness of a champion or the strength of his armour. 
 
HENRY VII. TO ELIZABETH (14851603). 77 
 
 At some time in the Tudor period the date is not pre- 
 cisely known it occurred to an ingenious pleader to adapt 
 the remedy of ejectment to the case of a freeholder. This 
 is how it was done : A. claimed a freehold estate in land 
 actually in the occupation of T., the latter being a tenant 
 of B. A. made a lease of the disputed land to X. X. went 
 to take possession, and was promptly turned out by T. 
 Then X. sued T. for ejectment. Now, the respective titles 
 of X. and T. depended upon the titles of their landlords. 
 If A. was the real owner of the land, then X., as his lessee, 
 had the best right to possession, and T. was a trespasser 
 when he turned him out. On the other hand, if B. was the 
 real owner, T. was lawfully in occupation, and was justified 
 in ejecting X. So the real question was, which of the two, 
 A. or B., was owner of the land. Therefore, when T. was 
 sued by X., he wrote to B., and B. came in and defended 
 the action. X. also wrote to A., and A. came in and prose- 
 cuted the action. So that a verdict for the plaintiff would 
 mean that A. was the real owner of the land, and the 
 question of title to real property was tried by a mere action 
 of trespass. 
 
 The Action of Trover and Con version. Another of the 
 
 actions on the case arising out of the Statute In Consimili 
 Casu was that of trover and conversion. Trover comes from 
 trouver=to find; and the action would lie where A. had 
 found B.'s property and then converted it to his own use, 
 i.e. used it for his own purposes. It was in substance like 
 the action of detinue, 1 being for wrongfully withholding 
 property from him who was the rightful owner. In such a 
 <case as the one just given, detinue would not lie in many 
 cases; for instance, if the defendant had parted with the 
 property before 'the action was brought, because if A. had 
 sold or given the thing to C., it was C. and not A. who 
 
 1 Supra, p. 28. 
 
78 THE STUDENT'S LEGAL HISTORY. 
 
 withheld it from B. But the facts were similar, and the 
 damage to A. was the same, and so an " action on the case " 
 was given. 
 
 The original action of trover, no doubt, was one in which 
 the defendant really had found the goods; but speedily it 
 was applied by a fiction to cases which were covered by the 
 old writs of detinue and trespass. For instance, if A. lent a 
 horse to B., and B. refused to return it, this was detinue, 
 and A. could sue for the return of the horse or its value. 
 Or, again, X. came to Y.'s house and wrongfully carried 
 away a horse. This was trespass. But the actions of tres- 
 pass and detinue were both technical, especially detinue. 
 In the case of trespass, the plaintiff had to prove that the 
 original taking had been wrongful, as well as that the defen- 
 dant was wrongfully withholding the possession of the 
 horse ; while in the action of trover the plaintiff only had to 
 prove that at some time or other the defendant had posses- 
 sion of the horse, and had exercised dominion over it. 
 
 One cannot fix the date when it took place, but it did 
 happen that at some period between the time of the Statute 
 In C&nsimili Casu and the middle of the reign of Elizabeth, 
 a plaintiff whose goods were detained or had been wrong- 
 fully taken by the defendant could bring ah action upon the 
 case for trover instead of detinue or trespass. The plaintiff 
 was allowed to allege that the defendant found the thing 
 and then converted it to his own use, and this allegation 
 of finding, which the defendant was not allowed to deny, 
 brought the case within the reach of trover. 
 
 The first case reported, as far as can be found, was Mul- 
 grave v. Ogden, 1 in the year 1594, the substance of which 
 can be gathered from the report. " Action upon trover of 
 twenty barrels of butter, and counts that he tarn negligenter 
 custodial 2 that they became of little value, and upon this it 
 
 1 Croke's Keports, Elizabeth, p. 219. 
 
 2 Trans. = So negligently guarded them. 
 
HENRY VII. TO ELIZABETH (14851603). 79 
 
 was demurred, 1 and held by all the justices, 2 that no action 
 lieth in this case, for no law compelleth him that finds a 
 thing to keep it safely : as if a man finds a garment, and 
 suffers it to be moth-eaten, or if one finds a horse, and giveth 
 it no sustenance; but if a man finds a thing and useth it, he 
 is answerable, for it is conversion ; so if he of purpose mis- 
 useth it, as if one finds paper and puts it into the water, but 
 for negligent keeping no law punisheth him." 
 
 Of course, the defendant had not really found the butter. 
 He was probably a man who had undertaken in a friendly 
 way to take charge of it ; but it had to be stated that he 
 found it. 
 
 There is another case reported in 1595, under the name 
 of Ascue v. Sanderson, 3 which was an action against a 
 sheriff for having seized three hundred sheep in execution 
 under a writ of fieri facias, and having sold one hundred of 
 them he did not return the others to the debtor. Here there 
 is no doubt about the action, and, indeed, from the reports 
 of these two cases, especially the absence of any question as 
 to the form of the writ, it is safe to conclude that the action 
 of trover had been started some little time. At all events, 
 it was in general use under Elizabeth, as may be seen from 
 the fact that there are at least a score of cases scattered up 
 and down the pages of Croke's Reports. 4 
 
 SUMMARY. 
 Real Property: 
 
 (a) The Statute of Uses was passed in Henry VIII. to 
 avoid use of lands ; but the main object of the Act 
 was defeated by the decision in Tyrell's Case, and 
 the trust came into force instead of the use, being 
 the same thing under another name. 
 
 1 Objected to on a point of law. 
 
 8 Of the Queen's Bench. 
 
 8 Croke Eliz. pp. 433, 434. 
 
 4 Croke Eliz. pp. 352, 485, 495, 638, 724, &c. 
 
80 THE STUDENT'S LEGAL HISTORY. 
 
 (b) Modern conveyancing dates from the Statute of 
 
 Uses. 
 
 (c) Wills of land permitted. Two-thirds knight-service 
 
 lands, and all in socage tenure. (Statute of 
 Wills, Henry VIII.) 
 
 The law of bankruptcy begins (Henry VIIII.) and is 
 
 amended by Elizabeth. Elizabeth's Act only 
 applies to traders. Bankrupts are treated as 
 criminals. 
 
 The two statutes to prevent fraud on creditors (13 Eliz. 
 c. 5) and purchasers (27 Eliz. c. 4). 
 
 The Courts of Justice : 
 
 (a) The Court of Star Chamber established (Henry 
 
 VII.). 
 
 (b) The Court of Wards and Liveries (Henry VIII.). 
 
 (c) The Court of High Commission (Eliz.). 
 
 (d) The Court of Exchequer Chamber (Eliz.). 
 
 Legal Procedure : 
 
 (a) The action of assumpsit, i.e. trespass on the case for 
 
 non-performance of simple contract (Henry VII.), 
 and begins to supersede action of debt. 
 
 (b) The action of ejectment is extended by a circuitous 
 procedure to freeholds, and partly ousts the real 
 actions. 
 
 (c) Writs of nisi prius issued for Middlesex actions, 
 
 thus enabling two judges to try cases as at assizes 
 (Eliz.). 
 
 (d) The action of trover and conversion comes into use, 
 and gradually supplants detinue. 
 
(81 ) 
 
 CHAPTEE Y. 
 
 JAMES I. TO JAMES II. (16031688). 
 
 General. It is a stale saying that the Stuart period was 
 one of good legislation and bad government. With the bad 
 government this work has nothing to do. It is only con- 
 cerned with the good legislation. 
 
 Notwithstanding the political troubles that convulsed the 
 nation during almost the whole of the Stuarts' reigns, the 
 development of the law proceeded steadily. Mercantile 
 causes deserted the ancient but impotent merchant courts, 
 and were tried by the king's judges. The law of real 
 property received, perhaps, few additions or alterations 
 until the time of Charles II., but, in the reign of that merry 
 monarch's grandfather, the greatest of English lawyers, 
 Coke, endeavoured to raise that branch of legal learning to 
 the level of a science. Coke so laid down the law of real 
 property, and so explained it, that except for statutory 
 alterations his works may be looked upon as a code of the 
 law of real property to this day. After many futile 
 attempts, military tenures were abolished by the first 
 Parliament of Charles II., an act which entailed many 
 important consequences. 
 
 Parliament also regulated and settled the intestate succes- 
 sion to personalty, and the law relating to monopolies, thus 
 calling into existence the patent laws. 
 
 In this period also the law relating to offences against 
 the king and his government received much attention, and 
 an important change was effected in favour of the liberty of 
 
 S.L.H. 6 
 
82 THE STUDENT'S LEGAL HISTORY. 
 
 the subject by regulating the procedure of the writ of 
 Habeas Corpus. 
 
 The celebrated Statute of Frauds was passed with the 
 view of compelling people to put important transactions 
 into written form. It precluded a plaintiff in many cases 
 from suing until he could produce documentary evidence, 
 and made writing necessary in the conveyance of land. 
 
 With much of the legislation of the time we do not 
 intend to deal. The series of statutes directed against 
 Homan Catholics and Protestant Dissenters, the great 
 Petition of Right, and other measures which mark the time, 
 are fully dealt with in the learned work of Mr. S. E,. 
 Gardiner. 
 
 The Law of Real Property. Under the Tudors the 
 burdens of tenure in chivalry had been severely felt. They 
 were still more grievously felt under the Stuarts. One of 
 the early acts of the Parliament of James I. was to approach 
 the king with a proposal to abolish knight-service and its 
 incidents, compounding with the king for his revenues 
 arising out of it. The negotiations broke down upon a paltry 
 question of a few thousands a year, and during the whole of 
 the reign of the first two Stuarts, the royal landlord exacted 
 the uttermost farthing from his tenants in capite. Excessive 
 fines and reliefs were levied, and when a king's ward, 
 having attained majority, and with difficulty raised the sum 
 to sue out his livery, entered upon his inheritance, he found 
 the buildings in disrepair, the timber cut, and the whole 
 estate in ruins, because His Majesty's Court of Wards and 
 Liveries had taken everything possible, and not spent a 
 penny on the property. A female ward was in a worse 
 plight; she might either be bestowed in marriage on the 
 highest bidder, or ordered to marry a man so repulsive that 
 she could not accept him. The disobedience resulted in a 
 fine to the king of the value of the match. 
 
JAMES I. TO JAMES II. (16031688). 83 
 
 Abolition of Knight-Service Tenure. In the first year of 
 Charles II., called by a polite fiction the twelfth year, 
 tenure by knight-service was abolished, and all land so held 
 was -turned into free and common socage. 1 The Court of 
 Wards and Liveries was abolished. Wardships, values, 
 and forfeitures of marriage, and aids and all incidents of 
 the feudal system were put an end to. 2 
 
 Since this statute the greater part of the land of the 
 kingdom has been held in socage, except grand and petty 
 serjeanty, copyhold and gavelkind. 
 
 Wills of Land. The Statute of Frauds, 3 in order to 
 remedy the inconvenience occasioned by the Statute of 
 Wills, provided that in future all wills of land should be in 
 writing, signed by the testator or by someone in his presence 
 at his direction, and should be witnessed and attested by 
 three or four credible witnesses in the presence of the 
 testator. 
 
 Charters of Conveyance. Another section of the Statute 
 of Frauds (sect. 1) enacts that no conveyance of freeholds 
 made merely by livery of seisin shall be valid unless it is 
 evidenced by a document signed by the feoffor or an agent 
 authorized in writing. 
 
 Leases. Pursuing the same policy, the same section 
 declared void all leases merely by word of mouth; but 
 the next section made an exception in favour of leases not 
 exceeding three years. 
 
 Personal Property: The Statute of Distributions. 
 
 Statutes dealing with personal property were rare in early 
 law, simply because personalty Jormed so little of the 
 country's wealth as not to be worth legislating about. We 
 
 1 12 Car. II. c. 24, e. 1. 2 Ibid., ss. 1 and 2. 
 
 3 29 Car. II. e. 5. 
 
84 THE STUDENT'S LEGAL HISTORY. 
 
 have seen how liberty of testamentary disposition of per- 
 sonalty existed at a very early period, and was confirmed 
 by more than one declaration of the early Norman kings. 
 The distribution of the personalty of an intestate was in the 
 hands of the Church, by whom the personal estate was to be 
 distributed amongst the widow and next-of-kin of the 
 deceased. The administration was in the hands of the 
 ordinary of every diocese, and of the judges of the 
 Prerogative Courts of the two archbishops. It appears that 
 although each of these Courts professed to be governed by 
 practically the same rules, in fact each Court had its own 
 customary canon law and practice, so that much uncertainty 
 prevailed in the country. The Statute of Distributions 
 (1670) was passed to remove this uncertainty. By it were 
 established uniform rules as to the persons entitled to a 
 share of intestates' personalty, and as to the shares they 
 were to take. If there were a widow and children or issue, 
 the widow took one-third, by analogy to dower, and the 
 children shared the remainder. If there were a widow but 
 no issue, then the widow took one-half and the next-of-kin 
 the other half. Children of a deceased next-of-kin were to 
 represent their parents ; but this principle was not to be 
 extended beyond the children of brothers and sisters of the 
 deceased i.e. a man's nieces and nephews represented, or 
 stood in the shoes of their parents; but more remote 
 collaterals, e.g. cousins, did not. A child who had been 
 advanced, or set up in life by his father, was not to claim a 
 share of that parent's estate unless he brought into account 
 "hotchpot" it was called the portion that had been 
 advanced to him. Thus the doctrine set up by the chan- 
 cellor, that the law supposes a parent to wish to provide 
 for all his children on an equal footing, was recognized by 
 statute. The Statute of Distributions, 1 said to have been 
 framed by Edward Hyde, Earl of Clarendon, but not passed 
 
 1 22 & 23 Car. II. c. 10. 
 
JAMES I. TO JAMES II. (16031688). 85 
 
 until three years after his flight into exile, has ever since 
 been the basis of the law on the distribution of personalty 
 ab intestato. In fact, it has only been altered twice, and 
 that but slightly, once in 1685, * and the second time in 
 1890. 2 
 
 The Law of Patents. A patent is a monopoly granted by 
 the Crown to a subject. Until the year 1623 it had been 
 customary for the Crown to grant monopolies or patents 
 either to favourites as a pure matter of grace, or to servants 
 of the Crown by way of reward for services, or to people 
 who, like Mompesson and Mitchell, paid handsomely for the 
 privilege. The Duke of Buckingham had a patent of gold 
 lace, another had a monopoly of taverns in the metropolis, 
 and so on. In 1623 was passed the famous Statute of 
 Monopolies, 3 which declared all existing monopolies and 
 patents null and void, except those granted for the exclusive 
 use within the kingdom of some new manufacture, provided 
 it had been granted to the " true and first inventor " 
 thereof. All such existing patents were cut down to 
 twenty-one years from the date of the grant. As to future 
 monopolies, they were only to be given for the " sole work- 
 ing or making of any manner of new manufactures within 
 this realm to the first and true inventor and inventors " for 
 the term of fourteen years or under. 
 
 The Monopolies Act is the foundation of the present 
 patent laws of the world. Numerous other Acts have been 
 passed from time to time, especially in the reigns of Queen 
 Victoria and King George Y. ; 4 but they all deal simply 
 with procedure that is, the manner in which letters-patent 
 are to be applied for, and the machinery of the Patent 
 Office. 
 
 1 1 Jac. II. c. 17, s. 7. 
 
 2 Intestates' Estates Act, 1890. 
 
 3 11 Jac. I. c. 3. 
 
 * Patents Act, 1907 a consolidating Act. 
 
86 THE STUDENT'S LEGAL HISTORY. 
 
 The Common Law. There was little or no change in the 
 common law, except in so far as the Reports and Commen- 
 taries of Coke, which pulled the common law tog-ether, so to 
 speak, altered the law by making its principles clearer than 
 they had been before. The actions on the case, viz. : 
 assnmpsit and trover, continued to increase in favour, to 
 the extinguishment of debt and detinue. 
 
 The Action of Ejectment was still further improved in 
 the time of the Commonwealth, so as to make it an easier 
 mode of trying title to land. Hitherto the real claimant 
 made a lease to a tenant, and that tenant suffered himself 
 to be ejected by the tenant of the other claimant. During 
 the Commonwealth a new fiction was introduced by Chief 
 Justice Rolle. The defendant was not allowed to deny that 
 a lease had been made, and that the nominal plaintiff had 
 been ejected by someone at his (the defendant's) orders. 
 Consequently no lease was made, and no ejectment really 
 took place. The nominal plaintiff merely alleged these 
 matters, and called on the real claimant to make good his 
 title. Soon after, the nominal plaintiff became a fictitious 
 person, by name John Doe, who alleged that he had been 
 ejected by another fictitious person, yclept Richard Roe. So 
 that the action of ejectment was an action brought by a 
 fictitious person on a fictitious lease, because he had been 
 ejected (which in fact he had not) from land demised to 
 him by the real plaintiff. The date of the birth of John 
 Doe is not precisely known. A case occurs in 1741, in which 
 he is mentioned as plaintiff ; but there is nothing to indicate 
 that he appears on the scene for the first time. In fact, the 
 report points to the conclusion that the practice is of some 
 standing, and it may be said that during the period now 
 under consideration, the action of ejectment began to be 
 based on a -fiction of a demise and a fiction of a trespass ; and 
 that shortly after, it was based on a fiction of a demise to a 
 fictitious lessee, and a fiction of a trespass committed by a 
 
JAMES I. TO JAMES II. (16031688). 87 
 
 fictitious casual ejector. Blackstone objects, even so late as 
 1742, to the lease being alleged to be made to a fictitious 
 person, and says that the general practice is bad, but his 
 opinion never seems to have been acted on. 1 
 
 The Statute of Frauds (29 Car. 2, c. 3) was the most 
 important of the Acts relating to the common law passed 
 during this period. Its full title is An Act for Prevention 
 of Frauds and Perjuries. 
 
 It enacted that upon certain contracts no action should be 
 brought, unless the agreement, or some note or memorandum 
 thereof, was in writing, signed by the defendant or his 
 agent. Contracts for the sale of gooods of the value of 10 
 and upwards must either be proved by such written 
 evidence, or by evidence that part of the goods had been 
 accepted by the buyer or part of the price had been paid to 
 the seller. The statute is an important one, and has given 
 rise to much controversy. 
 
 The Law Merchant. Up to the reign of Elizabeth there 
 is, so far as can be ascertained, very little of mercantile law 
 to be found in the reports. This is because the law merchant 
 (Lex Mercatoria) was at that time only the customary law 
 enforced in various local courts which had jurisdiction over 
 local trades or local markets. The cutlers of Sheffield had 
 a court of their own, so had the merchants of Bristol, and 
 the merchants of London. But from the time of Coke we 
 find the law merchant administered in the Court of Common 
 Pleas. But it was only administered to a special class, 
 namely, the class of traders. By law merchant is meant the 
 law obtaining amongst traders and merchants relating to 
 bills of exchange, charter-parties, marine insurance, broker- 
 age, and the like. A private person could not be sued on a 
 negotiable instrument, because negotiability was only im- 
 
 1 Bl. Com. iii. p. 175. 
 
88 THE STUDENT'S LEGAL HISTORY. 
 
 posed by Law Merchant, and therefore was only binding on 
 traders. How the law subsequently developed to its present 
 form will be shown in a subsequent chapter. It is sufficient 
 here to remark that, during the period of which we are now 
 treating, the Lex Mercatoria slowly developed from a body 
 of local customs to a system of law, part of the law 
 recognized by the king's courts and administered by the 
 king's judges. It became a customary fiction to allege that 
 contracts of charter-party were made at the Royal Exchange, 
 London, though in fact they were made abroad, on purpose 
 to bring the cases within the jurisdiction of the Common 
 Pleas. It is probable that the development of actions in 
 consimili casu for assumpsit assisted in the process of bring- 
 ing mercantile causes into the king's courts. Still, the 
 process was slow, so that an author of the seventeenth 
 century, writing of mercantile law, says : " This kind of 
 learning is not common in our books." 
 
 Criminal Law differed little from the criminal law of the 
 previous periods, except in the matter of offences against 
 the sovereign and the state. 
 
 Treason. The law of treason had been administered with 
 great severity under the Tudors. The judges under the 
 Stuarts administered it still more harshly. They perverted 
 the Statute of Edward VI., which required two witnesses to 
 prove a charge of treason into meaning that the two could 
 each depose to an overt act of a different kind of treason. 
 For instance, one might swear to an act of levying war 
 against the king, and another to compassing and imagining 
 the king's death. Still worse was the wresting and twisting 
 of the Statute of Treason (Edw. III.). In Peacham's Case 
 (James I.) a clergyman was found guilty of compassing and 
 imagining the king's death because he had written a sermon 
 inveighing against the bishops and the High Commission 
 Court, together with a few remarks on the king. The com- 
 
JAMES I. TO JAMES II. (16031688). 89 
 
 position was not in the best taste; but it had never been 
 seen by a single soul, except the author, until it was found 
 in a drawer by the officers of the Court of High Commission. 
 Many other executions took place on grounds no better than 
 this. Russell was convicted for agitating in favour of a 
 new parliament (1683). The only ray of light is in Pine's 
 Case (Chas. I.), where the judges declared that the mere 
 speaking of words, though they might show " an evil and 
 depraved mind," could not amount to treason. There must 
 be some act done in furtherance of the design indicated by 
 the words. Still, the resolution in Pine's Case was not 
 invariably acted upon, and people were convicted for words 
 written and spoken. The argument was : " A. has said that 
 the king's government is bad. Therefore, A. must wish 
 that government at an end. That government cannot be 
 ended, except by the king's death. Therefore, A. is 
 ' imagining ' the king's death, which is treason." 
 
 Seditious Libel. The law of seditious libel came into 
 prominence in the time of James I., and continued to be 
 debated until long after the Restoration. The offence was a 
 vague one, and seems to have consisted of writing or pub- 
 lishing anything to the scandal of the government, that is, 
 written blame, true or false, concerning the king or his 
 family, ministers, judges, magistrates, or officers. The truth 
 of the writing was no defence. 
 
 The most famous cases are the case of Prynne, who 
 published a book called Histriomastix, a learned but tedious 
 and pedantic work directed against the morality of stage 
 plays and players. It was supposed to be levelled at the 
 Queen; and the Star Chamber, who had special jurisdiction 
 in cases of libel, sentenced the author to have his ears cut 
 off (163T). 
 
 In 1680 Chief Justice Scroggs, in Carr's Case, held that 
 to publish any news at all was unlawful; and in the Seven 
 Bishops' Case, 1688, those prelates were indicted for 
 
90 THE STUDENT'S LEGAL HISTORY. 
 
 seditious libel in presenting a petition to the king complain- 
 ing of the Declaration of Indulgence. They were acquitted, 
 but the verdict in that case did not render the law of 
 seditious libel less stringent. 
 
 Other cases were those of Baxter* who was tried by 
 Jeffreys and fined for certain passages about the " persecu- 
 tion of the saints/' supposed to refer to the persecution of 
 the Nonconformists by the bishops. The most infamous 
 case was R. v. Barnar distort. The prisoner was tried for 
 writing gossipy letters, containing the political rumours of 
 the day, to a friend. Two of the statements charged as 
 libels were " the Papists and high Tories are quite down in 
 the mouth" and "Sir George is grown very humble." 
 " Sir George " was Jeffreys, who tried the case, and it is 
 almost unnecessary to state that the prisoner was found 
 guilty. Jeffreys ruled that there was no need to find any 
 malicious intent. He seemed to think that any comment 
 on affairs of state was illegal. 
 
 Seditious Words. In the early part of the period prose- 
 cutions for seditious words were frequent. The best-known 
 case is that of Elliot, Holies, and Ballantyne, who were 
 prosecuted for seditious speeches in parliament. The words 
 charged against Elliot were " the king's Privy Council and 
 his judges, and all his Council learned, have conspired 
 together to trample under their feet the liberty of the 
 subjects of this realm and the privileges of this House." 
 The prisoners were found guilty and sentenced to fines and 
 imprisonment. 
 
 Writ of Habeas Corpus and the Habeas Corpus Act, 
 1679. Enough has been said on a preceding page 2 to 
 show the nature of the writ of Jiabea-s corpus. During the 
 stirring times of Charles I. and Charles II. the law relating 
 
 1 State Trials, 493. a Supra, p. 23. 
 
JAMES I. TO JAMES II. (16031688). 91 
 
 to this writ received considerable attention, from the fact 
 that it was one of the means of protecting the liberty of the 
 subject against the executive and the Crown. The writ 
 itself was a sufficient protection against arbitrary imprison- 
 ment, and against prolonged incarceration without trial, 
 provided there was no hitch in the procedure. But the 
 procedure was not strict enough, and was especially weak in 
 five points. These were (1) If the gaoler failed to bring 
 up the prisoner on the first writ, a second writ, called an 
 alias, had to be applied for, and if this was disregarded, a 
 third, called a pluries. This caused delay. (2) A judge 
 might fix any day he pleased for the return to the writ, and 
 the Stuart judges, in cases where the prisoner was im- 
 prisoned for reasons of state, often fixed a far distant day. 
 (3) There was nothing to prevent a gaoler, between the alias 
 and the pluries, removing the prisoner to another prison, so 
 that the process had to be begun again. (4) The writ could 
 not be issued in vacation. (5) The Court might adjourn 
 from time to time the application for the writ. In 1676 
 occurred Jenkes' Case, in which the prisoner was removed 
 from gaol to gaol, was refused a writ in vacation, and was 
 subjected to vexatious delays and difficulties. That case 
 was the cause of the Habeas Corpus Act, 1 which was merely 
 to amend procedure. The chancellor and the common law 
 judges were each and all empowered to issue the writ. The 
 gaoler must make a return within three days, unless the 
 prisoner were confined more than twenty miles from the 
 Court that issued the writ; then the time was extended to 
 ten days, and to twenty if the distance was more than a 
 hundred miles. Prisoners must not be removed from one 
 prison to another. 
 
 The writ may be applied for in vacation. If the prisoner 
 is committed for a misdemeanour, he must be let out on 
 bail; and if he is committed on a legal warrant for treason 
 
 1 31 Car. II. c. 2. 
 
92 THE STUDENT'S LEGAL HISTORY. 
 
 or felony, he must be released on bail if not tried in the 
 second term of his commitment. These provisions for 
 speedy trial are the essence of the Act. 
 
 The chancellor or any judge refusing a habeas corpus is 
 subject to a penalty of 500, and a gaoler who refused to 
 make a return to a penalty of 100, for the first offence, 
 and 200 for the second. 
 
 The Court of Chancery. During the Tudor period, the 
 business of the Court of Chancery had increased to an 
 enormous extent. The Statute of Uses accounted for much 
 of the new business, and the Statute of Wills and the im- 
 provements in conveyancing for much more; but perhaps 
 the almost total abolition of private jurisdictions, and the 
 vastly increasing commerce of the country accounted for 
 most of all. 
 
 The reign of James I. marks an era in the history of the 
 Chancery Court. Two circumstances contribute to make 
 the period important. One was the approximation of equity 
 or Chancery decisions to a system of law, and the other the 
 gain for the Chancery of the preponderating judicial power 
 in the country. Both events happened in the chancellorship 
 of Egerton, Lord Ellesmere. 
 
 From Edward III. to Henry VIII. the holders of 
 the office of Lord High Chancellor were politicians and 
 ecclesiastics, sometimes knowing nothing of law except, 
 perhaps, a little of the Jus Civile, and a smattering of canon 
 law. Henry VIII. appointed for the first time a lawyer 
 the blameless Sir Thomas More, whose term of office formed 
 such a contrast to those of his predecessors that people 
 devoutly hoped for a succession of legal chancellors. After 
 More came churchmen, politicians, and lawyers promis- 
 cuously, until Ellesmere, from whose time the chancellor- 
 ship, the coveted woolsack, has been invariably the prize of 
 a lawyer. Ellesmere, being a lawyer saturated with all the 
 lawyer's reverence for precedent and love of fixed and 
 
JAMES I. TO JAMES II. (16031688). 93 
 
 orderly procedure, tried to settle the practice of the Court ; 
 and so began in Chancery the multitude of rules of pro- 
 cedure which eventually made the proceedings in the Court 
 of equity quite as technical as those in the Courts of law. 
 Whether this was better or worse than procedure by rule of 
 thumb, which was what the Chancery started with, need 
 not be discussed. 
 
 The next idea stamped by Ellesmere upon the Court 
 of Chancery had reference not to form, but to substance. 
 Hitherto "the length of the Lord Chancellor's foot" was 
 the only measure of the law there administered. Ellesmere 
 inculcated a regard for precedent. He refused to decide a 
 point one way one day and the other way the next. He did 
 not make the mistake of the old common law judges, and 
 refuse to entertain a case because it was without precedent, 
 but he considered himself bound by the decisions of his 
 predecessors and of himself. From his time precedent 
 became as valuable in equity as in law, a matter contri- 
 buting greatly to the well-being of the state as tending to 
 the certainty of law. 
 
 The second memorable thing about Ellesmere's chan- 
 cellorship was the famous quarrel with Coke, by which the 
 Court of Chancery became the preponderating power in the 
 justiciary, and the rules of equity were made to prevail, in 
 case of conflict, over the rules of common law. For many 
 years the chancellors had claimed to be able to override the 
 common law, and had, in fact, done so. Where the rules of 
 common law and equity conflicted, the man having the 
 better right at common law might go to the King's Bench 
 or Exchequer, or Common Pleas, bring his action, and even 
 get judgment. The other man went to the chancellor, 
 proved that he had the better right according to the rules 
 of the Chancery Court, and obtained an injunction to 
 restrain his opponent from proceeding further with his 
 common law action. If the common law plaintiff persisted 
 in going on, he committed a contempt of the Court of 
 
94 THE STUDENT'S LEGAL HISTORY. 
 
 Chancery by disregarding its injunction, and was committed 
 to prison. 
 
 Not unnaturally, the justices of either bench and the 
 barons of the Exchequer resented the extraordinary claims 
 made by the chancellors, and many and fierce were the 
 contests between the Courts of Law and the Courts of 
 Equity. The matter came to a head in the year 1616. In 
 1614 occurred the case of Courtney v. Glanvil. 1 A. had 
 sold to B. a jewel worth 20 on the representation that it 
 was worth 350, and other jewels worth 100, and had 
 taken as payment a bond for 600. On B. failing to pay, 
 A. obtained judgment for the full amount, and the Ex- 
 chequer Chamber confirmed the judgment. B. filed a bill 
 in equity to obtain relief, and it was ordered that on B. 
 returning the jewel and paying 100 A. should release him. 
 A. refused, and was committed for contempt. The common 
 law judges granted a habeas corpus, and let him out, Coke 
 declaring the decree in equity and the imprisonment to be 
 absolutely illegal. So far Coke was victorious. 
 
