UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY REEVES' HISTORY OF THE ENGLISH LAW. EDITED BY W. F. FINLASON. YV REP]VKS' iSfe^ HISTORY OF THE ENGLISH LAW, TIME OF THE KOMANS TO THE END UF TUE KEIGN OF ELIZABETH. A NEW EDITION, IN THREE VOLUMES. WITH XUMEROUS NOTES, AND AN INTllODUCTORY DISSERTATION ON THE XATURE AND USE OF LEGAL IHSTORY, THE KLSE AND PROGRESS OF OUR LAWS, AND THE INFLUENCE OF THE ROMAN LAW IN THE FORMATION OF OUR OWN. i;v W. K. FINLASON, Esq., BAKRISTER-AT-LA\V. VOL. L FROM THE TIME OF THE ROMANS TO THE END oF THE REICxX OF HENRY IF I. LONDON: REEVES .^- TURNER, CHANCERY LANE. 18G9. R^ \j,lj ^' "^ nh \th EDINBURGH l PFIXTDD P.V EALLANTYNE AND COMPANY, PAUL'S WORK. THE RI«HT HON. Sill JOHN TAYLOR COLERIDGE, OJiE (»F THE .ILiDGES OF THE COURT OF QUEEN'S BENCH, WHO, BKFORK HIS KLEVATTON TO THE OFFICE OF JUDGE, HAD ACQriRED KEPUTATION AS A jrUIST, BY HIS VALUABLE EDITION OF THE COMMENTARIES ON THE LAWS OF ENGLAND, . THIS EDITIOX OF THE HISTORY OF THE LAWS OF ENGLAND 3is ©EtJtcatcti (WITH HIS KIND PEHMTSSION) IN TESTIMONY OF FROFOtlND VENERATION FOR THOSE fiREAT GIFTS, AND EMINENT ACQUIREMENTS BY WHICH, DURING HIS DISTINGUISHED CAREER, H E ADORNED THE .1 V D I CI A I. B E N C II, AND AnnKP NF.W LUSTRE TO A NAME AND FAMILY ALRF.AHY ILLI'STKIOUS. CONTENTS OF THE FIRST VOLUME. X V Author's Pukface to the First Edition, .... i.\* Preface to the Present Edition, ..... xv* Introduction to the Pke.sent Edition. .... i CHAPTEU I. SAXONS. The La\v.'< of tho Saxons — Tliaiiilaiid aiul llevcland — Freemen — Slaves — The Toiirn — County Court — Other Inferior Courts — The Wittenagemote — Nature of Landed Property — Method of Conveyance — Decennarie.s — Criminal Law — Were — Murder — Larceny- — Deadly Feud.s — Sanctuary — Ordeal — Trials in Civil Suits — Alfred's Domboc — Compilation made by Edward the Confessor — Saxon Laws, .... 1-52 CHAPTER II. WILLIAM THE CONQUEROR TO HENRY II. The Conquest — Saxon Laws Confirmed — The Laws of William the Conqueror — Trial by Duel in Criminal Que.stion.s — Establishment of Tenures — Nature of Tenures — Different Kinds of Tenures— Villenage — Of Escuage — Consequences of Tenure — Of Primogeniture — Of Alienation — Of Judi- cature — 'The Curia Regis — Justices Itineiant— The Bench — The Chan- cery — Judicature of the Council — Of the Spiritual Court — Of the Civil and Canon Law — Doctrines of the Canon Law — Piobate of Wills — Consti- tutions of Clarendon — Of Trial liy Duel in Civil Questions — Of Trial by Jury— By tho Assize— Of Deeds— A Feoffment- A Fine— Of Writs— Of Records, . . . . . . . . 53-148 CHAPTER III. HENRY IT. Of Villeins — Dower— Alienation — " Nemo potest esse Halves et Dominus" — Oi Descent — Of Testaments- Of Wardship — Marriage— Of Ba.stardy — Usurers — Of Escheat— Maritasium — Homage — Relief — Aids — Adminis- tration of Ju.stice— A Writ of Right— Es.soin.s— Of Summons— Of Attach- ment— Coimting upon the Writ— The Duel— The Assize— Vouching to Warranty— Writ of Right of Advin\son— Of Prohibition to the Ecclesias- tical Court— The Writ de Nativis— A^'rit of iiight of Dower- Dower undo Nihil, ........ 149-201 CHAPTER IV. HENRY II. TO JuHN. ->> Of Fines — Of Records— Writ de Homagio Rccipieiido — Purpre.sture — De Debitis Laicorum— Of Sureties— Mortgages— Debts ex empto et vendito —Of Attoruies— Writ of Right in the Lord's Court— Of Writs of Jus- tices-- Writs of Replevin — and of Prohibition— Of Recognitions— Assisa Mortis Antecessoi-is — Exceptions to the Assize— Assisa UltiuKe Pnusen- *> + i'>nis— Assisa Novic Disseisins— Of Terms and Vacations— Tlic Criminal BOBlib Vlir' CONTENTS. Law— Of Abjuiatiou — Mode of Prosecution — Forfeiture — Homicide — Rape— Proceeding before Justices Itinerant — The King and Government — The Charters — The Characters of these Kings as Legislators — Laws of William the Conqueror — Of the Statutes — Domesday Book — Glanville — Miscellaneous Facts, ...... 202-259 CHAPTER V. HliNRY III. Magna Charta — Tenures — Alienation — Mortmain — Communia Placita non sequantur Curiam nostram — Justices of Assize — Amercements — Nullus liber Homo, &c.— Prrecipe in Capite — Sheriff's Criminal Judicature — The Writ de Odio et Atia — Charta de Foresta — The Judicature of the Forest — Punishments — Charters Confirmed — Statutum Hibernise — Statute of Merton — Of Commons — Of Special Bastardy — Ranks of Persons — Of Villeuage — Of Free Services — Of Serjeanty — Scutagium — Homage and Fealty — Of Wardship and Marriage — Of Gifts of Land — By whom— To whom — Of Simple Gifts — Of Conditional Gifts — Estates by the Courtesy — Of Reversions — Gifts ad Terminum • — Livery — Rights — Testaments — Ecclesiastical Jurisdiction therein — Of Descent — De Partu Supposito — Of Partition— Dower, ....... 260-335 CHAPTER VI. HENKY III. Of Actions — Of Courts — Writs — Of Disseisin — Assize of Novel Disseisin — Form of the Writ — Proceeding thereon — Of the Verdict — Exceptions to the Assize — Assisa vertitur in Juratam — Quare ejecit iufra Terminum— Assize of Common — Of Nuisance — Assisa Ultimo Preesentationis — Excep- tions thereto — Of Quare Impedit — Quare non Permittat — Assisa Mortis Antecessoris — Vouching of Warrantor — Where this Writ would lie — Writ de Consanguiuitate — Quod Permittat— Assisa Utrum — Of Convictions — and Certificates — Of different Trials — Dower unde Nihil — Writ of Right of Dower— Of Waste— Of Writs of Entrj^— Difierent Kinds thereof, 336-395 CHAPTER VIL UEXRY III. Writ of Right in the Lord's Court — Process in Real Actions — Summons — Of Essoins — De Malo Lecti — Defaults — Magnum Cape — Warrant de Servitio Regis — Parvum Cape — Writ of Quo Warranto — The Count — Tender of the Demi-Mark — Defence — Of Granting a View — Vouching to Warranty — Nature of Warranty — Proof of Charters — Warrantia Chartse — Of Plead- ing — Of Prohibitions — Attachment sur Prohibition — Of Jurisdiction — Abatement of the Writ — Pleas to the Person — Of Bastardy — Writ to the Ordinary — Of Minority — Excommunication — Parceners — Pleas to the Action — Non Tenure — Majus Jus — Release — Fine and Non Claim — Of Personal Actions — Attachment— Execution of the Writ, . . 396-45S CHAPTER VIII. IIKNRY III. The Eyre— The Jury — Capitula Itineris — Of Lsese-Majesty — Who to Judge tliereof — Of Homicide — The Office of the Coroners — Imprisonment and ]3ail — Of Outlawry — At the King's Suit — Reversal of Outlawry — Of Murdrum— Tresentment of Englishery — Abjuration — Ordeal goes out of Use The Duel — Appeal of Homicide — Exceptions thereto — Proceeding per Famam Patritc — Of other Appeals — Of Theft — Of Provors — Of Vetitum Namium — Dies Communes in Banco — Statute of Marlbridge — Distresses Writ of Entry in the Post — Legatine and Provincial Constitutions — The King and Government — Statutes — Bracton — Miscellaneous Facts, 459-533 AUTHOR'S PREFACE TO THE FIRST EDITION. The History which T now presume to offer to the profession of tlie law, is an attempt to investigate and discover the first principles of that complicated system which we are daily discussing («). It has happened to the law, as to other productions of human in- vention, particularly those which are closely connected with the transactions of mankind, that a series of years has gradually wrought such changes as to render many parts of it obsolete ; so that the jurisprudence of one age has become the object of mere historic remembrance in another. Of the numerous volumes that compose a lawyer's library, how many are consigned to oblivion by the revolutions in opinions and practice ! — and what a small part of those which are still considered as in use, is necessary for the purposes of common business ! Notwithstanding, therefore, the multitude of books, the researches of a lawyer are confined to writers of a certain period. According to the present course of study, very few indeed look further than Coke and Plowden. Upon the same scale of inquiry, the Year-Books are considered rather in the light of antiquities ; and Glanville, Bracton, and Bleta as no longer a part of our law. It is in such a state of our jurisprudence that a history of the causes and steps by which these revolutions in legal learning have been effected, becomes curious and useful. But, notwithstanding the inquisitive spirit of the present age has given birth to histories of various sciences, we have nothing of this kind upon our law, except Sir Matthew Hale's History of the Common Lmu, published from a posthumous manuscript at the beginning of the present century. There have not, however, been wanting historical dis- courses, which have incidentally, and in a popular way, examined the progress of certain branches of the law, and during certain (a) The autlior, no doubt, meant the origin of those principles, his being a work, not on law, but legal history. It may be doubted, however, whether he was suffi- ciently alive to this distinction, and whether he did, to his mind it did not appear that the statement of the law, as it stood at successive periods in our history — was not all that was iuvcjlved in a histt>ry of our law. But it is conceived that, to satisfy the requu'emeuts of legal history, it is necessary to trace the whole course and progress of our laws, so as to show their gradual development, and the causes which led to the changes to be observed in them. And further, that the history must be traced back to the earliest period at which civilised law can have had its origin. X* PREFACE TO THE FIRST EDITION. periods ; such as those of Bacon, Sullivan, Dalrymple, Henry, and others. Sir Matthew Hale, as a writer upon English law, possesses a reputation which can neither be increased nor diminished by any- thing that may be said of his History. We may therefore freely observe, that it is only an imperfect sketch, containing nothing very important nor very new. What seemed most to be expected, namely, an account of the changes made in the rules and maxims of the law, is very lightly touched (a). In short, the early period to which this work is confined, and the cursory way in which that period is treated, scarcely serve to give a taste of what a history of the law might be. Sir William Blackstone, though in a smaller compass, has given a plan of a much better history than the former ; and if the one excited a wish for something more complete, the other seems to have traced out a scheme upon which it might be executed. It was the chapter at the end of the Commentaries which persuaded me of the utility of such a work, if filled up with some minuteness upon the outline there drawn. It seemed, that after a perusal of that excellent performance, the student's curiosity is naturally led to inquire further into the origin of the law, with its progress to the state at which it is now arrived. The plan on which I have pursued this attempt at a History of our Law is wholly new. I found that modern writers, in discours- ing of the ancient law, were too apt to speak in modern terms, and generally with a reference to some modern usage. Hence it fol- lowed, that what they adduced was too often distorted and misre- presented, with a view of displaying, and accounting for, certain coincidences in the law at different periods. As this had a ten- dency to produce very great mistakes, it appeared to me that, in order to have a right conception of our old jurisprudence, it would be necessary to forget, for a while, every alteration which had been made since, to enter upon it with a mind wholly un- prejudiced, and to peruse it with the same attention that is be- stowed on a system of modern law. The law of the time would then be learned in the language of the time, untinctured with new opinions ; and when that was clearly understood, the alterations made therein in subsequent periods might be deduced, and exhi- (a) It is conceived that the author very much undervaUied Lord Hale's history, and that, so far as it went, it far more resembled a real history of law than his own. It exhibits far more of the cause and progress of our laws, and gives a more just and comprehensive view of the materials whence our laws were derived. Hale's account, for instance, of the true measTire and nature of the effect of the Conquest upon our laws and institutions, Ls infinitely more complete and more correct than our author's, and therefore is embodied in the notes to the text. So Hale distinguishes the reigns between the Conquest and the Great Charter, especially the important reigns of Henry I. and Henry II., each of which makes an era in the history of our law ; whereas the author treats the whole of that period together, and hence fails to give a clear idea of the course of our legal histoiy during that important period. The present Editor has made Lord Hale his model of what a legal history should be. rHEFACE TO THE FIRST EDITION. XI* bitcd to the mind of a modern jurist in the true colours in which they appeared to persons who lived in those respective periods. Upon the same reasoning, it appeared to me, that if our statutes, and the interpretation of them, with the variations that have happened in the maxims, rules, and doctrines of the law, were pre- sented to the reader in the order in which they successively origin- ated ; such a history, from the beginning of our earliest memorials down to the present time, would not only convey a just and com- plete account of our whole law as it stands at this day, but place many parts of it in a new and more advantageous light than could be derived from any institutional system ; in proi)ortion as an arrangement conformable with the nature of the subject surpasses one that is merely artificial The following volumes are written upon this idea ; and being, in that view, an introductory work, they will, I trust, be as intelligible to a person unacquainted with law books as to those of the profes- sion. It was partly with this design that I have contented myself with a simple narrative, making few allusions to what the law be- came in later times, but leaving that to be mentioned in its proper placa Many inferences and discussions which seem to be sug- gested by our ancient laws have not entirely escaped me ; but are reserved for a place to which, agreeably with the plan of this His- tory, I thought them better adapted. Every one who looks into our old law% feels a strong propensity for remarking on the changes it has since undergone ; but w^hen the several steps which led to those changes are traced in a continued narrative down to the present time, such observations would be premature, unnecessary, and irksome. My object being jurisprudence, and not antiquities, I have con- fined my researches to certain printed books of established reputa- tion and authority, where alone I could hope to find the juridical history of the times in which they were written (a). It may not, per- liaps, be unsatisfactory to the reader, who knows wdiat respect is due to the venerable remains of our ancient law, to be told that the whole of Glanville, and what seemed to be the most interest- ing part of BKACTOiSr, is incorporated into this work. A few observations may be necessary to prevent the reader being disappointed in that part of the following work which treats of the (a) The author no doubt meant the materials for the History ; but, as already t)bserved, there is great reason to believe that he supposed the mere statement of the law, as it stood at successive periods, was legal history. For the authors whom he names did no more than state the law at the times at which they wrote, and the author simply copies them into his pages. That, it is manifest, is not of itself history, however valuable maybe the materials theyafl'orded for historj'. The author unhappily failed to appreciate a work more illustrative of our whole legal history for the period from the Saxon monarchy to the Great Charter, than any other work extant, and that is the Mirror of Justice — a work of which large portions were, it i.s manifest, written in the time of Alfred, and which was re-composed in the time of Edward I. Lord Coke thought very highly of it ; but our author failed to draw much information from it as to the course of our legal history. So of the Leges llenrici Primi and Britton. In the present edition these deficiencies are supplied as far as possible in notes. Xii* PKEFACE TO THE FIRST EDITION. statutes. The old statutes have long been considered in a remote point of view, being rarely taken into the course of a student's reading, but referred to as occasion requires, and are then under- stood by the help of notes and commentaries. It might be expected that a History of the Law should furnish more notes and more commentaries upon this subject, as the only known means of illustration ; on the contrary, the laws of Henry III. and Edward I. are here very little more than clearly stated, in a language somewhat more readable, if I may use the expression, than that of the Statute-book. What was before said upon the general design of the work will, I hope, satisfy the reader that nothing further was requisite on this subject. As an account of the revolutions in our law antecedent to the making of those statutes must, altogether, contain an account of the law as it stood when they were made, it foUows that the reader enters upon them with a previous information, which will enable him to comprehend their im2Dort, on the bare statement of their contents. As to the opinions and principles that were founded on those statutes in after ages, to take any notice of them would not only exceed the plan of the work, but very often antici- pate the materials which are to contribute towards the subsequent parts of the History. The text of our old statutes was translated in the time of Henry VIII. The ear of a lawyer, by long use and frequent quotation, has been so familiarised to the language of this translation, that it has obtained in some measure the credit of an orig;inal. Conform- ably with the general deference paid to this translation, I have mostly followed the words of it, except where I found it deviated from the text, or the matter required to be treated more closely or more paraphrastically. There is one point of juridical history which lias been greatly misconceived by many. It has been apprehended that much light might be thrown on our statutes by the civil history of the times in which they were made ; but it will be found on inquiry that these expectations are rarely satisfied (a). The lay historians, like (a) Here, it is obvious, the author can hardly have fully appreciated the bearing of history upon law. No doubt it rarely happens that we have any account of the actual debates or discussions upon a law, and it is surprising, for instance, what little attention the contemporary chroniclers seem to have given to the Great Charter. But it was not the less clear that the only true exposition of that or any other ancient law is to be found in the history of the times immediately preceding it. As to modern law, indeed, what the author says may be true, that the only proper exposi- tion is to be sought in the previous laws on the same subject ; but that is because there is always a body of previous law, which affords the most apt exposition of the new law. It is otherwise with ancient laws, which are enacted cle novo, and are very general, and of which the only possible exposition is to be found in the facts of contemporary history. Had the author read the chronicles of the times previous to the Great Charter, he would have observed this ; and not failed to apply the maxim of Montesquieu, " II faut iclairer les lois par Vhistoire, et Vhistoire par les his." To fail to appreciate the bearing of history upon law, is to faU to reaUsethe true idea of hiniori/, as applied to law. PREFACE TO THE FIRST EDITION. XI ir the body of the people, were as uncouccriicd in the great revolu- tions of legal learning in those days as in ours ; and we now see a statute for enclosing a common, or erecting a workhouse, make no small figure in tlie debates of parliament ; while an act for the amendment of the law, in the most material instances, slides through in silence. Yet the latter would become an important fact to the juridical historian, while the former was passed by nnnoticed. I believe little is to be acquired by travelling out of the record — I mean out of the statutes and Year-Books, the parliament-rolls, and Mw-tracts. The following History, to the end of Edward I., was published in one volume in quarto, in March 1783 ; the remainder, as far as the end of Henry VII., in March 1784. These two volumes have undergone a revision, and have received some considerable additions. I have also subjoined the reigns of Henry YIII., Edward YI., and Queen Mary, or, as it is more properly styled by lawyers, Philip and Mary (a). This brings ns to the close of that period, which appears to be almost wholly abandoned to the researches of the juridical historian. We have passed the times of the Year-Books and of their appendages, Eitzherbert and Brooke, the manuals of practisers in former times; we have even touched on those materials, to which the practisers of the present day do not disdain to owe obligations. Dyer and Plowden stand among the earliest of those authorities that are vouched in Bacon, in Viuer, and in Comyns, who rarely refer to any antecedent to the reign of Elizabeth (6). At this juncture in our legal annals, between the law of former days and that of the present, we may be permitted to pause for a while. A new order of things seems to commence with the reign of Elizabeth, which strikes the imagination as a favourable point of time for resuming this historical inquiry afresh. In pursuing the changes in our laws thus far, it is hoped, that if nothing is added to the stock of professional information, something is done towards giving it such illustration and novelty as may assist the early inquiries of the student. The investigation here made into the origin of English tenures, the law of real property, the nature of writs, and the ancient and more simple practice of {a) The author's first work stopped there ; but he subsequently, after a long interval, added a fifth volume on the reign of Elizabeth, and he never went farther. He died, indeed, soon afterwards. (6) And therefore, as a history of our older law, the work, as far as it went, was a complete one ; for undoubtedly, at the end of the reign of Elizabeth our laws had reaclied a point of development at which they assumed an entirely new character, and started, so to speak, in a course of improvement, interrupted no doubt by the troubles of the Rebellion and the Revolution, but resumed and continued from the Revolution to the present period, from the reign of Anne to the reign of Victoria. The present work displays the origin of the laws thus developed, and their progress up to that period when their character was about to alter altogether, and assume the modern aspect. The work, therefore, is, in that sense, a complete work, as a history of the law to the end of the reign of Elizabeth ; that is to say, a history of our older law. XIV* PREFACE TO THE FIKST EDITION. real actions, may perhaps facilitate the student's passage from Blac1>: stone's Commentaries to Coke upon Littleton, and better qualify him to consider the many points of ancient law which are discussed in that learned work. J. E. January 25, 1787 (a). («) In 1814 a fifth volume was published, without any further preface, bringing the law down to the end of the reign of Elizabeth : and that completes the present work. As originally published, it was to the reign of Elizabeth, — that is, to its commence- nienL The additional volume carried it to the end of that long reign, and so com- pleted the history of our older law. At the end of that reign came the rise or dawn of modern law. At that era, the feudal system had become obsolete ; villenage had disappeared (the last case of it occurred in that reign) ; the trial by battle was dis- used (the last actual instance of it also occurred in that reign) ; the old real actions wei'e becoming superseded by the action of ejectment ; for the ancient cumbroiis remedies, actions on the case were substituted ; our judicature and procedure began to assume something of their modern form ; and altogether, a new era in our legal history commenced, which may be called the era of our modern law. A work or legal history, therefore, ending with the close of that reign, might well be deemed com- plete as a history of our older law. " With some exceptions," says our author, " it may be pronounced that the genei-al cast of learning, in the days of Queen Elizabeth, comes within the help of that kind of law which is now in use. The long period of this reign gave sufficient opjDortunity for the discussion of almost every legal question; and the learnmg of former times being laid ojjen to the world by the late publica- tions, the whole of the law seems to have undergone a reconsideration, as it were, and those parts which were then mostly in use were settled upon principle, and so delivered down to succeeding times. To us, who view things in the retrospect, there seems to arise a new order of things about this time, when the law took almost a new face. When we consider Queen Elizabeth's reign in this light, it becomes a very interesting period in the history of our jurisiDrudence. From hence the commence- ment of modern law may be dated" {Hist. Eny. Law, c. xxxv., jyost, vol. iii.) That reign, therefore, fitly terminates the history of the "old law," and thus the author's work was comj^lete. The reign of Elizabeth presents a junction between the old law and the modern. There is hardly any subject of the old law which did not either become obsolete in that reign, or was not superseded or modified by some statute of that reign — the basis of more modern legislation. Thus, the act 27 Eliz., as to the liability of the hundred for riots or robberies, founded on the ancient statute of hue and cry, became the basis of the modern act 8 Geo. II. c. svi. The acts of Elizabeth remedy faults or defects not substantial, as fileading or process became the basis of the act of Anne for the amendment of the law ; which, in its turn, afforded a founda- tion for our more recent reforms in common law procedure. There is, indeed, no part of our law, however ancient or obsolete, which has not some connection, how- ever remote, with the present. Thus, the ancient law as to the essoin de ultra mare shows that, at common law, a subject, although out of the realm, was liable to be sued in our courts — a principle affirmed also by the old statutes as to outlawry, and lately revived by the Common Law Procedure Act. Again, the statute 17 Edw. de jprcero'jativa Regis, is deemed the basis of the jurisdiction exercised in Chancery over idiots or lunatics (2 Inst. 14 ; Hume v. Burton, 1 Ridgioay P. C. 224; Lord Ely's case, ib. 519). The ancient writ of ael quod damnum formed the basis of the pro- cedure in the Highway Act, 13 Geo. III., and the substance of it is preserved (Davi- son V. Gill, 1 East, 76). These are only a few illustrations whence may be seen the advantage of the study of the legal history even of that older age of our law which may be deemed to have concluded with the reign of Elizabeth. The history of that age, therefore, appears to form in itself a complete work ; and with the history of the subsequent reigns, the history of modern law may be said to commence. It is the ambition and intention of the editor to continue the history to the present period. In the meantime, he has done his best in his notes to the last volume of the present work to bring the history of the law down to our own times. 11 PREFACE TO THE PRESENT EDITION. In presenting a new edition of " Pteeves' History of the English Law," the Editor desires briefly to explain the plan npon which it has been executed. In the first place, as the work was written the greater part of a century ago, since which time our ideas of legal history have much advanced, and our sources of information have been greatly enlarged, while the law has been so largely altered as to render the period covered by the history more remote and the law less applicable to the present than when the autlior wrote, the question arose whether it would not be necessary to re- write or remodel the work. On the whole, however, it has been thought better, for many reasons, to adhere to the author's text, and therefore it is preserved intact. But it has been necessary to insert a great number of notes, some of considerable length, in order to secure the advantages of later information and enlarged views of legal history. The principles which have governed the Editor have been, as far as possible, to exhibit the rise, the growth, and gradual progress of our laws and institutions ; and especially to trace them from their earliest origin. This appeared to render necessary an Introductory Essay on the prevalence of the Eoman law in this country, and on its influence in the formation of our own ; the more so since our author himself, who had not entered into that subject, had in one of his notes l indicated some sense of its importance ; and the great historian, Hallam, had distinctly suggested it.^ Our author had entirely passed over the long period of the Eoman occupation, during which the Eoman laws and insti- tutions were lirmly rooted and established here ; and he passed so cursorily over the Saxon period as not to have sliown how little our laws had derived from the barbarians, and how much they must have owed to the Eomans. It appeared, therefore, ^ Vide vol. i., c. ii., p. 53. - " Our common law may have indirectly received greater modification from the influence of Roman juri.sprudcnco than its professors were ready to acknowledge, or even than they knew. A full view of this siibject is still a desideratum in the his- tory of English law, which it would illustrate in a very interesting manner " {Middle Ages, c. viii.) XVI* PREFACE TO THE PRESENT EDITION. proper to introduce the present edition by an essay on that sub- ject; and, on the other hand, to supplement, in the notes, the account given by the author of the laws and institutions of the Saxon age. For the sake of convenience, it seemed desirable to mould the whole work into three volumes, and the course of our legal history, during the period covered by the work, seemed to point to a three- fold division, and also to indicate very clearly the points of time at which the division should be made. From the Saxon era to the end of the reign of Henry III. marked clearly one distinct period ; for with the accession of Edward L, as all our legal histo- rians consider, commenced a new era in our legal history. With the reign of Edward I., therefore, begins the second division of our older legal history, the subject of the second volume. This period properly extends to the accession of the Tudor dynasty, because then again began an entirely new era in our legal history, ending with the reign of Elizabeth, which, as already seen, closed the duration of our older law, and heralded the dawn of modern law. Although the author's text has been preserved, his arrangement required to be altered. He had blended different and important reigns. Thus he had dealt with the whole of the long period from the Conquest to the reign of John under tlie same head, so as not to mark the reigns of Henry I. and Henry II. ; and he had blended the two very distinct reigns of Henry VI. and Edward IV., and those, still more distinct, of Edward VI. and Mary. The Editor therefore, without having altered the text, has entitled some chapters differently, and, sometimes, transposed matter to the proper reign, so as to mark the distinctions between the more important eras ; and he has done his best to keep up in the notes the continuity of the progress of our laws, and to fill up any deficiencies in the history. With regard to the notes, the object has been to afford as much as possible of contem- 2)orary illustration or explanation (a) ; the cardinal principle kept in view being that laid down by the author, to endeavour to look at the laws and institutions of any age by the light of the ideas of that age, and not to fall into the error of considering ancient institu- tions by the light of modern ideas. (a) A distinguished jurist (Sir Roundell Palmer) has lately observed, in an address to law students, that our author was " valuable, though sometimes tedious," and it has been attempted, while illustrating the text, to render it more interesting and readable. INTRODUCTION TO THE PRESENT EDITION. In presenting a new Edition of this work, upon " the History of the English Law, from the time of the Saxons to the end of the Eeign of Elizabeth ; " — a work lirst published the better part of a century ago ; — it may be proper to explain the ideas and principles upon which it has been undertaken, and the views of legal hi.story upon which it has been supplemented or corrected ; and upon which it has also been thought necessary to introduce it by some observa- tions upon the Ilonian laws and institutions, and their influence upon the formation of our own. It seems obvious that, in any work on legal history, as it is im- portant, as far as possible, to trace laws and institutions to their real origin, however remote, it is necessary to go back to the period when regular laws and civilised institutions first existed in the country, because, however much its laws may have been (as in ours was certainly to a great extent the case) the growth of custom and usage, subject to change in course of time, yet it must be that the rise and growth of civilised customs and laws must have been mainly influenced and determined by the earliest civilised institu- tions existing in the country ; the primitive source whence they were in all probability originally derived. This must be more especially the case in a country which, as was the case with our own, was still in a state of barbarism, l cou- ^ That the Britons were ia a state of barbarism on the arrival of the Romans is clear from the pages of Caesar, de Bell. Gall., lib. iv., and Tacitus, in Vit. Agric., and it is idle and absurd to talk of their "laws." Montesquieu truly says : "Du temps des Romains, les peuples du nord de I'Europe vivaient sans arts, sans education, pres- que sans lois (De V Esprit des Lois, liv. xiv. c. 3) ; and he observes, " C'est le partage des terras qui grossit principalement le code civil ; chez les nations ou I'on n'aura pas fait ce partage, il y aura, tres peu de lois civiles. On pent appeler les institutions de ces peuples des moeurs plutot que des lois" (1. xviii. c. 13). Sir J. Mackintosh, in his history, describes the inhabitants of the country at the time of the arrival of the Romans as iu a state of barbarism. He points out that they grew no corn, and says a 11 INTRODUCTION TO THE PRESENT EDITION. querecl by a nation, like the Eonians, in possession of a most com- plete and comprehensive system of government, and was for cen- turies subject to their rule — a portion of the Eoman empire,^ living under the Eoman laws and institutions, and becoming first civilised under their influence. It was the peculiar boast of the Eoman emperors who first con- soEdated and codified the Eoman laws 2 that they governed the various provinces of their vast empire not merely by force, but by the