 But in 1616 another case arose on which the matter was 
 settled. The Earl of Oxford's Case was one where the 
 master and fellows of Magdalen College had granted a lease 
 of Covent Garden for seventy-two years at 9 a year. Fifty 
 years after they sold the fee (under a licence from the 
 Crown) to the Earl of Oxford's predecessor in title, in con- 
 sideration of 15 a year. For forty years the grantee 
 continued in possession, and spent 10,000 in building on 
 the land. Then the master of Magdalen took possession of 
 part of it, on the ground that under the Statute of 13 Eliz. 
 against alienations of ecclesiastical and college lands, the 
 conveyance was void. The Earl of Oxford brought an 
 action of ejectment by means of a colourable lease, 2 and 
 the judges found for the college. The Earl at once filed a 
 bill in equity for relief, and Ellesmere granted it on the 
 
 1 Cro. Jac. 343. 2 Supra, p. 86. 
 
JAMES I. TO JAMES II. (16031688). 95 
 
 ground that the claim of the master of Magdalen was 
 against all good conscience. 
 
 Coke openly murmured against what he called the sub- 
 version of the laws of the land, and in the same year made 
 a bold endeavour to put an end to the obnoxious proceed- 
 ings. A case occurred in which the plaintiff had obtained a 
 judgment at law by the trick of enticing the defendant's 
 witnesses into a beer-house while the action was being tried. 
 The defendant duly filed his bill for relief in equity, and 
 the plaintiff was ordered not to proceed with his judgment. 
 Coke heard of it, and advised the plaintiff's attorney to 
 prosecute the defendant and his counsel under the 
 Statute 27 Edw. III. By that Act the king's subjects are 
 forbidden to impeach the judgments of the King's Court in 
 another court. 
 
 In the same year Coke persuaded a brother judge to try 
 to persuade a grand jury to indict under this statute persons 
 who had applied to the chancellor for relief against judg- 
 ments. The grand jury refused to expose themselves to the 
 risk of Ellesmere's indignation, but the irate chief justice 
 persisted in forcing on the crisis. He publicly announced 
 his intention to refuse to hear any counsel who had art or 
 part in presenting bills in equity for relief against common 
 law judgments. There is no doubt of the righteousness of 
 Coke's indignation. The law the common and statute law 
 was his divinity. In it he saw no flaw, no imperfection. 
 Moreover, he magnified his office. The chief justice was a 
 judge according to the ancient and undoubted laws and 
 customs of the realm. The lord high chancellor was a new- 
 fangled invention, a hybrid sort of creature, half judge, 
 half secretary of state, whose decisions were founded on 
 nothing more solid than his own whims and fancies. 
 
 Ellesmere took a different view. He was not disposed 
 to surrender a jurisdiction that had been exercised for sixty 
 years at the least. Distrustful of his own power to cope 
 with the rugged chief justice, he appealed to the king. 
 
96 THE STUDENT'S LEGAL HISTORY. 
 
 James consulted Bacon, the attorney-general, and a number 
 of other lawyers, who decided in favour of the Chancery. 
 The reasons given by them amount in substance to two. 
 First, as to the Statute of 27 Edw. III., it applied only 
 to appeals to foreign courts. Second, there was a strong 
 current of practice for sixty years in favour of the injunc- 
 tions in question. It had even been known for judges to 
 direct persons to apply for them. 
 
 The king adopted Bacon's opinion, and ratified it by a 
 decree bearing date the 14th of July, 1616. From that day 
 down to 1875, when the Court of Chancery ceased to have 
 a separate existence, these injunctions continued to issue. 
 The ground upon which they were supported by Lord 
 Ellesmere was that they did not question the legality of the 
 judgments, but only the "hard conscience" of those who 
 obtained them. 
 
 Other names famous in the history of the Court of 
 Chancery occur in this period. Bacon, on taking his seat, 
 defined the function of his Court to be " to supplement, not 
 to subvert, the law." Lord Keeper Coventry (Charles II.) 
 pursued the policy of Ellesmere, and founded his decisions 
 mainly on principles deduced from the decrees of his pre- 
 decessors. Indeed, Lord Hardwicke ascribed to him the 
 foundation of modern equity; and it may be taken that 
 after his time few new principles were introduced, though 
 the old principles have been extended and amplified and 
 explained, more particularly by Lord Eldon. 
 
 The student who cares to make a comparison between 
 equity as Coventry left it, and the equity of to-day, will do 
 well to consult Bohun's Cursus Cancellarice, a text-book 
 written about 1700. The first fifteen pages contain a clear 
 and succinct account of the Chancery jurisdiction of the 
 time. The author divides the jurisdiction into (1) ordinary 
 or legal, (2) extraordinary or absolute. In exercising the 
 ordinary jurisdiction the Court was guided by the rule of 
 law and even by legal procedure, i.e. as to pleadings, &c. 
 
JAMES I. TO JAMES II. (16031688). 9T 
 
 This came about in two ways : (a) where some statute gave 
 the chancellor jurisdiction; and (b) where the proceedings 
 concerned some officer of the Court or his servant. Examples 
 of the first are to be found in the case of habeas corpus. The 
 chancellor, in granting a writ of habeas corpus, proceeded 
 on exactly the same lines as the Court of King's Bench. 
 As to the second, in the days of which we are writing, every 
 Court claimed for its officers the privilege of being sued 
 only in their own Court. Common law actions, e.g. of debt, 
 against a clerk in Chancery or one of his menial servants 
 must be brought in a department called the Petty Bag 
 Office. The pleadings (in Latin) were delivered exactly as 
 in an action in the Common Pleas, and after all had been 
 delivered and an issue arrived at, the "record" (i.e. the 
 papers belonging to the case) was made up and sent to the 
 King's Bench or Common Pleas to be tried. The Court of 
 Law having tried the issue, returned the case to the 
 Chancery with a report, and on this report the chancellor 
 delivered judgment. 
 
 As to the extraordinary or equitable jurisdiction, we find 
 that procedure was by bill, as at first; that is, a written 
 statement by the plaintiff setting forth his grievance. 
 Bohun gives some curious advice to counsel as to drawing 
 bills. "No counsellor" ought to "put his hand to bill, 
 answer, or other pleading, unless it be drawn, or at least 
 perused, by himself in the paper draught "I " And counsel 
 are to take care that the same be not stuffed with repetition 
 of deeds, writings, or records in hcec verba: but the effect 
 and substance of so much of them only as is pertinent and 
 material to be set down, and that in brief terms, without 
 . . . tautologies, multiplication of words, or other imper- 
 tinences ... to the end the antient brevity and succinct- 
 ness in bills, and other pleadings, may be restored and 
 observed. Much less may any counsel insert therein matter 
 merely criminal or scandalous under the penalty of good 
 costs to be laid on such counsel," to be paid to the aggrieved 
 
 S.L.H. 7 
 
98 THE STUDENT'S LEGAL HISTORY. 
 
 party before such counsel will be heard. He instances one 
 counsel who alleged " in that part of the bill which charges 
 a confederacy" that the defendants were "brethren in 
 iniquity." The offensive phrase was struck out as scan- 
 dalous or impertinent, and " counsel forced to pay good 
 costs." One wonders what would happen nowadays if a 
 member of the Bar were ordered to pay the costs of striking 
 out part of one of his pleadings. 
 
 By way of showing the young practitioner how to avoid 
 prolixity and vain repetition, one author gives a precedent 
 of a bill (in a comparatively simple case) which takes up 
 six pages of close print. He then goes on to show how a 
 bill should be drawn. It ought to consist of nine parts, 
 viz. : (1) The direction, containing the title of the judge, 
 &c. ; (2) The introduction, humbly complaining, &c., with 
 the plaintiff's name and address; (3) The premises, setting 
 out the transactions antecedent and leading up to the bill, 
 which must begin with "Whereas"; (4) The allegations, 
 e.g. that the plaintiff had done such and such things at 
 the defendant's request; (5) The complaint, as of fraud, 
 oppression, and confederacy. It appears to have become 
 customary to allege that the defendant was confederating 
 with divers persons unknown to defraud the plaintiff; 
 (6) The clause giving cognizance in equity, e.g. that the 
 plaintiff could get no relief at law; (7) The interrogatory, 
 which repeated in the form of questions the whole of the 
 premises and allegations ; (8) The prayer of the bill, e.g. to 
 perform a contract, injunction, &c. ; (9) The conclusion, in 
 which the plaintiff asked for a writ of subp&nato be granted. 
 
 From this book we gather that the rules as to bills, 
 answers, and other proceedings in Chancery had now 
 attained some degree of strictness. The plaintiff must 
 frame his bill according to rule and precedent; the answer 
 must be filed within a certain number of days, and in a 
 regular form. 
 
 As to substance, we find that Chancery had embraced the 
 
JAMES I. TO JAMES II. (16031688). 99 
 
 following matters : trusts, relief against fraudulent bar- 
 gains, relief against penalties and forfeiture, specific 
 performance of contracts, declarations of right, e.g. as to 
 th several customary rights of lord and tenants of a manor, 
 alimony, injunctions to restrain nuisances, the guardian- 
 ship of infants, and the management of their estates. 
 The following limitations had been laid down : 
 
 (1) The Court cannot override a statute. 
 
 (2) Where the plaintiff has an effective remedy at 
 
 common law for the same thing, to common law 
 he must go. 
 
 (3) The Court will not interfere in favour of volunteers, 
 
 i.e. persons who had not given valuable considera- 
 tion for what they claim. 
 
 (4) " He that hath a title only in equity shall not prevail 
 
 against him that hath a title both in law and 
 equity. " 
 
 (5) The Court will not relieve a man against the reason 
 
 and policy of the common law. 
 
 Juries. In 1670, a decision was given which has had an 
 important effect upon the proceedings in English Courts of 
 Law. At the present time it is the everyday practice for 
 counsel to tell juries that they are the sole judges of the 
 facts. Perhaps this always was so; but it was the practice 
 for judges of the sixteenth and seventeenth centuries to 
 force juries into returning verdicts according to the views 
 of the judge. A refractory jury might find themselves in 
 the position of culprits, and be fined or imprisoned. Since 
 about the fifteenth century, jurors had ceased to be wit- 
 nesses, and had become judges whose duty was to weigh the 
 evidence given in open Court. 
 
 In 1670, two Quakers, Penn and Mead, were indicted at 
 the Old Bailey for unlawfully assembling, and causing 
 others to assemble, in Gracechurch Street, contrary to the 
 Conventicle Act. The Recorder, who presided, summed up 
 
100 THE STUDENT'S LEGAL HISTORY. 
 
 violently against the prisoners, and directed the jury to 
 find them guilty; but the only verdict that the jury would 
 return was "guilty of assembling in Gracechurch Street/ 5 
 which amounted to " not guilty." The Recorder promptly 
 fined the whole twelve, who paid, all except one Bushell, 
 the foreman ; him the Recorder committed to prison, but he 
 sued out a writ of Habeas Corpus. The return to the writ 
 was that the prisoner was committed for finding a verdict 
 " against full and manifest evidence, and against the direc- 
 tion of the Court." Vaughan, C.J., delivered judgment; 
 from first to last he pooh-poohed the contention of the 
 Recorder. He said, If you bring the same evidence before 
 two lawyers, or even two judges, how rarely do you find 
 them both coming to the same conclusion? How could the 
 Recorder set up that he was certainly right and the whole 
 twelve jurymen surely wrong? It amounted to a claim of 
 infallibility. Moreover, some of the jury might be person- 
 ally acquainted with facts of which the judge knew nothing. 
 The last reason given by Vaughan is of considerable 
 historic interest as showing how, at that time, jurors were 
 not quite divested of the character of witnesses; but the 
 whole effect of the decision was to establish the right of 
 jurors to give any verdict they thought proper, with 
 absolute immunity except in cases of corruption. 
 
 The Jurisdiction of the House of Lords. The limits of 
 the judicial function of the House of Lords were settled in 
 the reign of Charles II. In 1667 they claimed to try, as 
 a court of original jurisdiction, an action brought by one 
 Skinner against The East India Company. There was an 
 immediate outcry from the Commons, and the Lords have 
 never since claimed to exercise original jurisdiction, except 
 in peerage cases, the trial of peers for treason and felony, 
 and impeachments by the House of Commons. Eight years 
 after, a second outcry arose from the Commons because the 
 Lords heard an appeal in Equity, in the case of Shirley v. 
 
JAMES I. TO JAMES II. (16031688). 101 
 
 Fagg. Here, however, the Upper House gained its point, 
 and continued to hear appeals. The appeal in common law 
 cases was as old as the Curia Regis and the Magnum Con- 
 cilium, the appellate jurisdiction of the Great Council 
 becoming vested in the House of Lords when that body 
 came into existence. 
 
 SUMMARY. 
 Real Property : 
 
 (a) Tenure by knight-service, with all its incidents 
 
 of wardship, marriage, aids, reliefs, fines, &c., 
 abolished, and the land turned into free and 
 common socage. 
 
 (b) Conveyances of freeholds to be evidenced by writing. 
 
 (c) Leases for over three years to be in writing. 
 
 (d) Wills of land to be in writing, signed by the 
 testator and attested by credible witnesses. 
 
 Personal Property. The Statute of Distributions settled 
 the succession to personalty ab intestato. 
 
 Patents for Inventions. The Statute of Monopolies 
 created the modern law of patents. 
 
 The Common Law remained practically in statu quo ante, 
 but was illustrated by the works of Coke. 
 
 Ejectment was simplified as a means of trying title to 
 freeholds. 
 
 Evidence. Written evidence made compulsory in certain 
 cases by the Statute of Frauds. 
 
 Mercantile Law. Mercantile cases begin to come into 
 the King's Courts, but are for the most part confined to 
 the class of traders. 
 
102 THE STUDENT'S LEGAL HISTORY. 
 
 Criminal Law : 
 
 (a) Treason receives great attention, and the law is 
 
 strained by the judges. 
 
 (b) Seditious libel and seditious words. The law is 
 
 much debated and strained as against the prisoner. 
 
 The Court of Chancery : 
 
 (a) Quarrels arise between the Courts of Law and 
 
 Equity, and the latter prevail. 
 
 (b) Ellesmere, Bacon, and Coventry systematise the 
 
 law and procedure of the Court. 
 
 Trial by Jury. Juries are declared to be the sole judges 
 of the facts and unimpeachable for verdicts given other 
 than corrupt verdicts. 
 
 Procedure. The procedure on the writ of Habeas Corpus 
 in criminal cases is regulated. 
 
( 103 ) 
 
 CHAPTER VI. 
 
 WILLIAM AND MARY TO THE END OF LORD 
 ELDON'S CHANCELLORSHIP (16881827). 
 
 General. The Revolution of 1688 made little or no 
 difference to the laws of the country, except in a political 
 sense. It is, however, convenient to make it a point of 
 departure in considering the legal history of England. 
 
 From William and Mary to the end of Eldon's chancellor- 
 ship there was no such fundamental change in any branch 
 of the law as had marked the previous periods nothing, for 
 instance, like the Statute of Uses, or Charles II. 5 s Act for 
 the abolition of knight-service. The law developed slowly, 
 chiefly by the decisions of a number of able men who pre- 
 sided over the Courts both of Common Law and Equity, and 
 if we want to trace the history of the law of England during 
 this period we must pay more attention to the Reports than 
 to the Statute Book. Holt and Mansfield on one side of 
 Westminster Hall, and Hardwicke, Thurlow, and Eldon on 
 the other, practically left the law as we find it to-day. 
 Since their time, many alterations in procedure and con- 
 veyancing have been made, and many amendments of the 
 law of crimes and their punishments ; but it is safe to affirm 
 that the judges of the King's Bench Division to this day 
 abide by the principles of Mansfield and Holt, and the 
 judges of the Chancery Division look very largely for their 
 law to Eldon and to Hardwicke. 
 
104 THE STUDENT'S LEGAL HISTORY. 
 
 Real Property. There was a tendency during this period 
 to amend the law of real property by improving the law 
 of conveyancing. In 1703 and 1706 Acts were passed for 
 the registration of deeds and wills in the West Riding of 
 Yorkshire, and in 1707 a similar statute passed in relation 
 to the East Riding. The object was to render titles to land 
 more secure, and the policy thus inaugurated of causing 
 instruments of title to land to be registered has since 
 been extended to the important county of Middlesex. Then 
 there are the Act of 1721, by which, for the first time, the 
 lands of insane persons were enabled to be conveyed by 
 persons appointed to act for them ; an Act to amend the law 
 as to the foreclosure and redemption of mortgages; and 
 many others of slight interest. 
 
 Besides these, there were the two important Acts 
 9 Geo. II. c. 36 (1736) and 11 Geo. II. c. 19 (1738), the 
 first making sweeping alterations in the law of mortmain, 
 and the second a leading statute on the law of landlord and 
 tenant. The Mortmain Act changed the old law in this 
 respect : formerly no conveyance of land could be made to a 
 corporation, or to the use of a corporation, without the 
 licence of the Crown or other immediate lord of the fee. 1 
 By the Act of 1736, no land could be given to a charity by 
 will, but gifts inter vivos could be made if they were 
 either (a) for full and valuable consideration, or (b) made 
 at least twelve months before the donor died the idea 
 being to check death-bed donations. The Statute 11 
 Geo. II. gave a landldrd power to sell goods which he had 
 distrained for rent. Formerly he could only impound 
 them. 2 Again by the old law, a tenant might easily avoid 
 distress by removing the goods from the premises, because 
 only things on the land could be distrained. By the new 
 Act the landlord could follow the goods if they were 
 removed with a fraudulent intention of defeating the land- 
 lord's right. 
 
 1 Ante, p. 40. 2 Ante, p. 13. 
 
WILLIAM AND MARY TO GEO. IV. (16881827). 105 
 
 Wills of Copyholds. 55 Geo. III. c. 892 is a good speci- 
 men of the kind of legislation on legal questions that 
 obtained in the time of Lord Eldon and Lord Thurlow. 
 These celebrated chancellors were intensely conservative. 
 The alteration of one of the technical rules of real property 
 was to them little less than sacrilege. " Abolish contingent 
 remainders!" said Lord Eldon, when a Bill with that 
 object was laid before Parliament, "you might as well try 
 to abolish the law of gravitation ! ' ' And so influential were 
 these two chancellors that for years they prevented any 
 legal reforms by Act of Parliament. 
 
 Before 1815, a will of copyholds was made in the same 
 way as a will of freeholds had been made before the Statute 
 of Uses that is, by the owner surrendering his copyhold to 
 the lord to the use of a friend, who was admitted by the 
 lord. 1 The copyholder then made a will by which he devised 
 the use of the land to a devisee, and the friend held as 
 trustee for that devisee. The device was cumbrous in the 
 extreme, and its inconvenience must have been felt 
 frequently. The easiest way to deal with the matter would 
 have been to say at once that it should be lawful for copy- 
 holders to devise their copyholds, but this was too sweeping 
 a change for my Lord Eldon. So a statute was passed 
 enacting that a will of uses of copyholds should be valid 
 although no previous surrender had been made as pretty a 
 specimen of tinkering as is to be found in the Statute Book. 
 
 The Law of Copyright dates from this period, the first 
 Copyright Act being passed in 1709 (8 Anne, c. 19). The 
 law on the subject has recently (Copyright Act, 1911) been 
 consolidated and amended. 
 
 The Law Merchant. " Before Lord Mansfield's time, we 
 find that in the courts of law all the evidence in mercantile 
 
 1 See p. 67. 
 
106 THE STUDENT'S LEGAL HISTORY. 
 
 cases was thrown together; they were generally left to a 
 jury, and they produced no established principle.'* l More 
 than anyone else, Lord Mansfield helped to bring about in 
 this a change. 
 
 When we consider what change this was, we shall see 
 how important was Lord Mansfield's tenure of ofiice. He 
 was appointed Chief Justice in 1756. A great predecessor, 
 Lord Holt, had considerably improved the Mercantile Law. 
 It is not too much to say that he accomplished more for 
 Mercantile Law in England than the whole body of his 
 predecessors collectively. He is said to have had a special 
 corps of jurors, city men, who were always empanelled to 
 try commercial causes. With their help Holt settled two, 
 at least, of the most important branches of the Law Mer- 
 chant namely, the law relating to bills of lading and the 
 law of bailments. The latter he transplanted almost entire 
 from the Roman law; and settled principles relating to all 
 kinds of bailees in the celebrated case of Coggs v. Bernard* 
 This decision is still authoritative on the law of factors, 
 pawnees, carriers, innkeepers, and all kinds of depositees. 
 
 One decision of Lord Holt was somewhat extraordinary. 
 It is the well-known Clerke v. Martin, 3 in which the Chief 
 Justice refused to allow as Law Merchant a custom which 
 had arisen amongst traders to count promissory notes as 
 negotiable instruments, on the same footing as bills of 
 exchange. Lord Holt seems to have been under the impres- 
 sion that the Law Merchant, being part of the common law, 
 must have been in existence from time immemorial, and as 
 the usage of treating promissory notes as negotiable had 
 sprung up within the memory of man, that they could not 
 be under the Law Merchant. The result was an Act of 
 Parliament, 4 which placed these instruments on the footing 
 of negotiability. As to the question of principle, however, 
 
 1 Lickbarrow v. Mason, 2 T. K. 63, per Buller, J. 
 
 2 2 Lord Eaymond, 909. ' 2 Lord Raymond, 757. 
 * 3 & 4 Anne, c. 9. 
 
WILLIAM AND MARY TO GEO. IV. (16881827). 107 
 
 it was long doubtful whether new Law Merchant could be 
 made, and the point has only been decided within the last 
 few years against the view which Holt took. 1 
 
 But the work of Mansfield consisted in incorporating into 
 the law of England the Law Merchant. Before his day the 
 Lex Mercatoria consisted of customs prevailing in trade, 
 which customs had to be proved by evidence as facts. 
 Mansfield laid it down that the Law Merchant was law, and 
 was, therefore, a question for the judge and not for the 
 jury. The jury might be asked to find as a fact whether a 
 custom did in fact obtain, but the legal effect of that 
 custom was for the judge to determine. It followed from 
 the position that the Law Merchant was part of the law of 
 the land that whenever any custom or usage had been 
 found to be part of the Law Merchant, it required no 
 further proof in any case which might afterwards arise. 
 The full effect of the new departure can hardly be over- 
 rated. Take, for instance, the case of the liability of the 
 drawer of a bill of exchange, who alleged that he had 
 received no consideration for it. The holder proved that 
 he had received it from some one for valuable consideration. 
 Before Lord Mansfield's time he would also have to bring 
 evidence to prove that by the usage of merchants the mere 
 fact that the defendant had not received consideration did 
 not absolve him from liability. The jury then decided the 
 whole question of Liable or Not Liable. Now observe the 
 line taken by Mansfield. He said the question of liability 
 is one of law, that is, of the Law Merchant, which is part of 
 the common law. It is only for the jury to find two facts, 
 namely, (1) that the defendant signed the bill, and (2) that 
 the plaintiff is a holder for valuable consideration. If they 
 find both facts in the affirmative, it is for the judge, as a 
 matter of law, to decide whether by the Law Merchant the 
 defendant is liable or not. 
 
 1 Goodwin v. Robarts, I Ap. Ca; 476. 
 
108 THE STUDENT'S LEGAL HISTORY. 
 
 A glance through the reports of the eighteenth century 
 shows how Lord Mansfield built up the law of marine 
 insurance, as, for instance, in the case of Woolridge v. 
 Boy dell (Dougl. 16 A.), where the question of implied 
 warranties arose, and the Chief Justice laid down the rule 
 that "contracts for insurance must be founded in truth." 
 In Lewis v. Rucker (1761), he laid the foundation of that 
 important branch of maritime law called "particular 
 average." In Tyrie v. Fletcher (1777), he set forth the 
 rules as to when the premium paid on a policy of marine 
 insurance must be returned, and laid it down that the risk 
 of such a policy is entire a novel doctrine; and he also 
 declared, what has been taken for law ever since, that a 
 contract for marine assurance is one of indemnity, and not 
 like life assurance, which is a wager. In Worsely v. De 
 Mattos (1758) he decided that all Acts concerning bank- 
 rupts are to be construed favourably for creditors and to 
 suppress fraud. 
 
 The work of Mansfield was ably carried on by his 
 successors, notably Lord Chief Justice Ellenborough ; and it 
 may safely be asserted that before the year 1827 the Law 
 Merchant, as we know it to-day, was, in principle, settled. 
 
 International Law. The greater part of our law on the 
 subject of rights of belligerents and neutrals, prize of war, 
 and those other matters which form the English contribu- 
 tion to the law of nations, was the work of Sir William 
 Scott, afterwards Lord Stowell, brother of the more famous, 
 but not more learned, John Scott, Lord Eldon. During 
 the Napoleonic wars, it was Lord Stowell who had to 
 adjudicate upon almost all the cases of prize, with the 
 result that he enriched the pages of the law reports with a 
 series of great judgments, leaving the law in such a state 
 as to be the foundation of all the modern decisions. Such 
 cases as The Twee Gebroeders* The Maria, 2 The Hoop, 3 
 
 1 3 C. Eob. 336. 3 1 C. Rob. 340. 3 Ibid. 196. 
 
WILLIAM AND MARY TO GEO. IV. (16881827). 109 
 
 The Immanuel, 1 The Gonge Margaretha, 2 remain the lead- 
 ing cases on the protection of neutral territory, the right 
 of visitation and search, trading with the enemy, the right 
 of neutrals to trade with the enemy's colonies, contraband 
 of war, blockade, and kindred subjects. 
 
 The Law of Gaming and Wagering. Amongst the Acts 
 affecting the civil side of the common law were 7 Geo. II. 
 c. 8, and 10 Geo. II. c. 8, by which the " infamous practice 
 of stock- jobbing " was prohibited. The first of the Acts 
 (1727) recites at great length how " great inconveniences 
 have arisen and do daily arise by the infamous practice of 
 stock- jobbing, whereby many of His Majesty's good sub- 
 jects have been and are diverted from pursuing and 
 exercising their lawful trades and vocations," and then 
 goes on to forbid under a penalty of 500 any " putts or 
 wagers, or contracts in the nature of putts or wagers," on 
 public stocks or funds. Any money paid on account of 
 such contracts was to be recoverable, with double costs. 
 
 In the same spirit of legislating against gambling, the 
 Statute of 9 Anne, c. 14, had declared all securities given by 
 way of payment for gaming or wagering debts 011 the same 
 footing as securities for illegal consideration. And from 
 the time of Anne to the reign of George III. statutes were 
 frequently passed to suppress lotteries. Still, wagering 
 contracts were, in themselves, as legal as any other con- 
 tracts, and at that time the Courts were not unfrequently 
 made to decide wagers. 
 
 The Law of Bankruptcy. A distinct change was made 
 here (1711). Previous to this date, when a tradesman 
 became bankrupt, his creditors took all his property, and 
 the debtor was still indebted for the balance, for which 
 balance he could be arrested. By 10 Anne, c. 20, the 
 
 1 2 C. Bob. 186. 2 1 C. Eob. 189. 
 
110 THE STUDENT'S LEGAL HISTORY. 
 
 creditors were made to accept the most the debtor could 
 give, and were then obliged to restore the bankrupt to 
 liberty. There were nearly a score of other Acts passed 
 relating to bankrupts and bankruptcy, but they referred 
 only to details. 
 
 Common Law Procedure. Some attempts were made 
 after the Revolution to deal with the procedure in the 
 Common Law Courts, especially with a view of minimising 
 technicality and providing more expeditious means of trial. 
 Two or three matters were reformed. One was the removal 
 of an anomaly that had disgraced the Courts since the estab- 
 lishment of the Curia Regis by William I. Until 4 Geo. II. 
 c. 26 (1731), all pleadings in common law actions had 
 been in a curious language called, by courtesy, French. 
 Since that Act they have been in English. A second reform 
 was to provide (1705) that judges might give judgment on 
 demurrers (points of law) without regarding any defect in 
 the writ. 1 To understand the full effect of, and full need 
 for, the statute, let the student turn to Croke (Elizabeth), 
 where he will find an objection taken to a writ because a 
 word was wrongly spelt: " elemosynary " instead of 
 "eleemosynary." The objection failed, not because it was 
 frivolous, but because the wrong spelling was customary, 
 and therefore right. The next reform (12 Geo. I. c. 31) 
 was rendered necessary by the increasing volume of the 
 business of the Courts. Instead of the two justices or 
 barons required by 18 Eliz. c. 12, for trials at nisi prius, it 
 was enacted that a single judge should be competent to try 
 such causes, thus allowing twice as many cases to be tried 
 in the same time. 
 
 Equity: Development. The chief doctrines of equity 
 may be said to be the doctrines of trusts, the doctrines con- 
 
 1 Another Act to the like effect, 5 Geo. I. c. 13. 
 
WILLIAM AND MARY TO GEO. IV. (16881827). Ill 
 
 nected with the administration of assets, married women's 
 separate property, mortgages, guardianship of infants, 
 specific performance, fraud as distinct from common law 
 deceit, relief against penalties and forfeitures, and injunc- 
 tions. There are other matters which are merely connected 
 with the peculiar procedure of equity, as, for instance, dis- 
 covery of documents and interrogatories, and the taking of 
 various accounts, e.g. between partners. 
 
 We have seen that uses began as early as Edward III., 
 but we have it on the authority of Lord Mansfield that it 
 was not until the chancellorship of Lord Nottingham 
 (Car. II.) that trusts became what they are in modern 
 times. Lord Nottingham established as a principle that 
 admitted of very few exceptions that the limitations of a 
 trust estate were to be regarded as analogous to the limita- 
 tions of a legal estate. With regard to trusts of lands, the 
 Statute of Frauds assisted in the development of Lord 
 Nottingham's theory by enacting that all such trusts should 
 be evidenced by writing, and that lands held upon such trusts 
 should be liable to execution for debts of the cestui que trust 
 in the same way as if he were seised at law ; not by the same 
 process, that is, the writ of elegit addressed to the sheriff, but 
 by the process of equitable execution, that is, the appoint- 
 ment of a person by the Court to receive the profits of the 
 land in order to satisfy the judgment debt. The doctrine 
 of resulting trusts where the purchase was made in the 
 name of another l was as old as uses themselves, but Lord 
 Nottingham decided, in Cook v. Fountain, 1676, that where 
 the purchase was made in the name of a child there should 
 be a presumption of advancement, which would rebut the 
 presumption of a resulting trust. 
 
 But it is too much to say that Lord Nottingham settled 
 the law of trusts. For instance, he held in two reported 
 cases that a trustee was compelled to accept a trust, a 
 
 1 " Snell's Equity," llth ed., p. 117. 
 