influence of their rule, and that they not only subdued the bar- barians by their power, but civilised them by their law. It was a law, in its nature so comprehensive, and based upon right reason and general principle, that it was not the law of one state only, it was the law of nature and of nations,^ fitted by its " It is vain to inquire into forms of government prevalent among a people in so low a state of culture. The application of the terms which denote civilised institutions to the confused jumble of usages and traditions, which gradually acquire some ascen- dancy over savages, is a practice full of fallacy. It is an abuse of terms to bestow the name of government on such a state of society " (Hist. Eng. c. i.) ^ The empire was divided into dioceses, under vicars (representing the Praetorian prefect), and these into provinces, under presidents or proconsuls. One of the dio- ceses was Britain, and it was divided into five provinces. " Vicarius pro prsefecto prsetorio mittebatur in tractum vel dioecesim aliquam aliquot in se provincias conti- nentem. Dioecesis Thracias, &c. Fuit etiam Romse, Italiee, Britanniae, (singulis suberant quinque provincise) " {Cod. Just., lib. i. tit. xxxviii. et xl. in notis). As early as the reign of Caracalla, all the free subjects of the empire had the rights of Eoman citizens. There were "comites," or military commanders, but the vicars were supreme in civil matters. '' In civilibus, causis vicarios comitibus militum convenit anteferre" {Cod. Just., lib. i. tit. xxxviii. s. 1, De Officio Vicarii). The proconsuls had legates, who could decide civil or criminal matters, subject, however, to revision by the proconsuls. " Legati non solum civiles sed etiam criminales causas audiant, ita ut si sententiam in reos ferendam providerint, ad prcconsules eos transmittere non morentur" {Cod. Just., lib. i. tit. xxxv., De Officio Proconsulis). The greater part of the first book is taken up with edicts as to the functions and duties of the officers of the empire or the provinces, which show a most elaborate and comprehensive system of government, which must have spread its ramifications into every corner of the empire. From the Notitia Imperii, and from the old chronicle of Richard of Cirencester, it will be seen that the Roman rul ■ extended over the whole country ; that there were two "municipia," nine "colonies," and upwards of one hundred and twenty stations, comprising nearly all the chief towns and cities now existing. ^ " Barbarica) gentes, subjugata nostra, omues vero populi legibus tam a nobis pro- mulgatis, quam compositis, reguntur " {Prcem. Inst. Just.) The Roman law was first codified under Theodosius, during the Roman rule in Britain, and the subsequent code of Justinian is of course mainly made up of edicts previous to the termination of that rule. The very object of the code was to gather up the imperial edicts, and render them available for all the numerous provinces of the empire, so far as they might be applicable, as almost all of them were, in point of principle. •* Thus it was said by a writer in the middle ages : " Jus Justiuiaui praescriptuni libris, non civitatis tantum est, sed et Gentium et naturae ; et aptatum sic est ad uaturam GENERAL CHARACTER OF THE ROMAN LAW. HI character for universal clomiiiion, for which reason, no sooner after the barbarian conquests did the barbarian races become civilised enough to be capable of law, than this great system of law had every- where a resurrection and an ascendancy. Such was so clearly the character of the lioman law, that it was recognised in the earliest ages of Christian history, and by none so clearly, none more emphatically, than by the first fathers of the Christian church, ^ and by natives of other races and distant coun- tries .subject to its rule. And it was the boast not only of tlie Eomans, but the testimony of the most impartial writers, that the excellence of the Eoman laws rendered them worthy of the admira- tion and adoption of other nations. Nor is it to be doubted that this opinion would be shared and followed by the prelates of the Christian church, who had so powerful an influence in the conver- sion and civilisation of the barbarian races. The general character of the Eoman law, 2 as expounded by its most distinguished professors, after the spread of the Christian religion, was largely in accordance with those great principles of justice and morality which are recognised by Christianity, and are, indeed, common to all men ; and its character, as it would be seen administered in this country, under the auspices of some of its universam, ut imperio extincto, ipsum jus diu sepultuin surrexerit tamen, et in omiies se efl'udeiit gorites humanas. Ergo et principibus Stat, etsi est privatis condituui a Justiniano" (Albericus Gentilis, lib. i., de Ju. Bell., cap. iii.) 1 Thus St Augustine saj-s : " His omnibus artibus tauquam vera via nisi sunt ad honores, imperium, gloriam ; honorati sunt in omnibus fere gentibus ; imperii sui leges imposueruut multis gentibus ; bodieque Uteris et historia gloriosi sunt penii in omnibus gentibus" {De Cirit. Dei, lib. v. c. xii.) Insomuch that he goes on to say : "Per populum Romanum placuit Deo terrarum orbem debellare, ut in unam societatem reipublicaj, legumque perductum long5 latdque pacaret " (lib. xviii., De Civit. Dei, c. xxii.) St Augustine was a prelate of the African Church, an 1 a perfectly impartial judge of the merits of the Roman law ; and that opinion which he had of it would no doubt be followed by other prelates of the church, in this or any other country. - " Justitiam colimus, et boni et scqui notitiam profitemur, »quum de iniquo separ- antes, licitum ab illicito discernentes, bonos non solum metu paniarum, veriim etiatu procmiorum quoque exhortatione efficere cupieutes ; veram, nisi fallor, philosophiam non simulatam affectantes" (lib. i. Dig. de Just, et Jur.) This was the description justly given of it by one of its greatest professors, Ulpian, and another, even still greater— the illustrious Papiniau, who was raised to the prefecture by the Emperor Severus in this country. It was Papiuian who laid it down : " Qure facta la}dunt pre- tatem, existimationem, verecundiam nostram, et contra bonos mores fiuut, nee facere nos posse credendum est " (L. xv., Vo. de Condit. Inst.) There is reason to believe that the later of the Roman jurists had felt the influence of the Christian morality. TertuUian says of the Romans : " Eorum leges ad innocentiam pergere, et de divina lege ut antiquiore, ferme mutuatus " {Apol. Tert.) IV INTRODUCTION TO THE PRESENT EDITION. ablest professors, would be calculated, it may be conceived, to commend it to tlie reason and consciences of all, and to attract the respect, the confidence, and admiration of the barbarians among whom it was administered, i The fundamental principles of the Eoman law, as to the bases, or sources of law,2 being broad, enlightened, and elastic, eminently adapted it for universal empire. It acknowledged a general law based upon principles common to all mankind, and yet leaving ample scope for national or municipal law ; admitting the authority of custom as resting on consent, yet making custom subject to reason, and the local or private law subordinate to the general or public law ; it was equally adapted to maintain imperial sway, and influence, and incorporate local usages. It was well understood, by the oracles and expositors of the Eoman law, that any good system of laws must contain in them some elements common to all nations,^ though it was equally under- ^ Thus it was a principle of the Roman law that that which long use sanctioned be- came law without being written, for long-prevailing customs become of the same nature as law by the consent of those who follow them {Just, lib. i. tit. ii. s. 59). And hence it was supposed in the Eoman law that the authority of custom sprang from consent ; for what (it was asked) was the difierence between the consent of the people, given by their votes, and their will, signified by their acts ? {Pand., lib. i. tit. iii., De Legihiis, lib. xxxii. tit. xxxiii.) ^ " Omne jus aut consensus fecit, aut necessitas constituit, aut firmavit consuetudo " (Modestinus, 1. xl.. Dig. dc Legib.) And as the authority of custom was based upon consent, the foundation of all law, apart from actual necessity, would, upon the Roman principle, be consent. This head of law is appealed to in the Digest, lib. i. tit. iii. c. xcii., and it is thus that Ulpian expounds it: "De quibus causis scriptis legibus non utimur id custodire oportet, quod moribus et consuetudine inductum est. Inveterata consuetudo pro lege non immerito custoditur, et hoc est jus, quod dicitur moribus constitutum ; nam eura ipso leges nulla alia ex causa nos teneant, quam quod judicio populi recepta3 sunt : merito et ea quae sine ullo scripto populus probavit tene- bunt omnes; nam quod interest suffragis populus voluntatem suam declaret, an rebis ipsis et factis?" (Ulpian, lib. ii.) But, as St Augustine observes, who had well studied the Roman law : " Rei non bonse consuetudo pessima est. Nemo consuetu- dinem rationi et veritati prajponat" (lib. iii., Dc Bajitismo, cited in the canon law, dist. viii. c. iv.) This consent, however, was presumed to be based upon reason and experience ; the very argument assigned for not changing a custom without sufficient cause implied that there might be such cause. " In rebus novis constituendis evidens esse utilitas debet, ut recedatur ab eo jure quod diu sequum visum est" {Ulpian, Hb. ii., dig. de constit.princ.) According to the wise teaching of the imperial law, prece- dent was not to be blindly adhered to contrary to principles. " Non enim si quid non bene derimatur, hoc et in aliorum judicium vitium extendi oportet, cum non exemplis sed legibus judicandum sit" (lib. xiii., co. de sent, et inter leg. omn jud.), though it was recognised : " Rerum perpetuo similiter judicatarum autoritas vim legis obtinet" {Call., lib. xxxviii., dig. de leg.) " " Omnes populi, qui legibus et moribus reguntur, partim suo proprio, partim com- GENERAL CHARACTER OF THE ROMAN LAW. V stood that the municipal law or custom of a state must, in some respects, add to or dei:)art from that natural law, and this, indeed, was what formed the scope of civil or municipal law.^ In their development of law upon these fundamental principles, the Eomans were eminently progressive, and open to the influence of new ideas and altered circumstances, so that, as observed by a very learned writer,^ " tlie notion of a body of cus- tomary law, mainly unwritten, which was not abrogated, but was evaded or amplified by persons acting under the ideas of later times, is the notion which, above all others, must be embraced clearly by any one who wislies to understand the Koman law." It is mani- fest that a system of law so comprehensive and so expansive, so enlightened, so elastic, and so progressive, must have been emi- nently adapted to universal rule, and calculated for the government of subject races. In accordance with these principles and these characteristics of the Eoman law, the Eoman policy towards subject or subjugated races, though at first exclusive, had become, during the Eoman dominion in this country, extremely liberal and enlarged. The ideas of the Eomans on this subject, as on all others,'^ advanced and expanded with the growth of their mighty empire, and at the very time when their dominion here had become firmly settled, their law had attained its highest development of excellence, and their policy towards their provincial subjects had reached the highest point of enlightenment. That policy is thus described by the able and learned writer already quoted : " The conquest of Italy, and the gradual spread of the Eoman conquest materially altered the character of the legal muni omnium hominum jure utuntur" {Gains, lib. ix. dhj. de Just, et Jur., et vide Inst, dejit. nat. yen. et civ. Parag. 1) ^ " Lex muuicipalis, sive cousuetudo, juri communi derogat ; lex cuj usque loci in- apicienda est, sive scripta sit, sive uon " {Ga. Obs., lib. ii. obs. 124). "Jus civile est quod neque in totum h. naturali jure, vel gentium, recedit, nequc per omnia ei servit : itaque cum aliquid addimius vel detrahimus juri communi, jus propi-ium id est, civile, intelligimus " {Ulpian, lib. vi., Dig. dc Just, et Jar.) • Sandar's Introduction, p. 9. It is impossible adequately to express the obligations which the profession are under to the author of that most interesting and valuable work, which forms the best possible introduction to the study of our own law. ^ The Theodosian code had been compiled. Ulpian and Papinian, the greatest of Roman jurists, had written upon it (and Papinian was appointed to the Praefecture by the Emperor Severus in this countiy), and it was in the same state in which it was when St Augustine, the greatest father of the Christian church, wrote upon it in the terms of eulogy already quoted. VI INTKODUCTION TO THE PRESENT EDITIOX. system. A branch of law almost entirely new sprang up, which determined the different relations in which the conquered cities and nations were to stand with reference to Eome. As a general rule, and as compared with other nations of antiquity, Eome governed those whom she had vanquished with wisdom and moder- ation. Particular governors, indeed, abused their powers ; but the policy of the state was not severe, and Eome connected herself with her subject allies by conceding them privileges proportionate to their importance or their services." " The jus Latinum'^ and the jus Italicum are terms familiar to all readers of Eoman history. The first expressed that, with various degrees of completeness, the rights of Eoman citizens were accorded to the inhabitants of different towns, some having the ■^ The jus Latinum is not to be confounded with the jus Italicum. The latter was the privilege of towns, the former of individuals, and it was that which was extended by Caracalla to all the free inhabitants of the empire. AVhat it was, and what it involved, may be seen expounded in an edict addressed by the Emperor Justinian to the PrEetoriau prefect {Cod. Justin, lib. vii. tit. 6, "De Latina Libertate tollenda, et per certos modos in civitatem Romanam transfusa"), in which may be seen that the jus Latinum did not carry with it full Roman citizenship. It may be premised that it was the Lex Julia, a. u. c. 404, which gave the right of Latinity— Jits Latii, as it was called — to all free inhabitants, and the Lex Junia conferred it upon freed men. It was a question, it should seem, what precise privileges the jus Latinum conferred, and to this question the edict refers. The Latini colonarii mentioned by Ulpian were the provincial communities which had acquired the right of Latinity. The edict of Justinian, above quoted, relates to the liberti, the freed men, who, by the lex Junia, had the jus Latinum or jus Latii conferred upon them, and as to which difficulties had arisen — whence the edict recites : " Cum deditii liberti jam sublati sint, ea propter imperfecta Latinorum libertas incertis vestigiis titubat quod autem ex re ipsa rationabile est, hoc in jus perfectum deducitur. Cum enim Latini liberti ad similitudinem antiquse Latinitatis quse in coloniis missa est, videntur esse introducti, ex qua nihil aliud reipublicas nisi bellum accessit civile ; satis absurdum est, ipsa origine res sublata, ejus imaginem derelinqui. Cum igitur multis modis et inumerabilibus Latinorum introducta est con- ditio, et leges diversse introducta sunt, et exhis difficultates maxima emergebant ex lege Junia," &c. And then it proceeds to prescribe modes by which the freed man " libertatem et civitatem Romanam habeat," which distinguishes the two rights, though not stronglj'. The great jurist, Ulpian, divided the inhabitants of the Roman empire into three classes, cives, Latini, and peregnni, or foreigners. The ciris \va.s entitled to every privilege of a Roman citizen; the percgrinus was excluded from all the rights arising from the peculiar character of the Roman law. _ He had not the connuhium nor the commercium, but he had all that was recognised by the jus gentium. The Latimis stood between the civis and pcregrinus ; he had the commercium, and could hold property as Roman citizens could do, and could make testaments, but he had not the connuhium. This is the inference Mr Phillimore draws from various passages in Ulpian, "Connubium habent cives Romani, cum civibus Romanis, cum Latinis autem, et peregrinis, ita si concessum sit " (tit. v. s. 4). " Mancijjatio locum habet inter cives Romanes et Latinos colonarios, Latinosque Juuianos, eos que peregrines quibus commercium datum est " (tit. xix. s. 4). INFLUENCE OF THE ROMAN LAW IN THE PROVINCES. Vll Commercium only, and some also tlic connuhiuni. Towards the end of the Picpublic (a. u. c. GG3), the Lex Jurica gave the full rights of citizenship to almost the whole of Italy. The jus Italicum expressed a certain amount of municipal independence, and exemption from taxation attached to different places on whicli the right was bestowed." l During the Roman occupation of the country, while on the one hand the Eoman law in the provinces was consolidated and im- proved under the auspices of the ablest of jurists,2 on the other hand, all free subjects in the provinces were admitted to the rights of Eoman citizens ; and this came fully under the protection and under the influence of that law. 1 " The citizens of some particular places in the provinces possessed the jus Latinum, and the jus Italicum was attached to certain privileged cities, but the provinces generally had no participation in either right. They were subject to a proconsul or proprietor, paid taxes to the treasury of Rome, and had as much of the law of Rome imposed upon them, and were made to conform as nearly to Roman poli- tical notions as their conquerors deemed expedient " (a). Caracalla, in A.D. 212, made all persons citizens who were subjects of the empire (6). And then all the free inhabit- ants of the civilised world were elves, and beyond were nothing but barhari and hosti (c). - As early as the reign of Adrian, a great jurist, by order of the emperor, composed an edict (as it was called), drawn from the edicts of the prcetor pere;irinus : of the a'diles and the edietuvi provinciale. The edict thus composed became the rule of law in the province^, and w;is a code of Roman law (PhilUmore's Study of the Roman Law, p. 222). By the Lex. Jidia, " De civitate sociis et Latinis danda" (a. 663), the freedom of the city was given to Latins and Italian allies who would accept it, " qui ei legi fundi fieri vcllcnt" (Cic. jyro Balh. 8) ; and this was afterwards extended to all the pro- vincial subjects of the empire. And under Caracalla, in the early part of the third century, all the free subjects of the empire were admitted to the rights of free citizen- ship. At this time, too, be it observed, all free citizens had equal rights of citizen- ship. Long before the Roman conquest of Britain, the distinction between the two great ranks or orders of freemen had been done away with. In 309 a.u.c, the Cornelian law gave the connubium to the plebs, and the marriage of a patrician with a plebeian was no longer forbidden by law. And by the lex Hortensia, A.U.C. 467, the distinction between the two orders was really done away with, and the plebeian, by their law, acquired a full share in the jus iiuhlicum. The equality between the two orders was so complete, that the plebeian could be consul or prretor, and could admini.ster justice. The effect of this all over the empire, eispecially when provincials were admitted to the privileges of citizenship), must have been to produce a great ten- dency to the amalgamation of all classes of society, and of Romans with natives. Previously to the above alteration of the law, no Roman citizen was permitted to marry a serf, a barbarian, or a foreigner, without special permission (lib. xxxviii. 36). " Connubium et matrimonium inter cives; inter civem etperegrina; conditiones homi- num aut serviles non est connubium" {Bceth. in Cic. 4). It may be observed, that the ^"us Lata or Latinltas was inferior to jus civitatis and superior to the jus Italiciim; but the precise difference is a matter of dispute, and became immaterial after the law of Caracalla. Even plebeians might, after the above alteration, possess municipal privileges in the provinces {Nieb. i. p. 275). (a) Sandar's Introduction to the Institutes, p. 10. (6) Ibid. p. 21. (c) Ibid. p. 30. Tin INTRODUCTION TO THE PRESENT EDITION. There was nothing to which the Eoman law attached more im- portance than to status and citizenship. The first great element of status was freedom ; the next was citizenship ; and the exposition of its privileges embraced all the most important relations and transactions of life. " The second great element of the status was citizenship. In the early times of Eome, the cives were members of the state : all beyond were hostes or barhari. But as civilisa- tion progressed, the number of foreigners who resorted to Eome for trade, or were otherwise brought into friendly relations with the citizens, was so great, that they were looked upon as a distinct class — that of peregrini. A pieregrinus was subject only to the jus gentiiiin ; citizens alone could claim the privileges of the jus quiritium. But when her conquests placed Eome in new and varying relations with the nations, an intermediate position between the citizen and the peregrinus was accorded to the more privileged of the vanquished. Some of the rights of the citizen were given to them, and some were withheld. These peculiar rights of the citizens were summed up in the familiar term suffragium et honores — the right of voting and the capacity of holding magisterial offices, and in the terms connubium and commercium. Connubimn is a term which explains itself. The foundation of the Eoman family was a marriage according to the jus quiritiam, and not to have the connubium was to be incapable of entering into the Eoman family system. In the word commercium were included the power of holding property, and of making contracts according to the Eoman law ; and also the testamenti facti, or power to make a will, and to accept property under one. By i\\Q jus Latinum and jus Italicum, various modifications of the rights implied in citizenship were granted : the one granted private rights to individuals, the latter gave public rights to towns. In course of time other shades between the civis and the peregrinus were introduced, but all distinction between them was gradually swept away by the recklessness with which the rights of citizenship were bestowed, until at last Caracalla made all the free subjects of the empire citizens, and thenceforth the days of pereregrini, properly speaking, ceased to exist. All the in- habitants of the civilised world were cives, and beyond were, only barbari and hostes " {Sandar's Introduction to Justinian, p. 30). Such was the character of the Eoman rule as it prevailed in this country for centuries^ after the inhabitants had become subjugated ^ Even in the course of the first century, this policy was civilising and influencing THE ROMAN MUNICIPAL SYSTEM. IX to its power, and subject to its influence. And as they were un- doubtedly mere bcarbarians wlien tlie lioman invasion took place, they would naturally, as tlicy became civilised, adopt the laws and usages of those to whom they owed their civilisation. That the Eoman institutions were established and existed in this country for centuries is an historical fact, and those institutions, necessarily, embodied much of their laws. The Roman system, it is well known, was originally and essentially municipal^; and it need hardly be said that the municipal organisation was emi- nently complete; and when the provincial subjects of the empire were admitted, more or less, to the privileges of Eoman citizens, and municipal colonies, or even municipia, with privileges like those of Rome, were established in the provinces, the municipal system in the provinces became the subject of constant and careful legislation. And the whole system of Roman rule, which, on the one hand, by its general spirit of equity, justice, and wisdom, was likely to impress the mind of the barbarian nations subject to its sway, was, on the other hand, by its complete organization,^ its municipal the barbarian Britons; and there could not be a better picture of it than is presented in a passage from Tacitus, in his Life of Agricola. " Quibus rebus multso civitates qu£e in ilium diem ex aequo egerant, datis obsidibus, iram posuere : siUuberrimus consiliis absumta, naraque et homines dispersi ac rudes, eoque bello faciles, qiiieti et otio per voluptates assuescerent ; hortari privatim, adjuvari publice, ut templa, fora, domus exstruerunt, laudando promtos, et castigando segues, ita honoris emu- latio, pro necessitate erat. Jam vero principum filios Uberalibus artibus erudire, et ingenia Britannorum studiis Gallorum antcferre; ut qui modo linguam llomanum abnuebant, eloquentiam concupiscerent, inde etiam habitus nostri honor et frequens toga," &c. It is obvious that the barbarian race were already eagerly adopting the usages of Rome, and would readily adopt her laws. It may be imagined what pro- gress they had made by the time of the edict of Caracalla, and what rapid progress in the amalgamation of the races and the adoption of the Roman institutions would be matle after that edict. Municipia and colonia are alluded to by Tacitus in his Life of Agricola (v. 32), and they rapidly overspread the whole country, from York to Col- chester, from Colchester to Exeter ; as the Itinerary shows, coupled with the chronicle of Richard of Cirencester. That the Britons were barbarians when the Romans came, is clear from Cffisar and Tacitus, as already has been shown. 1 The Roman law is full of provisions upon this subject. The parent city was, of course, the model of all other Roman municipalities (ride Cod. Just. lib. xii. tit. 13, "De decurialibus urbis Romantc"); and xmder the municipal institxitious there were other corporate bodies {vide ibid. tit. 14, "De privilegiis corporatorum urbis Romanse ). When the provincials, under Caracalla, were made Rcmian citizens, the municipal offices were opened to them ; and there is a large part of Roman law relating to the ' curia and the elections, and the functions of the " curiales" {Cod. Just. lib. x. tit. xxxi. " De decurionibus"). For instance, sec. 46, " De curialibus eligendis," "ad subeunda patnuQ munera, dignissimi meritis et facultatibus curiales eligantur : ne tales forte nomi- nentur qui functiones publicas implere non possint." - The Roman organisation was extremely elaborate. It has already been men- X INTRODUCTION TO THE PRESENT EDITION, institutions, and its rural colonisation, admirably fitted for the settlement and civilisation of a country in a state of barbarism ; and calculated to fix itself very deeply and firmly in its social soil. But the Eoman system was not only municipal, it was also colonial ; 1 and as the municipal system organised the inhabitants of towns, not only in civic but in other corporations, so the colonial system under which the municipalities themselves were established, extended itself from the towns into the country, and there established another organisation — rural in its nature. The Eoman system allowed grants of land by the state either to cities or colonies, or to individuals, and the latter in its develop- ment proved the parent of the manorial system. The Eoman law in particular made special provision for the appropriation of waste or vacant lands by the " curia," or corporations of the cities or colonies to which they appertained or belonged ; the principle of the law being that, until such appropriation, the land remained the common property of all free citizens, but the exclusive pro- perty of none. And this, it is manifest, was a part of the law especially important in conquered countries such as Britain, where there would be vast tracts of territory vacant.2 tioned that Britain, like every other part of the empire was divided into provinces, of which theie were five, under presidents or proconsuls ; but there is ever3' rea- son to believe that these were divided into smaller districts under the comities or counts ; and thus the word comitatus, or county. Further, the Roman system of niral organisation included subdivisions into centuries and decennaries; and as these were found to exist among the Romanised Britons, it is reasonable to suppose they were derived from the Romans, especially as there is no trace of any Saxon law establishing them. As regards the municipal system of the Romans, it is hardly necessary to state how complete it was. But of the whole system of court govern- ment in the provinces, Guizot observes emphatically that it comprehended all things and all classes, that it had to do with all society, and all society with it. {Lect. sin- la Civilez en France, lect. ii.) ^ The Roman system became colonial for the very reason that it was originally municipal. The Roman went forth from his city to conquer and cultivate the country, and hence the very term " colony" was derived from that which signified to cultivate, and the very definition of coloni was a body of people sent forth as planters with an allotment of land for their support. They had great privileges, and the Romans had a passion for the country. " Existimamus meliore conditione esse colonise quain municipia," {Gell. xv. 13.) This system of course applied pecu- liarly to the provinces. ( Vide Sigonius, " de jure provinciarum.") The grants of land were either to the municipal bodies, or the colonies as corporate bodies ; or after- wards by allotment to individuals ; the principle was the same — it was a colonisation of the countrj' with a view to its cultivation. The Roman provincial got a grant of land in the country, and built his villa, and had his "coloni" to cultivate the land. ■■' See, for instance, the heading of the Code Just. : " De omni agro deserta" (lib. xi. tit. Iviii.), and especially the first section. " Prsedia deserta decurionibus loci cui THE ROMAN RURAL SYSTEM. . XI With regard to allotments of land to individuals, the Roman system was primarily military in the provinces, and carefully defensive in its character. Hence, in all the con(|uered provinces, lands were assigned to soldiers, "milites" on military tenure, or on condition of military service : and this was especially so in the latter period of the Eoman empire, during which the constant in- cursions of barbarians took place.^ When grants of public land were made to individuals — usually upon this military tenure, the holders had to allot a portion of it out to those who were the actual occupiers and cultivators, and who, although by the Eoman law attached to the soil, and, in a sense, serfs, were not slaves, and soon acquired rights by custom. 2 Although, therefore, originally the Eoman system was municipal, yet as the empire was enlarged, and the system of colonisation was extended to the provinces, the Eoman law, or legislation, extended its care to the condition of the rustic population ; and the Eoman legislation contained many provisions on the subject,^ the general subsunt, a.ssignari dcbent." So s. 5. " Possidens prtedia sterilia et fertilia, non potest retuntiare sterilibiis, et fertilia retinere ; " and, " Qui utilia reipublicae loca possident, permixtione facta etiam deserta, suscipiant est ut si eanim partium graventur accessu, quas antea per fastidium reliquerunt, cedant aliis curialibus qui utraque hac conditione retineant, ut prestatione salva cum desertis et culta possideant, sublata apaucis, quos iniquum est electa retinere cum municipes gravatm-a sit pars relicta." ^ Agros etiam limitaneos universos cum paludibus . . . quos limitaneimz'Zito . . . ipsi curare . . . atque arare, consueverant ab his . . . detineri . . . volumus " (jVov. Theod., tit. 32, vol. vi. p. 14). So Lampidius says, speaking of Alexander Severus, " Sola qurc de hostibus capta sunt limitaneis ducibus et militlbus doncmt ita ut eorum ita essent si hscredes eorum militarent " (p. 58). Tt is impossible not to see that though this may not have been the direct origin of the feudal system, still it contained the germ or princijile of it, as it undoubtedly was military tenure, and this principle may have been imperfectly adopted by the Saxons ; so as to occasion the controversy as to whether the feudal system was known among them as it after- wards was established by the Normans. 3 The Roman would have his "villa," and around it the farm or land in his own personal occupation ; but then, to secure the cultivation of the rest of the land for his support he would have to allot it out in portions to free labourers, called "coloni," attached to the soil, but not slaves. Hence villicus — a husbandman or farmer ; the bailiff of a manor, or steward, even in the city. " Villicus agri colendi causa consti- tutus et appellatus h villa " {Van'.R.i. 2). "Villaris; of, or belonging to a village, farm, or country-house. Villanus, a farmer or villager, conditione colonariae ad- dictus" (Bud.) Hence the Anglo-Norman phrase "villein." Hence also the ^'ot€ction of tlie Christian church, and then lent to its laws all the sanction of the state.^ Tlie canons of the councils were made part of the laws of the empire, and the powers of the state were exerted to enforce them, so that in the course of time there was no portion of eccle- siastical discipline which was not confirmed by imperial decrees. As, for example, the observation of Sundays,^ and other festivals of the church, the canonical penalties decreed by the church against the transgression of her laws, among her members ;3 the canons relating to the election of bishops, to residence, or to simony.* The fundamental principle laid down by the imperial law of Christian Eome was, that to the church belonged the direction of spiritual matters, to the state the regulation of matters temporal ; so that, as the state recognised the church, it was the duty of the state to protect, to sanction, or to enforce the laws of the church ; a prin- ciple, it will be observed, based entirely upon the vohintartj adop- tion by the state of the laws of the church, in consequence of the out his testimony. One section is " De his qui ex consensu litigcant apud episcopum " 3. 7 (Honorius, a.d. 398). So, s. 8, " Episcopuli judicium ratum sit omnibus, qui se audiri a sacerdotibus elegerint, eamque illorum judicationi adhibendam esse reveren- tiam jubemas, quam vestris def erri necesse est potestatibus, quibus non Hcet provocare. Per judicium quoque officia, ne sit cassa episcopalis cognitio, definitioni executio tv'\\)\xAt\\T" {Arcad. and Hon., a.d. 408). So s. 13, " De clericos lite puLsantibus ; " SOS. 19, " De defensoribus civitatum ; " "ita enim eos prtocipimus ordinari, ut re- verendissimorum episcoporum nee non clericorum ac possessorum, et curiaHum, decreto constituautur" (a.d. 505). So Just., lib. i. tit. 4, " de episcopal! audientia ; " lib. i.tit. 55, " De defensoribus." And so, in numerous other titles. 