112 THE STUDENT'S LEGAL HISTORY. 
 
 doctrine wliicli would not be accepted for a, moment in these 
 days. In fact, it may be taken that, with one exception, all 
 the great equitable doctrines and the practice of the Court 
 of Chancery were settled finally by Hardwicke, Thurlow, 
 and Eldon. The service rendered by Ellesmere, Nottingham, 
 Bacon, and the chancellors of that time was practically 
 this : They laid it down as a maxim that Equity ought 
 to act according to rule. Before them, every Equity judge 
 decided each particular case according to what he thought 
 were the merits of that case. But Lord Nottingham finally 
 settled that chancellors were almost as much bound by pre- 
 cedent as were chief justices. 
 
 The Stuart chancellors laid the foundation; but, as I 
 have stated, the real builders of the system of modern 
 Equity are the great triad, Hardwicke, Thurlow, and 
 Eldon. Look at the reports, and you will almost certainly 
 find the leading case on any particular equitable doctrine 
 in a judgment of one of these three, most probably Eldon. 
 Since 1827, when, after a reign of twenty-six years, the 
 greatest master of equity quitted the woolsack, no new doc- 
 trines have been invented, no new principles applied by 
 judges in Chancery. Eldon, in fact, left Equity a system 
 of justice as much fixed, settled, and by rule limited, as the 
 Common Law was. The last new right created by the 
 chancellors was the one known as " restraint on anticipa- 
 tion." Lord Thurlow is said to have been trustee of a 
 marriage settlement, and by his advice a clause was inserted 
 giving the wife an income without power of anticipation, 
 i.e. without power to alienate it or charge it. The clause 
 was copied by other conveyancers, and soon came into com- 
 mon use. Lord Thurlow also asserted emphatically the 
 right of the Court to interfere between parent and child for 
 the latter's benefit, remarking on one occasion, when his 
 power was questioned, that he had no doubt but the Court 
 of Chancery had arms long enough to enforce its decrees. 
 
 To conclude the subject, at the establishment of the 
 
WILLIAM AND MARY TO GEO. IY. (16881827). 113 
 
 Court of Chancery under Edward III., and down to the 
 chancellorship of Ellesmere, Equity was " the length of 
 the chancellor's foot." As soon as the woolsack began to 
 be filled regularly, and, as of course, by successful lawyers, 
 the procedure of the Court was regulated, and some regard 
 was paid to precedent, but the chancellors did not consider 
 themselves absolutely bound by the decisions of their pre- 
 decessors. But Lord Nottingham and after him Coventry, 
 Hardwicke, Thurlow, and Eldon, altogether abolished the 
 "chancellor's foot," and based the jurisdiction entirely on 
 settled rules and principles, guided by precedents. 
 
 Criminal Law. A noticeable feature of the criminal 
 jurisprudence of this period was the enormous number of 
 crimes punishable capitally. Prior to this time, in theory of 
 law, there were a great many capital crimes, but, in prac- 
 tice, executions were rare, except for treason or homicide, 
 or other grave offences. The reason was, that in very many 
 cases the offender had " benefit of clergy," i.e. if he could 
 read, or write his own name, he escaped death a survival 
 of the days when the ability to read and write was strong 
 primd facie proof of the clerical character. In 1691, by 
 3 William and Mary, c. 9, benefit of clergy was taken away 
 in cases of theft from dwelling-houses (including burglary), 
 and other statutes followed, so that Blackstone (1743) 
 laments that no fewer than 160 crimes are subject to the 
 penalty of death. 
 
 Before the end of the period, however, one of the worst 
 features of the criminal law had been to a great extent 
 removed. Until the year 1813, a person convicted of 
 felony, without benefit of clergy, was liable to capital 
 punishment, to forfeiture and to attainder. The con- 
 sequence of the last part of the punishment was, that the 
 felon's wife and family took none of his property, nor could 
 any one inherit an estate from or through him, because his 
 blood was attainted. Blackstone defends the law as it 
 
 S.L.H. 8 
 
114 THE STUDENT'S LEGAL HISTORY. 
 
 existed in his day by arguing that a man is far more likely 
 to be restrained from crime if he knows that detection 
 means beggary for his family as well as ruin for himself; 
 but early in the nineteenth century different views began to 
 be put about, and, in consequence, by 54 Geo. III. c. 145, 
 and by 9 Geo. IY. c. 31, the law of forfeiture for felony 
 was greatly modified. Prisoners convicted of treason or 
 murder, or of aiding and abetting, or being accessory to 
 either of those crimes, were left in the same state as before. 
 In all other cases, however, forfeiture should extend only 
 to the life interest of the criminal. There should be no 
 attaint of blood, except in the cases aforementioned, but 
 the heir should succeed to the property of the felon as 
 though the latter had died a natural death. 
 
 Habeas Corpus: Further Legislation. The Act of 
 
 Charles II. had improved the procedure in Habeas Corpus, 
 but there were three points it left untouched, viz. : (1) it 
 only referred to cases where the prisoner was in custody on 
 a charge of crime; (2) it did not fix the amount of bail that 
 might be demanded; (3) and most important of all, it did 
 not provide any guarantee against falsity in the return to 
 the writ. It might and did happen that a gaoler would 
 falsely return that the prisoner had been committed legally, 
 as for felony on a magistrate's warrant, and the judges 
 who granted the writ had no means of going behind that 
 return. With the view of remedying these imperfections, 
 a statute was passed in 1816 (56 Geo. III. c. 100), extend- 
 ing the statutable remedy to cases of imprisonment, other 
 than imprisonment on a charge of crime; for instance, 
 detention under the pretext of lunacy. The Act also pro- 
 vides that judges might examine into the truth of the 
 returns made to the writ. The other defect, viz. that 
 relating to bail, had been tried to be met by the Bill of 
 Rights (1689), which enacted that " excessive bail should 
 not be required." It was impossible to fix an amount, and 
 
WILLIAM AND MARY TO GEO. IV. (16881827). 115 
 
 so at the present time bail is at the discretion of the magis- 
 trate or judge, subject to review by the High Court in cases 
 of excess. 
 
 Treason: Procedure. The unfair means adopted by the 
 officers of the Crown in prosecuting persons accused of high 
 treason has been stamped upon the public mind by the trials 
 of Russell and Sidney (James II.), and the " campaign " of 
 the infamous Jeffreys in the West after Monmouth's Rebel- 
 lion. The prisoner did not know until he stepped into the 
 dock to take his trial what he was to be charged with ; the 
 jury was often packed by the sheriff; the accused could not 
 compel the attendance of witnesses to testify for him; and 
 if any witnesses came forward on his behalf they were not 
 allowed to be sworn, so that their testimony was nearly 
 valueless. 
 
 The Bill of Rights (1689) enacted that all jurors in cases 
 of treason should be freeholders; and some years after, by 
 7 Will. III. c. 3, and 7 Anne c. 21, more extensive reforms 
 were introduced : 
 
 (1) No indictment for treason, except an attempt to 
 
 assassinate the king, was to be found more than 
 three years after the date of the alleged offence. 
 
 (2) The prisoner should have a copy of the indictment 
 
 ten days before the trial. 
 
 (3) He should also have a list of the Crown witnesses 
 
 and a list of the jurors empanelled (i.e. out of whom 
 the jury to try him was to be chosen) ten days 
 before trial, and in the presence of two witnesses. 
 
 (4) He should have the same means of compelling the 
 
 attendance of witnesses for him as the Crown had 
 to procure the attendance of witnesses against him. 
 
 (5) His witnesses were to be sworn. 
 
 (6) Two witnesses must prove acts relating to the same 
 
 treason, e.g. one cannot prove an act of " com- 
 
116 THE STUDENT'S LEGAL HISTORY. 
 
 passing the king's death," and another an act of 
 
 "levying war against the King in his dominions." l 
 
 Another concession to the public demands for the fair 
 
 trial of prisoners accused of high treason was made by 20 
 
 Geo. II. c. 30 (1747), by which such prisoners were allowed 
 
 the assistance of counsel. The greatness of the concession 
 
 will be appreciated when one remembers that it was not until 
 
 1836 that other prisoners were allowed the like privilege. 
 
 Treason. But although the procedure in cases of treason 
 was reformed after the Great Revolution, the law itself left 
 a great deal to be desired. In William III. one Harding 
 levied men in England, and sent them over to France to 
 join the French forces in an attempt to restore the Stuarts. 
 The judges declared this to be a " compassing and imagining 
 the death " of William. The theory generally held was 
 that any act which might have a tendency to dethrone the 
 king by force is " imagining " his death. But the strangest 
 case of all is that of Damaree and Purchase (1710), who, 
 with a riotous mob, paraded the streets, shouting " Down 
 with the Presbyterians," and proceeded to pull down a 
 number of dissenting meeting-houses. They were found 
 guilty of levying war against the queen in her realm. The 
 argument upon which they were condemned is to be found 
 in Hale's Pleas of the Crown. It is : There are two kinds 
 of "levying war," viz.: (1) Levying a war against the 
 king and his army with intent to do his majesty some 
 grievous bodily harm, to depose him, or compel him to 
 change the course of his government, or the like; and (2) 
 levying war for a public object. Thus, to join a mob for 
 the purposes of pulling down all dissenting chapels was 
 treason; but it would not have been " levying war " to join 
 a mob with intent to pull down one or two particular 
 meeting-houses. 
 
 1 Vide supra, p. 88. 
 
WILLIAM AND MARY TO GEO. IV. (16881827). 117 
 
 Hale's view was indorsed by Lord Mansfield in the Lord 
 George Gordon Case, which arose out of the No Popery 
 riots. "If," he says, "the multitude assembled with 
 intent, by acts of force and violence, to compel the legis- 
 lature to repeal a law, it is high treason " i.e by levying 
 war. 
 
 The trials of Home Tooke and Hardy, in 1794, gave rise 
 to decisions on the words "imagining the king's death." 
 The defendants were members of two political societies, 
 having for their objects the carrying on of an agitation for 
 universal suffrage and annual parliaments. No acts of 
 violence had been committed; but the case for the Crown 
 was that the ulterior object of the societies was to depose 
 the king and set up a republic. The Attorney-General 
 (John Scott) contended that if he proved an intention to 
 depose the king that was enough. In law it amounted to 
 "imagining his death." Erskine, for the defence, con- 
 tended that this kind of treason consisted in an actual 
 intention to kill the king. He admitted, however, that 
 evidence of intention to depose was evidence of imagining 
 death; but the inference was one of fact, not of law, and 
 therefore it was for the jury. 
 
 Such cases as that of Damaree and Purchase have not 
 arisen since the Riot Act * (1714), which was passed partly 
 in consequence of it; but in other treasons the law remains 
 the same as it was laid down by Mansfield, Hale, and the 
 other old authorities. Only the punishment has been 
 altered. 2 
 
 Riots : The Riot Act 3 (1714) was passed partly in conse- 
 quence of Damaree's Case, 4 and partly in consequence of 
 the frequent riots and tumults which arose between the 
 Hanoverians and the Jacobites. Twelve persons assembling 
 together riotously in a public place constitute an unlawful 
 
 1 1 Geo. I. st. 2, c. 5. 3 Infra, p. 140. 
 
 3 1 Geo. I. st. 2, c. 5. * Supra, p. 116. 
 
118 THE STUDENT'S LEGAL HISTORY. 
 
 assembly; and if they refuse to disperse within one hour 
 after a proclamation has been read to them, they are guilty 
 of riot, and can be dispersed by force. They are guilty of 
 felony without benefit of clergy (i.e. of a capital offence), 
 and if, in dispersing the mob, any of them are killed, the 
 slayer is exonerated from guilt. Since the passing of the 
 Act, it has been usual, before ordering the police or the 
 military to use deadly weapons, for some magistrate to read 
 the statutory proclamation, a ceremony commonly called 
 "reading the Riot Act." It may be pointed out, however, 
 that at common law any subject may, and every subject 
 ought to, assist the magistracy in suppressing riots; so it 
 may happen that a soldier who kills a rioter to prevent an 
 imminent breach of the peace, or a felony, is protected, 
 although no proclamation has been read. The soldier is not 
 protected because he is a soldier, or because he acted by 
 command of his superior officer, but because he is doing his 
 duty as a citizen. 1 The effect of the Riot Act was much 
 discussed in the case of the Bristol Riots (1831), when it was 
 declared to be common law that magistrates ought to use 
 every means in their power to suppress public disorder. 
 
 Development of the Law of Libel : Seditious Libel. We 
 have referred to the law of seditious libel as it stood before 
 1688. After that date, prosecutions under this head were 
 frequent, especially towards the end of the 18th century, 
 when, after a long contest between Erskine on the one hand, 
 and the law officers of the Crown and the judges on the 
 other, the legislature interfered, and revolutionized the law. 
 The point of contest may be shortly stated thus : Was the 
 guilt of the libel that is, its criminal character, a question 
 for the judge, or was it for the jury ? By a long series of 
 decisions from William III. to Lord Mansfield, it had been 
 laid down in terms positive that the judge, and the judge 
 
 1 Case of Arms, Pop. 121. 
 
WILLIAM AND MARY TO GEO. IY. (16881827). 119 
 
 alone, could decide the question of the nature of the libel. 
 The only question for the jury was the fact that the words 
 complained of had been composed or published by the 
 defendant. The judge asked the questions " Do you find 
 the prisoner published the libel in London ? and do you find 
 that the words refer to the people they are said to refer to?" 
 and to these the jury had to say " Guilty " or " Not 
 Guilty." The form of questions should be noted, because 
 it became important in the time of Erskine. 
 
 To come to the authorities, in the case of R. v. Fuller, 
 Lord Holt, C.J., asked the prisoner whether he could prove 
 the truth of his words, and on receiving an answer in the 
 negative, directed the jury to convict. In R. v. Tutchin 
 (1704), the same judge told the jury " If you are satisfied 
 that he is guilty of composing and publishing these papers 
 in London, you are to find him guilty." 1 Clearly, Holt did 
 not leave the question of the criminality of the words to the 
 jury. After this comes the case of R. v. Francldin (1731) 
 for publishing the Hague letter, supposed to have been 
 written by Bolingbroke. Lord Raymond, C.J., presided, 
 and he plainly told the jury: "Gentlemen, if you are 
 sensible and convinced that the defendant published that 
 Craftsman of the 2nd January last, and that the defamatory 
 expressions in the letter refer to the ministers of Great 
 Britain, you ought to find the defendant guilty." "Whether 
 these defamatory expressions amount to a libel or not, . . . 
 this does not belong to the office of the jury, but to the 
 office of the Court." But in the time of Lord Mansfield the 
 matter came to a head. One Woodfall was indicted for 
 publishing Junius's letter to the king, and the jury returned 
 a verdict of "guilty of publishing only." This celebrated 
 verdict was afterwards returned by other juries in cases of 
 libel. Its effect was to acquit the prisoner, because they 
 did not find that the libel meant what it was said to mean, 
 
 1 14 State Trials, 1905. 
 
120 THE STUDENT'S LEGAL HISTORY. 
 
 nor that it referred to the person to whom it was said to 
 refer. This was in 1770. The chief of the opposition 
 lawyers, headed by Lord Camden, no mean jurist, fiercely 
 attacked the chief justice in Parliament. Mansfield declined 
 to argue the matter. In 1777 Home Tooke was tried for 
 having written that the king's troops engaged in the 
 American War had been guilty of murder. Here, again, 
 Mansfield only left to the jury the publication and the 
 innuendoes, reserving the question of the criminality for 
 the Court. 
 
 The last great case is R. v. Shipley, 1 commonly called the 
 Dean of St. Asaph's Case. A pamphlet called A Dialogue 
 between a Gentleman and a Farmer, containing some 
 remarks on the then existing system of parliamentary repre- 
 sentation, had been written by Sir William Jones, and 
 published by the Dean of St. Asaph, his brother-in-law. 
 The trial came on at Exeter Assizes in 1783, and Erskine 
 defended with his usual wonderful eloquence and fire, with 
 the result that the jury found the verdict " guilty of pub- 
 lishing only." It appears from Erskine's own account that 
 he had it in his mind to bring forcibly home to the public 
 the dangerous, and, as Erskine considered, wrong view of 
 the law taken by Mansfield. The presiding judge at Exeter 
 was Mr. Justice Buller, in whose Chambers Erskine had 
 been. The great advocate, during the whole of the trial, 
 took up the position that the pamphlet was innocent, and 
 that it was entirely a question for the jury whether it was 
 innocent or not; that is, the jury must determine the 
 criminality of the libel, or, to put it another way, they must 
 decide whether the pamphlet was a libel or not. The judge 
 took the contrary view, and told the jury it was for them 
 only to find the publication and the innuendoes. When the 
 jury had brought in their verdict, Mr. Justice Buller told 
 them that by adding the word " only " they would be 
 
 1 21 State Trials, 847. 
 
WILLIAM AND MARY TO GEO. IV. (16881827). 121 
 
 negativing or, at all events, not finding the truth of the 
 innuendoes. Erskine, very properly, asked that the verdict 
 be entered as given, but the judge, also very properly, in- 
 sisted on making clear to the jury the incompleteness of 
 their finding. They then found the innuendoes, and, as this 
 had the effect of a verdict of guilty, Erskine applied to the 
 King's Bench for a new trial, on the ground of misdirection 
 by the judge. Whoso wishes to gain an idea of the force of 
 Erskine's eloquence can do so by reading the report of his 
 argument in support of the motion. 1 We cannot say more 
 than that he insisted that, by the common law, the jury had 
 a right to bring in a general verdict, i.e. of guilty or not 
 guilty on the whole question. He insisted that the criminal 
 intent makes the crime, and that criminal intent is a matter 
 of fact, and therefore for the jury. Lord Mansfield delivered 
 judgment, most uncompromisingly against Erskine. Justice 
 Buller's direction was, he said, abundantly supported; in 
 fact, the rule had been uniform since the Revolution. 
 
 There seems very little doubt that the chief justice was 
 absolutely right in law. A course of practice dating back 
 for a hundred years, and supported by such authorities as 
 Chief Justices Holt, Raymond, and Lee, not to mention 
 Mansfield himself, was quite enough. Moreover, it is a 
 general rule of law that the construction of a document, i.e. 
 its legal effect, is matter of law, and therefore for the judge. 
 
 The immediate result of The Dean of St. Asaph's Case 
 was to declare the law with great distinctness, but indirectly 
 it was the cause of an entire alteration in the law. In 1792, 
 Fox's Libel Act " enacted and declared " that in a trial for 
 criminal libel " the jury sworn to try the issue may give a 
 general verdict of guilty or not guilty upon the whole 
 matter put in issue; . . . and shall not be required or 
 directed by the court or judge before whom such indictment 
 or information shall be tried to find the defendant or defen- 
 
 1 2 State Trials, 961. 
 
122 THE STUDENT'S LEGAL HISTORY. 
 
 dants guilty merely on the proof of tlie publication by such 
 defendant or defendants of the paper charged to be a libel, 
 and of the sense ascribed to the same in such indictment or 
 information/' This statute directly overruled the law as 
 laid down in the King's Bench for a hundred years, and 
 established the principle that Erskine had contended for. 
 
 I have treated of the point settled by Fox's Act at some 
 length, because although that Act, in point of form only, 
 settled a subsidiary question, and not the main point, viz. 
 of the nature of a seditious libel, in fact it did very much 
 more. I have shown on a previous page l the kind of words 
 that were held seditious by Jeffreys, Scroggs, and others 
 before the Revolution. After the Revolution the law was 
 in nowise altered. 
 
 For instance, in the case of Francklin, the libel consisted 
 of a mere political article, censuring the foreign policy of 
 the government. The libel for which Tutchin was convicted 
 was an article charging the ministry with corruption and 
 bad management. 
 
 The law is best summed up by Lord Holt : " Nothing 
 can be worse to any government than to endeavour to pro- 
 duce animosities as to the management of it ; this has always 
 been looked upon as a crime, and no government could be 
 safe without it is punished." 
 
 After the Libel Act, when the question of criminality 
 was left to the jury, it is strange to observe that convictions 
 for seditious libel were for a time more numerous, juries 
 being, if anything, stricter than the judges had been before. 
 But the fact is accounted for when we consider that the 
 nation was in a state of wild excitement owing to the 
 excesses of the French Revolution. On December 17th, 
 1792, an extraordinary verdict was given. Two prisoners in 
 the King's Bench prison had put up a placard, " This house 
 to let. Peaceable possession will be given by the present 
 
 1 Supra, p. 90 
 
WILLIAM AND MARY TO GEO. IV. (16881827). 123 
 
 tenants on or before the 1st day of January, 1793, being 
 the commencement of the first year of liberty in Great 
 Britain." They were charged with seditiously devising, 
 contriving, and intending to excite and stir up divers 
 prisoners to escape, by publishing an infamous, wicked, and 
 seditious libel, and were found guilty. But the nation soon 
 recovered from its panic, and since 1815 prosecutions have 
 been rare, and convictions rarer, because the prosecution 
 has had to prove, to the satisfaction of twelve shop-keepers, 
 that the accused had the intention of stirring up the people 
 tc overturn the government by force. 
 
 Every day we see in the newspapers articles which 
 Mansfield and Holt would have held to be grossly seditious 
 libels, but which the twelve shop-keepers consider reasonable 
 comment on public affairs. 
 
 Justices of the Peace and Quarter Sessions. In 1694 an 
 Act was passed greatly strengthening the position of the 
 Court of Quarter Sessions. It had grown a common practice 
 for persons indicted at these courts to apply before trial to 
 the King's Bench to have the cases removed from the local 
 court on a writ of certiorari. As the statute * puts it 
 " Divers turbulent, contentious, lewd, and evil-disposed 
 persons, fearing to be deservedly punished where they and 
 their offences are well known," put the prosecution to a 
 lot of trouble and expense, and endeavoured to have the 
 indictment tried at Westminster or London. It was pro- 
 vided, therefore, that no certiorari should issue unless the 
 applicant entered into recognizances to appear at the next 
 assizes. Moreover, if the applicant is eventually convicted, 
 the King's Bench should order him to pay to the prosecutor 
 all the costs of and incident to the certiorari. 
 
 1 5 Will. & Mary, c. 11. 
 
124 THE STUDENT'S LEGAL HISTORY. 
 
 SUMMARY. 
 Real Property: 
 
 (a) The first Yorkshire Registry Acts were passed. 
 
 (b) The Mortmain Act allowed conveyances in mort- 
 
 main, inter vivos, under certain restrictions. 
 
 (c) The law of distress was altered by giving the land- 
 
 lord the right to sell the goods distrained on, and 
 to follow goods improperly removed. 
 
 (d) An alteration was made with regard to wills of 
 copyholds. 
 
 Personal Property: The only change was the invention 
 of a new kind of property by the Copyright Act. 
 
 The Law Merchant was improved and settled by Chief 
 Justices Holt and Mansfield. 
 
 International Law : A series of important decisions was 
 given by Sir William Scott (Lord Stowell). 
 
 Procedure at Common Law : 
 
 (a) One judge enabled to try causes at nisi 'prius. 
 
 (b) Judges to decide demurrers without regard to any 
 
 defect in the writ. 
 
 Chancery: Law and Procedure: The chief doctrines of 
 modern equity, and the practice of the Court finally 
 settled. Since the chancellorship of Eldon, equity 
 has been a certain system of law. 
 
 Criminal Law: 
 
 (a) Capital punishment became more common. 
 
 (b) Forfeiture and attainder for treason and felony 
 partly abolished. 
 
WILLIAM AND MARY TO GEO. IV. (16881827). 126 
 
 (c) The law of treason remained the same, but the 
 
 procedure was modified in favour of the accused, 
 and counsel allowed to defend. 
 
 (d) The Riot Act created the law as to unlawful 
 assemblies, and directed a certain method of 
 procedure for dispersing them. 
 
 (e) The law of seditious libel, and the question of 
 
 general verdicts, gave rise to a long controversy 
 between Erskine and Lord Mansfield. Finally, 
 Fox's Libel Act enabled juries to give a general 
 verdict of guilty or not guilty. 
 
 (f) Frivolous applications for writs of certiorari to 
 
 remove causes from Quarter Sessions checked by 
 compelling the applicant to give security for costs. 
 
( 126 ) 
 
 CHAPTER VII. 
 
 GEORGE IV. TO PRESENT DAY (18271921). 
 
 General. It is from the year 1827 that we must date 
 modern legal history. It was in that year that Parliament 
 entered on the work of Law Reform. Until then, legisla- 
 tion upon legal subjects had, with very few exceptions, 
 been of the most piecemeal character. There had been from 
 the earliest times an unwillingness on the part of Parlia- 
 ment to interfere with law as distinguished from politics. 
 The consequences were (1) That the greater part of English 
 Law was contained in the decisions to be found in the 
 Books; (2) That many laws had survived when the reasons 
 for them had vanished ; (3) That laws, highly inconvenient, 
 not having been repealed, of necessity had to be evaded by 
 devices more or less cumbrous and expensive. 
 
 Bentham had, before this, commented severely on two 
 things. The first was the want of system and of certainty 
 in the law, caused by the fact that it had been made by the 
 judges upon the spur of particular occasions, and by the 
 difficulty of extracting with sureness the ratio decidendi. 
 The second was the extraordinarily harsh penal laws. Death 
 was the punishment alike for killing a man and for stealing 
 a sheep; for high treason and for petty larceny. 
 
 Henry Brougham, afterwards Lord Chancellor, was a 
 devout Benthamite; and in 1827 he delivered in the House 
 of Commons a long and brilliant speech on the Laws of 
 England. He dwelt particularly on the necessity for codifi- 
 cation, especially of the criminal law; on the absurdity of 
 fines and recoveries; on the complexity of the methods of 
 
GEORGE IV. TO PRESENT DAY (18271921). 12T 
 
 conveying land ; on the cumbersome process of the Common 
 Law Courts; on the extraordinary technicality of writs and 
 pleadings ; on the fictions which had to be resorted to ; and 
 on. the harshness of the penal laws. The result of this 
 remarkable speech was the appointment of two commissions 
 one to consider the criminal law, and the other the 
 methods of the Courts at Westminster and the Common 
 Law. The intention of Brougham was to codify the whole 
 of English Law; but the actual result of the commissions 
 consisted of the presentation of certain valuable reports, 
 which afterwards led to the appointment of further com- 
 missions, upon whose labours were based the Real Property 
 Act of 1845, the Common Law Procedure Acts of 1852, 
 1854, and 1860; and the Criminal Law Consolidation Acts 
 of 1861. More immediate results were the abolition of fines 
 and recoveries; the complete revolutionizing of the law of 
 dower, and the confining of capital punishment to murder 
 and high treason. 
 
 It may be said, in fact, that almost every legal change 
 since 1827 has been upon the lines indicated by Brougham, 
 and by him borrowed from Bentham. These changes have 
 been for the most part merely in matters of procedure, con- 
 veyancing and codification. There has been singularly little 
 alteration in the substantive law. 
 
 The dismissal of Eldon from the chancellorship rendered 
 the occasion appropriate for introducing measures of legal 
 change. He had held his high office for twenty-six years, 
 and though he had done no slight service by consolidating 
 the principles and practice of the Court of Chancery, he had 
 persistently opposed all sweeping or radical changes in the 
 law. It is as much to Eldon's retirement as to Brougham's 
 agitation that we owe the series of measures at this time 
 enacted. 
 
 Real Property. In no department of the law have more 
 changes been made than in the Law of Heal Property. Yet 
 
128 THE STUDENT'S LEGAL HISTORY. 
 
 the alterations have not been so much in the law relating 
 to realty as in the law relating to the disposition of realty, 
 that is, the Law of Conveyancing. It is not within the 
 scope of this work to enter upon a discussion of the details 
 of modern Real Property Law. Only the main features 
 will he considered. The Fines and Recoveries Act, 1833, 
 abolished the cumbrous business known as fines and 
 recoveries. 1 For these fictional actions disentailing deeds 
 were substituted in cases where the entail was to be barred ; 
 and in the cases where a married woman wished to convey 
 an interest in land, she was to execute a deed jointly with 
 her husband; and to prevent undue marital influence, she 
 was to acknowledge, before a commissioner or a judge at 
 Westminster, that the deed was her own voluntary act. By 
 the Dower Act, 1833, the law of dower was greatly modified. 
 Instead of a wife being entitled to dower only in lands of 
 which the husband was seised, she took dower out of his 
 equitable estates also. But, on the other hand, the husband 
 was enabled to alienate his land inter mvos or by will, free 
 from dower, which he was only able to do formerly by a 
 series of intricate conveyancing manoeuvres too long to 
 explain here. 
 
 The law of prescription, i.e. the acquisition of a right in 
 another's property (e.g. rights of way and the like), was 
 much simplified by the Prescription Act, 1832, which pro- 
 vided that a presumption of right should arise by twenty 
 years' user, and become irrebuttable at the end of forty 
 years. 2 The Rules of Descent were also altered about the 
 same time. By the Common Law, no ancestor could inherit 
 from a descendant; no relation of the half-blood could be 
 heir ; and the course of inheritance might still in some cases 
 be arrested by attaint of blood. The Inheritance Act, 1833, 
 reversed all three of these rules; and it also enacted that 
 
 1 See pp. 38, et seq. 
 
 2 The periods for profits a prendre are thirty and sixty years respectively ; 
 and for right of light twenty years' irrebuttable. 
 
GEORGE IV. TO PRESENT DAY (18271921). 129 
 
 for the future descent should not be traced from the person 
 last seised, but from him who last acquired by purchase. 1 
 The Real Property Limitation Act also, in 1833, barred all 
 claims to realty, or money charged on land, or to legacies,, 
 unless they were made within twenty years of the time when 
 they vested. The period was cut down to twelve years by the 
 Heal Property Limitation Act of 1874. Other important 
 statutes in this connection are, the Conveyancing Acts, 
 1881, 1882, and 1890; and the Settled Land Acts of 1877, 
 1881 to 1893, of which accounts are to be found in the text- 
 books of Williams and Goodeve. The object of the former 
 was to simplify deeds of conveyance; and the latter were 
 intended to give to tenants for life of settled estates greater 
 facilities for dealing with those estates. The measure is 
 most important, for half the land of the country is under 
 settlement. Copyholds are optionally enfranchisable by 
 the Copyhold Act, 1894. 
 
 Feoffment with Livery was practically superseded by the 
 Eeal Property Act, 1845. Up to that date it was nominally 
 still the way of conveying freehold hereditaments; but in 
 fact it had long been obsolete. For two centuries lawyers 
 had been using conveyances by deed in order to avoid the 
 necessity at livery of seisin. These deeds, being merely 
 conveyancers' devices, were necessarily somewhat technical, 
 and the law of conveyancing was much simplified by the 
 provision that freeholds in possession might be conveyed by 
 a simple deed of grant. In 1875 and 1897 were passed the 
 Land Registry Acts, which were intended to make land 
 transferable by registration at a Land Registry. These Acts 
 are, as yet, only in operation in the County of London. 
 