1 The canons of the four general councils which had sat before the time of Jus- tinian, and which had been successively confirmed by the emperors under whom they were convened, were placed by him among the laws of theempii-e : " Saucimus igitur vicem legum obtinere sanctas ecclesiasticas regulas, quaa h, Sanctis quatuor conciliis ex positoc sunt aut formattc. Prredictarum enim quatuor synodorum dogmata sicut sanctas Scripturas accipimus, et regulas sicut leges observamus" {Just. Novella, 131, c.\; et vide Cod. Just., lib. i. tit. 1, s. 7). This was after the Koman occupation of tbi.s country ceased, but before the foundation of the Christian Saxon kingdom, and, upon its foundation, the princes and prelates naturally took these llomau laws as their guides, as is manifest from the preambles of their written laws. * Thus, as to the observation of Sunday, there was this edict, " Omnes judices, urbanacque plebes, et cuncturum artium officia, venei-abili die Solis (i.e., Dominico die) quiescant. Ruri tamen positi, agrorum culturso liberie inserviant, quoniam fre- quenter eveuit ut non aptus alio die frumenta sulcis, aut vina; scrobibus mandentur, ne occasione momenti pereat commoditas cjclesti provisione concessa " (Cod. Just., lib. iii., tit. 12, s. 3). ^ {Cod. Theod., lib. xvi., tit. 2 ; Just. Nov., c. i. s. 10.) ■* {Cod. Just,, lib. i., tit. 3, n. 31). All this may have been wrong in principle, but that is a question which does not belong to a work on legal history, wLich deals with the facts, as to the origin, the causes, and the development of laws. XXVIU INTRODUCTION TO THE PRESENT EDITION. state's acknowledgment of her divine autliority, and, therefore, not at all involving any impeacliment or disparagement of the inde- pendence of the state. 1 The policy of these laws is a question which belongs rather to the philosophy than the history of laws. The points important to be observed in a work on legal history are, that these laws were laws of the state ; that they were based upon the will of the state, founded, rightly or wrongly, upon certain views of the state, as to their tendency to promote the welfare of the empire ; that they belong, therefore, to the domain of secular law ; and that, as they formed the basis of the policy of the empire as to the church, they naturally and unavoidably influenced the laws and legislation of the Christian states derived out of the ruins of the empire, and, in particular, of our own.^ Upon this fundamental principle, all the former privileges or immunities conferred by the state upon the church or the clergy were granted as voluntary concessions by the state ; the very grant- ing of which implied and involved that they emanated from the state, so that no extent to which they w^ere carried could affect its independence. Thus it was with the immunities of the clergy from taxation or services ; 3 and thus it w^as with the still more important question of their exemption from secular jurisdiction, ^ " Maxima quidem iu hominibus sunt dona Dei d superna collata dementia sacer- dotium, et imperium, et illud qiiidem divinis ministrans, hoc autem humanisprsesidens ac diligentiam exhibens. Ex uno eodemque priucipio utraqueprocedentiahumanam exornant vitam. Bene autem omnia geruntur, et competenter, si rei principium fiat decens et amabile Deo. Hoc autem futurum esse credimus, si sacrarum regularum observatio custodiatur, quam justi et laudandi et adorandi inspectores et ministri Dei verbi tradiderunt apostoli, et sancti patres custodierunt et explanaverunt " {Just. Nov. vi., Pref). This was putting it on the ground of the will of the state, with a view to its own benefit, and the good of the empire. And so it was always put. - It will be observed all through the voluminous imi^erial edicts on the subject, that this legislation is based upon the imperial mind and will as to what would be the proper policy to pursue, and as to the advantages to be derived from the estab- lishment of the church ; and all the rest is deduced from that establishment. It is not put upon any inherent or precedent right of the church to control the civil power ; and so as to the laws founded afterwards ujaon this view. •^ The principle of such exemption, at all events, from all services or burdens detri- mental to the independence, or derogatory to the dignity, of ecclesiastics, is abun- dantly established in the imperial edicts (Cod. Theocl., lib. xvi., cit. 2). The emperor Honorius restored or confirmed the real immunities of the clergy from mean taxes and duties, or extraordinary burdens {Cod. Tkeod. lib. xvi., tit. 2), " nihil extraordina- rium ab hac (jugatione) superi inducti turn ve flagitetur, nulla positium iustauratio, nullo translationum solicitudo gignantur" {Ibid.) The principle was followed by our law in exempting the benefices of the church from feudal bui'dens. THE ROMAN ECCLESIASTICAL SYSTEM. XXIX which afterwards, in tlic middle ages, occasioned such controversies, in our own and in other countries. Upon tliat principle, above all, was this privilege of the clergy- based ; and upon that principle, indeed, it was carried much further by the imperial edicts — even to the extent of allowing laymen to decline the jurisdiction of the lay tribunals, and refer their disputes to the bishops.^ And the governors of provinces were directed to enforce the episcopal decrees. This, be it observed, was clearly only a delegation of the power of the state to the bishops ; it was open to the state to select, or allow the people to select, ecclesiastical judges as well as secular ; it was a matter entirely of state policy, of state regulation, and there- fore, to whatever extent it was carried, it could not possibly involve any disparagement of the independence of the state.2 In an age when the policy of the state actually allowed its own tribunals to be displaced, and the episcopal authority substituted even as between laymen, and as regarded temporal matters, it is not surprising that it should have allowed the episcopal authority an extensive jurisdiction over the ecclesiastics, either in civil or 1 This tlic ecclesiastical historians tell us was done by Constantine ; whose father died at York, and in whose time there was the closest connexion between Rome and Britain. "Fuit hoc etiam argumentum vel maximum reverentife quam piu.s priu- ceps erga religionem gerebat. Nam et omnes ubique clericos immunitate donavit, lege hac de re specialiter datd ; et litigantibus permisit ut ad episcoporum judicium provocarent, si magistratus civiles rejicere valient eorum autem sententia rata esset, aliorumque judicum sententiis prrevaleret perinde ac si ab imperatore ipso data fuissct; utque res ab episcopis jndicatas, rectores provinciarum eorumque officiales executione mandarent" {Sozomen Eccl. Hist., lib. i. c. ix. ; Annales du Moijen Atorio) a quibus non licet provocare " {Ibid. s. 8). These fluctuations and varia- tions of imperial legislation on the subject clearly show that it was a matter entirely of state policy, and could not compromise state independence. XXX INTrvODUCTION TO THE PEESENT EDITION. criminal matters, and whether as regarded tlieir persons or tlieir property. 1 The imperial law upon this principle laid it down that in civil matters clerics must be brought before the episcopal jurisdiction in the first instance, and in criminal matters, before the episcopal or the lay tribunal ; but that the guardians of churches could not be cited e:ccept before the bishops, and that the bishops could not be prosecuted before the secular judge, for any cause : on which it will be observed that the very laws by which the state endeavoured to secure the independence of the "church attested its own independ- ence, and showed that it was not a claim of inherent right in the church, but of voluntary concession by the state. Nor can it be surj^rising that the law of the church should have supported in this matter tlie law of the state, and that canonists should have followed jurists and legists.2 Indeed, the law^s of the empire upon this subject went to the full extent of the most extreme pretensions of canonists in later times ; and it is impossible to study them at this day without surprise. The judicial powers of the bishops either over ecclesias- tics or laics, were by no means the greatest of their powers. The imperial laws conferred upon them the most important powers, and confided to them the most important functions of secular administration, or the affairs of government. 3 ^ Thus we find a law of the emperor Honorius : " Clericos nou nisi apud episcopos accusare convenifc. Igitur si episcopus vel presbyter apud episcopum (siquidem alibi non oportet) a qua libet persona fueriut accusati, noverit docenda probationibus, monstanda documentis crimina se debere inferre" {Cod. Theod., lib. xvi. tit ii. c. 61). It is true that another emperor rather varied this ; but then Justinian, it will be seen, restored it ; and again it may be observed that these variations and fluctuations of imperial policy only prove its entire independence of ecclesiastical power. * Cod. Just. lib. i. tit. 4. Episcopali audientia {Just. Nov. 131, c. 1). 3 Thus an imperial edict (a.d. 368) charged the bishops to watch over merchants, in order to prevent or correct injustice, especially to the poor. " Negotiatores, si qui ad domum nostram pertinent, neamodum mercandi videantur excedere, Christiani (quibus verus cultus est, adjuvare pauperes, et positos in necessitate), provideant episcopi " {Cod. Just. lib. i. tit. iv. s. i.) So a law of the emperor Honorius and Theodorus the younger (a.d. 409) ordered that the defensors of cities should be chosen by the bishops at a meeting of the clergy and chief citizens. It has already been mentioned that, as a part of the policy of the Christian empire, there was in every city a jjublic functionary charged with the protection of citizens against all oppressions, either of magistrates or private citizens {Cod. Theod. lib. i. tit. xi. ; Cod. Just. lib. i. tit. iv.) Another edict of the emperor was this: "Defensores ita praecipimus ordinari, lit sacris orthodoxaj religionis imbuti mysteriis, revendissi- morum episcoporum nee non clericorum, et honoratorum, ac possessorum, et curialiuni decreto constituantur ; de quorum ordinatione referendum est ad illustrissimam prse- THE ROMAN ECCLESIASTICAL SYSTEM. XXXI The imperial laws charged the bishops in the provinces of the empire with tlie protection of orphans, slaves, prisoners, and gener- ally of all wretched or defenceless persons, whose age or condition rendered tliem more liable to oppression. By virtue of these laws, the bishops were bound, in conjunction witli the civil magistrate, to interfere in the nomination of tutors and trustees, to watch over the liberty of children abandoned by their i)arents, to visit pri- soners and ascertain the causes of their detention, and watch over the police ; to admonish tlie civil magistrates of any disorders, and to report to the emperor any neglect of the magistrate to repress such disorders.^ These laws themselves no doubt abundantly indicate the inde- pendence and supremacy of the state in secular matters, and show that all these concessions of power to the ecclesiastical authorities were emanations of state policy ; but for that very reason it is not surprising that they should have been made, in after ages, in all countries which had been parts of the Eoraan em2:)ire, and where these laws had been enforced, and among others, in our own, the basis of a system of policy similar in character.^ Such was the system of rule — civil and ecclesiastical — established torianam potestatem ; ut Uteris ejusdem magnificje sedis eoriim solidetur auctoritas " (Cod. Just. lib. i. tit. Iv. s. 8. tit. iv. s. 19). Other edicts allowed young people, free or slave, to have recourse to the protection of the bishop against their parents or owners, when these were vicious ; as the court of Chancery in this countrj"- is re- sorted to to remove improper guardians. " Si lenones patres, et domini suis filiabus vel ancillis peccandi necessitatem imposurint, liceat filiabus et ancillis, episcoporum imploratio suffragio, omni miseriaruiu necessitate absolvi" (Cod. Just., lib. i. tit. iv. s. 12. c. 14). So, under many similar titles. ^ Most of these imperial constitutions are collected in the first book, Justinian Code, tit. 4, s. 22-24, 30, 33. One iu.stmce may suffice as a specimen. " Neminem volumus in custodiam conjici, absque jussu magistratuum proviuciarum, aut dcfensorum civi- tatum. De his autem quicunque conjecti aut conjiciendi sunt, Deo amabiles locorum episcopos jubemus per unam cujusque hebdomadoe diem, eos qui in custodia habentur visitare, et diligenter inquirere causam ob quam detinentur, et sive servi sint, sive liberi, sive pro pecuniis, sive pro aliis criminationibus, sive pro homicidiis conjecti, magis- tratus admonere, quam eos qui sunt in provinciis, lit ea exequantur circa ipsos, qutc divalis nostra constitutio, ad illustres jirefectos, ea de re emissa pracipit, licentia data Deo pro tempore episcopis, si quam negligentiam admissam coguoveriut, ab luagistratibus vel iis qure illis jjarent officiis, talem ipsorum negligentiam indicaudi, ut conveniens adversus negligentes animi nostri motus insurgat" (Ibid. s. 22). - Imperial laws were sometimes even addressed to prelates. Thus, for instance, the eighth novella of Justinian, which regards elections and duties of magistrates, was addressed to metropolitans : " Traditrc nobis b, Deo rcipublicK curam habentes, et in omni justitia vivere uostros subjectos studentes, snbjectam legem scripsimus ; quam tu;e sanctitati, et per cam omnibus qui tuoc provincic sunt, facere manifestam bene habere putavimus. Tuic igitur sit revcrentiic ct cicterorum (episcoporum) XXXll INTRODUCTION TO THE PRESENT EDITION. in this country for some centuries. It seems a probable and reason- able opinion that under such circumstances the laws and constitu- tions of the Piomans should, as the Britons grew more and more civilised, be adopted by them, and become in a great degree blended with their customs and institutions, even if the two races were not in a great degree blended, as they undoubtedly were to a very considerable extent, i It will have been seen how calculated such a wise, complete, and salutary system of rule must have been, on the one hand, to im- plant itself firmly in a country, and, on the other hand, to attract the respect and confidence of the inhabitants, and blend its laws and institu.tions with their customs. And it is to be borne in mind that not only would the Britons naturally adopt the laws and institutions of tlie Eomans, but a large portion of the popula- tion, in that, as in all the other European provinces of the empire, was, from various causes, and especially from the constant influx either of military or civilian colonists,^ actually Eoman, or com- posed of Roman citizens. The influence of Eoman laws and institutions upon the barbarian nations they subdued has not escaped the attention of historians. Several passages in the earlier chapters of Gibbon abundantly liajc custodire, et si quid transcendatur ii judicibus, ad nos referre" {Just. Edict. ArcJiiejnscopis, Nov. viii.) 1 Tlius Sir M. Hale, writing vipon this subject in liis Hlstorij of the Common Lata, c. 5, thougli clinging, as all our common law writers do, to the notion of British laws, says, that " though a change of the laws of a conquered country was rarely universally made, especially by the Eomans, yet that they in their own pax'ticular colonies, planted in conquered countries, observed the Roman law, which might by degrees, without any rigorous imposition, gain and insinuate themselves into the conquered people, and so gradually obtain and insensibly conform them — at least so many of them as were conterminous to the colonies and garrisons — to the Roman law ; " and that the Eomans rarely made a rigorous and universal change of the laws of the conquered country^, " unless they were such as were foreign or barbarous, or altogether inconsis- tent with the victor's government ; " which those of the Britons on the arrival of the Romans undoubtedly were. As regards nations which have settled laws and civilised institutions, what Hale says is undoubtedly true, and it applies to the invasion of the Saxons upon the Romanised Britons — civilised and settled by four centuries of Roman occupation. 2 Montesquieu, citing Tacit. Ann. lib. xiii. c. 27, " date fusum in corpus,'' &c., notices this constant flow of citizens or enfranchised slaves, as colonists, into the provinces : " Le nombre du petit peuple, presque tout compost d'affranchis ou de fils d'afifran- chis, devenant incommode, on en fit des colonies, par le moyen des quelles on s'assura de la fidelite des provinces. C'(5tait une circulation des hommes de tout I'univers. Rome les recevait esclaves, et les renvoyait Romains " {Grand et Decad. des Eom. c. 13). Montesquieu also alludes to the important influence of intermarriage, " Les loiB favorifierent les marriages, et memes les rendireut ncceasaires " {Ibid.) GRADUAL ADOPTION OF THE ROMAN LAW, XXXUl attest it.l And then other two causes would co-operate largely to extend the influence of the Roman law in its subject states, even when that law was not actually imposed. The one was the advan- tage derived from becoming a I!oman citizen, which could only be by adopting tlie Roman laws, and the other was the policy of the Romans in settling colonies in conquered states. These results are thus clearly described by a late lamented writer, wlio admirably united the gifts of genius and of erudition, and -whose untimely deatli has been so deeply deplored, not only by the profession but by the nation : " It was a jirinciple of Roman law that no Roman citizen could be the citizen of any other community distinct from that of Rome, and governed by different institutions. The towns which the Romans admitted to a share of their rights were termed mtmicijna. The adoption of the Roman laws was a necessary condition" (Study of the Roman Laws, p. 190). Again, — " It was the profound policy of the Romans to confiscate a portion of the conquered territory and to occupy it with their own citizens, thereby at once increasing ultimately their own popu- lation, providing for the more indigent citizens, and riveting the chain around the vanquished. Originally the colonies were not on a level with the municipal towns ; they were not admitted to a participation in the rights of Roman citizens. If one of the states ^ " The same saUitaty maxims of government wliich liad secured the peace and obe- dience of Italy were extended to the most distant conquests. A nation of Romans ■was gradually formed in the provinces, by the double expedient of introducing colonies, and of admitting the most faithful and deserving of the provincials to the freedom of Rome. Tliat wheresoever the Roman conquers he inhabits, was a very just observ.ation of Seneca, confirmed by history and experience. The natives of Itixly hastened to enjoy the advantages of victory. These voluntary exiles were en- gaged in the occupations of agriculture, &c. But after the legions were rendered permanent, the provinces were peopled by a race of soldiers, and the veterans usually settled in the country where they spent their youth. Throughout the empire, but more particularly in the westei'n parts, the most fertile districts and the most Convenient situations were reserved for the establishment of colonies, some of which were of a civil and some of a military nature. In tbeir manners and internal policy the colonies formed a perfect representation of their great parent ; and tliey were soon endeared to the natives by the ties of friendship and alliance, and a desire of shar- ing in due time its honours and advantages. The municipal cities insensibly equalled the rank and splendour of the colonies. The right of Latium, as it was called, con- ferred on tlie cities to which it had been gi-anted a more partial favour. The magis- trates, at the expiration of their offices, assumed the quality of Roman citizens, and as these offices were annual, tliey in a few years circidated round the principal fami- lies. Thus the bulk of the people acquired, with the title of citizens, the benefit of the Roman laws, especially as to marriage testaments and inheritances" {Dec. and Fall. c. 2). It would be impossible to give a more lucitl account. XXXIV INTRODUCTION TO THE PRESENT EDITION, became a municipium of Eome, it at first retained its internal ad- ministration, but latterly magistrates were sent from Eome for the purpose of administering justice, j)rcefecti juri dicendo. The Lex Julia gave the rights of Eoman citizens. There were magistrates who held an office analogous to that of the Eoman praetor or consuls, and who were chosen by the people, and whose chief duty was the administration of justice" (Study of the Roman Law, j). 15). The Eoman system of government in the provinces^ was one so complete and perfect in all its parts, with such an elaborate organisa- sation, not only extending over every part of the country, but en- ^ The learned Ijingard gives a short but clear sketch of it: "The governor was denominated the prsefect, or proprsctor. He united in his own person every species of autliority which was exercised by the different magistrates in Rome. He com- manded the army; he was invested with the administration of justice. The power of the prsefects, however, was confined by the Emperor Hadrian, who, in his ' per- petual edict,' laid down a sj'stem of rules for the regulation of their conduct, and established a uniform administration of justice throughout all the provinces. Subor- dinate to the prsefect was the procurator, whose duty it was to collect the revenue of the provinces. When the Roman conquests in "Britain had reached their utmost extent, they were divided into six provinces, under praetors appointed by the prsefect. Throughout the provinces were scattered a great number of towns and military posts, the names of which are preserved in the ' Itineraries ' of Richard of Cirencester, and of Antoninus. (There were in all not less than one hundred and sixty-six stations, besides smaller forts.) They were partly of British and partly of Roman origin, and were divided into four classes, gradually descending in the scale of privilege and im- portance. The colonies, of which there were nine, included among them London, Col- chester, Bath, Gloucester, Chester, and Lincoln. It was the policy of Rome to reward her veterans with a portion of the lauds of the conquered nations. Each colony was a miniature representation of the parent city. It adopted the same customs, was governed by the same laws, and, with similar titles, conferred on its magistrates a similar authority. In Britain there were nine of them, two civil and two military, lu the constitution of the latter we discover a striking similitude to the feudal tenures of later ages. Secondly, there were the municipal cities, the inhabitants of which were exempted from the operation of the imperial statutes, and, with the title of Roman citizens, possessed the right of choosing their own decuriones, or magis- trates, and of enacting their own laws. Privileges so valuable were reserved for few, and Britain could boast of only two municipia, Verulam (St Albans) and York. But the, jus Lata, or Latian right, was bestowed more liberally. Ten of the British towns had obtained it from the favour of different emperors, and were indulged with the choice of their own magistrates, who, at the exi^iration of the year, resigned their of&ces, and claimed the freedom of Rome. That freedom was the great object of provincial ambition, and, by the expedient of annual elections, it was successively conferred on almost all the members of each Latin corporation. The remaining towns were stipendiary, compelled to pay tribute, and governed by Roman officers ap- pointed by the prajtor. These distinctions, however, were gradually abolished. Antoninus granted to every provincial the freedom of the city ; Caracalla extended the, indulgence to the whole body of the natives" {Hist. Eng., vol. i. ch. 1); so that the edicts prohibiting natives from holding offices of trust, or holders of such ofiBces from marrying natives, would not apply {Cod. Theod. viii., Partd. xxii., tit. ii., tit. xv. leg. 1). ADOPTION OF THE ROMAN LAW IN THE PROVINCES. XXXV tering into all the relations of life and all classes of society, that it could hardly fail to implant its laws and institutions very deeply even among the native population; and when to this is added the establishment of colonies, the erection of municipal corporations, the operation of the manorial system, and the effect of intermar- riages in blending the Iloman and the British races, it is impossible not to sec that iioman laws, institutions, and ideas must have taken firm root, especially as there was a uniform administration of jus- tice. Those who had been so long accustomed to tlie Eoman rule would probably, oven while assorting their independence of it, de- sire to preserve the laws and institutions, the advantage of which they had so long enjoyed ; ^ and the voice of history assures us that this was so in point of fact. From these causes, it was impossible but that, in the course of the centuries during which the whole fabric of Eoman society and of Roman civilisation,2 with all its laws and institutions, was firmly ^ Thus the learned Lingard, citing Zosimus, tells us that when the Emperor Flono- rlns wrote to the British authorities to provide for their own safety, and the Roman magistrates were deposed, "the British states themselves re-established civil govern- meut on a similar foundation." And the histoiian adds: "As the colonies, 'muni- cipia,' and Latin towns had alwaj-s formed so many separate commonwealths, under the superintendence of the provincial presidents, they would probably wish to retain the forms of government to which they had so long been accustomed " {Hist, of Eng., vol. i.e. 1). The learned historian, indeed, seems to have supposed that a state of anarchy ensued, in which all laws and institutions perished; but this is opposed to the views of Savigny and of Guizot, and is not sufficiently supported b}' authority. And even if it were, the tradition of such laws and institutions would remain long after the institutions were destroyed. ^ One of the most learned and acute writers on our earlier historj-. Sir Francis Pal- grave, has ably enforced this view. " The Romans," he says, "fortified many strong cities in difiFerent parts of the island, and these colonies, or ' municipia,' were peopled with Roman inhabitants, who came hither from Italy accompanied by their wives and children. The Britons, or at least those tribes who inhabitsd the vicinity of the Roman colonies, soon adopted and emulated the customs of their mixsters. They learned to speak the Latin language, adopted Latin names and Roman manners. British princes were allowed to retain their dominions beneath the Roman supre- macy. In other districts the land was allotted out to the Roman colonists, under whose power the British cultivators of the soil passed into a state of pracJial slavery or villenage. The colonial policy of Rome sustained some alterations in form between the age of Agricola and the fifth century, but the main principles remained unchanged. Taking the reign of Constantine as the middle point of development, the whole Roman empire was divided into four great ' prefectures' or governments, Britain being included in the jurisdiction of the prefect of Gaul. The prefectures were divided into dioceses, and Britain was a diocese. The dioceses were divided into 'provinces,' subjected to presidents or consulars, and vicars or vice-consulars, each order in their degree invested with the various powers of judicial government XXXVl INTRODUCTION TO THE PRESENT EDITION. established here, those laws and institutions must have taken deep root, the institutions through tlieiv being everywhere planted, and the laws through their becoming incorporated with the customs of the people. It is the opinion of those whose researches into our early history give their opinions highest authority, that, after the decline of the Roman empire and the withdrawal of the Roman legionaries/ the and civil policy. The military command of the provinces was intrusted to the * comites,' each having his own district or territory " (in which we see the origin of the comitatu.% or county). " From the reign of Constantine these functionaries held a con- spicuous rank in the state, and were gradually invested with civil as well as military rank. The cities enjoyed considerable privileges, and possessed a distinct p)olitical existence. The ruling body, termed the curia, was composed of senators or decu- riones ; and, moreover, besides the^municipal corporations, each city had its 'colleges,' or guilds, of tradesmen and artificers. The prefects and other governors were prac- tically in their own departments despotic ; yet a species of controlling power existed in tbe provincial councils or assemblies, the constitution of which cannot be precisely defined, though deputies from the cities and great landed proprietors, and probably the bishops, liad seats " {Rise and Progress of the Enfjlish Commomcealth, c. x. and xi.) " The councils assembled in course, and at stated times of the year, unless any emer- gency arose, in which case they were summoned by the rescript of the emperor. If local regulations only were required, the councils were authorised to enact ordinances ; but in matters of importance, and especially if the provincials needed the redress of any grievances, they could only address their petitions to the emperor. In many parts of the empire, such as Narbonensian Gaul, these councils appear to have been engrafted upon the institutions existing among the conquered nations. Was this the case in Britain ? The question is interesting, but difficult. It is sufficient to observe, however, that these local legislatures, hovvevt-r qualified their powers might be, con- tinued to keep alive a feeling of national or independent existence, and prevented the provinces from being merged in the vast orb of the empire. And, transmitted through the middle ages, they became one of the elements at least out of which the parliaments, states-general, and other legislative assemblies of modern Europe were gradually formed " (Ibid.) The exact conformity of all this with the tenor of the imperial edicts, on the one hand, and the langunge of the Roman or Saxon historians, on the other, will be apparent ; and there is also an entire accordance between the views of Palgrave on the subject and those of Savigny, Mackintosh, and Guizot. Elsewhere Sir F. Palgrave says : " These provincial assemblies participated in all the feelings and opinions of their countrymen, and virtually represented the wealth and respectability of the land" {/list, of the Anglo-Saxons, ch. i.) What strong tendency all this must have had to deepen the hold of Roman laws and institutions on the country, and how contrary it is to the common notion that these assemblies were of Saxon origin, need not be pointed out. The Saxon assemblies were mere turbulent assemblies of the people, without representation. ^ This was only a withdrawal, l)e it observed, of the legions who had remained em- bodied, or had newly arrived. There was no wholesale withdrawal of the Roman population, or of the settled Roman colonists; and indeed it is obvious that the British must have become Romanised, and the two races blended, in the course of centuries. Sir F. Palgrave says : " The Bretwaldas (or British or Saxon rulers) must be considered as the successors of the Roman emperors or rulers," and we may affirm that, so soon as the royal authority became developed among any of the barbarians GRADUAL ADOPTION OF THE ROMAN LAW. XXXVll Romanised Britons (the two races having been so long together that they must, to a great extent, have become blended) retained, as might be expected, the lioman ideas of government, and the Roman laws and institutions, and that these were likewise, in a similar way, transmitted to subsequent races of barbarian invaders, who, before their conquests were complete, became blended with the Romanised inhabitants of the island. Nothing is more remarkable in the history of this country than the gradual blendiii'T of the successive races and their laws and institu- tions, and one of the most remarkable, though perhaps least recog- nised illustrations of this, is afforded l)y the manner in which the Roman occupation l paved the way for the Saxon invasion, and, on the other hand, prepared the way for the adoption by the Saxons of the Roman institutions. There would, therefore, it is manifest, be every reasonable pro- who settled on Roman ground, all their kings took upon themselves, as far as they could, to govern according to the spirit of the Roman policy, and agreeably to the njaxims prevailing in the decline of the empire, and declared in the imperial law (Ibid.) ^ It has already been mentioned that it was the habit of the Romans to form mili- tary colonies in conquered countries, settling their legions in the districts in whicli they were posted, by grants of land, on military tenure, 'i'hus Sir F. Palgrave says : " The general system of defence was founded upon the principle of paying the soldier by giving him land. Thus the march or border countries were granted almost entirely to the Limitanean soldiery, upon conditions which have been well described as contain- ing the germ of the feudal tenures. Such land could not be alienated to a non-mili- tary owner. The Limitanean soldiery, as their name imports, continued settled on the frontiers ; but in the same manner, or nearly so, were all the other Roman legions rooted and fixed in the interior of Britain. They were permanently established in the island, and military service was an imperative condition." In process of time the same system was applied to barbarian troops in the service of the empire, and thus, as Sir F. Palgrave states, two German tribes became established in Britain, and of course Romanised. The result of this in promoting the invitation, or invasion of others and their adoption of the Roman institutions, will be apparent. And this system, on the one hand, greatly conduced to the rise of barbarian rule, and, on the other hand, tended to subject it to the influence of Roman institutions. For, as Sir F. Palgrave points out, the power of the local legionaries, combined with the influence of provin- cial assemblies, would combine to support provincial rulers who assumed an independ- ent position. That there were such rulers in Britain after the decline of the Roman emperor, is a fact of which there is no doubt. These rulers aped Roman power, and called themselves emperors. And, as Sir F. Palgrave says, " Unconscious of the ends which they were destined to accomplish, the provincial emperors may be considered as the precursors of the barbarian dynasties. The political ancestry of the ancient monarchs of Anglo-Saxon Britain must therefore be sought amongst these sovereign Britons" (ffixt. of the ArKjlo-Saxons, c. i ) " Princes reigned in Britain long after the extinctionof the Roman power who traced their descent from Maximus " ( Ibid.) " And when the connexion between Rome and Britain was entirely severed, Britain broke into various independent states; but there remained a Roman party, headed by men of Roman name " {Ibid.) XXXVlll INTRODUCTION TO THE PRESENT EDITION. "bability that the Roman laws and institutions would be adopted in this country, and would continue to exist here even after the Eoman rule was at an end. Nor is it left to probability ; it is con- verted to the positive certainty of historic truth by the actual existence of the laws of the Eomanised Britons/ compiled at a period posterior to the termination of the Eoman rule in the island, and anterior to the later Saxon laws. The Eoman Britons are found, according to these laws, to have had, in the first place, a clear, definite, and decided view of the superior powers and prerogatives of the sovereign ruler, as repre- senting the state,2 especially as to the ultimate ownership of land "unappropriated, or on failure of legal owners, or the like. In these laws, of which there was a Latin version, will be found clear traces of the Eoman system of organisation. 3 of Eoman division, and of Eoman laws and institutions, which could never have been derived from the Saxons, seeing that they are vastly superior to the latest Saxon laws, and there is no mention in the Saxon laws of their establishment, and such of them as are ^ The body of laws compiled by Howell Dim in Wales in the tenth century — a.D. 940 — about the time of the laws of Edgar. It lias already been seen that the Britons, before the Romans came, were mere barbarians, and Lad no laws at all ; so that any laws they had aftenvards, especially as they corresi)onded closely with the Roman, can only be ascribed to a Roman source. It need hardly be stated that, at the close of the Saxon Conquest, the independent Britons had been forced mainly into Wales, and Lord Hale admits, in commenting on the " Statu tum Walliae" (tem'p. Edward I.), which recites a certain law or custom in Wales, differing from our own, that it is evi- dence of what was the British law. But then he forgot that this must have been a British law derived from the Romans. ^ Thus all lands were deemed to be held of the sovereign as paramount lord, and reverted to him if the conditions on which they were held were not fulfilled, or on failure of the heirs of the possessor : " Si cleiicus fundum sub rege tenuerit, cujus nomine servitiura regi prajbere obligatur, is in cui-ia pro fundo isto et rebus ad ean- dem pertinentibus respondere tenebitur ; terra enim totius regni ad regem pertinet. Et nisi promte responderit ad regem, fundus iste redebit " (Leg. Wall., \\h. 4, c. cxxvi. 8. 5). So the prerogative of the sovereign was held to confer on him, besides the ultimate property of all the lands within his tenitoi-ies, the ownership of the sea-coast, and of all unoccupied or waste places, as among the Romans the vacua regia pertained to the state (Jbid., lib. i. c. 47). He was also entitled to the property of persons dyin^ wiihout issue [Ibid.) •* Thus it nppears that the country was divided into counties, and into " cantreds " or " hundreds," and also into tithings or tens. So it appears that there were " tons" " tcwns," which were farms or vills — no doubt the Roman manors. Beyond all doubt there were the Roman " coloni " or serfs, for they are mentioned by the name of " villani," and these belonged to manors. The counties and hundreds could not have been of Saxon origin, for the " shire" is mentioned in the eailiest Saxon laws — those of Ina — as already existing; and, on the other hand, hundreds are not mentioned until the laws of Edgar — later than these British laws. THE ROMAN LAWS ESTABLISHED AMONG THE BRITONS. XXxIx mentioned at all, arc only in llie earliest laws as already in existence. The Itoman S3^steni of the occupation of tlu; land belonging to an estate, by tenants bound to the cultivation of the soil, or to servile labour upon the estate, appears clearly to have continued, and with it all the incidents of such a tenure at the will of the owner, or lord, without any permanent estate or any property in the lands occupied, as in which, however, customs or rights existed, or were afterwards acquired.! These Eomanised Britons had, like the Romans, evidently de- rived from them regular rules of inheritance, and as to the devolu- tion of land by descent, dividing the lands as the Romans d!d,2 among the children of the former owner. And, at the same time, they had cherished a clear and definite idea of property in land in the sense of dominion. 3 These Romanised Britons, too, had a regular administration of justice, both local 4 and supreme,^ in which latter the ruh\s and forms of procedure, plainly borrowed from the Roman law, are laid down fully and correctly, embodying all the substantial features of the Roman civil procedure. It would of course be idle to suppose that these laws and insti- tutions could have emanated from the barbarian Britons, and equally idle to suppose that, though compiled in Saxon times, they ' " Villanorum filii in fundos paternos non succedcnt, communes enim enint illis cum ceteris villuiiis. Filius taiiien natu minimus cujiislibet eorum patre mortuo dumicilium ejus jure hereditario habebit " (Zej. Wall., lib. ii., c. 12, s. 11). "Nulla para tense quern villani incolunt, regi decidet. Neculli vilJani licibet alteiius partem emere, singulorum enim partes requales erunt : nee regi ulla pars decidet eo quod ajqualiter inter omnes villanos dividenda tsit " {Ibid. lib. i., c. xliii., s. 2). The Roman "coloni" are clearly lieie meant, for they are mentioned under that name in the Latin version of the Laws of Ina, where also they iiiiglit have been derived from the Romans. ^ There was a fluctuation in the Roman law upon the subject. The Twelve Tables divided the land among the sons only ; the later law among all the children. The general principle was a division of the pi-operty. The Roman Britons appear, by these laws of Wales, to have retained the laws of the Twelve Tables, and divided the land among all the sons. This is recited in the Statulum Waliice, temp. Edward L, and Lord Hale says this is good eviienoe of what the law was among the Britons, i.e., the Roman Britons (Hid. of Com. Law). •* Dominus. Is qui rei dominium et proprietam habet (Gloss, a Leg. Wall.) * Controversia etiam de fundis hereditariis inter aliquos inferiore cognationis gradu quam qui partitionem peculiarem petere possunt, in cuiia principali ter- niinare debent ; sed tales litcs inter propinquos intra tertiam generationem, tcruiinandaa Bunt in curia cui fundus iitigatus subjacet (Triads, cclviii. 4). ' There is a regular system of procedure described in the superior courts, with all the forms in real actions afterwards described in Glanvillo or Bractou. Xl INTRODUCTION TO THE PRESENT EDITION. could have been derived from the Saxons, who at that time had them not themselves.^ And as by a kind of exhaustive process it has been shown that the laws and institutions existing here at the time of the decline of the Eoman empire must have been derived from the Eomans, because the British were mere barbarians before the Eomans came, so a similar process leads to the same conclusion as to the Saxons, who had not, when they came over, the very rudiments of law, nor even the idea of sovereign power which lies at its basis, but were mere Avandering predatory war- riors. 2 The liabits and character of the Saxons,-^ when they invaded this country, were such as to preclude the possibility of their having ^ Sir F. Palgrave shows that the Saxons bad not even the idea of supreme sovereignty: having only numerous popular chiefs called eldermen (Hist, of Anglo- Saxons, c. iv.) And, of course, such a people had not any notion of settled property, of regular judicature, or of regular law. They were mere wandering predatory tribes, each having its own chieftain. This is the account which Guizot gives of the German invaders generally, and it was eminently true of the Saxons (Led. S2(r la Civiliz. en V Europe). So our own Hume calls them "those generous barbarians," though it would be more correct to call them savage barbarians. Taking the most favourable view of them given by Tacitus, it is evident that they were bar- barians. ^ This can be seen by a comparison of their laws with the contemporary Saxon laws, which were utterly barbarous. Added to this, the Britons in Wales were those wlio had upheld their indeijendence, and were in constant hostility with the Saxons. ^ As they are described by Tacitus, they appear to have been very much in the same state as the Britons on the arrival of the Romans, a rude, wandering, war- like race, who had many barbarous usages, but nothing that could be called laws or civilised institutions. This indeed was impossible, as they did not cultivate the ground, and had no idea of that fixed property on land which lies at the basis of all civilisation and law. " Honoratissimum assensus genus est armis laudare. Eliguntur in iisdem conciliis et principes, qui jura per pagos vicosque reddunt. Centeni singulis ex plebe comites consilium simul et auctoritas adsunt." Those sentences, detached from the context, are often cited to show that they had the division into counties and hundreds ; but the context shows that this was merely a numerical division for military purposes, not a civil institution. "Nihil autem neque publicsc neque privatse rei, ni«-i armati agunt . . . Principes pro victoria pugnant, comites pro principe. . . . Nee arare terram, aut expectare aimum, tam facile persuaseris, quam vocare hostes et vulnera mereri. . . . NuUas Germanorum populis urbes habitari, satis notum est, ne pati quidem inter se junctas sedes. Colunt discreti ac diversi, ut fons, ut campus, ut nemus placuit. Vicos locant, non in nostrum morem, connexis et cohserentibus edificiis; suam qiiisque domum spatio circumdat, &c. Agri pro numero cultorum ab universis per vices occupantur. . . . Arva per annos mutant, et super est ager, nee enim cum ubertate et amplitudine sole labore contendunt, ut prata sepiant ; sola terra seges iniperatur " (De Mor. Germ.) It is obvious that the usages of these people were as luilike the institutions of the Romans or the Romanised Britons as possible ; so that if afterwards we find them with those institutions, it could only be from the latter they were derived. GRADUAL ADOrTION OF THE ROMAN LAW. xli brought hitlier any of those civil laws or institutions which Avero afterwards found among them, and whicli therefore they must have derived from the Romanised inhabitants and institutions tliey found established here. All the original habits and usages of the Saxons were rude and truly bar])ariiin, and such as suited unsettled, wandering, and uncivilised tiibes, and not such as were fitted for civilised life. Naturally, and indeed necessarily, these barbarians, when once settled in the country, and finding very admirable and convenient institutions already implanted in it,l would adopt them ; and hav- ing adopted the institutions, would as naturally, although gradu- ally, adopt a good deal of the laws which had become blended with them, and mixed up with the customs of the country, the more so, since, having no settled institutions of their own, there w\as nothing to oppose to them. And the history of our laws and institutions, from the time of the Saxon invasion, is a history of this gradual progress, and of a struggle between the principle of reason, repre- sented by the Roman law, and the principle of custom, represented by the rude usages of the barbarians. Tribes which live a wild, wandering, warlike life, as the Saxons did, and have no idea of settled property nor cultivation of the soil, have no idea of regular law, nor of that supreme and sovereign ' Thus Sir F. Palgrave says, " So soon as the royal authority became developed among any of the barbarians who settled upon the Roman ground, all their kings took upon themselves, as far as they could, to govern according to the spirit of the Roman policy, and agreeable to the maxims prevailing in the decline of the empire and declared as the imperial law. This copy of the Roman majesty was very rude and inartificial. The 'witan' of the Anglo-Saxon and other of the barbarian kingdoms used the codes and rescripts of the emperors as their church architects attempted to imitate the models afforded by the sacred structures of imperial Rome." " This assumption of power, however,"' he goes on to say, " was not unchecked or uncontrolled. While the kings of the barbarian nations were striving to clothe themselves with an imperial authority, the people, or the communities or bodies of people which they governed, strove equally to maintain tlieir own Ger- manic freedom ; and the nobles in particular were fully able to resist all the coercion from the royal power. The infusion of Roman or Romanised doctrines into the administration did not derogate from the full exercise of all the laws and legal customs of the barbarians, which they considered as their biithright and best privilege. Taking these things together, we must cmisider the practical goveinment of the state as resulting from two opposite piinciples, often discordant, and sometimes entirely hostile to each other : Roman law, which the king tried to introduce into the adminis- tration, and a Germanic law or usage upon which that Roman law was imposed " {IliKt. of the Anglo-Saxons, c. iv.) The philosophical Guizot gives a very similar repre- sentation of the contest between Roman law and barbarian usages, a contest not terminated until long after the Norman Conquest. Xlii INTRODUCTION TO THE PRESENT EDITION. power which is its foundation,! and hence they have only some rude usages rather than laws, popular assemblies instead of regular judicature, a rough kind of arbitration instead of regular law. A barbarous tribe, who had neither cities nor cultivation nor civilisation, could not have originated civil institutions,2 which it would be absurd to attribute to them, when it is an undoubted fact that the Romans had been at pains to implant their law^s and institutions, and had left them here on their departure, along with their language and their laws. The Saxons, therefore, did not bring any institutions or laws worthy of the name with them. They brought only rude barba- rian usages, as will be seen in their written laws, which express for the most part their own usages : such, for instance, as the ordeal. It is manifest that they created nothing civilised. On the other hand, it is equally clear that they destroyed nothing '^ Thus Montesquieu says : " C'est le partage de terres qui grossit priucipalement le code civil. Chez les nations ou Ton n'aurapas fait ce partage, il y aura tres peu de lois civiles. On peut appeler h-s institutions de ces peuples des mcEurs plutot que des lois" (De V Esprit des Luis, 1. xviii. c. 13). He adds: "Ces peuples jouissent d'une grande liberty, car conune ils ne cultivent point les terres, ils n'y sont point attaches ils sont errants, vagabonds," &c. (Ibid. c. 14). And then he applies this to the Ger- mans, and cites Tacitus and Ctcsar : " Nee regibus libera, aut infiuita, potestns: cseterum neque aiiimadverte," &c. (De Muribus Ger.) "In pace nulliis est communis magistratus ; sed principes regionum atque p.igorum inter suos jus dicunf (De Bell. Gall., lib. vi.) So Guizot. " How can it be maintained that German society was well nigh fixed, and that the agricultural life dominated there, in the presence of the very fact of migration, of invasion, of the incessant movement which drove the Germanic nations beyond their territory ? How can we give credit to the empire of manorial property, and of the ideas and institutions which are connected with it, over men who continu- ally abandoned the soil in order to seek fortunes elsewhere'' (Hist, de Civiliz. en France). There was but the beginning of agricultural life, and that only by the means of slaves : " Servis non in nostrum niorem desciii)tis pi^r familiam ministeriis, utuntur. Suam quisque sedem, suos penates regit. Frumeuti modum dominus, aut pecoris, ut colono, injiingit, et servus hactenus paret" (De Morib. Germ.) ^ What could such a race know of either civic institutions, or of such a system as that which tbe Romans had fur the cultivation of the rural districts, and which they always established in their colonies ? There were as many as nine of their civic colonies established in this coimtry, and they were centres of civilisation, not only by their civic institutions, but by those rural institutions by the means of wliicb they culti- vated the surrounding country. Tluis of one, the mo-st ancient ar\d important of these colonies — Colchester — the historian says, in narrating the rebellion, " Quippe in coloniain Camalodunum recens deducti, pellebant domibu.s, exturbabant agiis, cap- tivos, seivos appellando" (Tuc. ylw.,lib. 14). So the historian, speaking generally of the enlightened rule of Agricol.i., says, "Jam vero principum filios liberalibus artibus erudire, et ingenia Britannorum .studiis Gallorum anteferre, ut qui modo linguam Romanum abuueb.mt, cloquentiam concupiscereut, iude etiam habitus uostri honor et frequens toga," &c. {Tac. Agric. Vita). EFFECTS OF THE SAXON INVASION. xliii civilised ; that is, tlicy destroyed no existing institutions ; they eradicated none of tlie existing Jaws or usages, in which lay so much of lionian law. They neitlier created nor destroyed; they adopted and appropriated, trying, no doubt, to mix uj) their own barbarous usages, which, however, it was found, as will be seen, would not coalesce or unite with civilised institutions, so that this baser matter soon fell off, and left the entire; i'abiic of Romanised laws and institu- tions, save that the Saxons infused into the Roman institutions their own rough spirit of freedom, wliich gave them fresh life and vigour. But they did not destroy the Eoman laws and institutions. The notion that they did so arose from an erroneous idea as to the nature of their invasion. It is imagined that there was a sudden and sweeping Saxon conquest, and hence it is supposed that insti- tutions entirely ])erislied and disappeared. The conquest of the country by the Saxons was a slow and gradual process, extending over five centuries, and scarcely completed when the Danisli in- vasion occurred. And during that long period, there was of course, to a great extent, an amalgamation between the races and a mix- ture of usages and laws. Guizot points out how fallacious it is to suppose that these barbaric conquests of a country are ever so rapid and complete as to effect any general and sweeping revolu- tion; and he also points out that in those early times, when, of necessity, tlie country, being thinly inhabited, contained large tracts of unoccupied land, it would naturally be here that the suc- cessive tribes of invaders would settle down, leaving the cities and towns, which would be stronger and more thickly populated, to subsequent acquisitions ; and the Saxon chronicle shows that this was so in this country, and that the conquest took centuries, by which time the two races and their usages were greatly merged. ^ Thus it was, as the great historian of European civilisation pointed out, with the barbarian invasions generidly. They w^re gradual and progressive. " Hence it happened, Roman society," says Guizot, " had not so completely perished (in the south of Gaul) as elsewhere ; a little more order and life remained in the cities. Tliere civilisation attempted to lift its head, lioman society had acted upon the Goths, and had, to a certain degree, impressed them with its likeness" {Lectures on Civilisation , Lect. iii. p. 57). " There remained in the towns many wrecks of Roman institutions. There is mention made of public assemblies and municipal magis- ^ Lcct. sur la Civilization. xliv INTRODUCTION TO THE PRESENT EDITION. trates. The affairs of the civil order, wills, grants, and a mul- titude of acts of civil life, were legalised in the curia by its magistrates, as was the case with the Eoman municipality " (Lect. vii. p. lol). " The spirit of legality, of regular association, came to us from the Eoman world, from the Eoman municipalities and laws" (Lect. vii. p. 432). "The towns, the primitive elements of the Eoman world, survived almost alone amidst its ruin. The rural districts became the prey of the barbarians. It was there that they established themselves with their men ; it was there that they were about to introduce by degrees totally new institutions, and a new organisation " (p. 440). Tlius it followed, that through the long period occupied by the Saxon invasions, there was ample time for amalgamations of races and of usages, of laws and of institutions ; and there was not any sudden and general wreck of Eoman institutions, as is often sup- posed, but, on the contrary, a gradual and progressive adoption of them; the more so, as the Saxons, being little better than savages, had no civilised institutions of their own. Since the time when Eeeve wrote, the most learned works have been written which have shown the influence of Eoman laws and institutions upon those of a later age. Thus, for instance, the History of the Roman Lmu in the Middle Ages, by Savigny, a work the purpose of which was to show that the Eoman law never perished in Europe, but is to be met with throughout the period extending from the fifth to the thirteenth centuries in a multitude of institutions, laws, and customs. This great work was followed up by the great work of Guizot, on the Civilisation of Europe, in which it is thus spoken of: — " The work of Savigny, on the history of the Eoman law after the fall of the empire, has changed the face of the science ; it has proved that the Eoman law had not perished ; and that, notwithstanding great modifications, without doubt, it was transmitted from the fifth to the fifteenth century, and has always continued to form a considerable part of the legis- lation of the west " (Lectures sur la Civiliz. en France, Lect. XXX.) And the illustrious Guizot himself attests the truth of this: " It follows evidently from the facts laid before you, that not only in municipal institutions and civil laws, as Savigny has proved, but in political order — in all departments of social and intellectual life, the Eoman civilisation was transmitted far beyond the date of the empire; that we may everywhere discern a trace of it; that EFFECTS OF THE SAXON INVASION. xlv the thread is nowhere broken ; tliat we may recognise everywhere the transUitioa of lioman society into our own ; in a word, that the part played by the ancients in modern civilisation is greater and more contiuuous than is connnonly thought" (Ibid.) And the great writer confirms this conclusion by drawing our attention to the gradual character of the conquests by the bar- barians, which is peculiarly true of the successive Saxon invasions in this country, occupying as they did a period of not less than five centuries ; and the subjugation of the country not being entirely completed, even at the time of the conquest, during the whole of which period an amalgamation of races and institutions was going ou. The natural result of all this would be, that, so soon as the barbarians were civilised enough to aspire after regular law, they would soon begin, by degrees, to resort to the Eoman. " After the conquests of the barbarians," says Guizot, " there remained considerable wrecks of the lioman civilisation. The name of the empire, and the recollections of that great and glorious society, dis- turbed the memories of men, particularly of the senators of towns, of bishops, and of all those who had had their origin in the Roman world. Among the barbarians themselves, or their barbaric an- cestors, many had been witnesses of the grandeur of the empire : they had served in its armies ; they had conquered it. The image and name of lioman civilisation had an imposing influence upon them, and they experienced the desire of imitating, of reproducing of preserving something out of it" {Lectures su7' la Civilization, Lect. iii.) This, certainly, was not less likely to be true in this country than in Europe generally. Accordingly, as the same great writer remarks, the earliest efforts at legislation among the barbarians were soon felt to be rude and inadequate to the state of things they found existing. " One is surprised," says M. Guizot, " that the permanence of the Roman law, after the fall of the empire, should ever have been doubted. Not only do the barbaric laws everywhere make mention of the Roman laws, but there is scarcely a single document or act of that epoch which does not, directly or indirectly, attest their daily application. It was the Pandects which reap- peared in the twelfth century; and when people have celebrated the resurrection of the Roman law, it is of the legislation of Jus- tinian they have spoken, not the perpetuity of other portions of the Roman law in the west ; the TheoJosian code, for instance, and all xlvi INTRODUCTION TO THE PRESENT EDITION. the collections of wliicli it was the basis " {Lect. siir la Civiliza- tion). This would be the natural result, and was the actual result, of the manner in which the Saxon Conquest was ultimately, after ages, effected, viz., that the conquered race simply became their tributaries.! There could be nothing in this to disturb or destroy tlie existing institutions, rural or municipal. The Saxons established themselves in the manors, and adopted the manorial system. By degrees they conquered the towns, and preserved the municipal system. There is no trace either of their creation or destruction of either system. They, indeed, established a system of frankpledge, wliieh led to the formation of " boroughs ; " but they did not destroy the privileges of the cities. On the contrary, the first Saxon monarch (Athelstane) who professed to reign over the whole Saxon portion of England — and it was but a portion — recognised the customs of the cities,2 and established privileges of coinage there. All the civil or political divisions of the country into hundreds ^ and counties were, there is every reason to believe, continued sub- stantially as they before existed. The common notion that Alfred divided the country into hundreds and counties, is a vulgar error. ^ Thus Lingard says, after the Saxons had formed fixed and permanent settlements they gradually suffered the natives to retain their national institutions, and their own chiefs as subordinate and tributary. Bede gives an instance of both in Edelfred, in the year 600 : " Qui terras eorum subjiigatis itidigenis, aut tributarias genti anglorum, aut habitables fecit" {Hist. Eng., vol. i. c. 2). Wliat these institutions were h:is been seen ; they were — whether urban orrural, municipal or manorial — of Roman origin-f-and thus the chain of descent from the Roman time to the Saxon is distinctly kept up in legal history. It is to be observed that it was only a portion of the Britons who preserved their independence, and were driven into Wales. The greater part of Britain was subjugated and subdued by the Saxons, and the races amalgamated. (See Sir E. Creai^ys " Enfjlisk Constitution." ) '^ See the Laws of Athehtane I., s. 14 ; Anf/loSaxon Laws, vol. i., p. 207. ^ The Saxon " hynden," hund, consisted of ten persons, and appears to have been formed from " hund," of which the original meaning was ten. The " hynden," there- fore, will correspond to the turba of the civil law, "quia turba decern dicuntur," and the tourbe of the French coutumes, "continue si doit verifier par deux tourbes et chacun d'i celles par dix temoins '" {Louel, liv. v., tit. 5, c. 13). And " hyndens " and " shires " are mentioned in the earliest Saxon laws (Laws of Ina) ; and, as already known, there is no mention of the establishment of either in any of the Saxon laws. Clearly, then, they were known before the Saxons, and that was the opinion of Lord Coke (1 Inst. ,2a). Again, "shires" are mentioned as already known in the eailiest Saxon laws (in those of Ina, s. 39 and 361). The notion that Alfred instituted shires and hundreds and tithings is a vulgar error. It seems probable, therefore, that the real origin of the hundreds and tithings is to be found in the Roman usages introduced among the Britons. This seems to have been supposed in the Saxon times : see the Min-or of Justice, for instance. ^So the Saxon laws, vide post. SAXON INSTITUTIONS OF ROMAN ORIGIN. xlvii There is no trace in tlie Saxon laws of tlioir formation, and they are mentioned in the earliest of them as already existing, although it is probable that the Saxon institution of frankpledge was applied to titliings. So as to the officers of these civil divisions of the country, espe- cially the slierifi" whose functions were from the first fiscal, and connected with the system of revenue, not of barbarian origin. It is probable, and it appears, from express statements in these laws ;l that the institutions which prevailed in this country during the period of the Roman occupation, were, in a great degree, revived and restored, and were embodied in the Saxon law. In the earliest of the Saxon laws are to be seen constant traces of the old institutions derived directly from the Eomans, and the earliest of the Saxon historians ^ speak of them as framed more or less in accordance with the ideas and examples of the Romans ; or of those who had been subject to them, and who had imbibed their spirit, and adopted their institutions. It is a matter of historical fact that, no sooner was the Saxon Conquest accomplished, than, under wise monarchs, the work of 1 Thus, in the laws of the Confessor, compiled soon after the Conquest, is a pas- sage : " Et similiter olim apud Britones temponbns Romanomm, in regno iato Britannioe, vocabuntur senatores, qui postea temporibus Saxoniim, vocabuntur alder- manni . . . Debent enim et leges, et libertates, et jura, et justas consuetndinea regni et antiquas a bonis prsedecessoribus approbatas, iuviolabilitur moiiis omnibus, pro posse suo servare." Lord Coke was of opinion that the country was divided into counties in the Roman times, and that in those times also are to be found the origin of our towns, cities, and boroughs, of which there can be no doubt. He also was of opinion that there were prEcfects or consuls, and sub-prtcfects or vice- consuls, to the counties ; and that the slierifi' (,Saxon shire-reeve), by the Nurmans called viscount, and in Latin vice-comes, would, under the Romans, have been sub-prasfect. That there were such officers in Roman times no one can question. That thoy would remain during the long period in which the Saxons were gradually and slowly acquir- ing dominion in the country, there can be as little dou'it; and that the Saxons, as they thus acquired dominion and became civilised, would retain them, giving them the Saxon names, is most probable. It is thus. Lord Coke conjectures, the- consul became the eail, and the vice-consul the sheriff", and probably the modern lord-lieu- tt-nant is the nearest approach to the ancient Saxon earl or Roman prrefect of a pro- vince, or county, or shire. And Alfred only revived these divisions and institutions (1 Inst., sec. 248). " Thus Bede speaks of Ethelbert, whose laws are among the earliest : " Qui inter cajtera bona, qusc genti sua; consulendo conferebat, etiam decreta illi judiciorum, juxta exempla Romanorum, cum consilio sapientium constituit ; qua; consoripta anglornm sermone hactenus habentur, et observantur ab ea ; in quibus primitus posuit, qualiter id emendare deberet, qui aliquid rerum vel ecclesia; vel episcopi, vel reliquorum ordinum facto auferret ; volens scolicet tuitionem eis, quos et quorum doctrinamsusce- perat, prajstare " {Hist. Eccles., ii. 5). xlviii INTRODUCTION TO THE PRESENT EDITION. consolidation and civilisation was commenced, the Eoman institu- tions and divisions of government were adopted, and the terms they had used were employed.^ As might naturally be expected, so soon as the Saxons became civilised enough for anything like law, they resorted to the laws of the Romans. As an eloquent writer lias justly and truly remarked : " The inheritance of Koman wisdom was transmitted to the fierce barbarians of the west, and, as they wrought the materials of the temple and amphitheatre into their own rude fortresses and dwell- ings, so did they occasionally incorporate the precious fragments of Pioman law into their own unformed and scanty jurisprudence. This, however, they sometimes did unconsciously, and, at most, against their will. But when society improved, men looked on the Eoman law with increasing veneration, as the surest basis of civil order "2 (PhiUimore's Introd. to Roman Laio, p. 11). ^ Thus in the laws of Ina we find mention of the " aldermanni, quam Latine comi- tem vel seniorem dicunt" (s. 40). And in the hiws of Edward, the king com- mands " omnibus piefectis," and he declares that he who shall have deforced any one should do right, " coram preposito suo ; " and again, " de prepositis audito testimoni rectum facere volentibus " (s. 5) ; and again, " ut omnis prepositns habeat gemotium ad quatuor ebodomadus ;" whence it is plain that the " prsefectus " or " prepositns " answered to the Saxon sheriff, and that the Saxon sheriff was the Roman prefect. So the '' comes" is spoken of as equivalent to the Saxon alderman or earl {Anglo- Saxon Laws, vol. ii. p. 485). It is impossible not to see that Roman words were used as describing the certain officers or functionaries, which could only have been from their already existing at the time of the Saxon invasion. - The epoch of barbarian legislation, the learned author adds in a note, reaches^rom the fifth to the tenth century, including the laws of the Anglo-Saxons {Ibid.), which implies that the law prevailing here before was not barbarian. A similar account is given by Guizot {Hist, de la Civilization en France, vol. i., p. 30), a work of which it has been well said, " France may be proud." " Should we open," says Giiizot. " a bar- barian code, we shall everywhere find the traces of the Roman society, of its institu- tions and magistrates, as well as of the civil legislation. The municipal system occupies an important place in it ; the curia and its magistrates meet us at every step, and attest that the Roman municipality still subsisted and acted. And not only did it exist, but it acquired more importance and indepsndence. At the fall of the empire, the governors of the Roman provinces — the prpesides, the consulares — dis- appeared. In their place we find the barbarian counts. But all the attributes of the Roman governors did not pass to the counts ; they made a partition of them. Some beloni^ed to the counts, and these in general were those in whom the central power was interested, such as the levying of taxes, &c. ; the others, which only concerned the private life of the citizens passed to the curiae and the mimicipal magistrates" {Lectures sur la Clv'diz. en France, Lect. ii.) This was written of Gaul, but it was as true of Britain, which formed part of the same prefecture ; and we find the vice- comes, or sheriff in this country, exercising a portion of the functions here described as having belonged to the Roman officers of the empire, especially in relation to the taxes, &c., while the " comes " succeeded to the " consul or prtetor." SAXON ADOPTION OF ROMAN MUNICIPALITIES. xllX That our municipal institutions had a Pionian origin is not to be doubted, and is acknowledged by the most eminent Instorians.l Nor was it only municipal corporations which we owe to the Romans, although these, as Guizot points out, were the nurseries of freedom, of commerce, and of civilisation {Lectures sur la Civiliz. de V Europe, Lect. vii.) There were other corporations, such as guilds or trading confraternities, which are usually ascribed to the Saxons, but which, as that great author shows, we really owe to the Romans. And the way in which they arose well illustrates the silent, unobserved growth of laws and constitutions. He says, " By one of those revolutions which work on slowly and unseen, until they become accomplished and manifest at a particular epoch, whose course we have not followed, and whose origin we never trace back, it happened that industry threw off the domestic menial character it had so long borne, and that, instead of slave artisans, the world saw free artisans. This was an immense change in the state of society, a change pregnant with incalculable results. When and how it was operated in the Roman world, I know not ; but at the commencement of the lifth century it was in full action. There were already in all the large towns of Gaul (the prefecture which included Britain) a numerous class of free artisans already created into corporations, into bodies formerly represented by some of their own members. The majority of these trade corporations, the origin of which is usually assigned to the Middle Ages, may readily be traced back to the Roman world" {Led. sur les Civiliz. France, Lect. ii.) And it is beyond a doubt, though not so generally understood, that the Roman system was the origin of our manorial institutions.