 Wills. Until 1837 testaments of personalty could be by 
 word of mouth, though, since the Statute of Frauds, wills of 
 
 1 I.e. not by inheritance, escheat, or partition. 
 S.L.H. 
 
130 THE STUDENT'S LEGAL HISTORY. 
 
 land must be in writing. The Wills Act, 1837, codified the 
 law relating to wills and testaments, and introduced a good 
 deal of new law. First and foremost comes the proviso that 
 all wills and testaments * must be in writing. Then, that all 
 property can be directly devised or bequeathed by will, 
 including copyholds. 2 Next, that all wills speak as from the 
 testator's death, so that all property of which he dies pos- 
 sessed may be included in it. Various other sections 
 modified, explained, or annulled decisions which had been 
 given on the Statute of Wills and the Statute of Frauds. 
 
 Married Women's Separate Property was invented by the 
 Court of Chancery; but it only applied to cases where the 
 property had been expressly given to the married woman's 
 separate use. The Married Women's Property Act, 1882, 
 made all the property " separate property ' ' where the 
 parties married after 1882, or where the property was 
 acquired after that year. There had been other Acts in 
 1870 and 1874 giving some lesser rights of the same kind 
 to married women; but the Act of 1882 swallowed up its 
 predecessors. 
 
 Equity. Since the chancellorship of Lord Eldon, most 
 of the alterations made in Equity, or Chancery Law, have 
 been by statute. There have been a few a very few new 
 extensions of old doctrines, and there has been one case in 
 which, by judicial decision, a doctrine formerly set up by 
 judicial decision has been overturned namely, the doctrine 
 of precatory trusts. It had frequently been held that where 
 a testator gave property to A., with a " hope " or " trust " 
 or " confidence " that A. would provide for B., A. was held 
 a trustee for B. By the authority of the late Sir George 
 Jessel that series of decisions has been of late years over- 
 turned; and it is now established that a trust must be 
 
 1 Except those of soldiers and sailors in expeditions^ 
 * See p. 105. 
 
GEORGE IV. TO PRESENT DAY (182T 1921). 131 
 
 declared in imperative language. 1 So far as I know, that is 
 the only important new doctrine of Equity since Eldon. 
 There has also been a certain amount of reluctance to follow 
 other old doctrines established by the early chancellors, 
 especially in one direction, viz. the old judges in Equity 
 were very ready to make the trustee's position extremely 
 onerous. The trend of modern decisions and practice is to 
 make his duties and liabilities as light as may be, provided 
 that he acts honestly and to the best of his judgment. 
 
 There have also been numerous statutes on the subject of 
 trusts and trustees, with the object of clearing up doubtful 
 points, and of relieving trustees from undue burdens. These 
 are the Trustee Acts of 1850, 1852, 1857, 1859, 1888, and 
 1893, the last of which codifies the provisions of the former 
 Acts and greatly improves the position of the trustee who is 
 honest but unfortunate or mistaken. Another object of the 
 statutes is the saving of expense to the trust estate. Thus, 
 new trustees can be appointed without the expense of an 
 application to the Court; and a trustee is not responsible 
 for the dishonesty or incompetence of an agent or co-trustee 
 whom he thought honest and competent. A further piece of 
 legislation is by the Rules of the Supreme Court, issued in 
 1883. Under the old system of Equity, a trustee acted very 
 much at his peril. If the trust instrument did not state his 
 powers fully and accurately, and he was in doubt, he had 
 to make up his mind and act to the best of his judgment. 
 Should he turn out to be wrong, he would probably render 
 himself liable to an expensive lawsuit and heavy loss. By 
 the new rules, he can go to a judge of the Chancery Division 
 and obtain a solution of the difficulty, and the directions 
 given by such judge completely exonerate the trustee from 
 all liability. By the Trustee Relief Act, 185T (now re- 
 enacted as part of the Trustee Act, 1893), a trustee who 
 
 1 But see Comiskey v. Bowring-Hanbury, [1905] A. C. p. 84, where, how- 
 ever, there was a gift over which helped to show that the testator did not 
 intend an absolute gift. 
 
132 THE STUDENT'S LEGAL HISTORY. 
 
 is in difficulty may pay the whole of the trust fund into 
 Court and get rid of all future responsibility. 
 
 International Law. During the Great War (19141918) 
 the Prize Courts, under the presidency of Sir Samuel Evans, 
 Lord Sterndale, and Sir Henry Duke successively, and the 
 Committee of the Privy Council on appeal, gave many 
 decisions of importance. No new principle was established, 
 unless it can be said that one was established in The Kim* 
 when it was held that the doctrine of continuous voyage, 
 applied by American Prize Courts during the American 
 Civil War, 2 extended to cases where contraband goods were 
 to be sent to the hostile country not necessarily by tran- 
 shipment. In other words, the doctrine is now that of 
 continuous transportation, and not continuous voyage. The 
 Zamora 3 disapproved the dictum of Lord Stowell in The 
 Fox 4 to the effect that the Crown can, by order, prescribe 
 or alter the law which Prize Courts have to administer; 
 and emphatically laid it down that Prize Court law is not 
 municipal law, but the law of nations. 
 
 Joint Stock Companies and Limited Liability. By the 
 
 common law every association formed for the sake of sharing 
 profits, is either a corporation or a partnership; and a 
 company which is neither one nor the other is a thing 
 unknown to the common law. A corporation was formed 
 either by Royal Charter or Act of Parliament. When un- 
 incorporated companies with a joint stock divided into 
 transferable shares began to assume importance, the recep- 
 tion they met with from the Courts and the legislature was 
 not encouraging. They could not sue their debtors, and 
 each member was answerable for the whole of the company's 
 debts. The Bubble Act, 6 Geo. I. c. 18, attempted to put 
 
 1 [1915] P. 215. 2 The Bermuda, 3 Wall. 514. 
 
 8 [1916] 2 A. C. 77. 4 Edw. 312. 
 
GEORGE IV. TO PRESENT DAY (18271921). 133 
 
 them down altogether; but the futility of this course was 
 soon perceived, and in 1825 the Act was repealed. 
 
 The same statute which repealed the Bubble Act l em- 
 powered the Crown to grant charters of incorporation to 
 joint stock companies, and at the same time declare the 
 persons incorporated personally liable for the corporation's 
 debts. This was followed in 1834 by a statute empowering 
 the Crown to grant privileges to companies by letters patent, 
 especially that of suing and being sued in the name of a 
 public officer. In 1844 it was enacted that all companies 
 might obtain a certificate of incorporation without applying 
 to Parliament for a charter ; but the only limit to the liability 
 of individual members was that creditors had to show that 
 they could not obtain payment from the company before 
 they sued the individuals composing it. 
 
 But the extensive character of modern commercial under- 
 takings demanded greater protection for joint stock enter- 
 prise. Accordingly, in 1855, an Act was placed upon the 
 statute-book enabling companies registered under the Act of 
 1844 to obtain from the registrar of joint stock companies a 
 certificate of incorporation with limited liability. By limited 
 liability is meant, that the liability of each member is 
 limited to the amount of capital which he undertakes to 
 subscribe. Extensive alterations were made by Acts of the 
 two succeeding years; and by the Companies Act of 1862, 
 the law on the subject was consolidated and extensively 
 amended. Incorporation is now no longer a privilege; and 
 any seven persons may form themselves into a company for 
 any lawful object, and with limited liability. The various 
 statutes passed on this subject since 1862 have been chiefly 
 with the objects of preventing the machinery of the Com- 
 panies Acts being used to defraud shareholders and the 
 public, and to provide means for putting an end to joint 
 stock concerns when they are insolvent or fraudulent, or for 
 
 1 6 Geo. IV. c. 91. 
 
134 THE STUDENT'S LEGAL HISTORY. 
 
 any reasons unable to successfully carry out the object for 
 which they were formed, notably the Companies Act, 1900. 
 These Acts are now consolidated into one statute, the 
 Companies (Consolidation) Act, 1908. 
 
 The Law Merchant. No branch of law received less 
 attention from the legislature until the nineteenth century ; 
 and in the last three reigns none has received more. A 
 number of Acts, in the nature of codifying statutes, have 
 been placed on the statute-book. Thus, in 1882, the Bills 
 of Exchange Act codified the law relating to bills, cheques, 
 and promissory notes. In 1890, the Partnership Act did 
 the same for the law of partnership. This was followed in 
 1893 by the Sale of Goods Act, which codified the existing 
 common and statute law affecting the most widely used con- 
 tract of all. The Act of 1893, it is believed, only made one 
 alteration in the law of sale. There has been other legisla- 
 tion affecting the law merchant which Holt and Mansfield 
 made, notably, the Mercantile Law Amendment Act, 1856, 
 by which a few amendments were made and doubts cleared 
 up; but the striking feature of the history of the law mer- 
 chant in this period has been the three statutes briefly 
 referred to above. A Commercial Court has also been estab- 
 lished as part of the machinery of the King's Bench Division 
 for the more expeditious trial of commercial causes. 
 
 Bankruptcy. The law of bankruptcy has undergone con- 
 siderable changes in the last seventy years. Until 1895, a 
 debtor was not allowed to declare himself a bankrupt; but 
 by the Bankruptcy Act of that year a debtor might declare 
 himself insolvent to one of his creditors, and the creditor 
 might then ask for a commission in bankruptcy to issue. 
 The Bankruptcy Acts of 1849 and 1861 allowed the debtor 
 himself to petition to be made a bankrupt; but the Act of 
 1869 allowed him only to call a meeting of his creditors and 
 explain his position to them. The creditors could then 
 
GEORGE IV. TO PRESENT DAY (18271921). 135 
 
 appoint a trustee to take the debtor's estate and realize it 
 for their benefit. This was liquidation, not bankruptcy 
 properly so called. In 1883 the new Bankruptcy Act 
 allowed the debtor to present a petition to the Court to 
 make himself a bankrupt. The great feature of the Act of 
 1880 is the provision for constituting the Board of Trade a 
 supervising authority in bankruptcy cases. The functions 
 of the official receivers appointed by the Board are, in 
 general terms, to act as official trustees or caretakers of the 
 bankrupt's estate, and to endeavour to find out whether the 
 bankruptcy is due to the recklessness or fraud of the bank- 
 rupt, and if so, to report the facts to the Court in order that 
 the culprit may be duly punished. Since 1869, any person 
 except a married woman, whether a trader or not, can be a 
 bankrupt. The Bankruptcy Act, 1914, continues, in the 
 main, the policy of the Act of 1883, with a few alterations, 
 principally as to practice. By section 125, sub-section 1, 
 every married woman who carries on a business, whether 
 separately from her husband or not, is made subject to the 
 bankruptcy laws; and by sub-section 2 a married woman 
 carrying on a trade or business is liable to bankruptcy pro- 
 ceedings on a judgment against her, whether the judgment 
 is or is not expressed to be payable out of her separate 
 estate. This is new; and was rendered necessary by the 
 vastly increased number of women traders. The subject 
 of the Bankruptcy Courts will be found treated of 
 on p. 155. 
 
 Criminal Law. From 1827 to 1832 a series of Acts con- 
 solidating various parts of the criminal law was passed. 
 7 & 8 Geo. IV. c. 28 made certain reforms in criminal 
 pleading, abolished benefit of clergy, and enacted that no 
 felon should suffer death except for a felony which was 
 excluded from the benefit of clergy before the Act. In the 
 same year the law relating to larceny and the law of mali- 
 cious injury to property were consolidated; and in the 
 
136 THE STUDENT'S LEGAL HISTORY. 
 
 following year the law relating to offences against the 
 person. In 1830 a similar Act was passed on the law 
 relating to forgery; and in 1832 as to coinage offences. 
 These Acts made a few alterations and additions; but they 
 left untouched the definitions and principles of common 
 law. In 1837 the punishment of death was abolished except 
 in very few cases. Two important statutes were passed, in 
 1851 and 1853 respectively, to amend procedure in criminal 
 cases, especially to enable judges at the trial to amend 
 indictments slightly wrong in form only, and to simplify 
 indictments; e.g. in an indictment for stealing bank-notes 
 or coin, it is sufficient to state that the prisoner stole so 
 much money. The Act of Edward III., as to certainty in 
 criminal pleadings, had been construed to mean that the 
 particular kinds of coin and numbers of each kind must be 
 specified in the indictment. 
 
 But the nearest approach to a criminal code is to be 
 found in the Criminal Law Consolidation Acts, 1861. They 
 are, the Larceny Act, the Malicious Damage Act, the 
 Forgery Act, the Coinage Offences Act, and the Offences 
 against the Person Act. These Acts, again, do not define 
 most of the offences they deal with, but leave the common 
 law definitions untouched. For instance, the statute last 
 mentioned, though it deals with the sentences for murder 
 and manslaughter, does not say what those offences are. 
 The statute of 1861 in course of time required amendment, 
 and a series of enactments, drawn on somewhat bolder lines, 
 aimed at simplifying and amending*, as well as consolidating, 
 certain parts of the criminal law. The draughtsmen no 
 longer shirked the difficulty of definition. The Forgery 
 Act, 1913, embodies within its twenty-two sections parts of 
 more than sixty statutes, and repeals the greater part of 
 the Forgery Act, 1861. Forgery is compendiously defined 
 as "the making of a false document in order that it may 
 be used as genuine "; and the Act deals also with offences 
 kindred to forgery e.g. "uttering," forgery of dies and 
 
GEORGE IV. TO PRESENT DAY (18271921). 13T 
 
 seals, possession of material for the purpose of forgery. 
 The Perjury Act, 1911, defines perjury and deals with 
 various aspects of it which were formerly the subject of 
 numerous statutes, as well as of the Common Law. The 
 Larceny Act, 1916, is a well-drafted Act dealing in a similar 
 manner with the crime of theft. The Incest Act, 1908, 
 makes incest a crime; and is remarkable for a unique 
 proviso that all charges under the statute shall be heard 
 in camera. Such a proviso runs contrary to the general 
 theory and practice of English law. The -subject of the 
 right of a judge to order a trial in camera was dealt with 
 in Scott v. Scott ([1913] A. C. 417), where the House of 
 Lords decided that there is no power to order a case to be 
 tried in camera, however disgusting or painful the details 
 may be, unless justice cannot be done otherwise. Before 
 this decision it was common practice to order nullity suits 
 to be tried in camera. Scott v. Scott decided that the 
 practice was unlawful. There have been many other altera- 
 tions, especially measures for the prevention of crime 
 (particularly 8 Edw. VII. c. 50), and for the punishment of 
 offences against children and young persons. 
 
 One of the blackest blots on the pre-Benthamite penal 
 system was the unfair way in which prisoners were treated. 
 We are accustomed to speak and think of " old English fair 
 play," and to contrast it proudly with continental modes of 
 trial. As a matter of fact, the fair treatment of prisoners 
 on trial is of modern growth. Before the Revolution of 1688 
 the matter stood thus : a man accused of treason or felony 
 could not be defended by counsel, except that a member of 
 the Bar was allowed to argue a point of law for the prisoner. 
 It was only in cases of misdemeanour, where conviction 
 would not entail loss of life and property, that counsel was 
 allowed to defend. Besides, the behaviour of judges and 
 prosecuting counsel, especially in cases of treason, sedition, 
 and other State offences, was frequently most brutal. The 
 Attorney-General, Coke, who prosecuted Raleigh for 
 
138 THE STUDENT'S LEGAL HISTORY. 
 
 treason, referred to that eminent explorer, warrior, and 
 statesman as a " scurvy knave." 
 
 After 1688 the behaviour of counsel and judges was less 
 flagrantly indecent, and in some cases was as fair as could 
 be wished; but still prisoners felt the necessity of opposing 
 trained advocacy by trained advocacy. In 1747 a " full 
 defence by counsel " was allowed to those accused of treason; 
 but it was not until nearly a century later (1836) that the 
 same privilege was extended to persons accused of felony. 
 In the same year was passed an Act to prevent a previous 
 conviction being given in evidence to the jury in the case 
 before them, except where the prisoner brings evidence of 
 his good character. 
 
 The right of appeal in Criminal cases was granted in 
 1907 (see p. 182). 
 
 v 
 
 Indictments and Criminal Trials. The Indictments 
 Act, 1915, brought about a revolutionary change in 
 criminal procedure. Under the law as it stood prior to this 
 Act, indictments were obliged to be written on parchment ; 
 and, by long custom, must contain certain ancient formulae. 
 Thus, an indictment for burglary must state that the 
 prisoner " burglariously, " "broke and entered." In 
 felonies the word " feloniously " must be used. In treason 
 it was customary to state that the prisoner was " seduced 
 by the Devil," and "not having the fear of God in his 
 heart," committed the crime charged. Further, if a 
 prisoner was once put in charge of the jury, and the indict- 
 ment turned out to be defective, there was no power of 
 amendment. An old rule did not allow of felony and mis- 
 demeanour to be included in the same indictment. The 
 statute of 1915, with the rules made thereunder, is an 
 attempt to apply, as nearly as may be, the modern practice 
 relating to pleadings and the procedure thereon which have, 
 since the Judicature Act, 1873, prevailed in civil cases. 
 The indictment need no longer be written on parchment. 
 
GEORGE IY. TO PRESENT DAY (18271921). 139 
 
 It must commence with the name of the Court of trial, and 
 must contain a plain, brief statement of the offence charged, 
 with particulars thereof. The judge has power to amend 
 at any stage of the trial if it can be done without injustice. 
 Any number of felonies or misdemeanours can be included 
 in one indictment; and a very great innovation felonies 
 and misdemeanours may be included in the same indict- 
 ment. If a felony and a misdemeanour are charged in the 
 same indictment, the prisoner has the same right of 
 challenging jurors as if all the offences charged were 
 felonies. To prevent injustice to prisoners, if the Court 
 should be of opinion that a person accused may be 
 embarrassed or prejudiced in his defence by the joinder of 
 counts or offences, or if for any other reason it is desirable 
 to do so, the Court may order a separate trial of any count 
 or counts of an indictment. The contrast between the 
 indictment at Common Law and the indictment under the 
 Indictments Act, 1915, may be seen from the following 
 examples of indictments for murder : 
 
 1. At Common Law. 
 
 Middlesex ( The jurors for our lord the King upon their 
 to wit. | oath present that John Styles on the first day 
 of June in the year of our Lord one thousand nine hundred 
 and fifteen feloniously wilfully and of his malice afore- 
 thought did kill and murder one James Noakes against the 
 peace of our sovereign lord the King his crown and dignity. 
 
 2. Under the Indictments Act, 1915. 
 
 STATEMENT OF OFFENCE. 
 Murder. 
 
 PARTICULARS OF OFFENCE. 
 
 John Styles on the first day of June 1921 in the county 
 of Middlesex murdered James Noakes. 
 
140 THE STUDENT'S LEGAL HISTORY. 
 
 Treason. In the early part of Queen Victoria's reign 
 certain persons who thirsted for notoriety made some stir 
 in the world by pretending to attempt the Queen's life. In 
 consequence of these acts of folly, the Treason Act, 1842, 
 provided that, when an attempt was made to injure in any 
 manner the person of the Queen, the offender should be 
 tried as if for murder, but punished as if for treason. Dis- 
 charging or aiming firearms, or throwing, or using, or 
 attempting to use, any weapon, with intent to alarm or 
 injure her Majesty, was made a high misdemeanour, 
 punishable by imprisonment and whipping. 
 
 By the Treason Felony Act, 1848 (s. 3), conspiracies to 
 depose the Queen, to levy war against her, or to induce any 
 foreigner or stranger to invade her dominions, were made 
 felony punishable by transportation for life, or imprison- 
 ment for two years. They had been held to be overt acts 
 of compassing the Queen's death under the statute of 
 Edw. III., and had been made substantive treasons by 36 
 Geo. III. c. 7, made perpetual by 57 Geo. III. c. 6, when 
 the intention was expressed, uttered, or declared by publish- 
 ing any printing or writing, or by any overt act or deed. 
 The Treason Felony Act repealed the 36 and 57 Geo. III., 
 except so far as related to offences against the person of the 
 sovereign, but did not affect the old Act of Edw. III., or 
 the construction put upon it. 
 
 It was held in R. v. Casement ([1917] 1 K. B. 98) by the 
 King's Bench Division and the Court of Criminal Appeal 
 that an indictment charging high treason by adhering to 
 the King's enemies elsewhere than in the King's realm was 
 a good indictment. [See also R. v. Lynch ([1903] 1 K. B. 
 444)]. The point was by no means free from doubt, 
 although Hawkins (Pleas of the Crown, bk. 2, ch. 25, s. 48, 
 Curwood's edition) supported the view, which must now be 
 taken to be the law. 
 
 Libel. The law relating to criminal defaTnatory libels 
 
GEORGE IY. TO PRESENT DAT (18271921). 141 
 
 was considerably modified by the Libel Act, 1843, com- 
 monly called "Lord Campbell's Act." Formerly it was 
 good law to say, " The greater the truth the greater the 
 libel," a statement at first blush somewhat difficult to 
 appreciate, but nevertheless, resting on a perfectly reason- 
 able basis, 1 and still correct in cases of seditious libel. By 
 Lord Campbell's Act it was apparently partially, and really 
 wholly, repealed in cases of defamatory libel. Any person 
 maliciously publishing a defamatory libel, knowing the 
 same to be false, is liable to two years' imprisonment and a 
 fine. But if he did not know it to be false, he can only be 
 imprisoned for one year. Then comes the important part : 
 If the defendant can prove the libel to be true and pub- 
 lished for the public benefit, he is entitled to an acquittal, 
 and to his costs of defence. A departure, however, is made 
 from the usual criminal procedure. To entitle the defen- 
 dant to give evidence of justification, he must plead the 
 truth of the libel specially, and also the facts and reasons 
 why the publication was for the public benefit. To this 
 plea the prosecutor shall be at liberty to reply by a general 
 denial. Thus, private prosecutions for libel were put much 
 upon the same footing in point of form as civil actions 
 for defamation. One curious point may be noticed. The 
 plea of justification is to be " in the manner now required 
 in pleading justification to an action for defamation." The 
 " now " refers to 1843, so that counsel drawing a plea of 
 justification to an indictment for defamatory libel must still 
 use the archaic forms which obtained before the Common 
 Law Procedure Act, 1852. 
 
 More sweeping alterations have been made by the News- 
 paper Libel Act, 1881, and the Law of Libel Amendment 
 Act, 1888. By the former, a Court of Summary Jurisdic- 
 tion may inquire into the truth of a newspaper libel, and 
 may, if it deems the offence a trivial one, inflict a fine not 
 
 1 This dark saying is interpreted infra, p. 199. 
 
142 THE STUDENT'S LEGAL HISTORY. 
 
 exceeding 50. The Act of 1888 makes privileged fair and 
 accurate reports of proceedings in Courts, and at public 
 meetings, meetings of such bodies as town councils, and 
 certain other lawful gatherings. Again and this is an 
 extraordinary privilege granted to the newspaper press 
 no one can prosecute a person responsible for a newspaper 
 libel except by an order of a judge of the High Court. The 
 9th section allows, but does not compel, the defendant in a 
 prosecution for criminal libel to give evidence " at any and 
 every stage of such charge." 
 
 Evidence. Bentham, in his strictures on the laws of 
 England, attacked some of the rules of evidence then pre- 
 vailing. He urged that the discovery of truth was the end 
 of the rules of evidence; and, therefore, the incompetency 
 of witnesses ought, as far as possible, to be removed. At 
 that time, the Common Law Courts would not allow evidence 
 to be given by either party to the suit, nor by his or her 
 wife or husband, nor yet by their privies in blood, estate, or 
 interest, i.e. by those persons who might, directly or 
 indirectly, be affected by the judgment. The consequence 
 was the exclusion from the witness-box of the people who 
 were most likely to know anything about the matters in 
 question. A further rule was that no person was competent 
 to give evidence in an action if the judgment therein might 
 subsequently be evidence for or against himself. The 
 person accused of a crime was not allowed to give evidence 
 at the trial; neither was his or her wife of husband. The 
 reasons adduced in support of the old rules were that the 
 evidence ought to be that of impartial persons. Our 
 ancestors seem to have been haunted by a bogey of perjury; 
 for they believed that a witness with an interest in the suit 
 would not hesitate to perjure himself in order to further 
 his own ends. 
 
 In 1833, Bentham's views so far prevailed that by 
 3 & 4 Will. IV. c. 42, it was enacted that no person should 
 
GEORGE IY. TO PRESENT DAY (18271921). 143 
 
 be incompetent to testify in any civil proceeding because 
 the judgment therein might be given subsequently as 
 evidence for or against himself. But the old notion was 
 not dead; because the Act went on to provide that in no 
 case should a judgment be admitted as evidence for or 
 against any man who had given his testimony in the action. 
 The bill, as it was introduced by Brougham, L.C., was 
 much more sweeping; but, as yet, parliamentary opinion 
 was not ripe. 
 
 In 1843, by Lord Denman's Act, the Benthamite theory 
 was carried out still further. No witness was to be excluded 
 from giving evidence by reason of incapacity, from crime or 
 interest, except the parties or their husbands or wives. 
 
 By a further Evidence Act, introduced by Lord Brougham 
 in 1851, one of the exceptions in Lord Denman's Act was 
 taken away, and parties to civil suits were allowable and 
 compellable witnesses. Two years later, Lord Brougham 
 carried another Act, removing the disability of husbands 
 and wives of parties. This statute left the law practically 
 as it stood until the year 1898, that is, only making incom- 
 petent persons accused of crime and their husbands or wives. 
 A great number of the statutes passed in the last forty 
 years have allowed the defendants in criminal proceedings, 
 or their husbands or wives, to give evidence; but in no case 
 have they rendered those persons compulsory witnesses. 
 The Licensing Act, 1872, was the first of these enabling 
 statutes, which now number about twenty, including the 
 Criminal Law Amendment Act, 1885, the Corrupt Practices 
 at Elections Act, 1883, the Libel Act, 1888, and the Pre- 
 vention of Cruelty to Children Act, 1894. And, finally, by 
 the Criminal Evidence Act, 1898, a husband or wife can 
 give evidence for the other if the latter is charged with a 
 criminal offence; but cannot be called for the prosecution 
 except in a very few cases. And, most revolutionary change 
 of all, a prisoner is entitled, but not compellable, to give 
 evidence on his own behalf. There are certain limitations 
 
144 THE STUDENT'S LEGAL HISTORY. 
 
 as to the cross-examination of prisoners and their husbands 
 or wives who give evidence. (C. E. Act, 1898, s. 1). 
 
 Such witnesses cannot be asked questions about the 
 prisoner's credit and character, unless the prisoner has, in 
 his defence, attacked the character of the prosecutor or tried 
 to show that some one else is guilty of the crime, or has 
 given evidence of good character. Except where the wife 
 (or husband) is willing, the other spouse cannot be called, 
 i.e. is neither a competent nor compellable witness. 1 This 
 does not apply where the offence was committed against the 
 wife. 
 
 The proof of documents was, before Lord Brougham's Act 
 of 1845, extremely difficult. It was necessary, in all cases 
 where the contents of a written instrument had to be 
 adduced in evidence, to produce the original document. By 
 that Act, official documents were to be received in evidence 
 without proof of the seal or signature of the person sealing 
 or signing the same; and by the second Brougham's Act 
 (1851) it was permitted to prove the contents of official 
 books, registers, etc., by means of a copy officially certified 
 to be correct, thus avoiding the trouble and expense of 
 bringing the originals into Court. 
 
 The Bankers' Books Evidence Act, 1879, was the begin- 
 ning of a change, the principle of which has been somewhat, 
 and probably will be still more, extended. The old judicial 
 notion was, that litigants were made for the law, and not 
 law for the litigants. The modern idea is to make the 
 practice of the Courts conform, as far as may be, to the 
 convenience of the business world. Before the Act of 1879, 
 not only the parties to the suit, but also third persons, might 
 be compelled to come into Court as witnesses and bring their 
 books of account. To bankers, such a practice was ruinously 
 inconvenient ; and in 1878, Mr. Eavenscroft of the Birkbeck 
 Bank refused to take to Court one of his ledgers. The 
 
 1 R. v. Leach (1912), App. Gas. 305. 
 
GEOKGE IV. TO PRESENT DAY (18271921). 145 
 
 refusal might have been serious for the witness; but, as it 
 turned out, there was no need for his books to be produced. 
 The case aroused much attention ; and in the following year 
 the- Act alluded to was placed on the statute-book to enable 
 bankers to furnish, for the information of the Court, sworn 
 copies of their books, instead of the books themselves. Now, 
 by a rule of the Supreme Court, made in 1893, a judge, 
 sitting in Chambers, can always order that instead of a 
 party being compelled to bring his business books into 
 Court, a copy shall be made by some one whom the judge 
 appoints. 
 
 Procedure in the Common Law Courts. One of the most 
 frequent subjects of the denunciations of law reformers has 
 ever been the methods and procedure of the tribunals. At 
 the beginning of Queen Victoria's reign this standing 
 grievance had only too much cause. Process well enough 
 adapted to the days of the feudal barons, when nobody was 
 in a great hurry, and when the great desideratum was 
 eventual justice, was unsuited to an age of commerce, when 
 the demands of every trade and calling were daily becoming 
 more severe, and when speedy decision was almost as 
 valuable as exact justice. In preceding pages the rigour of 
 the Common Law has been spoken of. It would be better, 
 perhaps, to call it the rigidity of the Common Law judges, 
 who refused to administer anything except the letter of the 
 law, and that most literally. For instance, it having been 
 laid down as a principle that all pleadings should be 
 accurate, objection was occasionally taken on account of 
 mistakes in spelling. Again, it is a very sound principle 
 that no one should be sued on a contract except the persons 
 liable under it. This again had been interpreted to mean 
 that if A. sued B. and C. on a contract, and B. turned out 
 not to be liable, C. went scot free, because A. had sued the 
 wrong persons. Again, in order to bring certain wrongs 
 within the purview of the Courts, various fictions had been 
 
 S.L.H. 10 
 
146 THE STUDENT'S LEGAL HISTORY. 
 
 allowed, and indeed were strictly enjoined. Thus, in the 
 action of conversion, 1 the plaintiff originally could only 
 have a remedy if he alleged that the defendant found the 
 goods and converted them to his own use. If the allegation 
 of finding was omitted from the declaration, the plaintiff 
 failed in his action. And in case of any slip of this kind, 
 the party in fault was not allowed to amend his error and 
 continue his action. It was quite impossible for the judge 
 to allow him to make any amendment of his writ or plead- 
 ings. The unlucky plaintiff who made a stumble could only 
 give up that action and bring another. The defendant who 
 erred must see judgment given against him. 
 
 These defects had been commented on by Brougham in 
 1827, when he moved for the appointment of the two com- 
 missions before referred to. No immediate result followed 
 the labours of those commissions ; but in 1850 another small 
 commission was appointed to inquire into the process and 
 practice of the Superior Courts of Law at Westminster, 
 i.e. the King's Bench, Common Pleas, and Exchequer. In 
 1852 this commission presented their report, suggesting 
 various amendments, together with a draft bill. This bill 
 passed into law the same year, and was the first of the three 
 statutes known as the Common Law Procedure Acts (1852, 
 1854, and 1860). Their effect was enormous. They swept 
 away from the procedure of the Courts of Law much of the 
 prolixity, the expense, the tediousness, and the air of 
 unreality that had previously characterized them. To sum 
 up the chief provisions 
 
 (a) The Writ. By 2 Will. IV. c. 39, a writ of summons 
 had been substituted for the old original writ 
 addressed to the sheriff, except in the three remain- 
 ing real actions. 2 The Common Law Procedure 
 Acts went on to say that the writ should not set out 
 in detail the cause of action. 
 
 1 Supra, p. 77. 2 Supra, p. 24. 
 
GEORGE IV. TO PRESENT DAY (182T 1921). 147 
 
 (b) All real actions were abolished. 
 
 (c) Judgment in default could be given if the defendant 
 
 did not appear to the writ. Formerly, the plaintiff 
 had to proceed by way of outlawry; but now out- 
 lawry on mesne process is abolished. 
 
 (d) Amendment. At any stage in the trial, the judge 
 
 could allow a party to amend his pleadings. 
 
 (e) Non-joinder and mis joinder of parties. As has been 
 
 said before, the presence of a wrong plaintiff was 
 fatal to the case, and the presence of a wrong 
 defendant might be. The absence of a rightful 
 plaintiff or defendant might also be fatal to the 
 action, however just the claim might be. One of 
 the most beneficial clauses of the Act of 1852 was 
 that whereby a plaintiff or defendant might, by 
 leave of a judge, be put in or struck out at any stage 
 of the proceedings; and whereby in no case has any 
 non- joinder or mis- joinder of parties to be fatal to 
 the claim. 
 
 (f) Reference. Where a claim or a defence was a matter 
 
 of account or detail, the judge was empowered to 
 order the accounts or technical details to be tried 
 by a referee who could go into the matter more 
 informally, and perhaps with more technical know- 
 ledge. 
 
 (g) Pleadings. Great reforms were made here. No 
 pleading must be embarrassing if it was, it might 
 be struck out. No fictitious allegations need be 
 made; e.g. in an action for conversion, it was not 
 necessary to allege that defendant found the pro- 
 perty; in action for trespass, it was not necessary 
 to allege that it was done m et armis et contra 
 pacem. 1 Again, special demurrers were taken away. 
 A special demurrer was a technical objection to 
 
 1 Vide supra, p. 24. 
 
148 THE STUDENT'S LEGAL HISTORY. 
 
 pleading, not generally on a point of law, but on 
 a technical rule of pleading. Such a special 
 demurrer was brought before the trial of the action; 
 and the first thing counsel used to do when the other 
 side delivered a pleading was to scan it carefully to 
 try to find ground for a special demurrer. The most 
 frivolous points were raised, often with success; and 
 always with the result of delaying the trial of the 
 action. 
 
 (h) Action of Ejectment. The Act of 1852 abolished 
 John Doe and Richard Hoe. In other words, the 
 action of ejectment was now to be brought by an 
 ordinary writ, addressed to the person actually in 
 possession of the disputed tenement, who, if he held 
 of a superior landlord, must give notice to that 
 landlord, who could apply for leave to be made a 
 defendant. 
 
 (i) Equitable defences for the first time were allowed to 
 be heard in Courts of Law. As we have seen, a 
 man who had no defence at Common Law might 
 have a very good one in Equity; and his only course 
 before the Common Law Procedure Acts was to file a 
 bill in Chancery for an injunction to stop the Com- 
 mon Law action. Under the new procedure, he 
 could plead his equitable right in the original action. 
 The result of the measure was greatly to diminish 
 the number of " common injunctions " to restrain 
 Common Law actions, and to cause Law and Equity 
 to be concurrently administered to some extent. But 
 the remedy in this instance was not wide enough. If 
 a plaintiff had two claims, one legal and one equit- 
 able, arising out of the very same set of circum- 
 stances, he still had to bring two actions. 
 
 (k) Discovery. The bill for discovery has already been 
 described. This, again, was a case of bringing a 
 second action in Equity because of the unbending 
 
GEORGE IV. TO PRESENT DAY (18271921). 149 
 
 conservatism of the Common Law procedure. The 
 Act of 1854 enabled a party to a Common Law action 
 to apply to a judge by summons in that action for 
 an order for discovery. 
 
 (1) Injunctions might also, for the first time, be granted 
 by the Courts of Law. Hitherto, they had been 
 issued only out of Chancery. But here again the 
 powers given were extremely limited. A Court of 
 Law could only grant an injunction where the 
 plaintiff had a cause of action for damages; that is, 
 the continuance of an existing tort, but not the doing 
 of a threatened wrong, could be restrained. 
 
 (m) Trial by Judge alone. Down to 1854, all trials at 
 nisi prius were before a judge and jury. A judge 
 alone could not try an action ; but by the Act of 1854 
 the parties were allowed to dispense with a jury. 
 
 (n) Adjournment. It seems too absurd to be true, never- 
 theless it is a fact, that it had been held before the 
 Common Law Procedure Acts that a trial at nisi 
 prius could not be adjourned. The origin of the 
 rule lay in the fact that the writ of nisi prius was 
 originally used for trials on circuit, where the judges 
 sat de die in diem until all the causes were finished. 
 But since 1852, the presiding judge has had power to 
 adjourn such a case for any period in his discretion. 
 
 Procedure since the Judicature Act, 1873. The Judicature 
 Acts, especially that passed in 1873, made important 
 changes in the procedure of the Courts. In the first place, 
 as every division of the High Court can now give relief in 
 all cases, and can grant every remedy, and take cognizance 
 of every defence in every action, multiplicity of suits has 
 been, to a great extent, abolished. A plaintiff can, in the 
 same action, claim both legal and equitable remedies; and 
 can ask, by the same writ, for redress of all his grievances 
 against the defendant. For instance, he can, at the same 
 
150 THE STUDENT'S LEGAL HISTORY. 
 
 time, sue for damages for breach of contract and for libel, 
 but subject to the rule that the Court may order issues to be 
 tried separately, if it thinks that confusion would ensue 
 from their being tried together. Then the defendant may 
 counter-claim in the same suit if he has any substantive 
 cause of action against the plaintiff; so that, as far as 
 possible, all differences between the parties may be settled 
 at once. It follows that no injunction can be issued from 
 one division to restrain proceedings in an action in another 
 division, so that "common injunctions" have fallen into 
 desuetude. Again, the judges have been authorized to make 
 rules for the regulation of procedure, with the intent that 
 the practice of the Courts may keep pace with the needs of 
 the times. 
 
 Forms of action are abolished, and the plaintiff need not 
 now state whether he sues in trespass or on the case, in 
 detinue or in trover. All that is required is for the plaintiff 
 to state in his pleadings the material facts on which he 
 relies, and the relief he claims, e.g. damages or injunction, 
 &c. Not only have most of the technicalities of pleadings 
 been abolished, but their length and number have been cur- 
 tailed. An entirely new procedure has been applied to 
 commercial causes, pleadings being altogether dispensed 
 with in most of such cases. Chancery proceedings also have 
 been shortened and rendered less expensive by the practice 
 of beginning certain actions by originating summonses. 
 When an action is so commenced, frequently it does not go 
 into Court at all, but is decided by the master or the judge 
 in chambers in a summary way. 
 
 Trial by Jury in Civil Causes. During the Great War, 
 by the Juries Act, 1918, an alteration was made in the mode 
 of the trial of cases at Common Law which may be termed 
 revolutionary. As a temporary measure, the Act provided 
 that the normal method of trial should be by judge alone. 
 Any litigant in a cause where a charge of fraud was made, 
 
GEORGE IV. TO PRESENT DAY (18271921). 151 
 
 or in an action for libel, slander, malicious prosecution, 
 false imprisonment, seduction or breach of promise of mar- 
 riage had the right to demand a jury; but in any other case 
 the Court was to order trial by jury only when convinced 
 that the cause would be tried better with a jury than by a 
 judge alone. By the Administration of Justice Act, 1920, 
 these provisions were made permanent, save that a party 
 can always ask for a jury, and must be granted one unless 
 the Court is of opinion that the action cannot as con- 
 veniently be tried with a jury as without a jury. The 
 absolute right to a jury in the cases mentioned above is 
 preserved. 1 Similar provisions are applied to County 
 Courts. 
 
 Women in the Courts. By the Sex Disqualification 
 (Removal) Act, 1919, women were made eligible to exercise 
 all public functions and hold all civil and judicial offices 
 and posts, and to be admitted to all civil professions and 
 vocations. The result was to admit women to the Bar, to 
 the solicitor's profession, and to be magistrates and jurors. 
 By section 1, sub-section (6), provision is made for the em- 
 panelling of a jury of men only or women only, in the 
 discretion of the judge, recorder or chairman of the court, 
 on the application of a party, or of the prosecution or the 
 accused. A woman may, at her own request, be exempted 
 from service in respect of any case, where the reason for the 
 application is the nature of the evidence to be given or the 
 issues to be tried. There is no reason, in law, why women 
 should not now occupy the highest judicial offices. 
 
 Fusion of Law and Equity. This is a somewhat mis- 
 leading, though generally used term. The Judicature Act 
 
 1 The Juries Act, 1918, was to remain in force " during the continuance 
 of the present war and for six months thereafter." The Act of 1920 is 
 to come into force on the expiry of the said period, unless by an Order in 
 Council an earlier date is fixed. Up to the publication of this edition the 
 Act of 1918 is still in operation (October, 1921). 
 
152 THE STUDENT'S LEGAL HISTORY. 
 
 enacted l that " in every civil cause or matter commenced in 
 the High Court of Justice, Law and Equity shall be 
 administered by the High Court of Justice and the Court of 
 Appeal respectively/' And it is further enacted 2 that 
 where the rules of Law and Equity conflict, the rules of 
 Equity shall prevail. This does not mean, nor must it be 
 taken to mean, that equitable principles are to be applied to 
 matters formerly exclusively dealt with at Common Law. 
 It simply means that in every action the judge can take 
 cognizance of all the rights of the parties, whether at 
 Common Law or in Equity. For instance, actions for per- 
 sonal injuries were always tried by the Common Law Courts, 
 and never went into the Courts of Chancery. Consequently 
 there are no rules in Equity here, nor can the plaintiff or 
 defendant be allowed to set up any argument deduced from 
 equitable rules. A case in point is Britain v. Rossiter, 
 where the plaintiff claimed damages for wrongful dismissal 
 on a verbal contract which was " not to be performed within 
 a year from the making thereof." On such a contract the 
 Statute of Frauds requires evidence in writing, but there 
 was a rule in Equity that if the contract so required to be 
 in writing by the statute had been part performed, it would 
 be enforced notwithstanding the want of written evidence. 
 But the only contracts which had ever come within the 
 purview of the Courts of Chancery were contracts for sale of 
 land and in consideration of marriage. Therefore, the 
 equitable doctrine of part performance was restricted to 
 those particular contracts. The rule is now understood, but 
 at first it gave rise to a great deal of misconception. 
 
 County Courts. In 1846 an Act was passed creating a 
 new civil tribunal which has absorbed a great amount of 
 business. The statute took away the jurisdiction of Courts 
 of Requests, which were then the places for recovery of 
 
 1 Section 24. 2 Section 25, sub-sect. 11. 
 
GEORGE IY. TO PRESENT DAY (18271921). 153 
 
 small debts, and also the jurisdiction of various local Courts, 
 and established a new kind of County Court for the prose- 
 cution of claims of small amount. The whole country was 
 diyided into districts, over each of which a judge was 
 appointed to decide all cases where the claim was for not 
 more than <20, except actions of ejectment, or in which the 
 title to real property, or any toll, fair, market, or franchise 
 should be in question, or where any provision of a will or 
 settlement might be disputed, or for any malicious prosecu- 
 tion, libel or slander, seduction or breach of promise of 
 marriage. All actions were to be tried by the judge, unless 
 one of the parties demanded a jury; and if a jury were 
 demanded, it should consist of five men instead of the 
 Common Law twelve. 1 
 
 By various amending Acts, the jurisdiction of the new 
 County Courts has been enlarged. In 1847 the jurisdiction 
 in bankruptcy was transferred to them from the Court of 
 Bankruptcy and the district Courts of Bankruptcy. In 1850 
 the limit of claims upon which actions could be brought in 
 the County Court was raised from 20 to 50; and if a 
 plaintiff brought in a Superior Court any action which he 
 might have brought in the County Court, and recovered not 
 more than 20 in an action based on contract, or 5 in an 
 action based on tort, he should not be entitled to costs of his 
 action in the Superior Court. And by the County Courts 
 (Jurisdiction Extension) Act, 1903, these Courts are given 
 jurisdiction to try causes up to 100; but only about fifty 
 of the Courts are nominated where actions involving more 
 than 50 can be tried. Another statute, passed in 1865, 
 gave a limited equity jurisdiction to the County Courts; and 
 by the County Courts Act, 1867, actions of ejectment or 
 actions to try title to land might be commenced there in all 
 cases where the value or rent of the property was not more 
 than 20 a year. The County Courts Acts, 1888, raised the 
 
 1 The five were increased to eight by the C. C. Act, 1903. 
 
154 THE STUDENT'S LEGAL HISTORY. 
 
 limit of annual rent or value to 50. A further increase in 
 the business of the County Courts was made by forbidding 
 actions to be brought in the Hundred-Courts which might 
 be commenced in County Courts (1867) ; and also by pro- 
 visions depriving of his costs a plaintiff who brings an action 
 in the High Court of Justice and recovers not more than 
 50 in an action of contract, or 20 in an action of tort, 
 provided that he could have sued in the County Court (1887). 
 Moreover, the judges of the High Court have power to remit 
 to any County Court for trial an action begun in the High 
 Court by an impecunious plaintiff, who, if he loses, will not 
 be able to pay the defendant's costs. 
 
 The Court of Probate. Until 1857, the jurisdiction over 
 granting or revoking probate of wills and letters of adminis- 
 tration of the personal property of deceased persons had 
 been vested in various Ecclesiastical Courts, in which such 
 jurisdiction had resided since the Conquest. 1 By the Court 
 of Probate Act (20 & 21 Yict. c. 77), all causes and matters 
 relating to this kind of business were taken away from those 
 courts and established in a newly constituted tribunal called 
 the Court of Probate, presided over by a judge qualified in 
 the same way as the judges of the Superior Courts at 
 Westminster. 
 
 The Divorce Court. It has been shown 2 how jurisdiction 
 in matrimonial causes was assumed by the Ecclesiastical 
 Courts. Those Courts, acting on the rules of canon law, 
 would only grant judicial separations and not divorces a 
 mnculis matrimonii. For such a total dissolution of the 
 marriage bond the parties had to resort to Parliament for a 
 private bill, the evidence being heard in the House of 
 Lords. The Matrimonial Causes Act, 1857, constituted a 
 new Court for Divorce and Matrimonial Causes, to be pre- 
 
 1 See pp. 19 et seq. 2 Page 18. 
 
GEORGE IV. TO PRESENT DAY (18271921). 155 
 
 sided over by the judge of the newly constituted Probate 
 Court and with power to give relief on all claims for divorce, 
 judicial separation, and nullity of marriage. Owing to the 
 enormous increase in matrimonial causes, due in part to the 
 unsettlement caused by the Great War, in part to the very 
 general change in the standard of morality, and in further 
 part to the facilities granted to poor persons to have their 
 cases brought to trial without costs of solicitor or counsel, 
 the Probate, Divorce, and Admiralty Division, as constituted 
 of two judges, proved unable to keep pace with its work. 
 The Administration of Justice Act, 1920, gave power to the 
 Lord Chancellor, with the concurrence of the President of 
 the Division and the Lord Chief Justice to frame rules to 
 provide for the trial of matrimonial causes of any prescribed 
 class by commissioners of assize (section I). 1 
 
 The Courts of Bankruptcy. By 1 & 2 Will. IV. c. 56, 
 a Court of Bankruptcy was established consisting of four 
 judges and six commissioners. The latter were practically 
 judges of first instance, with an appeal to a Court of Review 
 consisting of three of the four judges, and further appeals, 
 first to the Lord Chancellor and then to the House of Lords. 
 In 1869 this Court was abolished, and for it was substituted 
 the London Court of Bankruptcy, consisting of a chief 
 judge and a number of registrars. This Court only acted 
 for the metropolitan area, the jurisdiction in county cases 
 being given to the County Courts. But in every case an 
 appeal lay to the Chief Judge. In 1883 the separate juris- 
 diction of the Bankruptcy Court was taken away, and the 
 Court amalgamated with the High Court of Justice. A 
 judge of the King's Bench Division now takes the place of 
 the Chief Judge. 
 
 The Fusion of the Courts. In 1873 the Judicature Act 
 became law, and on the 1st November, 1875, it came into 
 
 1 No such rules had been made up to the publication of this edition. 
 
156 THE STUDENT'S LEGAL HISTORY. 
 
 operation. By it the Courts of Exchequer, Common Pleas, 
 Queen's Bench, Chancery, Probate, Divorce, and Admiralty 
 were fused together as the High Court of Justice. The 
 High Court was divided into five divisions, namely, the 
 Exchequer Division, the Common Pleas Division, the 
 Queen's Bench Division, the Chancery Division, and the 
 Probate, Divorce, and Admiralty Division. By the Act of 
 1881, the Exchequer and Common Pleas Division were fused 
 and amalgamated into the Queen's Bench Division, so that 
 the High Court now consists of three sides, the King's 
 Bench, Probate, Divorce, and Admiralty, and Chancery. 
 All causes of nullity of marriage, divorce, and judicial sepa- 
 ration, admiralty cases, as well as probate of wills and intes- 
 tacies, were assigned to the Probate, Divorce, and Admiralty 
 Division. To the Chancery Division were assigned all 
 matters which had been under the exclusive jurisdiction of 
 the old Court of Chancery by any Act of Parliament, and all 
 causes of .the administration of the estates of deceased 
 persons; the dissolution of partnerships; the taking of 
 accounts; the redemption or foreclosure of mortgages; the 
 raising of portions or other charges on land; the sale and 
 distribution of the proceeds of property subject to any lien 
 or charge; the execution of trusts; the rectification, or 
 setting aside, of deeds and instruments; the specific per- 
 formance of contracts for the sale or letting of real estate; 
 the partition or sale of real estates ; the wardship of infants 
 and the care of infants' estates. To the Queen's Bench 
 Division were assigned all matters within the exclusive 
 jurisdiction of the old Courts of Queen's Bench, Common 
 Pleas and Exchequer. 
 
 These assignments are subject to the general rule that all 
 causes and matters are cognizable by any Division of the 
 Court. The rules as to assignment are only for the more 
 convenient dispatch of business, and in the case of In re 
 Besant, 1 Sir George Jessel tried an action in which the claim 
 1 11 Ch. D. 508. 
 
GEOEGE IV. TO PRESENT DAY (18271921). 157 
 
 was for an injunction to restrain a lady from breaking a 
 covenant in a deed of separation between herself and her 
 husband, and the lady counterclaimed for a judicial separa- 
 tion. Before the Judicature Act this could not have been 
 done. There must have been two actions, one in the Court 
 of Chancery for the injunction, and the other in the Divorce 
 Court for judicial separation. In practice the matter rests 
 with the judge before whom the matter is brought. If he 
 thinks that it would be better tried by a judge of another 
 Division, he forces the parties to assign it to that Division. 
 
 The Court of Appeal. By the Judicature Act, 1873, there 
 was constituted a new Court of Appeal, with jurisdiction to 
 hear appeals from all three divisions of the High Court 
 of Justice. The new Court was to consist of five ex officio 
 judges, viz. the Lord Chancellor, the Lord Chief Justice of 
 England (i.e. of the King's Bench Division), the Chief 
 Justice of the Common Pleas Division, the Chief Baron of 
 the Exchequer Division, and the Master of the Rolls, 
 together with a number of ordinary judges of the Court, 
 called Lords Justices of Appeal, not exceeding nine in 
 number. In fact, only three Lords Justices were appointed. 
 Of this Court the Lord Chancellor was to be president. The 
 original idea was to appoint Scotch and Irish and Colonial 
 lawyers to the Bench of the Appeal Court; and provision 
 was made by the Act for carrying out that object. 1 But by 
 the Judicature Act of 1875 the number of ordinary judges 
 was reduced to three, and the idea of vesting in the Court 
 an appellate jurisdiction from Courts other than those of 
 England was abandoned. 2 In 1876, a further change was 
 made, three more ordinary Lords Justices being appointed 
 by virtue of the Appellate Jurisdiction Act of that year; 
 and in 1881 the Master of the Rolls ceased to be a judge of 
 the Chancery Division, and became an ordinary member of 
 
 1 Judicature Act, 1873, s. 6. 2 Ibid., 1875, s. 4. 
 
158 THE STUDENT'S LEGAL HISTORY. 
 
 the Court of Appeal. 1 Since that date, the Court has con- 
 sisted of the Lord Chancellor and the Chief Justice of 
 England (the Chief Justiceship of the Common Pleas and 
 the Chief Barony of the Exchequer having ceased to exist) 
 as ex officio, and the Master of the Rolls and five Lords 
 Justices of Appeal, as ordinary members. A further slight 
 alteration was made in 1891. Three members of the Court 
 form a quorum, and it was sometimes found impossible, in 
 the temporary absence of one of the ordinary members, to 
 form two Courts. It was therefore enacted by the Judica- 
 ture Act, 1891, that any ex-Lord Chancellor may, if he is 
 willing, sit as a member of the Court of Appeal. 
 
 The House of Lords. A considerable change has been 
 made in the constitution of the House of Lords as an appel- 
 late tribunal by the Appellate Jurisdiction Act, 1876. By 
 that Act were appointed two life peers, called Lords of 
 Appeal in Ordinary, with a salary of 6,000 a year, who are 
 to all intents and purposes merely judges. Under the Act 
 they were only to be members of the House of Lords during 
 tenure of office; but by an Act passed in 1877, commonly 
 called the Blackburn Relief Act, the seat in the House, with 
 power to vote like any other peer of Parliament, is made to 
 last for life. The qualification for a Lordship of Appeal is 
 two years' tenure of a high judicial office in England, 
 Scotland, or Ireland, or fifteen years' practice at the Bar of 
 any of those countries. No appeal is to be heard by the 
 House of Lords unless there are present at least three of the 
 following persons: The Lord Chancellor, ex-Lord Chan- 
 cellors, Lords of Appeal, or Peers of Parliament who hold or 
 have held high judicial office. "High judicial office" 
 includes the Lord Chancellorship of England and Ireland, 
 or a judgeship of any of the superior English, Irish, or 
 Scottish Courts. 
 
 1 Ibid.. 1881. 
 
GEORGE IY. TO PRESENT DAY (18271921). 159 
 
 A useful power was given to the House to sit as a Court 
 of Appeal when Parliament is prorogued or even dissolved. 
 By section 14 of the Act, the Queen in Council is empowered 
 to appoint other two Lords of Appeal in Ordinary on vaca- 
 tion of office by one or both of the then paid judges of the 
 Privy Council. The new Lords of Appeal are Privy Coun- 
 cillors; and it is their duty to sit as members of the judicial 
 committee of that body when required to do so, and not 
 engaged on judicial business in the Lords. 
 
 The Privy Council. When Brougham, in 1828, made the 
 celebrated speech to which reference has been made, no 
 Court came in for more stringent criticism than that of the 
 Privy Council. At that time its jurisdiction was entirely 
 appellate, for it had never exercised original jurisdiction 
 since the abolition of the Star Chamber. It assumed control 
 over all the Courts in the British dominions, except those 
 of England, Scotland, and Ireland ; and as the British Raj 
 extended, so the complexity of the Council's functions in- 
 creased. Mahommedan, Hindu, French, Roman-Dutch law 
 came before it for review ; and the tribunal consisted not of 
 trained lawyers and judges, but of the ordinary Privy Coun- 
 cillors, who were, for the most part, mere politicians. 
 
 Besides hearing appeals from the Colonies and India, the 
 Council had an appellate jurisdiction in admiralty, ecclesi- 
 astical, and prize cases. 
 
 One of Lord Brougham's first acts as Lord Chancellor 
 was to take away jurisdiction from the Privy Council as a 
 whole, and constitute a body called " The Judicial Com- 
 mittee of the Privy Council," consisting of the Lord Chief 
 Justices of either Bench, the Chancellor, the Lord Chief 
 Baron, and other high judicial officers. Two other persons 
 being Privy Councillors might be appointed members of the 
 committee, and also two retired Indian or Colonial judges. 1 
 
 1 3 & 4 Will. IV. c. 41. 
 
160 THE STUDENT'S LEGAL HISTORY. 
 
 At the time of Brougham's speech, the Council only sat 
 to hear appeals for nine days in the year, and even these 
 were not fixed. But after 3 & 4 Will. IV. c. 41, the 
 Judicial Committee sat regularly and on stated days. 
 
 An amending Act was passed in 1871, by which her 
 Majesty was empowered to appoint four salaried judges as 
 members of the Judicial Committee. These paid members 
 are bound to attend on the hearing of appeals in the same 
 manner that judges of the ordinary courts of law are bound 
 to attend their respective Courts. 
 
 Since the Judicature Act, 1873, the Judicial Committee 
 has only exercised appellate jurisdiction over Indian and 
 Colonial cases, Prize Court cases, and certain appeals on 
 matters of Church discipline from the Courts of the bishops 
 and archbishops. In determining the causes last named, the 
 Committee has the assistance of certain archbishops and 
 bishops as assessors. 1 
 
 The Appellate Jurisdiction Act of 1876 practically makes 
 the same persons who are Lords of Appeal in Ordinary the 
 paid members of the Judicial Committee ; so that the highest 
 Court of Appeal for the United Kingdom and that for the 
 rest of the Empire consists of the same persons, except that, 
 by a recent statute, the Judicial Committee Amendment 
 Act, 1895, the Queen may appoint as members of the 
 Judicial Committee not more than five judges of the higher 
 Courts of India and the Cohmies, provided that such 
 appointees are Privy Councillors. 
 
 SUMMARY (18271921). 
 Real Property. The law of conveyancing simplified : 
 
 (a) Fines and recoveries abolished. 
 
 (b) The law of dower amended by giving the wife dower 
 
 out of equitable as well as legal estates; but only 
 in lands which the husband is entitled to at death, 
 and of which he dies intestate. 
 
 1 Appellate Jurisdiction Act, 1876, a. 14. 
 
GEORGE IV. TO PRESENT DAT (18271921). 161 
 
 (c) The law of prescription simplified. 
 
 (d) The rules of descent altered; descent being traced 
 from the purchaser, and ascendants being allowed 
 to inherit. 
 
 (e) Feoffment practically abolished, and deed of grant 
 
 substituted. 
 
 (f) Law of wills codified and amended. 
 
 (g) Married Women's Property Act, 1882, made all 
 property separate estate after December 31st, 1883. 
 
 (h) Conveyancing and Settled Land Acts. 
 (i) Land Registry Acts, 1875 and 1900. 
 
 Equity. The doctrines of Equity as settled by Eldon 
 remain intact, except for statutory modifications; 
 which are chiefly in the direction of protecting trustees. 
 
 International Law. Some decisions of international 
 importance. 
 
 Joint Stock Companies. Allowed to be formed without 
 Act of Parliament or Royal Charter. The practice of 
 limited liability introduced. 
 
 Bankruptcy ceases to be a criminal offence; and the law 
 is extended to non-traders, and to married women. 
 
 Criminal Law and Procedure. Parts of the Criminal 
 Law are codified, and the procedure made more favour- 
 able to prisoners. Treason is cut down to offences 
 against the person of the sovereign. Defendants in 
 prosecution for defamatory libel may prove truth and 
 may give evidence. 
 
 Evidence. The law as to competency of witnesses is 
 radically changed. Almost all disabilities are removed; 
 even prisoners being allowed to testify in some cases. 
 
 Procedure. Common law procedure is greatly changed 
 by the Common Law Procedure Acts, 1852 1860; and 
 S.L.H. 11 
 
162 THE STUDENT'S LEGAL HISTORY. 
 
 the procedure in all cases, whether at common law or 
 in equity, is revolutionized by the Judicature Acts and 
 Rules. Forms of action are abolished; pleadings 
 shortened and simplified, and delay lessened. A new 
 style of practice is invented for commercial causes. The 
 right of trial by jury in civil cases curtailed by Adminis- 
 tration of Justice Act, 1920. 
 
 Fusion of Common Law and Equity. The principles are 
 not fused, but the remedies are administered concur- 
 rently in all Courts since 1873. 
 
 The Courts of Justice : 
 
 (a) County Courts are established, in 1846, for the trial 
 
 of small cases; and their jurisdiction has been 
 largely extended since then. 
 
 (b) The Courts of Probate and Divorce take the place 
 of the Ecclesiastical Courts for matrimonial and 
 probate cases. Merged into the High Court of 
 Justice by the Judicature Act, 1873. 
 
 (c) The Court of Bankruptcy is established in 1837; 
 
 and superseded by the London Court of Bank- 
 ruptcy in 1869, this, in turn, being merged into 
 the High Court of Justice in 1883. 
 
 (d) The High Court of Justice is formed in 1873, 
 absorbing all the jurisdiction of the superior 
 Common Law and Equity Courts, as well as Pro- 
 bate, Divorce, and Admiralty jurisdiction. 
 
 (e) The Court of Appeal, formed in 1873, takes over 
 
 all appeals from the High Court of Justice. 
 
 (f) The House of Lords as an Appellate Court is 
 reconstructed by the Appellate Jurisdiction Act, 
 1876. 
 
 (g) The Privy Council as a whole ceases to have any 
 jurisdiction, and its judicial functions are vested 
 in a judicial committee of that body. 
 
 (h) A Court of Criminal Appeal is founded. 
 
( 163 ) 
 
 CHAPTER VIII. 
 
 COURTS OF JUSTICE. 
 
 IN the Anglo-Saxon period courts of justice were for the 
 most part local. The great Court was that of the shire- 
 reeve (afterwards called sheriff), which will be treated of 
 in a subsequent page. There was a sort of appeal to the 
 witan and the king; but it is not until after the Norman 
 Conquest that we see the administration of justice cen- 
 tralised in the hands of the king. 
 