^ ^ Thus Sir James Mackintosh says, " One part of the Roman institutions had permanent consequences, of which we trace the fruits at this day. This was their care in providing for the government and privileges of towns. Thirty-three towns were established in this country, with various constitutions. The choice of the decurions, or senators, out of whom the magistrates were taken, was left to the inhabitants. To these magistrates belonged the care of the public worship, the muni- cipal property, and the local police, together with some judicial powers. Whatever may have been some of the consequences which are attributed to the conditiim of these subordinate republics, it cannot be doubted that the remembrance and the remains of them contributed to the formation or preservation of their elective govern- ments, customs which were the foundation of liberty among modern nations" {Mack. Uht. Eng., vol. i. p. 25). - What Guizot says of the Gaulo-Romans is just as applicable to the Britanno- Romans. " They first established themselves in the habitations, whether in the cities or in the villa;, amidst the country districts, and the agricultural population ; and rather in the latter dwellings, whose situation was most conformable to their national habits. Accordingly, the villoe, of which constant mention waa made d 1 INTRODUCTION TO THE PRESENT EDITION. That the system existed here when the Saxons came has been already shown ; that they would adopt it, would, a -priori, be pro- bable ; and as a certain fact, that they did so, the great author already quoted observed. " The Saxon invaders would, as they seized upon the villas or mansions, and the manors or estates, adopt that system of cultivation and tenure which they found existing, and would soon find to be the most convenient, and thus the manorial institutions would become as much the centres of civilisation in the country as the municipal in the cities. The same great author shows how gradually the Roman institu- tions grew upon the barbarians, and by degrees got rooted beside their own. "Since we have studied the barbarian laws, we ad- vance more and more to the same result ; the fusion of the two societies {i.e., the Roman and the barbarian) becomes more and more general and profound ; the Roman element, whether civil or reli- gious, dominates more and more. ... It exercises a prodigious influence over the institutions and manners which associate them- selves with it ; it gradually impresses on them its character ; it dominates over and transforms its conquerors. ... In fixing themselves and becoming proprietors, the barbarians contracted among themselves relations much more varied and more durable than any they had hitherto known. Their civil existence became much more extensive and permanent. The Roman law alone could regulate it ; that alone was prepared to provide for so many rela- tions. The barbarians, even in preserving their customs, even while remaining masters of the country, found themselves taken, so to spealv, in the nets of this learned civilisation, and found themselves obliged to submit in a great measure, doubtless not in a political point of view, but in civil matters, to the new social order " {Led sur la Civiliz. en Europe)^ In the early Saxon laws and institutions there is no trace of the under the first race, were the same, or almost the same, as they had heen before the invasion ; that is to say, they were the centre of improvement, and habitation of great domains and buildings, scattered throughout the country districts, where barbarians and Romans, conquerors and conquered, masters, freemen, labourers, slaves, lived together " {Led. sur la Civiliz. en France, Lect. 4). It is manifest that thus the manors would become centres of civilisation in the country, as much as the municipal in the cities; and both were of Roman origin. •* Les barbares, tout en conservant leurs coutilmes, tout en demeurant lesmaitres de pays — se trouverent pris, pour ainsi dire, dans les filets de cette legislation savante et obligfe de lui soumettre en grands partie, non sans doute, le point de vue poli- tique, mais eu mati^re civile, le nouvel ordre social {Lect. sur la Civ., vol. iii. 386). SAXON ADOPTION OF THE ROMAN MANORIAL SYSTEM. H establislinient of a riianorial system ; and it is beyond a doulit tliat they fonnd it here and adopted it. The earliest of the Anglo- Saxon laws make allusions to a state of things and a class of tenants necessarily involving the existence of the system. It is manifest tliat the villeins, or villani, who are admitted to have been the originals of tlie modern copyholders, were identical with the Saxon ceorls and the lioman " coloni ; " and thus it is shown that manors were of Roman origin, since copyholds were held of manors by immemorial usage and the custom of the manor.^ Thus, then, all the more important and influential institutions of the country, civil or ecclesiastical — the municipal, the manorial, the parochial, and the episcopal — none of which, except the obliga- tion of tithes and other ecclesiastical dues,2 were established by the Saxons, but were found existing here, and simply adopted by them, were derived from the Eomans. So as to the law, written or unwritten, all of it wliicli can be deemed worthy of the name of law, was derived from the same source. It would be a great mistake — but it is one into which our author and most other writers on our legal history have fallen — to imagine that all the law of this country in Saxon times was contained in the Saxon laws. These were the leges scriptce;^ but beyond and above these there was a great body of law, far ^ Thus, for instance, in the laws of Ina there is a section " de colono regis " (s. 19), and another " de colono vel villano." Si tuus colonus vel villanus furetur ; so tl at the "colonus " and the " vilhvnus " were spoken of as identical (s. 22). And in another headed " De villani mansione claudenda," the villani are called " ceorls" (s. 40) ; and so, in another, " De villanorum pascius claudendis : " it commences, " Si ceorli habeant herbagum," &c. ; so that here, again, the "ceorls" and the "villani" are spoken of as identical, and the ceorls, villani, and coloni are clearly identified with each other. Thus it is demonstrated that manors were of Roman origin, and the whole system of copyholds {Amjlo-Saxon Laws, vol. ii. p. 461). At the time of the Conquest, it was wrll understood that the " villani," as they were then called, were those who held land upon servile tenure, such as tilling the soil, taking care of cattle, &c. {Amjlo-Saxon Laws, vol. ii. p. 433) ; and after the Conquest, they were well under- stood to be the "coloni" of the Roman times. "Coloni" are then spoken of as " terrarum exercitores ; " non vexentur ultra debitum et statutum ; nee licet dominis removere colonos a terris, dummodo debita servitia persolvant {Laics of Willknn the Conqueror, s. 29). It is well understood, and is stated by Guizot, that the " coloni" of the Romans were identical with the "villeins" of the later times; and in the Latin versions of the Saxon laws they are called "villani," while, in the Saxon version, they are " ceorls " (pronounced " churls "), or husbandmen. " As, the payment of church-scot {Laws of Ina); and Peter's pence (Laivs of Edgar). ^ This distinction between the lex scriptaand tlielcxnon scripta was itself derived from the Roman law, and is laid down in Justinian's Institutes at the outset. Tha Roman ecclesiastics were well aware of this, and of the value of tradition. Hi INTRODUCTION TO THE PRESENT EDITION. more valuable and influential, which was unwritten, and derived by tradition from the Eomans. Much of it was embodied in the institutions they had established, political or social, as the muni- cipal and the manorial. And there was much more, derived by tradition from the Eomans. It would be a great error to suppose that the Saxon laws con- tained all the law the Saxons had. They derived a whole system of laws and institutions from the Eomans ; their written laws were only additions thereto, and for the most part rude and barbarous. When the Saxons, like the other barbarian nations which had conquered portions of the Eoman empire,! became desirous of forming a regular law, they could do no more at first than put into writing their own barbarous usages. But by degrees they became sensible of their barbarism ; they learnt a better law, and there grew up among them an unwritten law, derived from the traditions of the Eoman law, which remained when their own rude written laws had become obsolete. And hence a constant struggle after something better — a continual tendency towards the laws and in- stitutions of Eome. In treating of the various attempts at extricat- ing European society from barbarism, the same great writer says : " The first attempt made, though but slightly effective, must not be overlooked, since it emanated from the barbarians themselves, was the drawing up of the barbaric laws. Betw^een the sixth and eighth centuries the laws of almost all the barbarous people were written. Before this they had not been written ; the barbarians had been governed simply by customs, until they had established themselves upon the ruins of the Eoman empire. We may reckon the laws of the Saxons. There was manifestly a beginning of civilisation — an endeavour to bring society under regular and general principles. The success of this attempt could not be great ; it was writing the laws of a society which no longer existed — the laws of the social state of barbarians before their establishment upon the Eoman territory, before they had ex- ^ " Lorsque les nations germaines conqiiirent I'empire romain, elles y trouverent I'usage de I'^criture ; et, \ I'imitation des Romains, elles redigcrent leurs usages par ^crit ; et en firent des codes. Les invasions, les guerres intestines, replongbrent les nations victorieuses dans les t^nehres dont elles ^taient sorties, on ne sut plus lire ni «5crire. Cela fit oublier les lois barbares ^crites, le droit romain. Et par la chute de tant di lois, il se forma partout des coutumes. Ainsi, comme dans I'etablissement de la raonarchie on avait passd des usages des Germaines b, des lois dcrites, on revint, quelques siecles apris, des lois ^crites i des usages non ecrits " {Mont. Esprit des Lois, lib. ii. 8, 0. 11). SAXON ADOPTION OF ROMAN LAW. liii changed the wandering for the sedentary life ; the condition of nomade warriors for that of proprietors. We find indeed here and there some articles concerning the lands which the barbarians had conquered, and concerning their relations with the ancient in- habitants of the country ; but the foundation of the greater part of these laws is the ancient mode of life — the ancient German con- dition; they were inapplicable to the neiv condition, and occupied only a trifling place in its development " (Ibid.) All this was eminently true of the Saxons in this country, and their earlier laws, which bear the traces of their rude and savage state, and are obviously only the first attempts at anything like settled law. And though they allude to institutions as already existing, such as the "hundred" and the court of the hundred, there is no trace of their having themselves introduced or established any but the most barbarous usages, as the ordeal, compurgation, &c. And if Alfred's institution of frankpledge be an exception, it ap- pears to have been founded upon an organisation already existing. As regards all secular institutions, indeed, beyond the mere adop- tion of the municipal or manorial institutions, which the Saxons found here, there is nothing in their laws except rude and barbar- ous usages, save so far as they had derived some first principles and elementary ideas of law from Eoman sources. Thus as to the general principles of jurisprudence, and tlie administration of justice, there can be no question that they were derived by the Saxons from the Eoman system, although doubtless in a very rudimentary form. Thus, for instance, as to tlie fundamental principle, which lies at the basis of all law, the supremacy of public justice over private revenge,! a principle so utterly antagonistic to the usages and ideas ^ As Guizot observes, the German notions of law, as exemplified in the earlier Saxon laws, did not rise so high and there is no trace of any other court — at all events, of primary or ordinary jurisdiction. And an attempt was made to improve the county court by compelling the barons to attend there. The administration of the justice thus dispensed in numerous local courts 3 was in a state utterly unsatisfactory, which led of 1 In those times the sheriff was always himself a potent person— perhaps a prelate or a peer— and he might have suits against others or against himself ; and there might, for this and other reasons, be necessity for sending kings' justices, as in the case of the suit between the bisliop of Rochester and the sheriff of Cambridgeshire, which was tried in the county court before the king's justiciary, who was a prelate, and who also, no doubt, had a sworn jury {Diirjdale's Orig. Jurid. 21). But the king's justices were often made sheriffs. Numerous instances of this are given in the learned work of Mr Foss {Lives of the Jucltjes, vol. i. p. 18G, 189, 377). The same person was sometimes sheriff of several counties (lb. p. 292), and held the office for years (345), and the chief justiciary was often made sheriff of several counties (264). The most remarkable instance of this was the illustrious Glanville, who had been for many years a justice and a sheriff, and was ultimately made chief justiciary (p. 130). 2 Thus in the Leges Uenrici Primi, the barons of the county (c. xxix.) are said to be the king's judges : "llegis judices sunt barones comitatus qui liberas in eis terras habent," which (a.s Spelman says) clearly means the freeholders ; and afterwards it is said that the bishops and counts, &c., ought to be in the countj' court, and that no one can dispute tiie record of the court of the king, which clearly means the county court mentioned just before. " Interesse comitatu debent episcopi comites, &c llecordationem curi;e regis nulli negare potest. Unusquisque per pares suos judi- candus est et ejusdem provinciao " (c. xxxi.) That is, by the fellow-suitors, the fellow- freeholders of the county. Afterwards it is said : " Si quis in curia placitum habeat convocet pares et vicinos suos; ut, inforciati judicio, gratuitam, ct cui coutradici non possit, justitiam exhibeat" (c. 33). » " The administration of the common justice of the kingdom," says Hale, speaking of a period even later, '• seems to have been wholly dispensed in the county courts, the hundred courts, and courts baron. This doubtless bred great iucouYenieuce Ixxvi INTRODUCTION TO THE PRESENT EDITION. necessity to great uncertainty, variety, and want of uniformity in the law. uncertainty, and variety in the laws : First, by the ignorance of the judges who were the freeholders — and though the bishops, barons, and great men were, by the laws of Henry I., to attend the county courts — they seldom attended there, or if they did, in process of time they neglected the study of the English laws " (as if, at that time, there were any English laws to study !) " Secondly, another inconvenience was, that this bred great variety of laws, especially in the several counties ; for, the decision being made by divers courts and several independent judicatories, who had no common interest among them in their several judicatories, thereby, in process of time, every several county would have several laws, customs, rules, and forms of proceeding, which is always the effect of several independent judicatories administered by separate judges. Thirdly, all the business of any moment was carried by parties and factions, for, the freeholders being generally the judges, and, as it were, the chief judges, not only of the fact but of the law, every man that had a suit there sped as he could make par- ties ; and men of great power and interest in the county did easily overbear others in their own causes, or in such wherein they were interested, either by relation of kindred, tenure, service, dependence, or application " {Hist. Com. Law, e. 7). " The administration of justice in the county, and other inferior courts, notwithstanding some striking advantages, was certainly pregnant with great evils. The freeholders of the county, who were the judges, were seldom learned in the law. Again, the de- terminations of so many independent judges, presiding in the several inferior courts dispersed about the country, bred great variety in the laws, which in process of time would have habituated different counties to different rules and customs, and the nation would have been governed by a variety of provincial laws. Besides these inherent defects, it was found that matters were there carried by party and passion. The freeholders, often previously acquainted with the subjects of controversy, or with the parties, became heated and interested in causes, which, added to the influence of great men, rendered these courts unfit for cool deliberation and impartial judgment. Besides, a judicial authority, exercised by subjects in their own names, must weaken the power of the prince, one of whose most valuable royalties, and that which most conciliates the confidence and good inclination of the people, is the power of provid- ing that justice should be duly administered to every individual. Though the appeal from the hundred to the court of the sheriff was kept in check, it was to be wished that justice should be administered in the first instance bj' judges having their com- mission from the crown " (Litt. Hen. II., vol. v. 273 ; Reeve, p. 53). So another great author points out how the necessity for regular judges would be gradually recognised. "Men, as soon as they were acquainted with fixed and general laws, perceived the advantage of them, and became impatient to ascertain the principles and forms by which judges should regulate their decisions. . . . These various improvements in the system of jurisprudence and the administration of justice occasioned a change in manners of great importance, and of extensive effect. This gave rise to a distinc- tion of professions. . . . Among uncivilised nations there is but one profession honourable — that of arms. . . . Nor did the judicial character demand any degree of knowledge beyond that which untutored soldiers possessed. . . . But when the forms of legal proceedings were fixed, when the rules of decision were committed to writ- ing, and collected into a body, law became a science., the knowledge of which required a regular course of study, together with long attention to the practice of courts. . . . Not only the judicial determination of points which were the subject of controversy, but the conduct of all legal business and transactions were committed to persons trained by previous study and application to the knowledge of law. The functions of civil life were attended to, the talents requisite for discharging them were cul- tivated " (Robertson^s Hist. Charles V., Prel. Dissert.) Thus this eminent author IMPROVED ADMINISTRATION OF JUSTICE. Ixxvii • For such a state of things it was necessary to find a remedy.^ and as the attempt to find it in the attendance of persons of eminence at the county courts either proved inadequate, or failed probably from their indisposition to take part in proceedings so turbulent, or perhaps from the want of due regularity in the discharge of a duty which necessarily, in such a state of things, was vague and indefinite : it was therefore necessary, in order to apply a remedy, to apply some new system, and it could only be devised by men who had derived some knowledge of the principles of rational and civilised procedure. There was no source at that time whence that knowledge could be derived except the Eoman law, and happily, at that time, the study of that law had revived, and was established in this country.^ Its results were at once made manifest in a great improvement in our law. regarded a regular procedure, and the cultivation of justice as a science, and the law as a profession, as great advances in civilisation, and a vast improvement in society. And this was so among our ancestors. ' The experience already had of a better mode of administering justice no doubt stimulated the desire for it, as Guizot observes. " Instead of a regular gradation of courts, all acknowledging the authority of the same general laws, and looking up to these as the guides of their decisions, there were in every feudal kingdom a number of independent tribunals, the j)roceedings of which were directed by local customs and contradictory forms. The collision of jurisdiction among these different courts often retarded the execution of justice. The variety and caprice of their various modes of procedure must have for ever kept the administration of it from attaining any degree of uniformity or perfection. But the. usurpations were so firmly estab- lished that kings were obliged to rest satisfied with attempts to undermine them. . . . The attempt, nevertheless, was productive of good consequences. ... It turned the attention of men towards a sovereign jurisdiction. . . . This facilitated the introduc- tion of appeals, by which princes brought the decisions of the local courts under the review of the royal judges. . . . The sovereigns appointed the royal courts, which were originally ambulatory and irregular with respect to their times of meeting, to be held in a fixed place and at stated seasons. They were solicitous to appoint judges of distinguished abilities. . . . They laboured to render their forms regular and their decrees consistent. Such judicatories became, of course, the objects of public confidence. Thus kings became the dispensers of justice," &c. {Robertson's Hist. Charles V., Introd. Diss., 8. 5). * It was in the reign of Stephen it was publicly taught at O.xford by Vacarius. From some cause, its study was prohibited by that king, but, says Selden, happily the prohibi- tion failed. "Sed parum valuit Stephani prohibitio,nam eo magis invaluit virtus legis Deo favente qui earn amplius nitebatur impietas subvertere " {Dissert, ad Flel., c. vii. par. 6). That, however, was only on the occasion of its being taught to students at the university, and there might have been reasons for prohibiting it there on the ground of its diverting the students from other studies. There can be no doubt, however, that it had for some time previously been studied by the ecclesiastics, who, in that age, were tiie only persons possessed of any learning, for the treatise or com- pilation, called the Laws of Henry I., which was evidently written at the close of his reign, is in a great degree made up of civil and canon law. IxXViii INTRODUCTION TO THE PRESENT EDITION. The study of that law taught l the necessity for a more regular judicature, derived from an order of men devoted to the judi- cial duty, and qualified for its discharge by knowledge of legal principles ; and it furnished ample stores of learning whence that knowledge could be acquired. And it suggested the attempt to ^ That it had taught this to some eminent persons who were engaged in the administration of justice at that time, is manifest from the composition called the " Laws of Henry I." Lord Hale observes of it, that it has a taste of the civil law, but that is far beneath the truth. It is composed, perhaps, in equal portions of Eoman law and Saxon law, and is an obvious endeavour to engraft the former upon the latter, or rather to unite a Roman system with Saxon institutions. As to the influence exercised at this important period by the Roman laws upon the formation of our own there can be no doubt ; and it is attested by the most eminent of modern historians, who have fully exposed the absurd idea which first gained credence in the pages of Blackstone — that the study of the Eoman law was quite a novelty in the twelfth century, and was at once expelled. Thus, Sir James Mackintosh, writ- ing of the reign of Henry I., says, " It is essential to observe, at this step of our pro- gress, that the Roman law never lost its authority in the countries which formed the western empire, and it was adopted into the codes of the Germanic conquerors. All Europe obeyed a great part of the Eoman law, which had been incorporated with their own usages, when these last were first reduced to writing, after the Conquest. The Roman provincials retained it altogether as their hereditary rule. The only his- torical question regards not the obligation of the Roman law, but the period of its being taught and studied as a science. It is not likely that such a study could have been entirely omitted in Roman cities ; and where there were probably many who claimed the exercise of the Roman law." The historian here, in a note, cites refer- ences from Savigny i. 16, of instances, from 800 to 1160, where the Roman law had been referred to as binding ; and he cites, from the same author, instances of pre- lates who studied the Roman law, among others a Saxon bishop, who studied Eoman law at York in the 7th century. " But the Roman jurisprudence did not become a general branch of study till after the foundation of universities. It had made its way to England, and was taught with applause by Yacarius at Oxford about the middle of the 12th century. The late researches of Savigny and other German jurists on the subject have merited the gratitude of Europe. It was, indeed (he adds), a most improbable supposition that a manuscript found at the sack of Amalfi, not adopted by public authority, should suddenly^prevail over all other laws in the greater part of Europe." The treatise called Le.f/cs Henrici Primi, was the first attempt at anything like an intelligent system of procedure, and it lays down all its essential principles. It is, therefore, in these points of view, one of the most interesting documents of our legal history, and has been strangely disre- garded. Hale alludes to it, and quotes it several times, and so does our author ; but they evidently did not appreciate it in the point of view in which it is now presented, as a step or stage, so to speak, in the history of our law. Lord Hale, however, had evidently given more attention to it than our author, and remarks how much of it is devoted to procedure. That of itself was an immense advance ; for, as Guizot observes, the study of procedure is the beginning of civilisation. "If," he saj-s, " you find, in place of the oath of compurgators, or the judicial duel, the proof by witnesses, and a rational investigation of the question, there is the beginning of civilisation" {Lectures upon Civilisation). Now that is what we do find in the laws of Henry I. It is impossible not to perceive that the compilation contains the groundwork of a regular system of judicature and of jurisprudence. The laws bear INSTITUTION OF A REGULAR LOCAL JUDICATURE. Ixxix mould the popular assemblies into something like regular tribunals, and to blend the Eoman system with Saxon institutions. The result was the institution, in the reign of Henry I.,i of itin- internal evidence that they were composed by an ecclesiastic, and one who had liecn thorougliiy actiuainted with the laws in force ; as there were few in that age who could have composed such an elaborate body of laws in Latin, and there was only one man of whom it can be deemed at all probable. That was the celebrated Roger, Bishop of Salisbury, described in the Dialorjm de Scaccario as "vir prudens consiliis providus," and of whom it is added, " maximis in regno fungebatur honori- bus, et de Scaccario plurimum habuit scientiam." This eminent man was in the highest judicial office during nearly the whole reign of Henry I., first as chancellor, and next as chief justiciary and chief baron of the exchequer ; and it is remarkable that the provisions in the laws in question, as to the fiscal rights of the crown, were very acute, and show great knowledge of the subject. He died a few years after Henry, and had leisure during the close of his life to make such a compilation; and there was not a single man of his age but himself who could have done it. In the Mirror of Justice, a work in its present form written in the reign of Edward I., there are various laws mentioned as ordained by Henry I., and not to be found else- where than in this collection. Several chapters at the outset, evidently drawn from the civil and canon law, lay down the general principles on which administration of justice must rest ; a judicial order of men ; proper judicature and regular procedure, all directed to the due examination of the truth and justice of the case, " Judices in omni discussione probitatis idonei, nullaque exactione permixti." " Causarum quali- tas sinccra perscuitatione pensanda " (c. v.) " De causis singulorum justis examina- tionibus audiendis, de propositi et meliorum hominum presentiie " (c. vi.) It was laid down that it belonged to the king to look to failure of justice or unjust judg- ments, or perversion of the law. " Injustum judicium defectus justitiaj prevaricatio legis regiae " (c. x.) " Defectus justitia; et violenta recti eorum destitutio est qui causas protrahunt in jus regium" (c. xxxiii.) "Defectus justitite commune regis placi- tum est super omnes" (c. lix.) ; and that it is the duty of all to obey the summons of the king's justice, " Qui secundum legem submonitus a justitiaj regis ad comitatum venire supersederit reus sit," etc. (liii.) A great lawyer who was profoundly versed in the antiquities of the law of England, has well described the ascendancy which, at this era in the history of our law, the Roman law had gained ; and showed how it was resorted to as a guide when there was neither special enactment nor local usage, or when it was desired to have recourse to that perfection of reason which is the solid basis of all law. " Ita jam, id est, sub annum 1145, receptus fuit juris Jus- tiniauiei usus, ut quoties interpretandi jura, sive Vetera, sive nova, sive ratio, sive analogia desideraretur aut mos aut lex expressior non reperiretur, ad jus illud Jus- tinianicnm tum veluti rationis juridica promptuarium optimum ac ditissimum, tum ut quod legem in nondum definitus ex ratione sen analogia commode suppleret, esse recurrendum. Certe ita ferme Rhodiam recepere veteres Romani legem in rebus nau- ticis ut etiam apud nos, et gentes vicinas leges recepiuntur Oleroniona! ; cum interim nee has nee illse ex authoritate sui, qua primo condita? sunt, vim sic obtinuerint " (Selden and Flet., c. vi. p. 4). So in his History of Tithes, c. vii., the same learned author puts its adoption on the ground of reason. ' From the 18 Henry I., the rolls in the exchequer show that the justices went, how long before then is not known, but it is probable that they had gone — though perhaps less regularly, or on special occasions — before then. Indeed it is, as already mentioned, an historical fact that they had gone as early as the reign of the Con- queror in special cases, and instances of it have been adduced. Hence Sir J. Jlack- iutosh observes of the more regular institution of justices itinerant, that it probably IxXX INTRODUCTION TO THE PRESENT EDITION. erant justices to proceed into the counties under the king's com- mission, and try such classes of cases, civil or criminal, as might be committed to them by their commissions. This was the first foundation of a regular judicature ; of a judicial order of men de- voted to the administration of j ustice. And in the result it worked a revolution in the law of the country. It is beyond a doubt, whether the law^s or the legal history of the age be looked at,i that as early as this reign — the first settled only gave permanence to a practice which already existed. In these attempts were the beginnings of regular law and justice. Thus Guizot {Hist. Civiliz , Lect. iii.), pointing out the beginning of civilisation among the people of Europe, says, " Look to the system of procedure, and you find in place of the oath of compurgators, or the judicial combat, the proof by witnesses, and a rational investigation of the matter in question. The law begins to bear a systematic and social character. There was a beginning of civilisation — an endeavour to bring men under general and regular principles." So Mr Mill {Hist. Brit. India), though rather an admirer of Hindoo and Mahometan systems as "simple and natural" {i.e., rude), admits that they made no provision for uniformity (vol. i. p. 171), and that the Indian system of procedure is liable to the evil of arbitrary power {Ibid., p. 641). He thinks that a regular system of procedure would not prevent this ; but it is the object of the present treatise to show that it does. It is very observable that in the early laws of all countries there are few rules of procedure. The laws of Menu scarcely contain any ; see Sir W. Jones' Works, vol. iii. So of the Saxon law. So of the Mahometan, as described by Mr Mill. " The first considerable step towards establishing an equal administration of justice was the abolishment of the right which individuals claimed of waging war with each other. . . . Not only questions concerning un- certain or contested facts, but general and abstract points of law, were determined by the issue of a combat. . . . Thus the form of trial by combat, like other abuses, spread gradually, and extended to all persons and almost to all cases. ... By this barbarous custom, the natural course of proceeding, both in civil and criminal ques- tions, was entirely prevented. Force usurped the place of equity in courts of judi- cature, and justice was banished from her proper temple. . . . The clergy from the beginning remonstrated against it as repugnant to Christianity and subversive of justice and order. . . . The spirit of courts of justice became averse to it, and it went more and more into disuse, though instances of it occur as late as the 16th century, in the histories both of France and England. la proportion as it declined, the regular administration of justice was restored ; the proceedings of courts were directed by known laws ; the study of them became an object of attention to judges ; and the people of Europe advanced towards civilisation" {Robertson's Hist. Charles V., Prel. Dissert., s. 4). So Hale says, that the " persuasions of the clergy," and the sense of its barbarousncss, by degrees drove out the ordeal, so that, although it pre- vailed all through the reign of John, it was not to be met with in the reign of Henry III. ; and, in like manner, the " duel," or trial by battle, gradually died out. ^ In the Mirror of Justice it is stated, as it is also stated in the laws of Henry I., above alluded to, that no one had authority without the king's writ to "send for the peofjle ; but the king's officers could do so (c. i. s. 13), whence it would follow that the king's justices could convene the men of the county, as they did in the "itiner- aries " or assizes, and the laws of Henry I. had a provision that men of the county who did not attend at their summons should be liable to a penalty. And it is also stated in the Mirror of Justice (c. xi. s. 4), that in the time of Henry I. it was INSTITUTION OF JUSTICES ITINERANT. Ixxxi reign after the Conquest, and the first wliich afforded leisure for anything like a settlement of the judicature and administration of justice of the country — they were settled upon the basis of Saxon institutions, but on the principles of the Eoman system ; and so as to secure the advantages of a regular judicature with a local admin- istration of justice ; and unite trial by jury with settled law. It is also beyond a doubt that, as necessary to trial by jury, which was thus, at this early period after the Conquest, established in civil cases, there was a procedure for the settlement of the issues to be tried. 