 William I. established the Curia Regis or Aula Regis, 
 which consisted of the great officers of state, such as the 
 treasurer, chancellor, chamberlain, marshal, and a certain 
 number of barons selected by the king as his counsellors, 
 presided over by the justiciar. To these were added a cer- 
 tain number of justitiarii (justices or judges), whose 
 business it was to be present when legal matters were dis- 
 cussed, or causes tried. The non-legal members of the Curia 
 Regis seldom attended the trial of a case, as was only to be 
 expected; and the old writs generally directed the litigant 
 to appear before the king's justices (justitiarii mei). 
 
 These justices decided not only purely legal cases, but 
 also matters connected with the exchequer or financial 
 department of the Curia Regis; such as the proper mode of 
 assessing the feudal reliefs, fines, and forfeitures. They had 
 also civil and criminal jurisdiction in all cases, both original 
 and appellate, and to this is traced the appellate jurisdiction 
 both of the King's Bench and the Privy Council. 
 
 As business increased, a division of labour became a 
 necessary convenience, and so we find the Curia Regis 
 
164 THE STUDENT'S LEGAL HISTORY. 
 
 considered as a Court of Justice, separated from the Curia 
 Regis considered as the king's advisers. The councillors of 
 the Crown took the name of concilium ordinarium, and the 
 term curia regis was applied only to the judicial body. 
 This separation took place in or about the year 1178 
 (Henry II.). A further sub-division soon became neces- 
 sary, and it was accomplished by forming a separate Court 
 to deal with financial business, and with all disputes arising, 
 directly or indirectly, out of the assessment and collection 
 of the royal revenues. 
 
 THE COURT OF EXCHEQUER. 
 
 The judges of this Court were called Barons of the Ex- 
 chequer, with the Chief Baron as president. Its functions 
 were to collect and account for the revenues of the Crown ; 
 and as, until 12 Car. II., much of these revenues was 
 derived from the feudal dues payable by tenants in capite, 
 and as their amount and incidence involved questions of 
 law, it was necessary to appoint lawyers to assess them. 
 All cases in which the revenues of the Crown were con- 
 cerned came before the Barons of the Exchequer, e.g. 
 Bate's Case in James I., and Hampden's Case (Case of Ship- 
 money) in Charles I. All sheriff's and king's bailiffs or 
 stewards had to account to the Exchequer, and all moneys 
 due from towns holding * in the king's demesne had to be 
 paid there. After the dissolution of the monasteries, 
 Henry VIII. set up a Court of Augmentation to attend to 
 the collection of the firstfruits and tenths formerly belong- 
 ing to religious houses, but now belonging to the Crown. 
 By 1 Ph. & M. c. 10, this Court was fused into the Court 
 of Exchequer. Besides revenue cases, the Exchequer soon 
 assumed jurisdiction over causes both at Common Law and 
 in Equity. 2 The equity side had especial cognizance of 
 
 1 See Jud. Act, 1873. 2 Infra, p. 168. 
 
COURTS OF JUSTICE. 165 
 
 actions brought by clergymen for the recovery of tithes, and 
 the common law side of actions for debt. On the equitable 
 side, there was an appeal direct to the House of Lords, and 
 on the common law side, after 31 Edw. III. c. 12, to the 
 Exchequer Chamber by writ of error. In 1841, the equit- 
 able jurisdiction of the Court was taken away. In 1875, l 
 the Court itself became a division of the High Court of 
 Justice, and in 1880 the name of the Exchequer Division 
 was taken away and its judges became justices of the 
 Queen's Bench Division. 
 
 The next split from the main body of the Curia was by 
 the formation of a Court called 
 
 THE COURT OF COMMON PLEAS (HEN. III.). 
 
 or, as it is frequently called, the Common Bench. 
 
 Its jurisdiction extended to all civil cases between subject 
 and subject, which were called, in the older legal 
 phraseology, Common Pleas, to distinguish them from Pleas 
 of the Crown. It had exclusive jurisdiction in all "real " 
 actions. 2 By Magna Charta, article 17,, it is provided that 
 " common Pleas shall not follow the King's Court, but shall 
 be held in some certain place," and the place fixed upon was 
 Westminster Hall. Still we find the Common Pleas sitting 
 at York in the reign of Edward III. The judges of the 
 Common Pleas were called justices, with the Lord Chief 
 Justice as president. After the establishment of this Court 
 there remained in the Curia Regis all criminal jurisdiction 
 and appellate jurisdiction from the inferior Courts, and all 
 civil business which had not been transferred to the 
 Exchequer and Common Pleas. So that there were now 
 three Common Law Courts, viz. the Exchequer, the Com- 
 mon Pleas, and the Curia Regis, or, as it came to be called, 
 " Bancum Regis," the latter name finally supplanting the 
 former, and being Englished as 
 
 1 See Jud. Act, 1873. 2 Pages 24 et seq. 
 
166 THE STUDENT'S LEGAL HISTORY. 
 
 " THE COURT OF KING'S BENCH " 
 
 which begins to be a separate Court (Hen. III.), absorbing 
 all the judicial business of the Curia Regis, except, perhaps, 
 the ultimate appeal. In fact, from about 1300, the Ban- 
 cum Regis (King's Bench) and Curia Regis became inter- 
 changeable terms. The Court of King's Bench was the 
 most powerful in the country. It had two sides the 
 CROWN SIDE and the PLEA SIDE. The Crown side was con- 
 cerned with criminal matters, appeals from inferior Courts, 
 the liberty of the subject, and the control of corporations. 
 It issued the writs of Mandamus, Habeas Corpus, and Quo 
 Warranto. On the Plea side, it had the cognizance of all 
 actions of trespass, or any tort alleged in the old pleadings 
 to be committed m et armis, actions for forgery of deeds, 
 maintenance, deceit, and all torts savouring of fraud; but 
 it had no right to entertain actions for mere debt, or actions 
 for breach of covenant, or the like; these belonged to the 
 Common Pleas. It seems that the real original jurisdic- 
 tion of the Court was in matters criminal or semi-criminal. 
 
 The King's Bench was always deemed to be the highest 
 in the land. And, indeed, the Common Pleas and 
 Exchequer were merely branches of it. The sovereign him- 
 self was supposed to sit there, and its writs were returnable 
 coram ipso rege; though, in fact, the king did not sit there 
 personally, as far as is known, during legal memory, with 
 the exception of James I., who, however, was prevented by 
 Coke, C.J., from interfering in the actual decisions. (Case 
 of Prohibition, 1607). 
 
 In consequence of the supposed presence, of the king, the 
 Court of King's Bench had a right to review the judgments 
 of the Common Pleas by means of writs of error. Sir J. 
 Gilbert, in his book on the origin and practice of the King's 
 Bench, says that it is the " sovereign eyre " (that is, court 
 itinerary); and because the justices in Eyre always made all 
 civil causes to cease in the counties into which they came, 
 
COURTS OF JUSTICE. 167 
 
 therefore the King's Bench, when sitting in Middlesex, had 
 power to order a cause to be removed from the Common 
 Pleas (which always sat in Middlesex) to be examined for 
 error. This may have been the reason; but it is quite as 
 reasonable to suppose that the Common Pleas, being merely 
 an off-shoot of the King's Bench, the latter assumed the 
 right of appellate jurisdiction as a matter of course, in the 
 same way that the Lord Chancellor heard appeals from the 
 Master of the Rolls. 
 
 There was no Writ of Error at Common Law to call in 
 question the decisions of the King's Bench ; and this for the 
 reason that the King's Bench was the highest Court in the 
 land. But there was an appeal to the Magnum Concilium, 
 and afterwards to the House of Lords. It is curious to 
 notice how the King's Bench maintained its dignity. On a 
 Writ of Error addressed to the Common Pleas, the Chief 
 Justice of the inferior Court sent up the Record in the case 
 to the King's Bench; but on an appeal from the latter Court 
 to the House of Lords the Chief Justice of the Bancum 
 Regis did not part with the Record; he merely sent up a 
 copy to the Lords. Gilbert mentions this as a proof of the 
 superior dignity of King's Bench. 1 But by the statute of 
 Elizabeth already referred to, 2 a writ of error could be 
 issued to the King's Bench triable in the Exchequer 
 Chamber, but only for actions "originally begun" there. 
 A case removed into that Court by writ of error proceeded 
 to the House of Lords as the next and final appeal, and was 
 not subject to review by the Exchequer Chamber. And, 
 moreover, actions begun by original writ in the King's 
 Bench did not come within the Act of Elizabeth, because 
 original writs were issued by the clerks of the Court of 
 Chancery, 3 and, therefore, the actions begun in this way 
 were held to have begun in Chancery. The only cases 
 
 1 Gilb. Hist. & Orig. of K. B. 319. 2 Supra, p. 74. 
 
 Supra, p. 29. 
 
168 THE STUDENT'S LEGAL HISTORY. 
 
 "originally begun " in the King's Bench were those begun 
 there by privilege and on the Bill of Middlesex and Latitat. 
 
 FICTIONS BY WHICH THE COMMON LAW COURTS 
 EXTENDED THEIR JURISDICTION. 
 
 After the sketch given in the preceding pages of the 
 jurisdiction of the three Courts of Common Law, it may 
 surprise the student to hear that the Court of Exchequer, 
 until its merger in the High Court of Justice in 1875, tried 
 common pleas ; for instance, actions of debt between subject 
 and subject; and the Court of King's Bench tried every 
 kind of actions except the old real actions. Even jurisdic- 
 tion over realty was usurped by the fictional action of eject- 
 ment (see pp. 76 et seq.), a proceeding personal in form, but 
 actually a means of trying title to real estate. 
 
 The reason for the fictions about to be described was 
 the anxiety of the judges to extend the business of their 
 own Courts, a desire that will seem not unnatural when we 
 learn that the judges and officers of these Courts were paid 
 not a fixed salary, but the fees of the suitors. In these 
 days, when a plaintiff, for instance, pays a fee of ten 
 shillings for issuing a writ, the money goes into the 
 Treasury. In early times it would have gone to the judges 
 or to some other official of the Court. 
 
 The Court of Exchequer extended its jurisdiction by the 
 WRIT OF Quo MINUS. As we have seen, its proper jurisdic- 
 tion was over the king's debtors, but a plaintiff was per- 
 mitted to come to the Court and aver that he, Thomas 
 Smiles, was the king's debtor, and that he was unable to 
 pay the king because the defendant, William Styles, wrong- 
 fully withheld a sum of money from him (the plaintiff). 
 The Court then issued a writ against William Styles order- 
 ing him to answer the claim of Thomas Smiles. The form 
 of the writ was as follows : 
 
COURTS OF JUSTICE. 169 
 
 Writ of Quo Minus in the Exchequer. 
 
 George the Second, by the grace of God of Great Britain, France, and 
 Ireland king, defender of the faith, and eo forth : to the Sheriff of Berkshire, 
 greeting. 
 
 We command you, that you omit not by reason of any liberty of your 
 county, but that you enter the eame, and take William Styles, late of 
 Burford, in the county of Oxford, gentleman, wheresoever he shall be found 
 in your bailiwick, and him safely keep, so that you may have his body 
 before the barons of our Exchequer at Westminster, on the morrow of the 
 Holy Trinity, to answer Thomas Smiles, our debtor, of a plea that he 
 render to him two hundred pounds which he owes him and unjustly detains, 
 whereby he is the less able to satisfy us the debts which he owes us at our 
 said Exchequer, as he eaith he can reasonably show that the same he ought 
 to render; and have you there this writ. Witness, Sir Thomas Parker, 
 knight, at Westminster, the sixth day of May, in the twenty-eight year 
 of our reign. 
 
 The writ was called Quo Minus (quo minus = whereby 
 the less) because of these words in the original Latin form 
 of the document. The English translation of them is 
 printed in italics in the form given above. 
 
 The Court of King's Bench extended its jurisdiction by 
 the BILL OF MIDDLESEX and the WRIT OF LATITAT. The 
 Court had properly the right to try cases of trespass (see 
 page 166, supra) ; and it also claimed and exercised the 
 right, when any defendant was in the hands of the marshal 
 of the Court, to hear and determine any complaint against 
 such defendant for any cause whatever. Thus, if William 
 Styles had committed a trespass against Thomas Smiles, the 
 latter's remedy would be by action of trespass in the King's 
 Bench. But once Styles was in the custody of the marshal 
 of the King's Bench, Smiles could bring suit against him 
 for any other cause; for instance, debt. The process 
 evolved by some ingenious officer of the Court was, when 
 Thomas Smiles wanted to sue William Styles for debt in the 
 King's Bench, he sued out a bill for trespass ; and, when the 
 defendant was in the hands of the marshal, an action was 
 brought for the debt, and the trespass was entirely dropped. 
 It was necessary to allege that the trespass had occurred in 
 Middlesex; and the bill was issued to the sheriff of 
 
170 THE STUDENT'S LEGAL HISTORY. 
 
 Middlesex commanding him to bring- up the defendant. 
 But if the defendant did not live in Middlesex the sheriff 
 had no power, so he returned for answer a " Non est 
 inventus," that is, "the within-named William Styles is 
 not found within my bailiwick." A writ was then issued 
 to the sheriff of the county where Styles lived, commanding 
 him to bring up the defendant. The writ proceeded on the 
 supposition that Styles was a fugitive, and had run away 
 from Middlesex to escape the hand of justice. Subjoined 
 are forms of the proceeding : 
 
 Bill of Middlesex, and Latitat thereupon in the Court of King's Bench. 
 
 Middlesex The Sheriff is commanded that he take William Styles, 
 to wit late of Burford, in the county of Oxford, if he may be found 
 in his bailiwick, and him safely keep, so that he may have his body before 
 the lord the king at Westminster, on Wednesday next after fifteen day of 
 Easter, to answer Thomas Smiles, gentleman, of a plea of trespass; [And 
 also to a bill of the said Thomas against the aforesaid William, for two 
 hundred pounds of debt, according to the custom of the court of the said 
 lord the king, before the king himself to be exhibited;] and that he have 
 there then this precept. 
 
 Sheriff's Return. 
 The within-named William Styles is not found in my bailiwick. 
 
 Latitat. 
 
 George the second, by the grace of God of Great Britain, France, and 
 Ireland king, defender of the faith, and so forth: to the sheriff of Berkshire, 
 greeting. Whereas we lately commanded our sheriff of Middlesex that he 
 should take William Styles, late of Burford, in the county of Oxford, if 
 he might be found in his bailiwick, and him safely keep, so that he might 
 be before us at Westminster, at a certain day now past, to answer unto 
 Thomas Smiles, gentleman, of a plea of trespass; [And also to a bill of 
 the said Thomas, against the aforesaid William, for two hundred pounds 
 of debt, according to the custom of our court, before us to be exhibited;] 
 and our said sheriff of Middlesex at that day returned to us that the afore- 
 said William was not found in his bailiwick ; whereupon on the behalf 
 of the aforesaid Thomas in our court before u*s it is sufficiently attested, 
 that the aforesaid William lurks and runs about in your county: 
 Therefore we command you, that you take him, if he may be found in your 
 bailiwick, and him safely keep, so that you may have his body before us 
 at Westminster on Tuesday next, after five weeks of Easter, to answer to 
 the aforesaid Thomas of the plea (and bill) aforesaid : and have you there 
 then this writ. Witness, Sir Dudley Ryder, knight, at Westminster, the 
 eighteenth day of April, in the twenty-eight year of our reign. 
 
COURTS OF JUSTICE. 171 
 
 By virtue of this writ to me directed, I have taken the body of the 
 within-named William Styles, which I have ready at the day and place 
 within contained, according as by this writ it is commanded me. 
 
 The writ is called " Latitat " because of the words " lurks 
 and runs about." 
 
 THE COURT OF EXCHEQUER CHAMBER. 
 
 Besides the three Common Law Courts having original 
 jurisdiction, there was, until 1875, an Appellate Court for 
 common law cases from those three Courts. By 31 Edw. III. 
 c. 12, the Court of Exchequer Chamber was instituted as a 
 Court of Appeal from the Common Law side of the 
 Exchequer. The Exchequer Chamber consisted of the Lord 
 High Chancellor and the Lord Treasurer, together with the 
 two chief justices and all the other judges of the King's 
 Bench and Common Pleas; but the Chancellor and the 
 Treasurer rarely sat there. 
 
 By an Act already referred to, 1 passed in 1585, the judges 
 of the Common Pleas and the barons of the Exchequer were 
 empowered to sit in the Exchequer Chamber to try appeals 
 by writ of error from the King's Bench in certain actions. 
 
 A further regulation was imposed by 11 Geo. IV. & 1 
 Will. IV. c. 70, s. 1 (1830), by which, on a writ of error 
 from one of the three Courts, the Court of Exchequer 
 Chamber was to be composed only of the judges of the other 
 two. Thus, on an appeal from the Common Pleas, the 
 Appellate Court would consist of justices of the King's 
 Bench and barons of the Exchequer; and on writ of error 
 from the Exchequer, the chief justices and justices of either 
 Bench would alone be entitled to sit. 
 
 The writ of error would lie where there was some mani- 
 fest error on the record, or on the pleadings, or in the 
 'judgment on a point of law only. 
 
 1 Supra, p. 74. 
 
172 THE STUDENT'S LEGAL HISTORY. 
 
 THE COURT OF CHANCERY. 
 
 The "Court of Chancery" and "the Chancery" are 
 spoken of in very early times. But it is very doubtful 
 whether the Chancellor, alone, had the right to hear and 
 determine the matter of the petition. Indeed, such evidence 
 as exists is all the other way; for the judgments (or, rather, 
 minutes of judgments) endorsed on the early records show 
 that in almost every case the Chancellor sat with the 
 Council. The expression "the Chancery" may, in early 
 documents, mean the Council sitting in the Chancery i.e. 
 the Council in one of its aspects. The earliest recorded 
 judgment of the Chancellor alone, where no mention is 
 made of the Council, is in 1377 where the Chancellor dis- 
 missed a petition. But here the plaintiff did not appear at 
 the hearing, and judgment for the defendant was given in 
 default. In (about) 1407, there is another case where 
 plaintiff complains that defendant detains certain chattels 
 and muniments confided to one deceased whose executrix 
 defendant is. Defendant appears in the Chancery and says 
 that she has already handed over all she had to the Lord 
 Mayor. The Chancellor (apparently sitting alone) dismisses 
 the case, but orders defendant, if she finds any further 
 muniments, to give them up to the plaintiff. On the other 
 hand, in cases not distinguishable, on principle, from the 
 above, and of the same date, we find judgments given by 
 the chancellor " with the advice of the justices of both 
 Benches, and of the King's Sergeants, and other learned 
 men of the Council there present "; others by the Chancellor 
 " and the Court of Chancery " ; and yet others by the Chan- 
 cellor " by the authority of the Court of Chancery." 
 
 There is, however, some evidence that the Chancellor had, 
 in this early period (at least as early as 18 Ric. II.), a juris- 
 diction apart from the Council. In that year (1389) there 
 is a petition by the House of Commons " that none of the 
 lieges may be compelled by the writ Quibusd-am certis de 
 
COURTS OF JUSTICE. 173 
 
 causis (the predecessor of the writ Sub Pcena) or any other 
 like writ before the Chancellor or the Council to answer 
 except by the Common Law." In 1394 there is a complaint 
 that " divers lieges had been sent for to appear before the 
 Council or in the Chancery under a certain penalty " (i.e. 
 by the writ sub pcena). Again, in 1421, there is a like com- 
 plaint ; and again the words used are " Sub posna depending 
 before the Council or the Chancellor." 
 
 The evidence afforded by these petitions is strengthened 
 by the evidence of a petition by the Commons House in 
 2 Henry IY. The complaint is that the Common Law 
 judges were perpetually being sent for by the Chancellor 
 to the neglect of their proper business. From this it would 
 seem that the Justices of both Benches only attended in the 
 Chancery when summoned, and that they were bound to 
 attend when requested to do so, as the practice is to this day 
 in the House of Lords. A fact like this considerably dis- 
 counts the evidence of the judgments recorded to have been 
 made "with the advice of the Justices of both Benches, 
 etc." (supra). 
 
 It must be remembered that all writs issued out of the 
 Chancery, whether returnable there or not. The writs 
 " Quibusdam certis de causis," " Sub poena," and " Scire 
 facias," were certainly used to bring a defendant before 
 the Council; and, according to the petitions of the House 
 of Commons above referred to, " before the Chancellor," 
 and " in the Chancery " also. The true conclusion may be 
 that the jurisdiction of the Chancellor and the Council over- 
 lapped : that petitions were heard sometimes by the one and 
 sometimes by the other; that in cases of great difficulty in 
 point of law the Chancellor, who was almost always a lay- 
 man, would prefer to be guided by the judges and Serjeants : 
 and that in cases where the defendant was a person of great 
 power, or the matter was of far-reaching consequence, the 
 Chancellor would cause the matter to be heard by the full 
 
1T4 THE STUDENT'S LEGAL HISTORY. 
 
 Council ; while in cases of no great difficulty or importance, 
 he would deal with the cause himself. 
 
 There is, however, distinct evidence in favour of another 
 theory viz. that " the Chancery/ 7 considered as a judicial 
 body, was only another name for the Council. A petition 
 of (about) 1396 is addressed to the Chancellor " and other 
 very wise lords of the Council or our redoubted Lord the 
 King." 
 
 Another petition of (about) 1397, prays the Chancellor 
 "of your special grace grant a writ directed to the said 
 Sir Hugh commanding him to be before the Council of our 
 Lord the King," etc. It appears from the indorsement on 
 the petition that a writ was issued accordingly; and that 
 " on the day named the within-written Hugh appeared in 
 the Chancery." Apparently, if this instance is worth much, 
 "before the Council" and " in the Chancery" were the 
 same thing. Possibly the Council, when it dealt with 
 matters judicial, sat "in the Chancery" a theory borne 
 out by the prayer of another petition of about the same 
 date (1397) " May it please your lordship (the Chancellor) 
 to send for the said (defendant) to be before you and the 
 Council of our said Lord the King in the Chancery." In a 
 third case, in 1398, an important State case of mercantile 
 reprisals, the petition is addressed to the Chancellor, and 
 the prayer is, " May it please your most gracious Lordship 
 to ... send for the said (defendants] to be before you on 
 a certain day to answer," etc. The petition is thus 
 indorsed, and the indorsement seems to shed much light on 
 the question of the constitution of the Court of Chancery : 
 " It is agreed by the Council that writs be sent under the 
 great seal," etc. And it is further noted that there were 
 present my lords the Chancellor, the Treasurer, the Keeper 
 of the Privy Seal, the Clerk of the Rolls, Messieurs John 
 Bussey, Henry Grene, John Russell, and Robert Faryngton, 
 Clerk. In 1399, in a case of maintenance, where a parson 
 complained that he dared not go to his parsonage, not even 
 
COURTS OF JUSTICE. 175 
 
 in Lent to hear the confession of his parishioners, the defen- 
 dants were ordered by writ " to be before the King and his 
 Council in his Chancery. " Nor are the available instances 
 confined to the maintenance cases. For example, in 
 Henry IV. there is a petition of the ordinary " conscience " 
 or equity kind (a case of fraud) praying the Chancellor " to 
 grant a writ directed to the said (defendant) commanding 
 him under a certain pain to come before the Council of our 
 Lord the King," etc. 
 
 There are here, it would seem, enough instances to show 
 that the Court of Chancery was really the Council sitting in 
 a place called " the Chancery " in other words, that when 
 the King in his Council sat to hear cases of conscience 
 (equity) and cases of oppression by powerful persons or 
 families whom the ordinary law could not reach, the sitting 
 took place in the Chancery that is, in the department of 
 State whence all writs issued. There is no evidence to show 
 that the Chancellor had any jurisdiction apart from the 
 Council. There is very little evidence to show that there 
 was really a separate Court of Chancery. The evidence 
 rather is that the Chancellor, as president of the Council, 
 had petitions addressed to him : that writs were issued by 
 him, with or without the concurrence of the Council : that 
 the causes were heard by the Council, who constituted a 
 Court, not of Chancery, so much as in the Chancery. 
 
 It can at any rate be said with safety that the Chancellor 
 derived his jurisdiction from the King in his Council. The 
 solitary case in 1377, where it appears that the Chancellor, 
 sitting alone, dismissed a petition, may be explained by the 
 facts : (1) that the defendant appeared and made certain 
 admissions which made a hearing unnecessary ; ( 2) that 
 although no one else is mentioned as having been present, 
 there is no explicit statement that the Chancellor sat alone ; 
 (3) it would be unsafe to generalize upon a particular 
 instance. The petitions of the Commons may be explained 
 thus : The Council sat for many purposes. Acting judicially 
 
176 THE STUDENT'S LEGAL HISTORY. 
 
 it sat in Chancery. At other times it did not. Hence 
 the expression " the Council or the Chancery"; because a 
 person would be summoned to attend in the one case " before 
 the Council/' and in the other case "in the Chancery." 
 The Council might meet anywhere wherever the king was. 
 The Council in the Chancery or Court of the Chancery sat 
 at the fixed abode of the Chancery department. 
 
 To put it shortly, the conclusion one is almost irresistibly 
 forced to, is that the subsequent jurisdiction of the Chan- 
 cellor alone, as it continued down to the nineteenth century, 
 was usurped from the Council unless (which is highly 
 unlikely) there was some royal ordinance of which all traces 
 have been lost. 
 
 The early petitions to the Chancellor may be divided, 
 roughly, into two classes, viz. (1) Cases where the Common 
 Law could not be resorted to because of some defect in 
 the law itself, or because of some technical difficulty; and 
 (2) Cases where the Common Law provided a remedy, but 
 the petitioner despaired of justice because of the power or 
 local influence of the party who had done the wrong thus 
 this class of cases was of a criminal or quasi-criminal crime. 
 
 The phrases " court of conscience," " law of conscience," 
 and the like, were already in use. Thus, in a case in 1456, 
 a petitioner complains of Undue Influence and Breach of 
 Trust, and avers that in the course " of the Common Law," 
 he has no remedy. The defendant, or respondent, by his 
 answer, says that the bill contains nothing to charge him 
 with. The petitioner replies " that the seide matier ys 
 sufficient to putte hym to answer after the lawe of con- 
 science, whiche ys lawe executory in this courte for del aulte 
 of remedy by cours of the common lawe." (In this case 
 the court consisted of the Chancellor, the justices of both 
 Benches, and others of the King's Council). 
 
 In Mr. L. O. Pike's introduction to the Tear Book 
 (12 & 13 Edw. III. p. cix.) is to be found a bill exhibited 
 to the Chancellor temp. Henry V. by certain petitioners who 
 
COURTS OF JUSTICE. 177 
 
 complain that they have been tortiously disseised of a manor 
 since the king passed into Normandy, and that they have 
 no remedy because by proclamation the king has suspended 
 the Assize of Novel Disseisin until his return. This appears 
 also to be a case within the first class. It is worthy of 
 note that the Court, in this case, ordered an issue to be 
 tried by a jury of the County of Essex, and the verdict to 
 be returned into the Chancery. Verdict being for the 
 plaintiffs, it was decreed that possession of the manor be 
 given to them. 1 
 
 As early as 1456 we find a case of the Chancellor 
 interfering for the relief of a mortgagee. In this case, the 
 petitioner had borrowed 80 and, as security, had enfeoffed 
 the lender in his manor of Shifton Berenger. The charter 
 of enfeoffment contained a defeasance clause, i.e. that if the 
 borrower should repay 100 at the feast of St. John the 
 Baptist, he should be re-enfeoffed. The borrower also gave 
 a Statute Merchant for 300. The lender had sued on the 
 statute and put the borrower in prison. He had also 
 endeavoured to collect the rents and profits of the manor. 
 And the borrower complained that the lender intended to 
 extort 450 for the loan of 80 "against right and con- 
 science "; and he prayed a sub poena and that " justice be 
 done as good faith and conscience requireth." In the end, 
 after deliberation with the Justices of both Benches, the 
 Chancellor decreed that as the 80 had been repaid (during 
 the course of the proceedings) defendant should liberate 
 plaintiff from custody and re-enfeoff him in his manor and 
 deliver up all muniments of title. 
 
 In 1432 (or 1433) there is a petition by one of two 
 brothers praying partition of lands left by a will of uses (see 
 p. 67) to the use of the brothers as joint tenants in fee tail. 
 The petition states, "for which particion to be made there 
 is now accyon atte common lawe." 
 
 1 A similar bill, based on the same grounds, is to be found in Select Cases 
 in Chancery (Selden Soc. Pub. vol. 10), p. 10. 
 
 S.L.H. 12 
 
178 THE STUDENT'S LEGAL HISTORY. 
 
 In 1420 a petition is presented by a man who, before 
 setting out on a pilgrimage to Jerusalem, left a coffer con- 
 taining muniments, etc., with his mother. The mother died, 
 and her second husband took possession of and refused to 
 deliver up the coffer. The reason for petitioning the Chan- 
 cellor seems to have been that Detinue would not lie; and 
 Trover was of no use because plaintiff wanted the coffer, and 
 not damages. He therefore prayed a mandatory injunction. 
 
 In (about) 1416 two soldiers presented a curious petition, 
 which shows that the Court of Chancery, however con- 
 stituted, had jurisdiction to decree the taking of an account, 
 as well as to grant injunctions. The petitioners alleged 
 that they had captured certain prisoners at Agincourt ; that 
 an Esquire named Buckton had ransomed the prisoners 
 without the petitioners' consent; and that part of the 
 ransom was in the hands of Maude Salvayne, wife of the 
 Governor of Calais. An injunction was asked to restrain 
 Maude from parting with the fund; and a sub pcena against 
 Buckton that he should come up and give an account as to 
 the prisoners he had released. 
 
 Of cases of the second class there are large numbers. In 
 fact, the greater part of the earlier cases are cases where 
 petitioners complain of tortious acts done by persons whom 
 they are not able to reach in the ordinary way of law. To 
 take a few at random : 
 
 In 1388, one John Biere, of Bodmin, complained that 
 Roger Mule and five others broke and entered the petitioner's 
 house at Bodmin, beat and ill-treated his servants and " la 
 dite maison chercheront pur le dit Johan Biere avoir inal- 
 menee s'ils Peussent trovee." Not finding the said John, 
 the evil-doers lay in wait for him day and night, insomuch 
 that John had been obliged to leave the district and dared 
 not go back. Moreover, the said Roger and his friends had 
 detained all John's merchandise, so that John could not 
 make a living ; and " the said evil-doers have of their 
 Covin gathered to themselves many other maintainers and 
 
COURTS OF JUSTICE. 179 
 
 disturbers of the king's peace insomuch that they will not 
 be justified of the Sheriff of the County against their 
 will. ..." Here the powerlessness of the Sheriff against 
 a turbulent and numerous faction is made the ground of 
 resort to the Chancery. There is a like complaint by a 
 Cornish parson (1396) (Select Cases in Chancery, p. 23). In 
 1386 Thomas Catour of Beverley and Emma his wife 
 petition for a remedy against Sir William Monketon, Sir 
 John de Midleton and others, officers and servants of the 
 Archbishop of York, who have chased Thomas and Emma 
 from possession of seven shops and seven houses within the 
 franchise of Beverley. A writ from the Chancery is asked 
 for because that " Thomas and Emma can have no remedy 
 at common law because the tenements are within the fran- 
 chise of Beverley of which the Archbishop is lord." 
 
 In 1396 there is a petition which appears to allege no 
 special ground for interference save that the offence is one 
 which involves breach of a royal proclamation (Sel. Cas. in 
 Ch., p. 17). Another, in 1397, says, "the said William is 
 so rich and so strong in friends in the country where he 
 lives that the said David will never recover from him at 
 common law." 
 
 There are other cases where the petitioners ask for a writ 
 from the Chancery because the evil-doer is Sheriff, or a 
 kinsman of the Sheriff, of the county. The obvious reason 
 in these cases for invoking the aid of the Chancery is that 
 as all juries were summoned by the Sheriff, a fair tribunal 
 was impossible to be obtained where the Sheriff himself 
 was a litigant (see Sel. Cas. in Ch., pp. 21, 31, 33). 
 
 Later in Henry VII. certainly the Chancellor sat as a 
 judge alone. Probably the Chancellor's jurisdiction, as we 
 know it existed then, dated from the establishment of the 
 Star Chamber (Hy. VII.), which branch of the Council took 
 exclusive cognizance of the tortious acts committed by 
 persons who were able to defy the law; but left untouched 
 the administration of the Equity that had been established 
 
180 THE STUDENT'S LEGAL HISTORY. 
 
 relating to trusts, mortgages, fraud, specific performance, 
 injunctions, accounts and the like. For the interlocutory 
 work of the Courts the Chancellor had the assistance of a 
 body of clerks. The chief of these was the Master of the 
 Rolls, or Custos Rotulorum, whose primary duty was to take 
 care of the documents of the Court and record its judg- 
 ments. The office of Master of the Rolls was one of great 
 dignity, and in the statute of 1388 (Ric. II.) he is placed 
 before all the judges and next to the Lord Chamberlain. 
 He was not, at the first, a lawyer, but generally a high 
 dignitary of the Church. For instance, it was De Waltham, 
 Bishop of Salisbury, who was Master of the Rolls in 
 Richard II. In the early days of the Court the Chancellor 
 sometimes delegated the hearing of a cause to the Master 
 of the Rolls; but the latter could only sit in the absence of 
 his superior and could only hear causes. Although the 
 business of the Chancery increased a hundredfold, the 
 theory that the Master of the Rolls was only a deputy was 
 still kept up, and when, for the time of Lord Nottingham 
 (Charles II.), the Chancellor sat all day and every day, the 
 Master of the Rolls only sat from six to ten in the evening. 
 This state of things continued until 1833, when a statute 
 empowered the Master of the Rolls to sit all day, with the 
 same jurisdiction as the Chancellor, other than the hearing 
 of appeals; that is, he could not only hear causes, but 
 motions and all other Court work. 
 
 Masters in Chancery. The clerks above referred to were 
 from the earliest times an important part of the machinery 
 of the Court. It was one of the advantages of Chancery 
 procedure that questions of detail could be referred to them 
 for their report. In the time of Edward III. they were 
 called Masters, and by that name they were known until 
 the Judicature Act. In the time of Henry V. they had the 
 power to hear applications relating to procedure, as, for 
 instance, the sufficiency of the answer to a bill, objections 
 
COURTS OF JUSTICE. 181 
 
 lo pleadings, and suck-like matters. Lord Bacon (James I.) 
 appears to have begun the practice, when the action depended 
 on accounts, of referring the accounts to a master to be 
 taken in his office in order " to make the cause more ready 
 for hearing." Cardinal Wolsey (Henry VIII.) and his suc- 
 cessors used to refer demurrers, i.e. objections on points of 
 law, to the masters, but Bacon stopped the practice. There 
 were very few causes in Chancery decided without inquiries 
 before a master. In administration actions, inquiries for 
 creditors and next-of-kin, the ascertaining of classes of 
 legatees, and the taking of accounts; in partnership actions, 
 the taking of accounts, the sale of trust estates and partner- 
 ship assets, and generally all accounts and preliminary 
 inquiries, took place in a master's chambers. 
 
 THE CENTRAL CRIMINAL COURT. 
 
 Before 1834, London and Middlesex cases were tried at 
 the Sessions House, Old Bailey. The London cases were 
 tried there by virtue of the commission of oyer and terminer 
 for London, and of gaol delivery for the prison of Newgate, 
 which commissions were directed to the Lord Mayor, Alder- 
 men, Recorder, Common Sergeant, the King's Justices at 
 Westminster, the Chancellor, and others. 
 
 The charter of Henry I. granted the citizens of London 
 the right to choose their own judge for pleas of the Crown, 
 and a charter of Edward III. gave a special privilege to 
 the Lord Mayor of being named in every commission of gaol 
 delivery for Newgate. 
 
 The fact that Newgate was the common gaol for Middle- 
 sex accounts for those cases being tried at the Old Bailey. 
 But there was a difference in the modes of trial. The indict- 
 ments of London prisoners were found by a London grand 
 jury at the Old Bailey. Middlesex indictments were found 
 by a Middlesex grand jury at Clerkenwell, and then trans- 
 ferred to the Old Bailey for trial. The judges were two 
 
182 THE STUDENT'S LEGAL HISTORY. 
 
 or three of the King's Justices, the Recorder, and Common 
 Sergeant. The Lord Mayor and some or all of the aldermen 
 could be present, and when present were entitled to a voice 
 in the sentence. 1 . 
 
 By the Central Criminal Court Act, 1834, the name 
 Central Criminal Court was given to a Court sitting at the 
 Old Bailey, to consist of the Lord Mayor, the Lord Chan- 
 cellor, the King's Judges, Aldermen, Recorder, Common 
 Sergeant, and a few others to be nominated by the Crown. 
 This Court has jurisdiction to try all treasons, felonies, &c., 
 committed in London and Middlesex, and in certain parishes 
 of Essex, Kent, and Surrey. Bills of indictment were not 
 in future to be found at Clerkenwell. It appears that the 
 aldermen have still power to vote on the question of sen- 
 tence; but the real judicial business is done by the pro- 
 fessional judge who presides. There are now four Courts at 
 the Old Bailey, presided over by a High Court Judge, the 
 Recorder, Common Sergeant, and the Judge of the City of 
 London Court respectively; but the Act of 1834 specially 
 reserves the rights and privileges of the Lord Mayor and 
 Aldermen. The Central Criminal Court is a Superior Court, 
 on the same footing as a Court of Assize ; and no mandamus 
 will lie from the Queen's Bench Division. 
 
 A Court of Criminal Appeal was established by the 
 Criminal Appeal Acts, 1907 and 1908. Prior to this time 
 there was no appeal from a conviction on indictment except 
 by way of writ of error. Before the time of Queen Anne, 
 such a writ was held to be merely ex gratia, but in the 3rd 
 of Queen Anne it was resolved by ten judges that in every 
 case under treason and felony the writ was ex debito justitice. 
 Thus by a gradual course of practice the writ became, 
 instead of a method of exercising the clemency of the 
 Crown, a method of appeal. The writ was only granted by 
 
 1 St. Tr. N. S. 1137. 
 
COURTS OF JUSTICE. 183 
 
 the Court (of King's Bench) on the ground of error manifest 
 on the record. For example, a writ was granted (3 Burr. 
 1903) where the indictment charged the offence as being 
 committed in the reign of a former king, but concluded 
 " against the peace of our Sovereign lord the King, &c.," 
 which meant the now king. To supplement the deficiency 
 in the law, the judges used to hold informal meetings at 
 Serjeants' Inn to discuss difficult points in criminal law. By 
 11 & 12 Yict. c. 78, these proceedings were regularized. 
 
 The Court for Crown Cases Reserved was established, 
 with power to determine points of law which might arise at 
 Sessions or Assizes. There was no appeal in the proper 
 sense of the term. The prisoner could apply at the trial for 
 the Court to reserve a point of law; and if this were done 
 (which was quite discretionary) that point was argued before 
 and decided by the C.C.C.R., consisting of the Common 
 Law judges. 
 
 The Court of Criminal Appeal is really an appellate 
 court. It consists of the Lord Chief Justice and all the 
 judges of the King's Bench Division, not less than three 
 of whom form a quorum. It is summoned by the L.C.J. 
 with the consent of the Lord Chancellor ; and may sit in two 
 or more divisions, or out of London when the L.C.J. gives 
 special directions to that effect. The number sitting must 
 always be uneven; and the opinion of the majority must 
 prevail. Only one judgment is to be delivered, except the 
 Court directs to the contrary. The decision is final, save 
 that where the prosecutor, director of public prosecutions, 
 or defendant obtains a certificate of the Attorney-General 
 that the decision involves a point of law of exceptional 
 public importance, and that it is desirable in the public 
 interest that a further appeal should be brought, he may 
 appeal to the House of Lords. 
 
 Only a person convicted can appeal; and his absolute 
 right to do so is limited to questions of law alone. On 
 questions of fact, or mixed law and fact, he must obtain the 
 
184 THE STUDENT'S LEGAL HISTORY. 
 
 leave of the Court or of the judge who tried him. On ques- 
 tions of sentence, only the Court of C.A. can give leave to 
 appeal. The powers of the Court in allowing or dismissing 
 appeals are wide ; but there is no power to order a new trial. 
 The tendency has been to construe rather narrowly the 
 power to allow the appeal if the Court thinks that " the 
 verdict of the jury should be set aside on the ground that 
 it is unreasonable or cannot be supported having regard to 
 the evidence." The Court is entitled to dismiss an appeal 
 on the ground that no substantial miscarriage of justice has 
 actually occurred. (Act 1907, s. 4, sub-s. 1.) 
 
 Writ of error in Criminal proceedings is abolished. (Act 
 190T, s. 20.) 
 
 INFERIOR COURTS. 
 
 The Court of Piepoudre was at once the lowest and the 
 most expeditious of these. It was a court of record incident 
 to every fair and market, and the presiding judge was the 
 steward of him who had the toll of the market or fair. Its 
 jurisdiction extended to all commercial cases arising out of 
 the transactions of the particular fair or market, and not 
 of any preceding one, so that the cause of action arose, the 
 complaint was made, and the cause tried on the same day, 
 unless the market lasted longer. From the Court of 
 Piepoudre an appeal by writ of error would lie to the 
 Superior Courts at Westminster. The etymology of the 
 name is a moot point. One opinion derives it from curia 
 pedis pulverizati the Court of the dusty foot either because 
 of the dusty feet of the suitors, or because, as Coke puts it, 
 justice was done as quickly as dust can fall from the foot. 
 Another author 1 derives it from pied puldreaux (old 
 French = pedlar), and says the name was given because the 
 Court was the resort of the pedlars who traded at the fair 
 or market. 
 
 1 Barrington, Observations, etc., p. 337. 
 
COURTS OF JUSTICE. 185 
 
 The Court Baron was a manorial court incident to every 
 manor in the kingdom. It was composed of the freeholders 
 of the manor, with the steward as a kind of clerk. It had 
 jurisdiction to try by writ of right all claims to land within 
 the manor, and all personal actions where the amount 
 claimed was not more than forty shillings. The proceedings 
 on a writ of right might be removed into the County Court 
 by a precept from the sheriff called a tolt* and the pro- 
 ceedings in personal actions might be removed into the 
 King's Courts by writ of pone. Besides these proceedings 
 to remove actions from the Court Baron before judgment, 
 there was an appeal after judgment to the Superior Courts 
 at Westminster. 
 
 Such appeal was not by writ of error, because the Court 
 Baron, not being a court of record, had no record in which 
 an error could be found. But a writ of false judgment was 
 issued, and the Court at Westminster reheard the case. 
 
 There was also another side of the Court Baron ex- 
 clusively for copyholders of the manor. Its only business 
 was to witness surrenders of, and admittance to, copyholds. 
 The steward presided as judge, and in this form Court 
 Baron still exists. But the civil jurisdiction of the Court 
 was taken away in 1846. 
 
 The Hundred Court was of Saxon origin, and had the 
 same jurisdiction in the hundred as the Court Baron had 
 in the manor. The free suitors were the judges, with the 
 steward of the hundred as clerk. The Court was not of 
 record; and causes were liable to removal from it, and its 
 judgments were subject to review precisely in the same way 
 as in the case of the Court Baron. The jurisdiction of this 
 Court was abolished in 1867, though the Salford Hundred 
 Court, being in the County Palatine of Lancaster, has con- 
 tinued to exist, with a jurisdiction similar to that of the 
 modern County Court. 
 
 1 " Quia tollit ac eximit causam e curia baronum." 
 
186 THE STUDENT'S LEGAL HISTORY. 
 
 The County Court was the great tribunal of Saxon 
 England. Its jurisdiction in civil cases was, at first, un- 
 limited, but in Edward I.'s reign, suitors had shown such a 
 tendency to resort to the King's Courts, that by the Statute 
 of Gloucester it was enacted that no one should be entitled 
 to a writ in the superior Courts unless the debt or damages 
 claimed amounted to forty shillings, and the jurisdiction 
 of the County Court was reduced to claims under that sum. 
 The sheriff presided, but the freeholders of the county were 
 the judges. By 2 Edw. VI. c. 25, it was forbidden to 
 adjourn the Court for more than twenty-eight days a 
 return to Saxon usage. 
 
 The County Court was not a court of record, and causes 
 were removable into the King's Courts by writ of pone, and 
 a writ of false judgment could also be had. Practically 
 the civil jurisdiction of the County Court ceased when the 
 justice of assize were granted commissions of nisi prius, 
 and by the County Courts Act of 1846 the ancient County 
 Court was completely abolished. 1 
 
 ECCLESIASTICAL COURTS. 
 
 Before the Conquest there was no separate ecclesiastical 
 jurisdiction. All causes whatsoever were tried in the 
 County Court, where the bishop sat along with the earl and 
 the shire-reeve. But William I. allowed the clergy a sepa- 
 rate jurisdiction, 2 and the bishop ceased to sit in the Court 
 of the shire. No fewer than seven kinds of Ecclesiastical 
 Courts arose, and each obtained some civil jurisdiction. 
 
 The Archdeacon's Court was the lowest of these. In this 
 Court might be "presented" persons charged with any 
 offence against the canons of the Church, to wit, impiety, 
 heresy, adultery, schism, and immorality, and also such 
 
 1 Supra, p. 152. 3 Supra, p. 18. 
 
COURTS OF JUSTICE. 187 
 
 wrongs as refusing to pay tithes, neglect to repair 
 churches, and the like. In early times the archdeacon 
 himself presided, but he had power to delegate his judicial 
 authority, and in later times generally appointed a person 
 called the "official." There was always an appeal to The 
 Consistory Court, or Court of the bishop of the Diocese, 
 which had a jurisdiction similar to that of the archdeacon, 
 but extending over the whole diocese. In some cases the 
 two Courts had concurrent jurisdiction. In others, the 
 bishop was entitled to remove cases from the Archdeacon's 
 Court to his own. The bishop's chancellor was the judge, 
 and from him there lay an appeal to the archbishop of the 
 province. 
 
 The most important function of the Consistory Court was 
 in testamentary and matrimonial causes. But no will could 
 be proved or letters of administration granted in a Bishop's 
 Court when the deceased had left moveables in more than 
 one diocese. 
 
 The Prerogative Courts of Canterbury and York granted 
 probate in the last-mentioned cases, with the right of appeal 
 to the Court of Delegates. 
 
 The Court Of Arches was the appellate Court of the Arch- 
 bishop of Canterbury; and the judge was called the Dean of 
 the Arches. The name was derived from the name of the 
 church where the Dean originally sat St. Mary-le-bow 
 (S. Maria de arcubus). The Court was originally a separate 
 Court from that of the province of Canterbury, being only 
 for thirteen London parishes in the peculiar jurisdiction of 
 the Archbishop. There was a similar Court in the province 
 of York. An appeal would lie from the Court of Arches to 
 the Court of Delegates. 
 
 The Court of Peculiars was of original jurisdiction (like 
 the Consistory Courts) over those parishes scattered through- 
 
188 THE STUDENT'S LEGAL HISTORY. 
 
 out the province of Canterbury, and in the jurisdiction of 
 the Archbishop only, and not of the bishop of the diocese. 
 Hence, also, was an appeal to the Court of Delegates. 
 
 The Court of Delegates was instituted by Henry VIII., 
 
 and consisted of certain persons appointed by royal com- 
 mission to hear appeals from the Ecclesiastical Courts of 
 the Archbishops. In 1842, this Court was abolished and its 
 powers transferred to the Judicial Committee of the Privy 
 Council. 1 
 
 The Crown also had power (until 1845) to appoint a 
 Commission of Review to revise any particular decision of 
 the Court of Delegates. There was also the High Commis- 
 sion Court from 1 Elizabeth to 16 Charles I. 2 
 
 At the present time the Ecclesiastical Courts are of com- 
 paratively little importance. Some of them still exist; but 
 their chief jurisdiction, viz. in matrimonial and testa- 
 mentary causes, was taken away in 1857. 3 
 
 ADMIRALTY COURTS. 
 
 Until 1875, the chief Maritime Court was that of the 
 Lord High Admiral of England, who delegated his power 
 to the judge of the Court of Admiralty. This tribunal dates 
 from Edward III. ; and an appeal lay to a Court of Delegates 
 appointed by the Crown. There was also a Court of Prize, 
 appointed in time of war, to decide questions relating to 
 captured vessels. The Admiralty Court had cognizance of 
 all contracts made at sea; and questions of seamen's wages 
 earned at sea; also flotsam and jetsam, and salvage; but 
 not of charter-parties made on land; nor of wreckage, 
 " because wreckage must be cast up on land." It had, also, 
 the right to try criminals. Soon after its foundation this 
 Court attempted to assume jurisdiction over matters con- 
 
 1 Supra, p. 159. 3 Supra, pp. 73 et seq. 
 
 3 Supra, pp. 154 et seq. 
 
COURTS OF JUSTICE. 189 
 
 nected with the sea, e.g. charter-parties made on land, 
 wreckage, &c. But by 13 Ric. II. c. 5 (1390) such claims 
 were declared to be unfounded. In 1536, the power to try 
 pirates was taken away; and in 1844 all criminal juris- 
 diction was removed from it. By the Judicature Act, 
 1873, * the Court was merged in the Probate, Divorce, and 
 Admiralty Division of the High Court of Justice, thus 
 placing all the cases where the Civil Law is used in the 
 same Division. 
 
 1 Supra, p. 155. 
 
( 190 ) 
 
 CHAPTER IX. 
 
 THE HISTORY OF LAND TENURE IN ENGLAND. 
 
 Before the Conquest tenure of land, strictly so called, was 
 unknown. The system was allodial; that is, land was as 
 much the subject of ownership as were moveables. There 
 were two kinds of land, namely, bocland, i.e. land given 
 by the king to his thanes by a book or writing; and folk- 
 land, i.e. such land as was not specially granted by the 
 king, but was owned by those who squatted there as the 
 island was conquered, and who had a kind of possessory 
 title. 
 
 All bocland was subject to the trinoda necessitas, or three- 
 fold obligation of service in war, the construction and 
 maintenance of bridges, and the construction and main- 
 tenance of castles for the defence of the country. 
 
 The great thanes who owned the bocland let out their 
 lands to their dependants, who were of two grades, first, the 
 ceorls, who were freemen paying a fixed rent in money or 
 kind; and, second, the villeins, who were serfs bound to 
 obey their master's will, and receiving from him land to 
 cultivate for their sustenance. The first kind of tenants are 
 the socmanni spoken of in Domesday Book. The word soc 
 means free; and it is this tenure which has become almost 
 universal in England since the abolition of knight-service 
 by the first Parliament of Charles II. 1 
 
 Coke gives it as his opinion that bocland was held by 
 feudal tenure; but with all deference to so great an 
 
 1 Supra, p. 83. 
 
THE HISTORY OF LAND TENURE IN ENGLAND. 191 
 
 authority, this is a mistake. The feudal tenure of land is 
 where the tenant has no ownership, but holds the land of a 
 superior in return for services rendered. The superior is 
 thus, the landlord ; and if that superior be king, his feudal 
 capacity of landlord is distinct from his political capacity 
 as head of the State. It is important to notice the difference 
 between the trinoda necessitas of the Saxon thane and the 
 feudal aids, reliefs, and other services of the Norman baron. 
 The former was a duty cast upon all owners of land as a 
 duty to the State; the latter consisted of quasi-contractual 
 liabilities to the king personally. 
 
 After the Conquest a change took place. The feudal 
 system was introduced from the Continent, though the 
 system as it obtained in England was never quite the 
 Continental feudal system. The great barons of France and 
 Germany held their land from the Sovereign, and owed to 
 him homage and allegiance. The vassals of the great barons, 
 in their turn, owed allegiance to their lord; but they owed 
 no duty whatever to the king. Sir Walter Scott, in Quentin 
 Durward, puts into the mouth of one of his characters a 
 sentence which sums up the whole situation. When King 
 Louis XI. is in the power of one of his great feudatories, 
 the Duke of Burgundy, he asks one of the latter 's vassals, 
 Count des Comines, if he (the king) can rely upon the 
 Count's assistance. To this Des Comines replies, " Your 
 Majesty may command my service, saving my allegiance to 
 my rightful lord the Duke of Burgundy/' 
 
 William I. was far too great a statesman to establish a 
 system like this in England. Instead, he granted out fiefs 
 to his chief vassals in return for homage, allegiance, and 
 the usual services. But when the barons subinfeudated, 
 their tenants owed allegiance to the king first, and to the 
 immediate lord afterwards. 
 
 After the Conquest, then, land was all held of the king. 
 The kinds of tenures have been dealt with in a previous 
 
192 THE STUDENT'S LEGAL HISTORY. 
 
 chapter, 1 and we will now consider the nature of the 
 relations between lord and vassal. 
 
 Knight-service was the most usual military tenure. Coke 
 described it as tenure by homage, fealty, and escuage. 
 This requires some explanation. The tenant was obliged to 
 declare himself the lord's man (Fr. homme) when admitted 
 to the fief. He was also bound to swear fealty to him. But 
 escuage, or scutage, was a comparatively modern innova- 
 tion. The original duty of the knight was to serve his lord 
 in war for forty days in the year when called upon, but the 
 tenant was only obliged to serve personally when the lord 
 took the field in person. When the lord put a deputy in 
 command, the vassal could send a deputy to represent him, 
 and when he could not find a suitable deputy, he would 
 send a sum of money with which a mercenary could be hired 
 to fill his place. Henry II. permitted his vassals to pay 
 instead of serving, whether the king took the field in person 
 or not. In fact Henry rather discouraged personal service 
 by his great vassals, preferring to hire mercenaries from 
 the continent. The sum paid by a tenant as a composition 
 in lieu of service was known as escuage or scutage, meaning 
 " shield-money, " and in course of time personal service died 
 out, and escuage became the rule. The knight-service thus 
 described is ordinary knight-service, but there were two 
 other kinds, viz. Castleward and Cornage. 
 
 Castleward, in the words of Coke, is " to ward a tower 
 of the castle of their lord, or a door of the castle, upon 
 reasonable warning, when their lords hear that the enemies 
 will come over in England. " This service was instead of 
 the forty days in the field, and to it were added homage 
 and fealty. 
 
 1 Supra, pp. 11 et seq. 
 
THE HISTORY OF LAND TENURE IN ENGLAND. 193 
 
 Cornage l was a very curious tenure. The duty of the 
 tenant was " to wind a horn to give men of the country 
 warning " when they hear of enemies coming to the country. 
 "When a tenant by cornage held from a subject, it was con- 
 sidered a kind of knight-service, but when he held direct 
 from the Crown, it was grand serjeanty, 2 and was a very 
 common tenure on the borders or marches of Scotland. 
 Grand serjeanty also took other forms the service being 
 always free, but uncertain e.g. to carry the king's banner 
 when he went to war. There was also a tenure in chivalry 
 called petit serjeanty, where the tenant's duty was some- 
 what servile e.g. to present to the lord twelve arrows 
 whenever he (the lord) should hunt in such a forest. 
 
 The services of tenants in chivalry were not onerous, as 
 will have been perceived, but the really burdensome part of 
 the tenure was its "incidents." These incidents were of 
 four principal kinds, Wardship, Marriage, Aids, and Reliefs. 
 
 Wardship was the right of the lord to have the custody of 
 the land held of him on the death of any holder when the 
 heir was not of full age. This age was fixed at twenty-one 
 for males, and sixteen for females, the latter being altered 
 from fourteen by the Statute Westminster I. c. 22. The 
 lord had also the right to the custody of the heir's person 
 unless his father were alive, and the son was the heir- 
 apparent of his father. The guardian in chivalry was 
 obliged to maintain the ward in a manner suited to his 
 rank, but he was not a trustee. That is, the wardship was 
 not for the benefit of the ward, but of the guardian, who 
 took all the rents and profits of the land during the ward- 
 ship. When the ward came of age, he sued out his livery 
 i.e. he had to pay a still further sum in order to have the 
 land given up to him. The guardian could sell or other- 
 wise alien his wardship, and the transferee was called 
 guardian en fait. 
 
 1 Cornu (Lat.), a horn. 2 Serjeanty =&eivice. 
 
 S.L.H. 13 
 
194 THE STUDENT'S LEGAL HISTORY. 
 
 Marriage was the right of a guardian in chivalry to 
 choose a husband or wife for his ward. He could practically 
 sell the ward's hand ; but the ward must not be " dis- 
 paraged " by the match, i.e. there must be congruity of 
 rank and fortune. If the lord disparaged the ward by 
 marriage he might be deprived of the guardianship; and 
 the ward might lawfully refuse to entertain such a match. 
 But if the ward refused a lawful tender, he forfeited to the 
 guardian the value of the match that is, the amount of 
 profit the lord would have made; and if the ward married 
 without the guardian's leave, he forfeited double the value 
 of any match that had been tendered by the guardian. 
 
 Aids were payments which a vassal must make to his 
 lord, or on his lord's behalf, on three occasions. First, to 
 ransom the lord if the latter was captured in war; second, 
 to make his eldest son a knight (pur faire Fitz chevalier) ; 
 third, to provide a dowry for his eldest daughter (pur fille 
 marrier). These were the three customary aids spoken of 
 in the various documents in the Middle Ages. They were 
 not fixed in amount, but by the feudal principles they had 
 to be reasonable and not excessive. The enactment of 
 Magna Charta directing that aids should be reasonable shows 
 how, at times, kings and mesne lords exacted large sums. 
 
 Reliefs were lump sums payable by the heir of full age 
 who succeeded to the inheritance of a deceased tenant. 
 These ought also to be reasonable, and in no case to exceed 
 one year's full value of the land ; but in consequence of the 
 excessive demands made by John, Magna Charta fixed the 
 amount at 100s. for a whole knight's fee; and so in pro- 
 portion. 
 
 On a previous page will be found an account of the 
 abolition of knight-service and its " incidents," and the 
 conversion of all such land into socage. 1 
 
 1 Supra, p. 83. 
 
THE HISTORY OF LAND TENURE IN ENGLAND. 195 
 
 SOCAGE TENURE was the descendant of the old allodial 
 proprietorship of the Anglo-Saxons. When the Conquest 
 placed the whole country at the mercy of the Conqueror, 
 he portioned out amongst his chief followers the land of 
 those Saxons who had fallen at Hastings, such grants being 
 held in chivalry. But many of the Saxon thanes who had 
 taken no very active part in resisting the invader were 
 allowed to retain their lands. They still held them in 
 socage, but it was socage tenure and not socage ownership. 
 The feature of socage tenure was the certainty of the ser- 
 vices rendered to the lord. Such services were homage, 
 fealty and a rent. Littleton l says, " In times before legal 
 memory a great part of the tenants which held of their lords 
 ought to come with their ploughs . . . and for certain days 
 to plough and sow the demesnes of the said lord. And for 
 that such works were done for the livelihood and sustenance 
 of their lord, they were quit against their lord of all manner 
 of services. And because that such services were done with 
 their ploughs they were called tenants in socage. And 
 afterwards these services were changed. ... by the consent 
 of the tenants and the desire of the lords [into] an annual 
 rent, &c." 
 
 The " incidents " of socage tenure were few and not 
 onerous in fact the only one of general incidence was 
 Relief which consisted of a year's rent payable by the heir 
 on the death of the ancestor. The great advantage of the 
 socage tenant was in escaping wardship and marriage. The 
 infant tenant in socage was in ward of the lord, but the 
 wardship was for the benefit of the ward, and the guardian's 
 duty was to manage the estate and account for the profits 
 when the infant came of age, which in this case was fourteen 
 years. If the lord married his ward, he was bound to 
 account for the value of the marriage. In fact, the guardian 
 in socage was a trustee for the ward. At the present time 
 
 1 Tenwres, 2, 5, 119. 
 
196 THE STUDENT'S LEGAL HISTORY. 
 
 most of the freehold land in England is held direct from 
 the Crown, which gave up its rights to reliefs, &c., by 
 12 Car. II. c. 24. There is, however, still some land held 
 in socage from mesne lords, viz. the customary freeholds of 
 manors. This land was all subinfeudated before the 
 Statute Quia emptores. 1 The effect of that Act has been that, 
 when land has once come out of the hands of a mesne lord, 
 it can never come into them again, but is held direct from 
 the Crown. In theory of law, homage and fealty are still 
 due from all tenants in socage, but they are not now exacted. 
 It was in consequence of the homage and fealty due to the 
 king by all tenants of land in England that an alien could 
 not hold land here by the Common Law. An alien, being 
 the subject of another prince, could not be the " man " of 
 the King of England; and as he was thus incapable of 
 homage he was incapable of tenure, of which homage is a 
 necessary part. The disability was not removed until 1870. 2 
 
 1 Supra, p. 40. 
 
 2 Naturalization Act, 33 & 34 Viet, c. 14. 
 
CHAPTER X. 
 
 THE KING'S PEACE. 
 