1 This, which is essential to such trial in civil cases, where, from their nature, the questions in dispute, and issues to be determined, cannot be known beforehand, as in criminal cases, was also established, substantially, upon the Roman model. The justices itinerant were sent down by the king's court or council- into the counties, chiefly and primarily to hear pleas of ordained tha,t jurors sworn vpon assizes should not have fees. Hence it appears from this ancient law book that in this reign there were trials by jury at the assizes. The records of judicial history show the same thing. It is shown by Mr Foss {Lives of the Judrjes, vol. i.), that the itineraries of the judges into the counties commenced in this reign, and as they had learned, even under the Conqueror, to turn a county court into a jury, there could be no doubt they continued to do so. But the records of the exchequer show the "itineraries" from the 18 Henry I. Sir J. Mackintosh also observes of this period, " Henry II. divided England into six circuits, not very unlike the present distribution, each of which was to be visited by three itinerant justices, to bring the dispensation of laws home to every man's door " (Iloveden, 314). " This statute, however, like others, appears only to have given authority and uni- versality to practices occasionally adopted before" {Hist. Eng. v. i.). Elsewhere also that acute historian observes upon the slow and gradual character of the changes in our laws {Ibid.). ' The above cited passage plainly proves that trial by jury in civil cases was estab- lished in the reign of Henry I., and a subsequent passage in the Mirror, coupled with passages in the "Laws of Henry I.," already noticed, as to "exceptions," answers, &c., shows that a system of pleading, in order to settle the issues, must have been established about the same time ; and, indeed, without some such s3-stem, trial by jury in civil cases would be impossible. The effect of the passage here referred to in the Mirror (c. ii. s. 23), is that, as there were great delays in the exam- inations, and exceptions in an assize, Glanville had ordained an assize by a quicker process; to be tried by twelve jurors of the next neighbours. This shows what, indeed, would be manifest, a priori — that there had before his time been some system of pleading anterior to trial. - It is stated by Hoveden, 337, that under Henry II, " raagno concilio eelebrato, rex divisit Angliam in quatuor partes, et unicuique partium prcX^fecit viros sapientes ad faciendam justitiam in terra sua. Isti sunt justicia; in curia regis constituti ad audiendam clamores populi" (fob 37). Here it is evident that the phrase in curia regis means in the king's council, though it is often supposed that curia regis means a superior court of justice. The justices itinerant were not justices of any superior court; they were of an inferior order of judges, as is shown by the limitation of / Ixxxii INTRODUCTION TO THE PRESENT EDITION. the Crown, but witli commissions, also, to liear pleas in actions as to realty, np to a certain value or amount, sent down to them by the chief justice, or chief justiciary, of the kingdom, or the chief council of tlie king. The result of this administration of justice by the justices itiner- ant on the one hand, and of the study of the civil law upon the other, was that in the reign of Henry II., there was a marked im- jirovement in our system of laws, as indicated by the great treatise of Glanville,! which shows an immense advance, and a great superiority over the former state of the law. And this advance was still further aided by the establishment of a superior king's court of civil juris- diction,2 and by allowing the defendant in an action the alternative their jurisdiction, which was chiefly capitvla coronoe ; and " capitula de Judoeis" {i.e., to rob and oppress the Jews), and " Placita per breve domini regis vel per breve capitalis justiciar, vel a capitali curia regis, coram eis (justiciis) missa." The civil cases sent down were real actions; and the power of the justices itinerant in these cases was limited to a certain nature : " De magnis assisis qua sunt de centum solidis et infra," or " De magnis assisis usque ad Decem Libratas Terrae, et infra," &c. Thus in the reign of Henry II., commissions were issued to the itinerant justices, which provided that suits as to real property not above a certain value, should be taken by them in the several counties ; but that if questions of weight or doubt should arise, they should be reserved for the justices of the bench : " Quod justicise faciant omnes justicias et rectitudines spectantes ad dominium regis per breve domini regis vel illorum qui in ejus loco erunt de feodo dimidii militis et supra. Nisi tam grandis sit quoerela quod non possit deduci, sine domino rege vel talis quam justicife ei reponunt pro dubitatione sua; vel ad illos qui in loco ejus erunt" {Hales Hist. Com. Law, c. 7). And the justices of the bench, {i.e., of the bench of the exchequer, which appears to have been the only curia regis at that time,) were so called, to dis- tinguish them from the justices itinerant, who were more numerous, and of less weight and authority. ^ " Henry II.," says Hale, " raised the municipal laws of the kingdom to a greater perfection, and a more orderly and regular administration, than before. "We need no other evidence of this than the treatise of Glanville, by comparing which with the laws of the Conqueror, or even the laws of Henry I., it will easily appear that the rule and order, as well as the administration of the law, was greatly improved beyond ■what it was formerly, and we have more proofs of their agreement and concord with the laws, as they were used from the time of Edward I. and downwards, than can be found in these obsolete laws of Henry I., which were indeed but disorderly, confusedly general things, if compared with Glanville's treatise of our laws " {Hist. Com. Law, c. 7, p. 120). Our author also observes of the work of Glanville : " The work of Glanville, compared with the Anglo-Saxon laws, is like the code of another nation ; there is not the least feature of resemblance betAveen them " (c. 4). But our author, through not having studied the Leges Henrici Primi and the Mirror, had missed the intermediate works in the chain of legal history, and lost the course of progression. - The work of Glanville is confined to cases within the cognizance of the curia regis, which, it is plain, then meant a regular court of justice, which, there is reason to believe, was the exchequer. The defendant was allowed, in a writ of right, the option of trial by jury, but then the jurors were still witnesses, so that if they had THE TREATISE OF GLANVILLE ON PROCEDURE. Ixxxiii of trial by jury in preference to the Lrutal " Lattle/' or duel. Thus, on the one hand, a regular judicature was established for deter- mination of questions of law, and, on the other hand, an approach to an intelligent system of trial. There can be no doubt of the tendency of this to improve civil procedure, and to promote tlie development of law. The distinguishing feature in the great work of Glanville, and that which more than anything else, perhaps, marks it as an era in our law, is the importance which it attaches to procedure,! and, above all, to an intelligent and rational system of trial, by selected and sworn judges, or jurors — precisely upon the principle of the Eonian law — open to exception by either party, and so virtually agreed upon by both. So as to criminal procedure,^ although the old barbarian Saxon or Norman usages were not at once abolished; it was virtually superseded by its being postponed to, and made dependent upon, no knowledge of the case, Glanville was in perplexity as to what course ought to be pursued. Nevertheless, as Sir J. Mackintosh observes, " an important attempt was made to banish the absurd usages of ordeal and battle, and to jmve the way for the more general adoption of juries, by allowing the defendant to support his right by the assize" {Hist. Emi., vol. i.). The assize was, in fact, a trial by twelve jurors, called "recognitors," because they "recognised" of their own knowledge. ^ The work is largely occupied with procedure. Thus, in describing the trial of an assize, the author is careful to lay down that jurors may be excepted against on the same ground on which witnesses in the court Christian were rejected ; (a refer- ence to the canon law, by which witnesses interested on either side were rejected); and, therefore, in order to provide for such objections to jurors, he points out that a larger number than twelve should be summoned, so as to allow for exclusion of some of them by either party (c. 12). It is to be observed, that though unanimity was required to the verdict of a jury, yet there was a rational course resorted to for secur- ing it; that is, by the addition of fresh jurors until twelve should be obtained to decide in favour of one side (c. 17). It is observable that there is the principle of this course still retained in our criminal law, in which grand juries are composed of twenty-three, in order to allow for difference of opinion, and enable a majority of twelve to find or reject the accusation. - Thus Glanville says, that on a criminal charge made by public fame, the truth of the matter should be inquired into by means of inquisitions and interrogations made in the presence of the justices, and by taking into consideration the probable cir- cumstances of the facts, and weighing each conjecture that tends in favour of the accused, or makes against him ; and it was only if the prosecutor made out his case by proofs that the accused had to purge himself by the ordeal {per legem ajyparen- tem, which Speluian considers means the ordeal), or entirely absolve himself of the crime imputed to him (B. xiv. c. 1). So that if the accused could, in the opinion of the judges, clear himself, or if there was not a sufficient case, he need not resort to the ordeal. It is not surprising to learn that the ordeal scarcely survived a single reign, and that a short one, after this ; and that in the reign of Henry III., it is not heard of {vide Hale's Com. Law). So of the trial by battle, it was obsolete ages before it was abolished, though not abolished until our own age. IxXxiv INTRODUCTION TO THE PRESENT EDITION. a more rational examination of the case, on the model of the Eoman system; and thus the result was, that they soon became obsolete, and an intelligent system of trial by jury was, by a series of wise judicial decisions, substituted for it. Thus all the great changes in procedure were effected simply by affording the suitors the alternative of a rational system, and putting obstacles in the way of the other. In the time of Glanville, indeed, civil procedure, though regular, was still in its most simple stage of regular procedure : still, in substance, it was the Roman system. It was conducted under a regular judicature : the case came first before judges, whose pro- vince was to settle the question to be decided, and to determine it if it was one of law, or to remit it to the jury — i.e., to sworn judges ; to determine it by regular trial, if it was one of fact. And though the discussion was oral, and not formal, it had all the substantial requisites of a rational system of trial, which, though not enforced to the exclusion of the old Saxon institution, was allowed as an option to the party sued, and was therefore virtually substituted : tlie other becoming gradually superseded until it was obsolete.! The administration of justice, however, was still so unsatisfactory, that complaints were brought before the king in person, or his chief justiciary 2 sitting in the exchequer. But as the suits became more numerous, other justices were added, called justices of the bench, 1 Thus Glanville sa)'S, in describing the procedure in a suit as to real property : " Both parties being present in court, it is usual to inquire of the tenant whether he can show any reason why the assize should not proceed." Then he goes on to say that it should not proceed if the case for the claimant was entirely admitted ; but if not entirely so, then the court proceeded to decide the disputed points, whatever they might appear to be (b. 13, c. 11); and the trial might be by a jury. If no exception be taken in court, on account of which the suit ought to cease, then it shall proceed ; and in the presence of both parties, the land shall be on the oath of twelve jurors, and according to their verdict be adjudged to the one or the other as described {Ibid.). ^ Thus it appears, from a case in the Ahhrcviatio Placitorum, says John, that char- ters of exceptions were granted not to be sued except before the king or his chief justiciary; and in that case, in a suit against the Abbot of Leicester, he pleaded such a charter of king Richard : " quod idem abbas pro nuUo respondeat, nisi coram ipso rege, vel capitali justiciario sue;" but it was decided that pleas decided before justices of the bench, were in law heard before the king. " Quia omnia placita quoe coram justiciariis de banco tenentur, coram Domino Eege vel ejus capitali justiciario teneri intelliguntur." This shows that, by that time, in the reign of John, the jus- tices of the banc, as they were called, sat in the place of the king, and with or without his chief justiciary ; and that there was a court in which common pleas were heard. In the reign of Henry II., the court called cui-ia regis was well established, for ESTABLISHMENT OP SUPERIOR COURTS. IxXXV to distinguish them from justices itinerant ; and thus a superior court, or curia regis, became by degrees established, in M'hicli common pleas between party and party, could be brought and heard. As this last, however, followed the king, and this was most injurious to the suitor, Magna Charta provided that common pleas should not follow the king ; and hence a separate court of " common pleas," established at Westminster. ^ The great charter made two important provisions with reference to common law judicature; one, that common pleas should not follow the person of the king, (which implied that they should be heard in some fixed court); and the other, that an order of judges superior to the justices itinerant should be sent down regularly into the counties to take all the " assizes " or actions relating to real property, substantially in substitution for the county court. The result of which, combined with the commissions of the justices itinerant to take the pleas of the crown, was to virtually supersede the ancient turbulent county court as a lagal tribunal, in any but trivial matters. 2 The institution of justices itinerant, the first approach to any- thing like a regular judicature, had a powerful effect on the gradual improvement of the law, by the development and embodiment of Glanville has a treatise of cases determined in that court. Thus Magna Charta said that " communia placita non sequantur curia nostra :" that common pleas shall not follow our court; where it will be observed that the term curia nostra is used, as it is in the Leges Henrici Primi, to signify, not a court of justice, but the royal court or residence ; which shows how mistaken those are who suppose that from the mention made of curia regis, that there was necessarily a king's court of justice. And from that time, the court of common pleas became established. ^ Communia placita non sequantur curiam nostram, sed teneantur in aliquo certo loco. Eecognitiones de morte antecessoris, &c., non capiantur nisi in suis comi- tatibus, et hoc modo ; nos, vcl capitalis justiciarius noster, mittemus duos justiciaries per unumquemque comitatum per quatuor vices in anno : qui, cum ([uatuormilitibus cujus libet comitatus electis per comitatum, capiant in comitatu, et in die et loco oomitatus assise pried ictas. Et si in die comitatus assiste prajdictaj capi non possint tot militcs et liberi tenentes remaneant de illis qui interfuerint comitatui die illo, per quos possint sufficienter judicia fieri secundum quod negotium fuerit, majus vel minus (Art. xvii., xviii,, xix.) - Therefore in the reign of Henry III., as the Mirror states, the bishops and barons, whose attendance at the county court had been directed by Henry I., were excused from their attendance {Mirror, c. 1, s. 16). This is a fact of much signifi- cance in our legal history, and marks the era of the decline of the county court as a judicial tribunal. It was not, however, until the reign of Richard II., it was virtually deprived of that character. A statute of that reign directs that no lord, little or great, should sit upon the bench with the king's justices, when they came to take the assizes, under the general commissions first issued by Edward I, IxXXvi INTRODUCTION TO THE PRESENT EDITION. legal principles injudicial decisions^ by responsible judges, whose decisions were recorded and preserved, and might be the subject of complaint to the king in council, even before there was any regular appellate jurisdiction. It is an undoubted fact that such decisions were recorded and preserved, and by degrees insensibly moulded and altered the law of mere custom,2 by reducing it to accordance with legal principle. The decisions of the justices itinerant, especially when pro- ^ Such decisions are recorded as early as the reign of John, in the Abbreriatio Placitorum, and at a later period in the work of Bracton. One or two are mentioned under the name of judicial ordinances in the Mirror. Sometimes there are decisions of justices itinerant, sometimes of the chief justiciary or his associates of the " curia regis," the royal court or council. Thus it is mentioned that Ranulph de Glanville, who was chief justiciary under Henry II., and the author of the celebrated Treatise, "ordained," that is to say, either judicially decided in some case, or made, with the assent of the council or authority of the king, a general judicial rule or ordinance, probably upon some case brought before the council by way of appeal or complaint, as cases at that time undoubtedly were. The effect of such judicial decisions must have been immense. 2 There is a remarkable instance of this, quoted from the Abhreviatio Placitorum, by Hale. In the time of John, be it observed, as he mentions, the descent of com- mon freehold land to the eldest son, was established, unless there was a special custom that the lands were partible, inter masculos ; and therefore he says, Mich, secundo Johannis, in a (writ of) Rationabili parte bonorum, by Gilbert Beville, against William Beville, his eldest brother, for lands in Ganthorpe, the defendant pleaded, quod nunquam partita vel partibilia fuere, and because he could not prove it, judgment was given for the demandant, the younger brother. But by degrees, says Hale, whereas at this time the averment came on the part of the heir, that the land was not partible, nunquam partita vel partibilis extebit ; in course of time the averment was turned on the other side — viz., that unless the demandant averred and proved that it was partible land, he failed in his demand (Hist. Com. Laiv, c. vii.). Kow this, it is obvious, was by judicial decisions, thus practically altering the law, for it shifted the burden of proof, and thus, by degrees, it becoming impossible to prove a special custom, the right of primogeniture was established. These de- cisions, it will be observed, are cited from the Rolls, by the year of the reign of the king, and the county in which the cases were decided, and the name of the judge or justice itinerant by whom they were determined. The point of the decision is given shortly but clearly, and with all the requisites of a legal report. The brief entries in the Abhrevlo.tio Placitorum, which are of the reign of John, are of great interest, as being the earliest of our law reports, and as embodying the very first germs or elements of regular law, afterwards so largely developed and expanded by a long course of judicial decisions founded upon them, and extending through the Year-books, from the reign of Edward II. to the reign of Henry VIII. It is manifest that these earlier decisions, studied in the work of Bracton, or derived, as he had derived them, from the Rolls, formed the basis of the subsequent judicial decisions, as they in like manner were the foundation of later ones ; and so the law went on progressing gradually from one stage of development to another, until it was established as it existed under Elizabeth. It is manifest also that as the Saxon laws were barbarous, and the Norman usages little better, save so far as they had derived any light from the Roman law, there existed no source whence the judges of that age could have derived instruction in legal principle except that law; and as it is a historical fact THE TREATISE OF BRACTON. IxXXvil nounccd by men of known learning and ability,^ naturally bad some weigbt and authority, and were recorded and regarded as precedents. And these, and the civil law, whence the principles on which they were founded were necessarily derived, formed the staple of the great Treatise of Bracton, which formed the basis of our common law. Thus, under the influence of these great though gradual changes in our system of judicature, as contained in the great Charter, the law was still further developed, until it had reached the more finished state in wliicli it is presented in the elaborate treatise of Bracton,2 which marks the next great era in the history of our law. that it was studied at tliat time, it may fairly be inferred that it was studied by the judges. It is at all events a fact that a great part of Bracton is taken from the civil law. ' Thus they arc cited all through Bracton's Treatise, De Legibm ; no doubt, espe- cially those of known value from the learning of the justices who pronounced them, as, for instance, the celebrated Martin de Patesliall, who was a man of ability, and whose decisions were evidently regarded as of authority, and are cited in the Mirror as well as in Bracton. Thus, for example, Bracton cites and adopts a decision of his upon an important point as to donations of land to ecclesiastical bodies, that if the heir knew of the grant, " Et quod htcredes tenentur warrantizare si chartam cognoverint, vel probata fuerunt, habetis de itinere JI. de Patesliall, de loquela diver- sorum comitatuum qure fuerint super judicium in itinere suoannoregni Henrici tertio de magistro militise Templi in Anglia" {De Leyibus, lib. ii. c. 10). That is, he cites the case of the Knights Templar, which seems to have been an important case. So another decision of the same judge, to the effect that though a donation in articulo mortis, would not be valid, " Si autem tres dies vel quatuor ante mortem suam, dederit et seysinam domui religiosse fecerit, non succurritur haeredi per assissam ad seysinam recuperandam ; ut de ultimo itinere M. de Pateshall in comitatu Eborum" (7Jid.). Another point on the same subject is cited as decided — " De termino Hilarii anno regni regis Henrici in comitatu Norfi" de Cecilia de Stradsete et Priore Hospitali Sancti Joannis de Jerusalem in Anglia " — the case of the Prior of the Hospital of St John of Jerusalem [Ibid.), and the cases are cited as decided in the king's superior court at Westminster, before the justices of the bench, so called to distinguish them from the justices itinerant, who were not permanently on the bench, but were srent on such itinera, and were not always judges (c. v. fol. 26.) " Dictum est in curia regis coram justiciariis de banco apud West, per Joh. de Metiug- ham et socios suos justiciaries" {Ibid.). " In which, composed as it was by an ecclesiastic, and one who had studied the civil law, the influence of that law is, as might be supposed, plainly apparent. The charter of John was not observed, and the great charter of Henry III. was in 1225, containing the important enactments that assizes should be tried in the country by king's judges, and that matters of law should be determined in a fixed court at Westminster. Bracton, who was an ecclesiastic, and had studied the civil law, was a judge in 1245, and died about twenty years afterwards, and his great treatise was probably written in the course of that period. Lord Coke gpeaks of it in the highest terms, as one of the great sources of our law, though he was probably not aware that it was founded on the Roman law, and that a great part of it is taken, indeed, from the Institutes of Justinian. IxXXViii INTRODUCTION TO THE PRESENT EDITION. The great feature of the work of Bracton is the attention it evinces to procedure, and the greater degree of care shown to carry out the principle of the Eoman system, the ascertainment of the question in dispute, and the separation of the fact from the law, before sending the case to trial, which might, indeed, be useless if the matter was one of law ; and hence the care which by Bracton will appear to have been given to enforce precision of statement on the part of suitors.^ In the time of Bracton we iind tlie supremacy of regular judi- cature established, and the last remains of the rude and barbarous Saxon system virtually obsolete or abolished. This was done, not, indeed, by any direct abolition or sudden change, but by gradual alteration and indirect means, not the less effectual because un- observed.2 As the treatise of Glanville shows a great advance in our laws had been made in the time of Henry II., so the treatise of Bracton shows a still greater advance had been made in the time of Henry III.,3 and this either from the resources of the civil law, or from the ^ Thus, says Bracton, speaking of the writ of right, " it -will not suffice simply to say, I demand such land as my right, unless the demandant (or claimant) make out his right, and show how and by what means it has descended to him" {Bracton, 374, b.). " Neither will it suffice to allege that the ancestor was seised in fee, unless it is added that he was so seised by right, which composes the right of property. Nor will this suffice unless he took the property ; and it will be seen how this tended to eliminate the real point in dispute, and also to see if it was fact or law. No one at all ac- quainted with the Eoman system can fail to see that this was derived therefrom, and as Sir J. Mackintosh observes — ■" It is impossible not to admire the logical art with which fact is separated from law, and the whole subject of litigation reduced to one or a few points on which the decision must turn " {Hist. Eng. vol. i.). The great feature of Bracton's work is the accurate and lucid manner in which tliis is followed out. - The criminal jurisdiction of the sheriff was abolished by Magna Charta after it had probably become obsolete by the quiet substitution of itinerant justices, either by making them sheriffs or sending them into the counties by special commission to convene the courts. And so, as to civil cases, the sheriff was virtually made a king's judge by special writ in all but trivial cases, and from Bracton we learn that the sheriff exercised jurisdiction over matters which did not belong to him merely by his office of sheriff; but in such cases he acted not as sheriff, but by the king's precept, as justiciarius regis {Bracton, 154, b.). And as the suitor had to purchase this writ and pay for it, he would naturally consider that he might as well sue in the king's superior court, and have the advantage of a regular judge ; and thus the civil judi- cature of the Saxons was superseded. ^ Hale says, " We have two principal monuments of the great advance the English laws attained to under this king — viz., the tractate of Bracton, and the records of pleas, as well in the benches as before the justices itinerant, the records of which are still extant. Touching the former — Bracton's tractate, — it yields us a great evidence of the growth of our laws between the times of Henry II. and Henry III. If we do INFLUENX'E OF THE ROMAN LAW UPON OUR OWX. Ixxxix gradual development, by judicial decisions, of principles and doc- trines deduced tlierefroni. In the celebrated treatise of Bracton we have the first formal treatise upon oiir law as a wliole ^ — the first attempt made to reduce it to something like system, if not to science, — and it is impossible not to see that in a great degree ^ it is founded upon, if not almost copied from, the Roman law. This is admitted by the historians of tlie Middle Ages. Thus Hallam wrote : " About the time of Edward I., the civil law acquired some credit in England, but a system entirely incom- patible with it had established itself in our courts of justice, and the Itoman jurisprudence was not only soon rejected, but became obnoxious " {Europe in the Middle Ages, c. ix.). The only authority, however, cited for this is Selden, and ]\Ir Hallam adds in a note : " Yet, notwithstanding Selden's authority, I am not satisfied that he has not extenuated the effect of Bracton's but compare Glanville's book with that of Bracton, we shall .see a very great advance of the law in the writings of the latter over what they are iu Glanvillc. The pro- ceedings are much more regular and settled, as they are in Bracton, above what they are in Glanville. The book itself, in the beginning, seems to borrow its method from the civil law ; but the greater part of the substance is either of the course of procedure in the law known to the author, or of resolutions and decisions in the courts of the bench, and before justices itinerant " (I/ist. C. L.,c. vii.). But Hale, in the first place, greatly underrates the proportion of Bracton derived from the civil law. According to Sir W. Jones, it is almost entirely derived from that source, and certainly the greater portion of it. And as to the decisions of judges, which it cites, though these no doubt form some considerable part of it, yet it is to be observed that these decisions, like the doctrines of Glanville, must in the main have been deduced from the principles and doctrines of the Roman law; from whence else could it be de- rived, seeing that there was no other source to which judges or lawyers could possibly have resorted for instruction in law ? ^ The work of Glanville having only dealt with part of it. - Sir W. Jones, in his treatise on Bailments, citing Bracton, said : " I am aware he has copied Justinian almost word for word" (p. 75); yet Lord Coke speaks of him as one of the highest authorities on our law, evidently in entire unconsciousness that he took his law from the Koman. Edward I., as Mr Hallam mentions, encouraged the study of the IJoman law (Ilist. of Europe in the Middle Ac/es, c. ix.), and in the reign of Edward II., when we have our earliest reports of the courts of law, it appears to have been cited, and on one occasion it was said by the chief justice of the Common Pleas, from the bench, that our law ^vas founded upon the civil law — "la ley imperiel, donqufs sur quel ley de terre est fondu" {Year-Book, 5 Edward II. 148). So, Selden has preserved several instances in which it was cited, but it seems to have very much declined, and the celebrated treatise of Fortescue, Be Laudibus Lcfjum Anglia, written in the time of Henry VL, is written in a tone of ignorant disparagement. Blackstone admits that Bracton, Flcta, and Britton contain frequent transcripts from the Roman law [Comm., v. i. p. 22 — Coleridge's edition). XC INTRODUCTION TO THE PRESENT EDITION. predilection for the Eoman jurisprudence. No early lawyer has contributed so much to form our own system as Bracton, and if his definitions and rules are sometimes borrowed from the civilians, as all admit, our common law may have indirectly received greater modifications from that influence than its professors were ready to acknowledge, or even than they knew. A full view of the subject is still, I think, a desideratum in the history of English law, which it would illustrate in a very interesting manner" {Ihid. p. 828). Our author himself amply recognises at this era the influence of the Eoman law in the formation of our own : " The study of the civil and canon law had contributed to further this improvement (of the law), and to furnish considerable accessions both of strength and ornament. Those two laws, besides exciting an emulation in the professors of the common law to cultivate their own municipal customs, afforded from their own treasures ample means of doing it. Much was borrowed from them, and engrafted on the original stock of the common law ; but the manner in which this was done is very remarkable. Though our writs and records are in the language in which the Roman and pontifical jurisprudence are written and taught, there is not in either tbe least mark of imitation ; the style of them is peculiarly their own. The use made of the civil and canon law was much nobler than that of borrowing their language. To enlarge the plan and scope of our municipal customs, to settle them upon principle, to improve the course of proceeding, to give con- sistency, uniformity, and elegance to the whole — these were the objects the lawyers of those days had in view, and to further them they scrupled not to make a free use of those more refined systems. Many of the maxims of the civil law were transplanted into ours ; its rules were referred to as part of our own customs, and argu- ments founded upon the principles of that jurisprudence wera attended to as a sort of authority. This was more particularly so in what related to personal pro^^erty, while the laws of descent and purgation,^ and other parts of our judicial procedure, seem borrowed from the canonical jurisprudence.^ A considerable ac- cession had been made to the original canon law by the publica- tion of the decretals. This must have given new voguB and repu- tation to canonical studies, and no doubt encouraged the common lawyers of that age to pursue their inquiries in that way with more freedom. The application they made, whether of the canon or ^ Upon the oath of the iiarty. ^ C. viii. INFLUENX'E OF THE ROMAN LAAV UPON OUR OWN. XC civil law, in treating subjects of discussion in the law of England, is visible from the account given of Bracton. To consider particu- larly how much of the latter is indebted to those two systems, either for its origin or improvement, would seem to be an object of separate consideratiun, and might, perhaps, make a proper appen- dage to a history of the English law."^ No doubt the law of England has always been entirely independ- ent of the Roman law ;2 and it has only to any extent become incorporated into our law by voluntary adoption and assent. ^ The influence of the civil law upon the fonnation of our own, as it had no compulsory authority, could only arise from its voluntary adoption, on the ground of its own excellence. And on that ground it gained the influence on our own law which, at this era. in its his- tory, led to such marked hostility, and manifest improvement. ^ Whence, tiien, came this improvement in our law ? It 1 C. viii. * Thus as to dower, in the Roman or matrimonial endowment among the Romans, it was to the husband ratlier than to the wife, though in our law it is to both. So though the principles of the law of inheritance, whether by testament or descent, were derived from the Romans, our law, except in some cities where by custom the Roman rules have prevailed, has departed from the Roman in various respects. So as to the effect of marriage, in legitimating previous issue, for the purposes of in- heritance, though by Papal constitution that eflect was given to it in the Roman canon law. Yet in the time of Glanville it was otherwise ; and he says that, by the law and custom of the realm, the son born before marriage, " though by the canons and the Roman laws he is considered lawful heir, yet he is not so according to the law and custom of the realm, and cannot demand the inheritance by the law of the realm " (c. xv.) Upon which Lord Littleton remarks, that " it shows the entire independence of the law of England on the canon or civil law " {Z Litilet. Hist. Hen. II., p. 125). But these instances are so few that they are exceptional, and the whole form and texture of our laws and institutions is plainly Roman. * The parliament in the reign of Ilcnry III., when an attempt was made to alter the law upon the subject noticed, declined to accede to it. " Et omnes comites et barones, una voce responderunt quod nohmt leges Anglise mutare, quce hucusque usitatte sunt et approbatac " (Stat, of Merlon, c. ix.). But this refusal was based upon the ground of user, and on the same ground, as we have seen, a vast deal of Roman law has become embodied with ours, and for the very reason that the adoption was voluntary, the superior excellence of the Roman law is made manifest. The commons in the reign of Richard II. declared that this country had never been governed by the civil law, which was no doubt meant in the sense of compulsory obligation or authority. But they were very little aware of the extent to which the civil law had even then been adopted into ours, and as barbarous Saxon and Norman usages died out, the ascendancy of Roman law became more marked. •• Thus Selden said of it — " Valet pro ratione, non pro inducto jure, et pro ratione, quantum Reges et respublicse intra potestates suae fines valere patiuntur" {Hist., Tithes). It was always held, in our courts, that the civil or canon law had no force proj)rio vigore in suits on questions of temporal rights, &c. Therefore, Mic. 8 Hen. IV. pi. 72, coram rcje, when the Chancellor of Oxford proceeded according to the XCU INTRODUCTION TO THE PRESENT EDITION. could not be derived from the Korman law ; for, as our author himself observes, " it was not until after the publication of Glanville, and even of Bracton and of Britton, that the Normans had any treatise upon their law" (c. 4) ; "a work," he adds, "so like an English performance that, should there remain any doubt of its being formed upon our model, there can be no doubt of the great similarity between the laNvs of the two nations at that time " (Ibid.). But here our author forgot a fact which, had it occurred to him, would have satisfied him that the Grand Constumier of Hfor- mandy was derived from the English treatises which preceded it ; viz., that, as Glanville himself mentions, the great merit of our system of assize or trial was, that it provided a substitute for the trial by battle, which was essentially the brutal mode of trial the Normans had adopted — not one whit better than the savage Saxon usage of the ordeal. The new system, therefore, was not derived from the Normans, who were as barbarous as the Saxons. It was derived by development from the Eoman. Arrived at this great era in our legal history, and at the era of the great reign of Edward I., which marks a still greater, it is natural to take at such a standing-point a retrospective view of our progress. And it is impossible not to be struck at this era with the fact that the main and distinctive features of the Saxon and Norman systems had already died out, or were declining and becoming obsolete; while all that was of Koman character or origin survived and endured. Trial by ordeal was gone ; the turbulent county court, as a tribunal, was superseded ; and trial by battle was disappearing ; but the Eoman systems of law and of justice were established. The best and most practical test of the Eoman origin of our institutions, or how much we owe comparatively to Eoman as compared with Norman or Saxon laws, is this ; to see what are the institutions, either un- doubtedy Saxon or undoubtedly Eoman, which remain to this day. The institutions undoubtedly Eoman — municipal and other corpo- rations, certainly manors, and probably hundreds and counties ; a regular judicature ; and regular judicial tribunals, with skilled judges for the law, and jurors or sworn judges — judices facti — for the matters of fact — all these, and more, were Eoman institutions, rule of the civil law in a case of debt, the judgment was reversed in B. R. (King's Bench), the principal error assigned being that they proceeded " per legem civilem ubi quiiibet ligeus Domini Regis Regni sui Angliaj in quibuscunque placitis et que- relis infra hoc regnum factis et emergentibus de jure traetare debet per communem legem Anglise " (Hist. Com. Law, p. 33). GRADUAL COURSE AND PROGRESS OF OUR LAW. XCIU and they remain. The institutions undoubtedly Saxon had gone, although the Saxon spirit which had been embodied in the old turbulent popular assemblies still survived, infused into Ifomau institutions, and inspiring them with fresh vigour. So of the Nor- mans ; all that was distinctive in their system, which seems re- duced to trial by battle — since all the rest was derived from the Eoman system — was already disappearing, and was doomed to vanish away, although it is true that the principle of the supremacy of royal authority was developed and applied by them, and formed a solid basis for all the improvements in our law which were after- wards attained. But this was a slow and gradual progression. So far as our law, however, in any material degree was altered after the Conquest, it was witliout any sudden change ; and it was gra- dually and insensibly, and almost unobservedly,^ and chiefly by means of legal decisions, developing the principles of law, which was indeed the custom of the nation. The whole course and progress of our law, up to and after the age of Edward I., when it was substantially settled as it existed from that time to the age of Elizabeth, when our author's history closes, and when, as is observed in his Preface, a new era opened, resembled that of Kome, as one of gradual development ; and, in the opinion of our most acute and philosophical historians, it exhibited, at this important period, the influence of the Eoman law, which determined its whole character. Thus Sir J. Mackintosh ^ This may be well illustrated by a reference to the law of descent. Lands held on the feudal military tenure, introduced at the Conquest, naturally became de- scendible to the eldest son ; but other land — ordinary freehold land — held in free socage, as it was called, remained partible among all the sons, until long after the Conquest; so that it is impossible to ascertain the precise period when the law was altered, or rather it was not altered at any particular period ; for it was altered thus— by holding that the land was partible only by custom. Thus Spelman says that " the Normans by their feuds settled the whole inheritance on the eldest son on account of military tenure" [Spel. Eeliq.s. 3.) But in land not held by military tenure it was otherwise, and thus Glanville says in such case " the inheritance should be equally divided among all the sons, however numerous— provided the land had been ancientli/ partible" (Ibid. c. 7, s. 3). "That is," as Lord Hale puts it, "the commune jus, or common right, was for the eldest son to be heir, no custom inter- vening to the contrary" {Hist. Com. Law, 216). So that, as one learned writer on the subject said very truly, " the right of primogeniture made every day greater progress, until, in the reign of John, it had fairly excluded partible descent — the presumption being held to be that the land (unless in Kent, where, by a local custom recognised by general law, all land is held in gavelkind) was descendible to the eld- est son until the contrary was proved" (Robinson on G'avelkiyid, p. 26). Thus a great revolution was effected in the country, gradually and unobservedly, and by a mere legal artifice, without any legislative sanction. Xciv INTRODUCTION TO THE PRESENT EDITION. observes: — "The progress of our common law, till the reign of Edward I., bears a strong resemblance to that of Eome. The pri- mitive maxims and customs were applied to all new cases, which, appearing similar to them, it was natural and convenient to subject to like rules. Courts in England, private lawyers, judicial writers, as at Eome, in delivering opinions on specific cases, extended the analogy from age to age, until an immense fabric of jurisprudence was at length built on somewhat rude foundations. The legislature itself occasionally interposed to amend customs, to widen or narrow principles, but these occasional interpositions were no more than petty repairs on a vast building. Erom the reign of Edward I. we possess the Year-books, annual notes of the cases adjudged by our courts, who exclusively possessed the power of authoritative inter- pretation, scarcely to be distinguished from the legislation which the tribunals of Eome shared with its imperial ministers and with noted advocates. In a century after him, elementary treatises, methodical digests, and works on special subjects, were extracted from these materials by Littleton, l Eortescue, 2 and Brooke, ^ So conspicuous a station at the head of the authentic history of our uninterrupted jurisprudence, has contributed, more than his legis- lative acts, to procure for Edward the name of the English Jus- tinian" (Hist. Eng. v. i.). Through all these successive changes, the great thing to be noticed is their slow and gradual character, and the careful manner in which they were each evolved, so to speak, out of actual experience and practical wisdom. ^ This, indeed, is the great lesson to be 1 LittletorCs Tenures, temp. Hen. VI., the subject of " Coke's Commentaries." - Be Laudihus' Legum Anglice, temp. Hen. VII. 'A Brookes Abridgment of the Year-bools, temp. James I. The historian perhaps meant Fitzherbert. * Sir James Mackintosh more than once remarks upon this ; an 1 he observes even of the Great Charter, " It was a peculiar advantage, that the consequences of its principles were, if we may so speak, only discovered gradually and slowly. It gave out in civil occasions only so much of the spirit of liberty as the circumstances of succeeding generations required — as their character could safely bear " {Hist. Eng. vol. i.). So as to the constitution of Henry II. sending the judges on circuits or itineraries, he observes that, " This, like others, appears only to have given authority and universality to practice occasionally adopted before" (Ibid.) Our law has always been customary, which implies gradual growth and formation. "The con- suetudinary, or common law," remarks the eminent historian elsewhere, " consisted of certain maxims of simple justice, which we are taught by nature to observe and enforce, blended with certain ancient usages, often in themselves convenient and equitable, but chiefly recommended by the necessity of adhering to long and well known rules of conduct " {Ibid. p. 274). RISE AND PKOGRESS OF THE FEUDAL SYSTEM. XCV learnt from the study of our legal history, as it was one of the chief advantages of our law, this facility of growth, of progress, and of happy adaptation to the wants of every age. This, indeed, is the way in which, in a free country, institutions are developed, so to speak, gradually, by common agreement and tacit consent, from the results of practical experience.^ The whole history of our law is a record of this process of development ; the true merit of our free Saxon constitution is that it allowed of it, and left scope for it ; and the great defect of our author is that he lost sight of it. This has already been illustrated with reference to our judicial system, and may be remarkably illustrated with reference to the feudal system. The great feature of the era marked by the Con- quest, is the commencement of the movement which was completed in the reign of Edward I., in the assertion of the civil supremacy of the sovereign power; and the most important aspect of this movement, and one in which it has produced consequences most permanent and most important, was its relation to the administra- tion of justice ; but it was also, and first, connected with the development of the feudal system, 2 and in both respects it was remarkable for its gradual character, and its Eoman origin. * This is pointed out by Sir James Mackintosh in a passage ■well worth quoting. " Governments are not framed after a model, but alt their parts and powers grow out of occasional acts, prompted by some urgent expediency', or some private inter- est, which in the course of time coalesce and harden into usage ; and thus this bundle of usages is the object of respect, and the guide of conduct, long before it is embodied and defined, and enforced in written laws. Government may be in some degree reduced to system, but cannot flow from it. It is not like a machine or a building, which may be constructed entirely and according to a previous plan, by the art and labour of man. It is better illustrated by a comparison with vegetables, or even animals, which may be improved by skill or care, but cannot be produced by human contrivance. No government can, indeed, be more than a mere draught or scheme of will, when it is not composed of habits of obedience on the part of the people, and of an habitual exercise of certain portions of authority by the individuals or bodies who constitute the sovereign power. These habits, like all others, can only be formed of repeated acts; they cannot suddenly be imposed by the legislator" (Hist. Eng. vol. i. p. 72). This fine passage is the best eulogy upon our constitution, — because pointing out its best feature. - Guizot contests the view of most historians, that the feudal system was of sudden origin, the result of the special necessities of the age ; and he contends that it was the progi-essive development of ancient facts" {Lect. sur la Civiliz. en France, Lect. vi. ). He says the history of the word " miles," which designated " knight," is a proof of this, and he cites Du Cange, who thus traces its history to the Roman age, " Towards the end of the Roman empire, militare expressed simply to serve, to acquit one's-self of service towards a superior— not merely of a military service, but a civil service." And he elaborately traces the progress of the system. XCVl INTKODUCTION TO THE PRESENT EDITION. The common notion that the feudal system was of sudden growth, is shown to be erroneous ; it was the result of gradual develop- ment from the grants of land by the sovereign power in the Eomau times,^ to those who served for the defence of the state, and was, therefore, really based upon the manorial system. Hence it was, that its development by no means interfered with that system, or with the rights and interests which had arisen out of it ; and thus these interests continued to be developed under it. The growth of the feudal system was one of slow and gradual development from simple elements ; the substance of it, tenure on military service, having existed from the time of the Eomans ; and it was only elaborated by the Normans. It was the development of a system which became complex in its character^ from its involv- ing so many incidents; and one of these connected it with the administration of justice. In the legal history of this, or of any other country, nothing is so important as that which relates to the administration of justice; and in our own legal history, notliing is more remarkable than the 1 It lias been seen that such grants of land were made in this country by the Eomans usually on military tenure ; and our best historians — such as Palgrave and Lingard — conceive this to have been the germ of the feudal system. These estates became, under the Roman system, manors; and Guizot represents the villa or estates thus held, as military tenure, and under which the villeins held by servile tenure, as the basis of the feudal system. Then the barbarians seized large portions of land comprising their estates, and granted them unto others their companions in arms as military tenure ; and thi'ough the entire Saxon laws, there are to be found traces of an infant feudal system, forfeiture to the lord, relief, &c. This was developed at the Conquest. Every owner of a manor was its " lord," and had a court baron inci- dent to it ; and all the holders of manors Avere thanes or barons : those who held direct of the king being greater barons, others the lesser. 2 Guizot points out that the system involved the nature of territorial property hereditary, and yet derived from a superior (as opposed to allodial property held of no one), the union of sovereignty with property, the lord having sovereign rights within the limits of his territory; and the present civil system of legislative, judi- cial, and military institutions which united the possessors of feuds among them- selves. And he shows how, from the fifth to the tenth century, from causes he explains, freehold property became gradually less extensive, and land became con- verted into benefices ; and how, from the tenth to the twelfth centuries, benefices became gradually converted into fiefs or feuds {Led. sur la Civ. en France, lect. ii.). He insists, at the outset, upon its progressive formation. "No great social state," he says, " makes its appearance complete and at once. It is formed slowly and succes- sively : it is the result of a multitude of difierent facts of different origin, which combine and modify themselves in a thousand ways before constituting a whole. There is this much of truth, no doubt, in the view of those who attribute the feudal system to a special exigency of the times, that its promotion was aided and urged by the exigencies of the time, as it was suited to a period of limitation and tran- sition; and hence it gradually disappeared when that age was over." GROWTH OF THE ROYAL POWER. XCVU gradual growth of a regular system of justice, derived from the principle of supreme sovereignty, and based upon a regular judica- ture, deriving its jurisdiction therefrom. At no time was there any sudden change, and yet the ultimate result was to render the justice of the state supreme in its character, even while local in its exercise.^ And one of the most remarkable features in the Ic.lj'iI history of the period which intervened between the time of the Conquest and the age of Edward 1., is, that along with the growth and development of the feudal system, founded on what may be called a military policy, there was a gradual growth and consolidation of the sovereign power,2 by reason of a great social necessity ; and thus a more regular judicature, and a more settled and satisfactory ad- ministration of justice. The connexion of the subject with the administration of justice was this, that according to the strict principle of the feudal system, each lord exercised the judicial power in his own territory or domain, 3 as between his own tenants, or, in some cases, between them and their lord : a jurisdiction, however, it will be obvious, 1 As already mentioned, long after the king's justices had been used to administer justice in the counties, either as sheriffs, or, in the place of the sheriffs, by royal autho- rit}'. Magna Charta enacted that assizes should be taken in the counties, and that such picas should be determined by a fixed tribunal. Tlie result was, that the civil justice of the state, at the assizes, superseded the county court, in all important mat- ters. Then the custom arose of compelling suitors in the county courts to s.ie out a writ from the crown to tlie sheriff, to give him jurisdiction by making him a king's justice in tlie case, if it was of more than small value : and this was fixed by custom at forty shillings— a sum, however, equivalent probably at the least to £50 in our own day. - Guizot traces tills progress, and describes this necessity very skilfully in his lectures upon Civilisation in France (lect. 10-15) ; and although he speaks particu- larly of France, all that he says is equally applicable to England, as our legal history will abundantly show. He traces the progress of the royal power as giving to royalty its character of a public protector, and as the fountain of the justice of the realm ; and what he says of Fhilip Augustus, is eminently true of our Edward I. lender the royal power, he shows that the judicial system arose, and a regular administra- tion of justice, under an order of persons— the judicial order— specially devoted to it, and having a general jurisdiction derived from the sovereign power. All this took place equally in this country. * The principle was, that men should judge each other, of the same rank. Thus the tenants in the lords' courts judged disputes arising among themselves, or even between their lords and themselves, if arising out of the feudal relation. Otherwise, the question must be determined in the court of the lord's superior. The judgment by peers was essential, as Guizot says, to the feudal system. But then, as he also pointed out, there was no regular judicial system, no order of judges, no class of men charged with the judicial duty ; while, on the other hand, the execu- tion of judgments was a mere application of irregular force. There were, as he expresses it, no judicial guarantees by peaceful procedure {Led. sur la Civ. en Franct, 9 XCVIU INTRODUCnON TO THE PRESENT EDITION. necessarily limited, and extremely rude and unsatisfactory, and only suited to domestic matters. The feudal system had nothing like a regular judicial system, or a regular administration of justice. It involved, however, this great principle, which was carried out by Magna Charta, that a man should be judged by his peers or equals. So, with reference to our political system, the same principle of gradual progress and progressive growth may be illustrated. Nothing could be compared in importance with the judicial sys- tem, except the political ; l and that also, like the other, was of slow growth and gradual development : from first rude elements into an organised system ; from rude popular assemblies into regular constituted bodies. The political system, like the judicial, arose out of experience of the evils of the feudal ; and just as the prac- tical social necessity for regular judicature, and a comprehensive administration of justice, led to the establishment of the courts of sovereign jurisdiction, so the political necessity for a regularly con- stituted body of representatives to assess feudal impositions, and adjust feudal burdens, led to the constitution of popular elective assemblies. For electors, or for jurors, some great constituent body of freemen, it appears, was required ; and the same constituency originally served for both. The two systems had this in common, that they were both, neces- sarily, in the main, based upon the same great constituency : the freeholders in the counties, the burgesses in the towns and cities. These bodies, from whom the juries came, were also the bodies upon whom the political franchise was ultimately conferred.2 They lect. 10). Hence arose, as he shows, a general sense of the necessity for some com- plete jurisdiction which should comprehend all classes of cases, and some regular system of justice, which should deal with them judicially; and this could only be derived from the sovereign power. ^ Allusion is here made, of course, to the rise of a legislative assemblj", founded upon popular election. There is a masterly sketch of it in the history of Sir J. Mackintosh (v. i. c. 5), who shows its gradual rise from the time of the great council of the Saxons and Normans, to the regular return of popular members in the age of Edward I. He cites from Bracton some words in which allusion is made to that council : " Legis habet vigorem, quicquid de consilio et consensu magnatum, et reipublicse commune sponsione, authoritate regis, juste fuerit definitum" (lib. i. c. 1, fol. 1). And he traces its rise partly from the feudal system itself, in this way, that the scutages and aids under that system were levied by the consent of the tenants ; that the crown, by degrees, exacted talliages from those who were not military tenants ; and that this led by degrees to grants of subsidies by representatives of the counties and the burghs, and thus to a House of Commons. 2 Thus Sir J. Mackintosh points out that the suitors at the county court — from whom it has been shown the juries came — became afterwards the voters at county elections ; and that, as the suitors acquired votes, the whole body of the freeholders GROWTH OF THE POPULAR POWER. XCIX formed, then, the great mass of the free subjects of the realm, at a time wlieii to be a freeholder was to be a freeman, and when the only freemen were freeholders. In later times, when, on the one hand, freeholders — by reason of the division of estates, and the mode of emancipation — had multiplied, and many of them were holders of very small properties, qualifications became required ; and, on the other hand, as the villeins acquired customary rights, and became merged in the modern copyholders ; and, as lease- hold estates became stable, they became virtually as much en- titled to judicial or political franchises as freeholders, and became included among the constituencies of the jurors or electors. But the system remained, in substance, the same, through all these changes, and laws were only altered by reason of changes in the circumstances of society, and in order to preserve the substantial identity of our institutions. In a word, laws were altered, that institutions might be maintained. As gradual progress and slow development marked the character became the constituencies in counties. And some part of the same proccs?, he thinks, may be traced in the share of representation conferred on the towns. These communities had retained, he says, some vestiges of their elective forms, and of that local administration, which had been bestowed on them by the civilising policy of the Roman conquerors ; and in England, charters were early granted, which exempted towns from baronial tyrannj', and recognised their local laws. The boroughs, how- ever, were part of the ancient demesnes of the crown, and were subject to the feudal incidents. Talliages were levied, and subsidies demanded; and this led, as in the counties, to their sending representatives to parliament. When the consent of parliament was made necessary to the levy of talliage, of subsidies, and, in effect, of all taxes, as well as of the feudal dues, in the latter years of Edward I., the burgesses became integral and essential parts of the legislature [Hist. Eng., vol. i.). The bur- gesses and freeholders formed the body of the electors, as they did of the jurors; and as, at the same time, freeholds had become divided, and many of them were small, qualifications were deemed necessary in order to secure men of substance. It is very observable that the earliest legislation on this subject had reference to jurors; and there was an act of Edward I., the first of a long series of similar acts, directed to secure substantial men for jurors. In the reign of Henry VI., the well known act was passed which required a qualification for electors of knights of the shire, the qualification being an annual income from freehold of forty shillings, the same sum, as already shown, fixed for the exclusive urisdiction of the county court, and equal to £50 at the present day {vide p. civ.) In the reign of Edward IV., copyholders were held to have legal customary rights to their tenements ; and about the same time, leaseholders, likewise, had their estates fully recognised and protected in law ; and in later times, copyholders and leaseholders, to a certain amount, were admitted as jurors and electors. Here we see the alteration of laws in order to adapt them to the altered circumstances of society, and preserve the substantial identity of institu- tions :— all based on the same general principle, that of founding our judicial and political systems on the broad and solid ground of a substantial interest in the pro- perty and liberty of the country. C INTKODUCTION TO THE PRESENT EDITION. of our legal history from the Conquest to the reign of Edward L, it was equally so from the age of Edward I. to the reign of Eliza- beth, which closes our author's history. As the former- period was marked by the gradual development of the feudal system, so the later period was marked by its slow and gradual decline ;i and as the former period was marked also by the establishment of a general judicial system, based upon the supremacy of sovereign power and authority, so the latter period, long as it was, hardly had elapsed before its entire ascendancy was attained.2 The progress of decay was as slow as that of growth. Old systems were rarely ever abolished, and were left to become obsolete, and died away as they had arisen up — by slow degrees. During this long period, the anomalous jurisdiction of those local courts, which had existed in most of our villages and towns from the time of the Eomans, and many of which had criminal jurisdiction in capital cases, gradually died out, save as to the local jurisdiction, to which the county court had virtually been limited, and except as to the civil courts of some great cities, as London and Bristol.^ This, however, it must again be observed, was by a slow and gradual progress ; and to observe and trace this progress is the great object of legal history. No institution — at all events none which ey\dured — was all at once established ; none was all at once abolished. Every change, either in the way of abolition of old institutions or the introduc- tion of new, was gradual and progressive. Each alteration ad- 1 In the reign of Elizabeth, the feudal system had become in a great degree, if not entirely, obsolete ; and the last instance of a claim of villenage occurs in the re- ports of that reign ( Yelv. Reports, 2). So in this long reign the last instance occurred of " trial by battel,'' which was not abolished until our own day, and so as to '• wager of law," (by the oath of the defendant), the remains of the Saxon system of compur- gators. So also in this long reign the local criminal jurisdictions (save such as were derived from royal authority) died out {vide Crlspe v. Yiroll, Yelverton's Eeports), never having been directly abolished. - The state system of justice was left to assert its superiority over the other, only by reason of its superiority. 