 IT has already been shown what the idea of the king's peace 
 was, and how it was at first local, then general but tem- 
 porary, and, lastly, general and permanent. 1 The violation 
 of the king's peace was the original offence from which the 
 jurisdiction of the sovereign in criminal matters arose; and 
 not only was it that the king's justices should try breaches 
 of his peace, but also that the king should be a party to the 
 plea. This prosecution of violators of the peace by the 
 sovereign sprang not so much from the Norman conception 
 of the king as the foundation of justice, as from the Saxon 
 idea of compensation to the sufferer for a wrong done. If 
 you injured me you must pay the bot. If you injured the 
 king by violating his peace, you must pay the fine due to 
 him, and he, therefore, prosecuted. It has been shown how 
 at last it became the practice to allege every criminal wrong 
 as being " contra pacem domini regis ' ' ; but there is good 
 reason to suppose that felonies were at first the only crimes 
 contra pacem ; or, conversely, that crimes contra pacem were 
 originally all felonies. The reasons are (1) that only on a 
 conviction for felony was the criminal's property forfeited 
 to the Crown. In the law of treason promulgated by 
 Alfred, the traitor was declared to forfeit his life and all 
 that he had ; and it should be remembered that, in Alfred's 
 time, treason was the only breach of the peace, except crimes 
 of violence, committed during the great feasts of the 
 
 1 Supra, pp. 6, 20. 
 
198 THE STUDENT'S LEGAL HISTORY. 
 
 Church, or within the precincts of the king's house. (2) It 
 was always a crime to compound a felony, though not a mis- 
 demeanour, because, in the former case, the king was 
 defrauded of his fine or forfeiture. (3) It has always been 
 laid down in the text-books, and was accepted as undoubted 
 law until quite recently, that when a tort was also a felony, 
 the felony must be prosecuted before the tort could be sued 
 upon. This was because the king's right to his fines and 
 forfeitures came before the subject's right to damages. 
 
 The rule that the Crown could only prosecute breaches 
 of the peace survived long after the Crown began to prose- 
 cute in all cases ; and gradually the term Pleas of the Crown 
 was applied to all criminal prosecutions, and the Crown 
 prosecuted in every case. But the old theory still lingered 
 in the rule that an indictment was bad in law unless it 
 alleged a breach of the peace a rule that continued in force 
 until 1861, when it was changed by 24 & 25 Viet. c. 100, 
 s. 24. 
 
 The student should remember that the fictional allegation 
 of a breach of the peace was the cause of the discontinuance 
 of trial by combat, and is the foundation of the whole of 
 English criminal jurisprudence. Throughout the Middle 
 Ages two systems of prosecutions prevailed : (1) Appeals, 
 instituted by the person aggrieved or his relatives; and 
 (2) Crown prosecutions. Britton (temp. Edw. I.) says that, 
 in larcenies, there are two modes of procedure : (a) by the 
 party from whom the goods were stolen, and (b) by the 
 king. It is laid down that when the thief has been sued in 
 trespass by the owner, the king will not proceed against 
 him even though his peace has been broken. The change 
 from this state of the law to that described above, when 
 the trespass cannot be sued upon until the felony has been 
 prosecuted, indicates a great development. There is a case 
 of an appeal of felony so late as Elizabeth (Stroughborouah 
 v. Biggon, Moore, 571); but at that time these private 
 prosecutions were very rare. 
 
THE KING'S PEACE. 199 
 
 It was the fact of the breach of the peace which gave the 
 Court of King's Bench jurisdiction in cases of trespass. 
 Blackstone says that this Court had cognizance of all tres- 
 passes m et armis, " in which, by strictness of law, a fine 
 was payable to the king"; and, until the Common Law 
 Procedure Acts, 1 in trespass the plaintiff always alleged 
 that the wrong had been committed by force and arms. 
 Here, again, the allegation became fictional, and was per- 
 mitted to be made in order to give the King's Bench 
 cognizance of the case. 
 
 Again, libels defamatory of the character of private 
 persons were criminal in the first instance because they 
 tended to provoke a breach of the peace ; and here we find 
 the reason for the maxim, " The greater the truth the 
 greater the libel," which prevailed until Lord Campbell's 
 Libel Act (1843). a To the modern mind the maxim is an 
 absurd one. How, we say, can a man complain when we 
 speak the truth about him ? But looked at from the 
 point of view of the king's peace the absurdity disappears. 
 If the libel is likely to provoke a breach of the peace, what 
 does it matter whether it be true or false ? It is a provoca- 
 tion to violence in the one case as much as the other; for 
 the object of the libel will be equally angry in either case; 
 and the king's peace will equally be violated. 
 
 The royal right of pardon probably sprang from the same 
 source. The king had as much right to forgive a breach of 
 his peace as a private person had to forgive an injury or 
 insult ; and to ascribe the prerogative of pardon to the king 
 as the "Fountain of Mercy" is probably an historical in- 
 accuracy. So, also, the law that there is no prescription in 
 crime i.e. lapse of time is no bar to a criminal prosecution 
 is only an application of the maxim, " Nullum tempus 
 occurrit regi," based on the idea that a breach of the peace 
 is a personal injury to the sovereign. And to the same idea 
 
 1 Supra, p. 146. 2 Supra, pp. 140 et seq. 
 
200 THE STUDENT'S LEGAL HISTORY. 
 
 must be traced the undoubted law that the consent of the 
 injured party is no defence to a criminal prosecution. Con- 
 sent would undoubtedly have been a defence to an " appeal " 
 by the injured party, just the same as it is to a civil action 
 of tort; but when the king is wronged also, the consent of 
 the injured party does not affect the right of the Crown to 
 proceed for satisfaction for the wrong. 
 
 It may also be that the prerogative of dispensing with 
 the operation of a penal statute originated in the same way. 
 If the object of the law was to preserve the king's peace, 
 why should he not announce that he will not proceed against 
 persons who disregard that enactment, in just the same way 
 that a landowner may announce that he will not sue for 
 trespass anyone who chooses to take a walk over his grounds ? 
 It was merely, in law, a waiver by the king of a personal 
 right, and nothing more ; but when the notion of the peace 
 of the State began to prevail, Parliament objected to the 
 royal prerogative; because thereby the Crown could render 
 nugatory statutes passed for the good of the country. Hole's 
 Case (James II.) was a case in point, where the king dis- 
 pensed with the Test Act, which was meant to keep Eoman 
 Catholics out of the service of the Crown. Here the dispen- 
 sation was so unpopular that, in 1669, by the Bill of Eights, 
 the exercise of the dispensing power " as it hath been 
 assumed and exercised of late" was declared illegal; and 
 from that time the prerogative, though it still exists, has 
 never been exercised. 
 
( 201 ) 
 
 APPENDIX. 
 
 1. Before the Norman Conquest (1066). 
 
 The King's Peace was established in a limited form. 
 Distinction between crime and tort was not well 
 
 established. 
 
 A fine must be paid to the king for breaches of his peace. 
 All injuries to private persons could be compounded for 
 
 by paying bot. 
 
 2. From William I. to Henry III. (10661272). 
 
 The King's Peace is declared to extend over the whole 
 realm. 
 
 3. From Edward I. to Richard III. (12721485). 
 
 The Law of Treason is codified and simplified 
 (Edw. III.). 
 
 4. From James I. to James II. (16031688). 
 
 Treason receives great attention and the law is strained 
 
 by the judges. 
 Seditious libel and seditious words; the law is much 
 
 debated and strained as against the prisoner. 
 
 5. From William and Mary to the End of Lord Eldon's 
 
 Chancellorship (1688 1827J. 
 
 Capital punishment became more common. 
 
 Forfeiture and attainder for treason and felony were 
 
 partly abolished. 
 The law of treason remained unaltered, but the procedure 
 
 was modified in favour of the accused, and counsel 
 
 allowed to defend. 
 
202 APPENDIX. 
 
 The Eiot Act created the law as to unlawful assemblies, 
 and directed a certain method of procedure for dis- 
 persing them. 
 
 The law of seditious libel, and the question of general 
 verdicts, gave rise to a long controversy between 
 Erskine and Lord Mansfield. Finally Fox's Libel 
 A&t enabled juries to give a general verdict of guilty 
 or not guilty. 
 
 Frivolous applications for writs of cerbiorari to remove 
 causes from Quarter Sessions were checked by com- 
 pelling the applicant to give security for costs. 
 
 6. George IY. to Present Day (18271921). 
 
 Parts of the Criminal Law are codified, and the proce- 
 dure made more favourable to prisoners. 
 
 Treason is cut down to offences against the person of 
 the sovereign. 
 
 Defendants, in prosecutions for defamatory libel, may 
 prove truth, and give evidence. 
 
 Eight of appeal given in criminal cases. 
 
 COUETS OF JUSTICE. 
 
 1. Before the Norman Conquest (1066). 
 
 The Courts are local. 
 
 2. From William I. to Henry III. (10661272). 
 
 Curia Eegis is established, to some extent superseding 
 and supervising ancient local Courts. 
 
 The three Courts of Common Law are established 
 separately, and the Common Pleas fixed at West- 
 minster. The other Courts follow the king. 
 
 Justices in Eyre are appointed. 
 
 3. From Edward I. to Richard III. (12721485). 
 
 The Court of Chancery is established as a Court of 
 
 Equity (temp. Edw. III.). 
 Justices of the peace are created with a local criminal 
 
 jurisdiction (temp. Edw. III.). Quarter Sessions 
 
 take the place of the Sheriff's Tourn (temp. 
 
 Edw. IV.). 
 Justices of assize are appointed instead of justices in 
 
 Eyre (temp. Edw. I.). 
 
APPENDIX. 203 
 
 4. From Henry YII. to Elizabeth (15851603). 
 
 The Court of Star -Chamber is established (temp. 
 
 Hen. VII.). 
 
 The Court of Wards and Liveries (temp. Hen. VIII.). 
 The Court of High Commission (temp. Eliz.). 
 The Court of Exchequer Chamber (temp. Eliz.). 
 
 5. From James I. to James II. (16031688). 
 
 The Court of Chancery. 
 . Quarrels arise between the Courts of Law and Equity, 
 
 and the latter prevail. 
 
 Ellesmere, Bacon, and Coventry systematize the law 
 and procedure of the Court. 
 
 6. From George IY. to Present Day (18271921). 
 
 County Courts are established, in 1846, for the trial of 
 small cases. 
 
 The Courts of Probate and Divorce take the place of 
 the Ecclesiastical Courts for matrimonial and probate 
 cases. They are merged into the High Court of 
 Justice by the Judicature Act, 1873. 
 
 The Court of Bankruptcy is established in 1837; and is 
 superseded by the London Court of Bankruptcy in 
 1869, which in turn is merged, into the High Court of 
 Justice, 1883. 
 
 The High Court of Justice is formed in 1873, absorbing 
 all the jurisdiction of the superior Common Law and 
 Equity Courts, as well as Probate, Divorce and 
 Admiralty jurisdiction. 
 
 The Court of Appeal, formed in 1873, takes over all 
 appeals from the High Court of Justice. 
 
 The House of Lords as an Appellate Court is recon- 
 structed by the Appellate Jurisdiction Act, 1876. 
 
 The Privy Council as a whole ceases to have any juris- 
 diction, and the right is vested in a judicial committee 
 of that body. 
 
 Court of Criminal Appeal established. 
 
 PEOCEDUEE, 
 
 1. Before the Norman Conquest (1066). 
 
 Sworn recognitors " presented " criminals for trial. 
 All issues of fact were tried by compurgation or ordeal. 
 
204 APPENDIX. 
 
 2. From William I. to Henry III. (10661272). 
 
 Real actions begin. 
 
 Personal actions are few, only four viz. trespass, debt, 
 
 covenant, and detinue being cognizable in the King's 
 
 Courts. 
 Writs in the King's Courts take the place of verbal 
 
 complaints. 
 
 Trial by duel is introduced from Normandy. 
 Sworn inquest is introduced in civil matters, leading 
 
 up to trial by jury, but as yet the jurors are only 
 
 witnesses. 
 Habeas corpus (perhaps) is introduced. 
 
 3. From Edward I. to Richard III. (1272 1485). 
 
 Indictments begin to be in writing (temp. Edw. I.), 
 and are ordered to be certain and definite (temp. 
 Edw. III.). 
 
 Written pleadings take the place of verbal altercations 
 between the parties in civil cases (circa Edw. I.). 
 
 Bills, petitions, and the subpoena are issued in Chan- 
 cery (temp. Rich. II.). 
 
 " Actions on the case " are introduced by virtue of the 
 Statute of Westminster II. (temp. Edw. I.). 
 
 *. From Henry YII. to Elizabeth (14851603). 
 
 Action of assumpsit begins to supersede the action of 
 debt. 
 
 Action of ejectment is extended to freeholds by a cir- 
 cuitous procedure, and partly ousts the real actions. 
 
 Writs of nisi prius are issued for Middlesex actions 
 (temp. Eliz.). 
 
 Action of trover and conversion comes into use, and 
 gradually supplants detinue. 
 
 5. From James I. to James II. (16031688). 
 
 Procedure on the writ of habeas corpus in criminal cases 
 is regulated. 
 
 6. From William and Mary to the End of Lord Eldon's 
 
 Chancellorship (16881827). 
 
 One judge is enabled to try causes at nisi prius. 
 
APPENDIX. 205 
 
 Judges are to decide on demurrers without regard to 
 
 any defect in the writ. 
 The chief doctrines of modern equity and the practice 
 
 of the Court is finally settled. 
 
 7. From George IY. to Present Day (18271921). 
 
 Common law procedure was greatly changed by the 
 Common Law Procedure Acts, 1852 1860, and the 
 procedure in all cases, whether at common law or in 
 equity, is revolutionized by the Judicature Acts and 
 Kules. Forms of action are abolished; pleadings 
 shortened and simplified, and delay lessened. 
 
 A new style of practice is 'invented for commercial 
 causes. 
 
 The absolute right to trial by jury in all civil cases is 
 taken away. 
 
 PROPERTY. 
 
 1. Before the Norman Conquest (1066). 
 
 The distinction in law between land, and moveables is 
 
 small. Property in land is allodial. 
 The inheritance is divided amongst all the children. 
 A kind of dower and curtesy were in vogue. 
 
 2. From William I. to Henry III. (10661272). 
 
 The distinction between realty and personalty, founded 
 
 on the difference between the remedies for disposses- 
 sion, is made. 
 Real Property. 
 
 Tenure takes the place of ownership, and the theory 
 of tenure becomes the basis of the land laws. 
 
 Military tenures are introduced. 
 
 Dower and curtesy are made absolute legal rights. 
 
 The law of primogeniture, with the rules of descent, 
 is gradually introduced. 
 
 Alienation of land is checked by Magna Chart a. 
 Personal Property. 
 
 Testaments of personalty are freely allowed. 
 
 Intestates' effects go to wife and relatives. 
 
 Intestates' effects are administered by the Ordinary. 
 
 Ecclesiastical courts pronounce on the validity of 
 testaments and legacies. 
 
206 APPENDIX. 
 
 3. From Edward I. to Richard III. (12721483). 
 
 Heal Property. 
 
 Freeholds are made alienable inter vivos ; but sub- 
 infeudation is put an end to by Quid Emptores 
 (temp. Edw. I.). 
 
 Entails are established by the Statute De Dora's 
 (temp, Edw. I.); but the courts in Taltarum's Case 
 (temp. Edw. IV.) decide in favour of common re- 
 coveries as a means of barring entails. 
 
 Copyholders gain security of tenure, and no longer 
 hold at the will of the lord. 
 
 Various slight changes take place, e.g., the writ of 
 waste is given against limited owners. 
 
 4. From Henry VII. to Elizabeth (14851603). 
 
 Eeal Property. 
 
 Statute of Uses (temp. Hen. VIII.) was passed to 
 avoid uses of land; but the main object of the 
 statute was defeated by the decision in Tyrell's Case, 
 and the trust came into force instead of the use. 
 
 Modern conveyancing dates from the Statute of Uses. 
 
 Wills of land are permitted Statute of Wills (temp. 
 Hen. VIII.). 
 
 5. From James I. to James II. (1603 1688). 
 
 Heal Property. 
 Tenure by knight-service abolished, and the land held 
 
 in free and common socage. 
 
 Conveyances of freeholds to be evidenced by writing. 
 Leases for over three years to be in writing. 
 Wills of land to be in writing, signed by testator and 
 
 attested by witnesses. 
 Personal Property. 
 
 Statute of Distributions settled the succession to 
 intestates' personalty. 
 
 6. From William and Mary to the End of Lord Eldon's 
 
 Chancellorship (16881827). 
 
 Eeal Property. 
 
 The first Yorkshire Eegistry Acts are passed. 
 The Mortmain Act is passed, allowing conveyances in 
 mortmain, inter vivos, under certain restrictions. 
 
APPENDIX. 207 
 
 The law of distress is altered by 11 Geo. II., which 
 gives landlord the right to sell the goods distrained 
 upon and to follow goods improperly removed. 
 
 The law regarding wills of copyholds is altered. 
 Personal Property. 
 
 A new kind of property is created by the Copyright 
 Act, 1709. 
 
 7. From George IY. to the Present Day (18271921). 
 
 Keal Property. 
 
 The law of conveyancing simplified. 
 
 Fines and recoveries abolished. 
 
 Law of dower amended by giving the wife dower out 
 
 of equitable as well as legal estates, but only in lands 
 
 to which the husband is entitled at death, as to 
 
 which he dies intestate. 
 Law of prescription simplified. 
 Alteration of the rules of descent. 
 Feoffment is practically abolished, and deed of grant 
 
 substituted. 
 
 Law of wills is codified and amended. 
 Married Women's Property Act, 1882. 
 The Conveyancing and Settled Land Acts. 
 
( 209 ) 
 
 INDEX. 
 
 PAGE 
 
 Accompt, writ of 28 
 
 Actions on the case 44-47 
 
 Actions, personal 27-28 
 
 Acton Burnel, Statute of, provision for statutes merchant 47 
 
 Administration of justice Norman period 16 
 
 Administration of Justice Act, 1920 151 
 
 Admiralty Court 188 
 
 Aids 194 
 
 Anglo-Saxon Courts 2 
 
 Appeal, Court of, founded 157 
 
 Appeal, Court of Criminal 138, 182 
 
 Appeal of felony 31 
 
 Archdeacon's Court 186 
 
 Arches, Court of 187 
 
 Assize of Clarendon, regulating justices in Eyre 17 
 
 Assize of darrein presentment 25 
 
 Assize of mort d 'ancestor 26 
 
 Assize of Northampton 26 
 
 Assize of novel disseisin 26 
 
 Asswmpsit, action of 75 
 
 Attainder 113 
 
 Bail 23, 114 
 
 Bailment, law of 106 
 
 Bankruptcy, rise of law of 68 
 
 Courts of, modern 155 
 
 law of 109, 134 
 
 Benefit of clergy 113, 135 
 
 Bentham's comments on defects in English law... 126, 137, 145 
 
 S.L.H. 14 
 
210 
 
 INDEX. 
 
 PAGE 
 
 Bill of Middlesex and writ of latitat 169 
 
 Bills in Chancery 55, 97 
 
 Blood feud 9 
 
 Bocland 5, 190, 191 
 
 B6t 8, 9 
 
 Brougham's (Lord) efforts at legal reform 126-7 
 
 BusheU's Case . 99 
 
 Castleward 192 
 
 Central Criminal Court 181 
 
 Chancellor, growth of the office 51 
 
 Chancery, Court of 51, 92, 172 
 
 established 51, 72, 176 
 
 growth of, during Stuart period 92 
 
 Charters of conveyance 5, 83 
 
 Circuits of the judges 50 
 
 Clarendon, assize of, regulating justices in Eyre 17 
 
 Constitutions of, regulating Ecclesiastical Courts ... 18 
 
 Coke and Ellesmere, contest between 93 
 
 Commissioners of assize 50 
 
 Common Law Procedure Acts 146-149 
 
 Common Pleas, Court of 165 
 
 Companies Acts, the 132 
 
 Compurgation 7 
 
 Consistory Courts, the 187 
 
 Contract, the law of simple 45 
 
 Conversion, the action of trover and 77 
 
 Conveyances 16 
 
 charters of 5, 83 
 
 Conveyancing Acts, the 129 
 
 Copyholds 42, 129 
 
 wills of 105 
 
 Copyright Act, 1709, the 105 
 
 ,, 1911, the 105 
 
 Cornage 193 
 
 County Court, the ancient 2, 186 
 
 County Courts, the modern 152 
 
INDEX. 211 
 
 PAGE 
 
 Court baron 185 
 
 Court of Arches . 187 
 
 Court of Chancery. See Chancery. 
 
 Court of Criminal Appeal 182 
 
 Courts, 
 
 Anglo-Saxon 2, 3, 163 
 
 fusion of, by Judicature Act 151 
 
 Norman 16-19, 163 
 
 rise of the Common Law 17, 18, 163-170 
 
 Covenant, action of 28 
 
 Crime and tort, distinction between, early 23 
 
 Criminal appeals 182-184 
 
 Criminal law 3, 21, 88, 113, 135 
 
 Criminal Law Consolidation Acts 136 
 
 Curtesy 6, 14 
 
 Damein presentment, the assize of 26 
 
 Debt, action of 27 
 
 imprisonment for 48 
 
 lands liable for 44 
 
 De Donis, the Statute 38 
 
 Deeds, registration of, in Yorkshire and Middlesex 104 
 
 De homine replegiando, writ 22 
 
 Delegates, Court of 188 
 
 De Odio et Atid, writ 22 
 
 Detinue, action of 27 
 
 De Viris Eeligiosis, the Statute 41 
 
 Discovery 56, 148 
 
 Dispensing power, the 200 
 
 Distress, the law of 13 
 
 Statute of 11 Geo. II. relating to 104 
 
 Distributions, the Statute of 83 
 
 Divorce Court, the 154 
 
 Dower 6, 13 
 
 Dower Act, 1833 128 
 
 Ecclesiastical and civil jurisdictions separated 18 
 
 Ecclesiastical Courts ., i 186-188 
 
212 INDEX. 
 
 PAGE 
 
 Ejectment, action of 76, 86, 148 
 
 Elegit, writ of 44 
 
 Ellesmere and Coke, contest between 93 
 
 Entry, writ of 25 
 
 Equity, development of 92, 110, 132 
 
 Estates tail 38 
 
 Evidence, amendments in the law of (1827-1921) 142 
 
 Exchequer, appeals from 74 
 
 Exchequer, the Court of 164, 168 
 
 Exchequer Chamber, the Court of 74, 171 
 
 Fictions of the Courts to extend jurisdiction 168 et seq. 
 
 Fines and recoveries 38 
 
 abolition of 128 
 
 Folk land 190 
 
 Forest laws, the 21 
 
 Forfeiture of felon's property 113 
 
 Fox's Libel Act 121 
 
 Frank pledge 3 
 
 Fraud, statutes to prevent (temp. Eliz.) 69 
 
 Frauds, the Statute of 87 
 
 Free tenure 11 
 
 Gaming and wagering 109 
 
 Gaol delivery, commission of 50 
 
 Gloucester, Statute of, writ of waste extended by 41 
 
 Grand jury 32 
 
 Grand serjeanty 193 
 
 Habeas Corpus, writ of 23, 90, 114 
 
 Act, 1679 90 
 
 Act, 1816 114 
 
 High Commission Court 73 
 
 High Court of Justice, the 156 
 
 House of Lords, claim to original jurisdiction 100 
 
 appeals in equity to 100 
 
 changes in, by Appellate Jurisdiction Act 158 
 
INDEX 213 
 
 PAGE 
 
 Hundred Court 185 
 
 Hundred Moot ., 2 
 
 Indentures 5 
 
 Indictments in writing 49 
 
 alteration in form of 138-9 
 
 amendments in, allowed 138 
 
 Inheritance Act, 1833 128 
 
 Injunctions 56 
 
 Inquests the ancestor of trial by jury 33 
 
 International law 108, 132 
 
 Interrogatories 56 
 
 Joint stock companies 132 
 
 Judicature Acts 149, 151 
 
 Juries 3, 34-36, 103, 150 
 
 in civil cases 36, 150 
 
 in criminal cases 35 
 
 fining of, up toBushell's Case 103 
 
 functions of, in early times 36 
 
 women qualified to serve on 151 
 
 Justices in Eyre established 17 
 
 Justices of the peace 57, 123 
 
 appeals from, to King's Bench 59 
 
 King's Bench, appeals from 74 
 
 Court of 166-8, 169-171 
 
 King's Peace 6, 21, 197-200 
 
 Knight-service tenure 192 
 
 Land, alienation of, and statute Quid Emptores 40 
 
 Land laws, Saxon 4, 5, 190 
 
 Latitat, writ of, form of 170 
 
 Law and equity, fusion of 151 
 
 Leaseholds in early times 26 
 
 Leases to be in writing 83 
 
214 INDEX. 
 
 PAGB 
 
 Libel, 
 
 changes made by Lord Campbell 's Act 140 
 
 developments in law of (1688-1827) 118 
 
 Libel Amendment Act, 1888 141 
 
 Newspaper Libel Act, 1881 141 
 
 Limitation Act, real property 129 
 
 Livery of seisin 6 
 
 feoffment with, superseded 129 
 
 Magna Charta 15, 17, 19, 23, 26, 31 
 
 Main prize 22 
 
 Marriage of feudal ward 194 
 
 Married women, separate property of 130 
 
 Master of the Bolls, office of 180 
 
 Masters in Chancery 180 
 
 Merchant, the Law 47, 87, 134 
 
 Merchants, Statute of 47 
 
 Military tenure 12, 192-195 
 
 Monopolies, Statute of, begins modern patent law 85 
 
 Mori d' ancestor, assize of 25, 26 
 
 Mortgages 177 
 
 Mortmain 16, 40 
 
 Mortmain Act (1736) 104 
 
 Nisi Prius, writ of 51 
 
 Northampton, assize of 26 
 
 Novel disseisin, assize of : 25, 26 
 
 Ordeal, trial by 7 
 
 abolition of, by Lateran Council 33 
 
 Outlawry amongst the Anglo-Saxons 9 
 
 Oxford's Case, Earl of, in the Chancery 94 
 
 Oyer and terminer, commission of 50 
 
 Patents, law of 85 
 
 Peculiars, Court of 188 
 
 Personal property, succession ab intestato 83 
 
 actions 27 
 
INDEX. 215 
 
 PAGB 
 
 Petitions in Chancery 55 
 
 Petit serjeanty 193 
 
 Petty jury, when established 34 
 
 Piepbudre, Court of 184 
 
 Pleadings, 
 
 certainty of criminal 49 
 
 reforms in, by C. L. P. Acts 147 
 
 to be in English 110 
 
 written, established, in place of verbal 49 
 
 Pleas of the Crown 24 
 
 Prerogative Courts 187 
 
 Prescription, in real actions 43 
 
 Act, 1832 128 
 
 Privy Council as a Court 71 
 
 Judicial Committee of 159 
 
 Probate Court 154 
 
 Procedure, 
 
 common law 20, 29-32, 45, 74 et seq., 86, 145 et seq. 
 
 Common Law Procedure Acts 146 
 
 criminal 22, 32, 49, 88, 113, 138 et seq. 
 
 since the Judicature Acts 149 
 
 Property, ' ' real and personal, ' ' origin of term 26 
 
 Quarter sessions 123 
 
 Quia Emptores, Statute of 40 
 
 Quo Minus, writ of 169 
 
 Real actions 25-27 
 
 abolition of 147 
 
 Real property, law of 11-15, 38-44, 63-68, 82-3, 104, 127 
 
 Recoveries. See Fines and Recoveries. 
 
 Reliefs, feudal 194 
 
 ''Restraint on anticipation," doctrine of, established ... 112 
 
 Riot Act, 1714 117 
 
 Scutage 192 
 
 Sedition .. 48, 89, 118 
 
216 INDEX. 
 
 PAGE 
 
 Seditious libel 89, 118 
 
 Seditious words 90 
 
 Settled Land Acts 129 
 
 Sheriffs, Statute 3 Hen. VII. relating to 70 
 
 Sheriff's tourn : 2, 22 
 
 Shiremoot 2 
 
 Socage 5, 12, 195 
 
 Star Chamber, Court of 69 
 
 civil jurisdiction of 72 
 
 decline of 72 
 
 Statute of merchants 47 
 
 Subinfeudation 11, 41, 191 
 
 Subpoena, writ of 53 
 
 Succession to personalty 15, 83 
 
 to realty 14, 128 
 
 Summaries, 
 
 Anglo-Saxon period 10 
 
 Will, to Hen. III. 35, 36 
 
 Edw. I. toEich. Ill 60, 61 
 
 Hen. VII. toEliz 79, 80 
 
 James I. to James II 101, 102 
 
 Will & Mary to 1827 124, 125 
 
 Geo. IV. to 1921 . . 160-2 
 
 TaUarum's Case 39 
 
 Tenants in capite 191 
 
 Tenure, history of 190 et seq . 
 
 the theory of, introduced 11 
 
 by knight-service 12, 192 
 
 abolition of 83 
 
 in socage 12, 83, 195 
 
 Treason 4, 21, 48, 72, 88, 116, 140 
 
 counsel allowed to the accused in trials for 115 
 
 statutory changes in procedure 115 
 
 Treason Felony Act, 1848, the 140 
 
 Trespass, action of 28, 29, 45 
 
 Trespass on the case 44 
 
INDEX. 217 
 
 PAGE 
 
 Trial, modes of, Norman period 30 
 
 Saxon period 7 
 
 by jury 3, 32-35 
 
 in criminal cases 33 
 
 at Nisi Prius 75 
 
 by a judge alone 149, 150 
 
 Trinoda necessitas 5 
 
 Trover, action of 77 
 
 Trusts 66 
 
 precatory, modern limitations on 130 
 
 Tun-moot 2 
 
 TyrrelVs Case 65 
 
 Uses 54, 63, 67 
 
 Statute of 63 
 
 summary of 63 
 
 Villeinage 12 
 
 Voluntary conveyances, statutes relating to 69 
 
 Wager of battle 31 
 
 in civil cases 32 
 
 Wager of law 8 
 
 Ward and Liveries, the Court of 73, 83 
 
 Wardship 193 
 
 Waste, writ of 41 
 
 Wer, the 9 
 
 Westminster II., Statute of 38 
 
 Wills, 
 
 of copyholds 105 
 
 of land 14, 67, 83, 129 
 
 of personalty 14, 129 
 
 Statute of 67 
 
 Act, 1837 129 
 
 Wite 9 
 
 S.L.H. 15 
 
218 INDEX 
 
 PAGE 
 
 Writ, 
 
 procedure by 19, 29 
 
 of summons , substituted for original writ 146 
 
 de odio et atid 22 
 
 de homine replegiando 23 
 
 of entry 26 
 
 of error 171, 182 
 
 of habeas corpus 23, 90, 114 
 
 of main prize 22 
 
 of right 25 
 
 of trespass 29 
 
 of waste 41 
 
 in consimili casu 44-7 
 
 of aocompt 29 
 
 of nisi prius 51 
 
 of quo minus 169 
 
 of latitat . 169 
 
 The Eastern Press, Ltd., London and Reading. 
 
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