3 The jurisdiction of these courts was in ancient times criminal as well as civil ; and hence, in the reign of Edward IT., there was an instance of a capital execution by sentence of a court-baron. In the time of Richard III., we find it mentioned in the Year-Boole that the steward of a liberty had executed a man under colour of what the Saxons called "engfangenthief," or taking a thief in the act, within the manor or other liberty {Year-Booh, 2 Richard III., f. 9, s. 10), So, as lately as the reign of Elizabeth, it was admitted that the local court of the cinque courts could try and execute, a man for murder committed within the liberty, provided he could be taken there ; for otherwise he could only be arrested and tried at common law {Crispe v. Yiroll Yelverton's Repjorts, 13). GRADUAL OROWTII OF TRIAL BY JURY. CI vanced by degrees from its first germinal element and imperfect form, on its original introduction, until it had reached its final stage of development into a perfect and settled institution. Thus it was, for instance, with trial by jury,i which, in its present form, was never established or sot up, but grew by degrees, from its first form into its present, in the course of several centuries. The two great difficulties in the way of an efficient and satisfac- tory administration of justice were as to the proper mode of trying questions of fact, and as to the method of securing certainty and 1 All through the Saxon laws, its first germ or clement can be traced in the usage of selecting sucli of the suitors of the county court as had any knowledge of the matter, and making them sworn witnesses or jurors. Before the Conquest, it was the usage in criminal cases to swear, and even after the Conquest it was adopted in civil cases. From that step, however, to trial by jury in the later sense of the phrase, there was a long interval ; for these jurors were witnesses, and if there were no witnesses, there could be no jurors. The earliest mention of a trial by jury, says our author, that bears a near resemblance to that which it became in after times, is in the Constitutions of Clarendon, where it is directed that the sheriff " faciet jurare duodecim legales homines de ricineto seu de villa quod inde veritatem secundum conscientiam suam manifestabunt," (1 Reeve's Jlist. Eiuj. Lair, 87). The proceeding was " per recognitioncm," or by recognition — of their own knowledge. Some, or all, might know the truth of the matter, or might be ignorant of it. If none of them knew anything of the matter, and they testified the same in court upon their oaths, the court resorted to others, until they found those who did know the truth. If some were acquainted with the facts, and some were not, the latter were rejected, and others called in. And all who were called in were sworn not to speak what was false ; and the knowledge they were expected to have of the matter must have been from what they themselves had seen or heard, or from declarations of their fathers, such evidence as claimed equal credit with that of their own eyes or cars, " per pro- prium visum suum, et auditum, vel per verba patrum suorum, et per talia quibus fidem teneantur habere ut propriis " {GlanviUe, lib. ii. c. 17; i?eere, 13; Bracton, De Leijibus — De Assise). That in the time of Henry II. the jurors were still witnesses, is clear from the Treatise of Glanville, who treats of trial by jury in the ciiria regis, the king's superior court, and calls the jurors "recognitors," because they "recog- nised" of their own knowledge; and when he has to deal with the case of their having no knowledge of the matter, betrays considerable perplexity (c. 14). So in the Mirror, where ordeal and trial by battle are mentioned as modes of proceeding resorted to from necessity, where there were no witnesses of the matter, so that there could be no trial by jury. So Bracton, temp. Henry III., long after Magna Charta, speaks of the jurors as deciding upon what tiiey had seen or heard (lib. iv.) And it took probably at least another century, if not more, before juries were of sufficient intelligence to listen to and decide upon evidence. This stage in the history of trial by jury had, however, been reached in the reign of Henry VI., because we find For- tescue, his chancellor, describing trial by jury as a trial I)y evidence; and in the Year-Books of that reign there is a case about showing a man evidence in a lawsuit < YearBooh, Hen. VI.) But this development, it will be seen, took ages. From the time of Ethclred to Edward III. is a period of five centuries. That trial by jury arose out of the court of the hundred is manifest from this, that by the course of the com- mon law the jury must always have been composed of hundredors, unless there could not be sufficient impartial jurors therefrom, in which case the writ of decern tales was CIl INTRODUCTION TO THE PRESENT EDITION. uniformity in matters of law; it took centuries to settle and to solve. It may appear easy to hear witnesses ; but the difficulty has always been great of deciding upon contradictory testimony, and discriminating the balance of credibility.! And it was not until the people had acquired some experience in the administra- tion of justice that this difficult duty could be exercised by them, awarded, to summou jurors from the adjoining hundred {Year-Boole, 3 Henry VI., 39). An essential quality of a juror being that he should come from a place as near as possible to the place where the matter arose ; at all events, out of the hundred {Co. Liu., 155). So that it came to this, that the common law jury were simply twelve of the hundredors sworn. Up to the time of Elizabeth it was a cause of challenge to a juror, that he was not a hundredor {Waters v. Walsh, Bendl. 263). The jury, indeed, must have come de vicineto, from the vicinage of the place within the hundred where the matter arose, as from a vill or manor {Co. Litt. 125) ; but it must have come from the hundred. It was not until the 4th and 5th Anne, c.xvi. s. 6, that it was enacted that the want of hundredors should not be a cause of challenge to a jury, and that they might come from the body of the country. ^ It was for ages a firmly rooted rule of the law that the jury must come from the " vill," or vicinage, a rule plainly derived from the old system of the county court, held in the hundred, from month to month, or in which the neighbours from the hundred where the matter arose would be called upon to testify. Hence a fixed rule that there must be hundredors upon a jury, which existed until Lord Somers' act for the amendment of the law. The rule originally arose no doubt from the principle that jurors were witnesses, and, of course, to be witnesses they must come from the neighbourhood, and the nearer, it was thought, the better. And even at a later period, when jui-ors had evidence given, and no longer decided on their own mere knowledge, their knowledge of the parties, it was thought, would assist them in judging of the testimony. This is well put by Fortescue, c. xxvi., " Twelve good and lawful men being sworn, &c., then either party by himself or his counsel shall open to them all matters and evidences wliereby he thinketh that he may best inform them of the truth, and then may either party bring before them all such witnesses on his behalf as he will produce . . . not unknown witnesses, but neighbours," &c. And then, in c. xxviii., " The witnesses make their depositions in the presence of twelve credible men, neighbours to the deed that is in question, and to the circum- stances of the same, and who also know the manners and conditions of the Avitnesses, and know whether they be men worthy to be credited or not." At that time, it will be observed, the jury had ceased to determine merely upon their own knowledge, and had evidence given ; for there are cases in the Year-Books at that time as to obtaining of evidence. Moreover, there is a case in the Year-books that a man may enter another's park, to show him evidence in a lawsuit {Year-Boole, 17 Hen. VI.). The theory of trial by jury is thus explained l)y Hale : " In this recess of the jury, they are to consider the evidence, to weigh the credibility of the witnesses, and the force and efficacy of their testimonies, whence they are not precisely bound by the rules of the civil law — viz., to have two witnesses to prove every fact, (unless it be in cases of treason), nor to reject one witness because he is single, or always to be- lieve two witnesses, if the probability of the fact does, upon other circumstances, reasonably encounter them ; for the trial is not here simply by witnesses, but by jury ; nay, it may so fall out that a jury, upon their own Icnoidedge, may know a thing to be false that a witness swore to be true, or may know a witness to be incompetent or incredible, though nothing be objected against him, and may give the verdict accordingly " (Hale, liiist. Com. Law, cited in De Lolme on the Const., c. 13). GRADUAL GROWTH OF TRIAL BY JURY. CHI which is of the essence of trial by jury. Then, and not until then, its advantages were fully attained, and this it took several centuries to attain. All the advantages of a local tribunal were gained, it was con- sidered, by sending a case down for trial, (where there was no special reason why it should not be so), into the county, to be tried, and having a jury from the vill or vicinage, (as it was called,) where the matter in dispute arose, in order that it might be tried by neighbours of the parties, with such knowledge of them and of the subject-matter as might either enable tliem to decide the case of their own knowledge, or serve to test the credibility of the witnesses brought before them to give evidence. On the other hand, if the suitors were desirous of resorting to the old system of arbitration by neighbours,! it was always open to them to do so, by referring their cases to such arbitration, on the principle of mutual selection and assent. This principle, indeed, has never been abandoned in our legal system; but the domestic jurisdiction of arbitration has always been maintained. Thus, by slow degrees, and in the course of several centuries, the institution of trial by jury, as it now exists, was ultimately established. So as to the ascendancy acquired by the king's courts as courts of ordinary jurisdiction ; it was only acquired by slow degrees and gradual progression. By degrees it became established as a rule or maxim, quite contrary to ancient usage,2 tliat without * Thus in the Ymr-Book it was said, speaking of challenges to jurors, "If the plaintiff and the defendant do both refer themselves to the arbitration of certain persons, to act for both, it would be good, that is, whi re one side chooses one aiid the other another ; there, although they are to be on different arbitrations, yet as each is unknown to the other, it is good cause of challenge " {Year-Booh, 23 Hen. VI., 39). Arbitrations have always been allowed in our law, although some attempts were made to confine their jurisdiction (14 Ifeti. IV., 19). In Lord Coke's time it was not unusual for men to agree that differences between them should be referred to the arbitration of " neighbours" (Co. LitL, lib. i. c. vii., s. 67, p. 53) ; and although ques- tions were raised as to the power to refer future differences, no question was ever raised as to present differences. - For before the Conquest there was no other court but the county court ; and even after the Conquest suits relating to land to any extent came into that court, as was seen in the celebrated case relating to the Bishop of Rochester's lands, which is mentioned by all historians as tried in the county court ; and so of other cases, although, if they concerned the sheriff, or for any cause could not be properly or fairly tried before him, a king's justiciary was sent down to hold the court, as in the first case mentioned, and in others recorded of the time. The jurisdiction between lord and tenant Avas in the court of the lord ; but where different lordii claimed, the suit could only come into the court of their superior lord, and of course the ultimate court was that of the lord paramount— the king. By degrees it civ INTEODUCTION TO THE PRESENT EDITION. the king's writ there could be no jurisdiction over suits relating to land, a doctrine no doubt partly deduced from the principles of the feudal system, which made the court of the superior lord the tribunal for controversies between inferior lords which could not be determined in the courts of either. Then as regards personal actions, the rule which limited the jurisdiction of inferior local courts, courts baron, or the like,i to cases not exceeding the amount of forty shillings was applied to the county court, which, at the time the supposed rule must have originated, was the only court of ordinary jurisdiction. Even, however, if the jurisdiction were limited to forty shillings,^ became established that the sheriff could not hold plea of land without the king's ■writ, -whence it is said bj' Bracton, temp. Heni-y III., that in such cases the sheriff sat, not as sheriff, but as king's justiciary {Bracton, fol. 176). Then,'as we find from the Mirror of Justice, after justices itinerant had been sent (in the reign of Henry I,), suits of too high a nature for the sheriff, as suits relating to land, were deemed to be and were suspendable until the coming of the king's justices into the county {Mirror, c. ii. s. 28). Then, in the time of Henry II., when a curia regis (the exchequer) was established, chiefly for suits as to land, those suits were naturally brought there, the king's writ being required to bring them in the county court. Thus by slow degrees the maxim became established, as Fleta expresses it, that without a king's writ there was no warrant of jurisdiction in land. Now, a king's writ meant a/cc to the hing, for fees were charged for his writs (which the Mirror bitterly complains of) ; and a principle so valuable to revenue was not likely to be lost sight of by the Norman sovereigns. So, in the reign of Edward III., it was held that if upon writ the question of title arose, it should be determined in the county ; but otherAvise, if upon plaint, it should be removed into the court of the king ( Tear- PooZ.-, 30 Ed. III., f. 28). ^ That the rule originally applied only to these courts appears plainly from the Mirror, which, in describing the jurisdiction of inferior courts, temii. Edward I., first mentions the county courts, saying nothing of anj' limitation of jurisdiction. Then it proceeds — " The other inferior courts are the courts of every lord, to the likeness of hundred courts, and also in fairs and markets in which justice is admin- istered without delay, in which courts they have cognizance of debts and of such small things as pass not forty shillings in value (c. i. s. 15). But it is obvious that the rule could not have applied to the county court, the only court of ordinary juris- diction, and which, even in the reign of Henry I., was called "curia regis." 2 In the time of Alfred or Athelstane a shilling was the penalty for stealing a foal or calf {Laws of Alfred, c. xvi.). An ox was worth only thirty pence (Judicia Civi- tatis Londinia;), and a cow twenty pence, and a sheep a shilling, (a shilling being fivepence in Anglo-Saxon currency). The whole value of a citizen's property was often only thirty pence, or six shillings {Ibid.). The pecuniary penalty for a man's life was only thirty shillings {Anglo-Saxon Laws). These instances may sufifice to give an idea of the relative value of forty shillings, before the Conquest, and at the present day. And although in the Mirror forty shillings is spoken of as compara- tively a small sum, that was in comparison with suits for property to any amount, and the book was completed in the reign of Edward I. Even taking that era, how- ever, it would be difficult to give forty shillings a less comparative value than fifty pounds at the present period. Forty shillings a year was the amount of income NECESSITY FOR COURTS OP SOVEREIGN JURISDICTION. CV it is certain (though it is difficult to form a correct idea of the rela- tive vahie of money, in an age so distant as that in which such a limitation must liave arisen), that the amount could not have been less than fifty pounds of our present currency. There were, however, many undouljted advantages to be gained by bringing suits in the king's superior courts, and it was often, indeed, a matter of necessity to do so. There was one very evident ground of necessity, upon which the prerogative of justice was vested in the sovereign — viz., that from the supreme power alone fi.\ed by the legislature in the reign of Henry VI., as the qualification for knights of the shire. Twenty pounds a year was the salary of a judge in those days (Foss's Lives of the JuJyes, vol. vi. pp. 3, 41, 54, Gl), so that forty shillings was a tenth of it, wliieh, as the salary of a judge is now five thousand pounds, would make the present equivalent of forty shillings not less than five hundred pounds. It is ditficult to get an accurate idea on the point, and the estimate may vary between fifty and five hundred pounds ; one is the mininmm, the other the maximum amount of the present equivalent. At the time of Magna Charta twenty shillings was the sum due on every knight's fee, on the marriage of his daughter, and two shillings was an ordinary subsidy on a "plough land," i.e., in modern language, a farm, (Wade's Jlistonj of Enrjland, temp. Henry III., p. 49). Mado.x says the king in that reign gave his poet one hundred shillings salary ; the salary of the poet laureate is one hundred pounds, just twenty times as much in moneys numbered, but how much in point of real efliective value, a few further data may help to show. In the reign of Edward III. the famine price of wheat was twenty shillings (Wade's Bistori/ of Enf/land,Y>. 50), and forty shillings was the amount of the capitation tax of a baron {Ibid. 58). A bailiff in husbandry re- ceived less than forty shillings a year as his salary in the reign of Henry VII. (Ibid. p. 104). Now he would receive at least fifty pounds. In the same reign forty shil- lings a year was all that was allowed for the whole washing in the household of a great peer like the Duke of Northumberland (Ibid. 109). In the reign of Edward IV., as we learn from the old ballad " King Edward IV. and the Tanner of Tam- worth," a wealthy tradesman boasted of a horse for which he paid four shillings. Now-a-days a ricli tradesman would hardly boast of a horse for which he paid less than fifty pounds. In the reign of Henry VIII. the pound of beef was a halfpenny a pound, now it is one shilling, just twenty-four times as much, which again makes forty shillings equal to about tbe sum of fifty pounds. Lord Coke, in commenting upon the limitation of forty shillings, remarks that this was equal to six pounds in his time. But the efiect of the discovery of America was vastly to decrease the value of money, insomuch that it sank two-thirds in value, and hence Hume observes that a crown in Henry VII. 's time served the same purpose as a pound in his own time (Essay on Money). But the comparison of data shows that the difference was far greater, and the lowest possible estimate makes the present equivalent of the ancient forty shillings at least fifty pounds. Lord Coke says that a day's "plough service," which, of course, comprised tbe use of the horses or oxen with the plough, and a man to hold the plough, and another to guide the horses, in his time, would be com- pensated for by eightpence (4 Inst. 269). That was in the reign of James I., after the long reign of Elizabeth, when such a prodigious advance had been made in wealth. And the sum of eightpence at that time, was, no doubt, worth ten times what it was at the time of the Conquest, as it was probably worth a tenth part of what it would be worth now. A penny, in the Saxon times was at least equal to a shilling now, and only fivepcnce made a shilling. CVl INTRODUCTION TO THE PEESENT EDITION. could emanate tlie authority to enforce justice. This was most apparent in that age of turbulence and violence, when it was con- stantly necessary to resort to force to execute the law,l and when men, on the other hand, were always ready either to enforce or to resist it by a recourse to force. In such an age, to allow any but the officers of the State to execute it, would have led to anarchy and civil war. The turbulence which characterised the county courts continued to disturb trials in the counties, even after a more regular admin- istration of justice had been established, and under the itinerant justices sent by the crown into the counties, and the administration of justice was often so disturbed by local " routs," 2 or by the influence ^ By the common la^y, the sheriff was the minister of justice, and could take any Builicient number of men to assist him {Brook's Ahr. " Forcible Entree," 8 ; Year-Book, 22 Hen. VI., 37). And men were accustomed to assemble with force and arms, and either to enforce what they considered justice, or to resist it. Hence, though the law allowed of personal self-defence ( Fear-iJoo^- of Edward IV. 28), and even allowed of violence in defence of property in actual possession, even to regain pos.session after recent dispossession, it did not allow of violent attempts to regain possession after the wrongdoer had acquired peaceable possession {Mirror, chapter on "Disseisin"). Hence the statutes of forcible entry, to prevent men from making forcible entry even into their own lands, if with arms, or terror of actual bodily violence ( Year- Book, 8 Hen. VI., 9). These statutes, Coke said, were in affirmance of the common law, for, says he, the law abhors violence (3 Coke's Reports, 12). And it was laid down that if a man came with many, even of those who were accustomed to attend upon him, it was force {Year-Book, 10 Hen. VII., 72). And in the Mirror it is said that not only swords and spears, but clubs and staves, were "arms." That men did in those days gather together in numbers, armed with weapons, in order to enforce what they deemed justice, or to resist the law, is apparent from the reports in the Year-Book, and from contemporary history. Thus in the Paston Letters we find a place in dispute held by one body of armed men, and regularly besieged and assailed by another, and a man actually killed in the fray {Letter 281). So in the Year-Book of Henry VI. we find a ca?e in which a case was adjourned from the assizes "because the parties in their own counties came with great routs of ai-med men, more as though they were going to battle than to an assize" {Year-Book, 7 Hen. VI. ; 2>ZHen. VI. 9). In such a state of society to allow everj' suitor to enforce justice would be to allow of civil war, and lead to anarchy. Hence the doctrine was established, of necessity, that it was only the ministers of the king, the sherifT and his officers, who could use force to execute the law, although under him and in his aid, the whole county could act, and thus under the statutes of forcible entry the justices of the peace were allowed to use force to remove force {Year-Book, 21 Hen. VI., 5, 7 Edw. IV., 18). ■^ Thus, so early as the reign of Henry I., it was mentioned as a cause of failure of justice, which drew causes into the king's court {Lerjes Hen. Prim. c. vii.) And even when king's justices went down into the counties, it is not to be supposed the evil entirely abated, and it truly appears that it had not. The curia regis, certainly, as early as the reign of Henry II., took cognizance of causes which previously would have gone into the counties, for Glanville wrote his Treatise upon it. And the charter of Henry III. provided that the common i^leas should be taken in a fixed coui't, and that the evil continued, ase will show. An assize was arrayed before NECESSITY FOR COURTS OF LOCAL JURISDICTION. CVH of local magnates, that it was necessary to remove cases into the curia regis, the king's superior court. Independently of the turbulence of the county court, there were various reasons for the removal of causes therefrom, or from other local courts, into the king's superior courts. The power of the county court, or any local court, was strictly limited by its local jurisdiction;! whereas the king's superior court had jurisdiction over the whole country, and could send causes for trial into any county, or summon parties to attend in any county. Again, it was often necessary to remove causes from the local court, to avoid a failure of justice, on account of the deficiency of Sir Wm. Ikbington and Strange, in the county of Cumberland, and it was adjourned before them at Westminster, and Fulthorpe asked of the justices the cause of the adjournment, and Babiiigton said that it was because it was a great matter, and the parties in tiieir own counties came with great routs of armed men, more like as though they were going to battle than to an assize (" les parties en lour propre counties, vien- drout ove graund routs des gents armes, plus scmble pur vener a battaile que al assize"), and so for danger of the peace being disturbed ; and also for that counsel were in London, and the parties could be better served in their right, the case was adjourned {Year-Boole, 7 Hen. VI.). See Year-Book, 32 Hen. VI. 9, where a trial in the country was denied in a cause between the duke of Exeter and Lord Cromwell, " because there had been a great rout, and a greater would ensue if the trial should take place there, for my lord of Exeter is a great and potent prince in that county (un graund et prepotant prince") {Year-BooJc, 32 Hen. VI. 9). The Paston Letters afford many instances of similar proceedings at assizes about the same period. In modern times the courts have always recognised that it is a good cause for removing a case into another county for trial, that there is a popular excitement and doubt of the possibility of fair trial. ' Thus in an assize, where the tenant set up a release, the witnesses of which were in divers counties, the case was adjourned to the king's court at Westminster, " which had jurisdiction over the whole country " {Year-Book, 7 Edw. II. p. 231). Various modes were provided for removal of causes into the superior courts, writs of " pone," " recordari," or "certiorari" {Year-Book, 7 Edio. IV. 23, 34 Hen. VI. fol. 43). The plaintiff" might always remove a cause at his Avill without cause, for, of course, he would not needlessly delay his own suit, and there could be no disadvantage to the other party in removal of the case from the court of the county ; but the defendant could only removea case for good cause shown {F. N. B. Recordare, 79). Thus so early as Year-Book, 50 Edward III., it was said by Belkcnap, J., if a'strangcr comes into the Cinque ports and commits a transitory trespass, and afterwards goes out of their jurisdiction, he to whom the trespass is done may have an action at the common law ; for it is more for his benefit to have the suit at the common law than within the Cinque ports, for they have no power to summon any man that is out of their jurisdiction, viz., in the county of Kent, or elsewhere, into the limits of their juris- diction. And thus an appeal of felony was held to be in Kent for a murder in their jurisdiction, "because although the Cinque ports have several liberties (i.e., local courts), yet the reason of the grant of these liberties was for the ease and benefit of the inhabitants, and not for their prejudice " {Crispc v. Viroll, Yelverton's Rep. 13) ; and it would be for their prejudice if they could not follow murderers or debtors out of their own limited local jurisdiction. CVlll INTKODUCTION TO THE PRESENT EDITION", suitors or jurors, or the influence of one of the parties over then), from their being, most of them, or all of them, his tenants, or from the lord having an interest in the case, or other causes likely to prevent a fair trial. ^ Nevertheless, notwithstanding the obvious advantages to be gained by suing in the king's court, it is probable tliat ancient usage would have longer delayed their ascendancy, but for some degree of legal comjjulsion to sue there, occasioned by the legal maxims and rules already alluded to. And there is every reason to believe that the exercise of this compulsion, and the strenuous assertion by the sovereign of the prerogative of a general control over the administration of justice, and the establishment of a regu- lar judicature, arose chiefly from its being found that fees and amercements would constitute a considerable source of revenue. It is beyond a doubt that the first court was the exchequer. And the sending of itinerant justices, ^ and in the subsequent establish- 1 Thus a case was removed from the local court where there were onl}- six suitors (Year-Book, Hen. IV.). So where the lord of the hundred was interested, as in an assize against the mayor and commonalty of Winton (.31 Assize, 19) ; so in a case as to the mayor and corporation of Coventry {Year-Book, 15 Edio. IV. 18); so if all the inhabitants were tenants of one of the parties {Year-Book, 22 Edw. IV. 3). In such cases the evil was avoided by removal of the case into the king's court, because then the jury could be accorded to come not from the place in question, nor even from the county at large (in which case some of the inhabitants of the place might be included), but from some other hundred [Year-Book, 3 Hen. VI. 39 ; Trials per Pais, 109 ; Gilbert's Hist, of C. P., 68-71 ; Comherhatch, 332 ; Dance v. Ellden, Cro. Jac. 650). ^ There can be no doubt that, in the commissions of these justices, especial care was given to direct their attention to any branches of the revenue, particularly fines and amercements ; and so diligently did they attend to this department of their duty that we find the people at last began to dread their approach, and actually de- sired the periods at which they came might be lengthened {vide Ang.-Sacr., i. 495). This led to the discontinuance of justices itinerant, who went once or twice a year, and the substitution of justices in eyre, who went only once in seven years; but their commissions again directed their attention to the revenue, escheats, fines, for- feitures, &c. That the exchequer was the first superior court is clear, for a contem- porary writer, the author of Dialogus de Scaccario, says it was established soon after the Conquest, and it is mentioned in the reign of Henry I. {Madoxs Exch. i. 204), while there is no mention of any other superior court of law except after Magna Charta, when, as common pleas Avere forbidden from being taken in any court which followed the king, as the exchequer did, the court of common pleas arose at West- minster. Until then, the records show that all suits between party and party which came up to the superior court of the king, came into the exchequer {Mad. Exch. 686-793). The judges of that court were called barons of the exchequer, and the other judges who sat there, probably to assist in deciding common pleas, were called "justices of the bench," to distinguish them from- the justices itinerant. Fines were taken in the exchequer, and the records removed there about the time of Henry IV. {Year-Book, 37 Hen. IV. 17). ESTABLISHMENT OF THE KING .S SUPERIOR COURTS. CIX ment of a superior court for private suits, or common pleas (as they were called), or rather that cognizance of them in the exchequer, which led to such a court, arose from this cause. For these writs fees were charged, i and justice was thus, and in other ways, made a source of royal revenue, which caused it to be made a branch of royal prerogative, and secured it the care and attention of tlie government, in order to promote and extend that from which revenue was derived. Thus the interest of the crown ha})pily led it to make the administration of justice its special study, and from this at first some abuses, but in the ultimate result many improvements, undoubtedly arose. Prom whatever causes, however, the ordinary jurisdiction of the king's courts was upheld to the utmost by legal rules and maxims, and to a great extent, no doubt, it rested upon legal principle. 2 In ^ "The saurus regis," says Lord Coke, " est pacis vinculo," a truth wliich all our sovereigns, Saxon or Norman, caught with singular avidity, and grasped with great tenacity. And so soon as they found that justice could be made a source of revenue, they gave every attention to it. Fees were charged for writs, and even fines for expedition; and this is alluded to in the Jl/(/-?"or as an " abuse." Moreover, every possible occasion was taken for declaring a suitor be in mercy, as it was called — in miscricordia regis — for any contempt of court, the effect of which was that he was liable to be amerced, and this was a further source of revenue. This is alluded to in the laws of Henry I., and there is a chapter upon it. There is also a chapter in the Mirror on the subject, and one of the clauses of Magna Charta was directed against the abuses of amercements. All this, however, tended to give the sovereign an in- terest in enforcing a regular administration of justice, and in establishing a regular judicature for the purpose. That this was so is shoAvn by this, that the very worst and most rapacious of our Xorman sovereigns showed a great regard for the admin- istration of justice. Thus Hale states as to John — " This king endeavoured to bring the law and the pleadings and proceedings thereof to some better order than he found it — for saving his profits, whereof he was very studious — and for the better reduction of it iuto order and method, we find frequently in the records of his time, fines imposed, pro ttulti, loquio, that is, mulcts imposed by the court for barbarous plead- ings, whence afterwards arose the common fine, ^;7-o pulchre xdacitando, which was, indeed, no other than a fine for want of it" {Hist. Com. Law, 7). All this was of course illegal ; and these were the kind of exactions, no doubt, intended by the article in Magna Charta, " Nulli vendcmus, nuUi negabimus, aut difTeremus rectum aut justitiam." " So early as the reign of Henry I. the county court was called curia regis (Leges Bcnrici Primi, c. xi.), yet counties existed before the earliest times of the Saxons, and the courts of counties arose before there wa.s any united monarchy*. " Le leete est le plus ancient cour in le realme" {Year-Book, 7 lien. VI. 12). It was as ancient as hundreds, which undoubtedly existed before the time of the Saxons (whose earliest laws speak of them as already existing), so that it was more ancient than the mon- archy itself. So of the courts baron, as ancient as manors, which belong to the time of the Romans. Yet even the leet was said to be the court of the king {curia regis), and so of courts in towns and boroughs, which have courts ; they arc entitled the court of the king {Year-Book, 21 Hen. VII. p. 40). Yet the ancient style of the court ex INTRODUCTION TO THE PRESENT EDITION. pursuance of the same policy, it became firmly established in our courts that all jurisdiction, even in the smallest and most ancient local courts, emanated from the crown, so that even the leet, which was said to be the most ancient court in the realm — and was far more ancient than the monarchy — was said to be the king's court, as part of the justice of the realm. Under Edward I. the principles which had been established as to the administration of justice were pursued and carried out ; the jurisdiction and the judicature of the superior courts of law were settled ;^ with the important addition of a provision for the reser- vation of questions of law from the circuits for the determination of a superior court; and the consequence was, that the development of law made such rapid progress in his reign that it marks an era in the history of our law. baron is said by Lord Coke to have been the conrt of the lord. It also was a neces- sary consequence of the principle that the crown is charged with the duty of seeing that justice is administered, and that thus allegiance and protection are correlative. Where there is the duty and responsibility, there must be the power. And again, as the crown alone can enforce the execution of the sentences of courts, of necessity their power or jurisdiction must be derived therefrom. And again, as jurisdiction, civil or criminal, is coercive, it is a necessary attribute of the executive power of government, as Guizot points out. Thus Rayneval lays it down that " le pouvoir judi- ciaire est une emanation du pouvoir executif " {Droit de la Nature, c. xii.). Thus our most ancient authorities of law lay it down that all jurisdiction is from the crown. Thus rieta, "Sine warranto jurisdictionem non habent neque coercionem" (c. xxxiv.). So as the Mirror of Justice said, that jurisdiction is the power to declare the law, and that it rests with the king, because he alone can enforce and execute it (c. ii. s. 3). The county courts were in theory the courts of the king, but only in theory ; in reality they were mere popular assemblies; practically, a king's judge made a king's court. ' Hale says of this king that, "as touching the common administration of justice between party and party, and accommodating of the rules and methods and orders of proceeding, he did the most of any king since William I., and left the same as a fixed and stable rule and order of proceeding, very little differing from that which we now hold and practise, especially as to the substance and principal contexture thereof " {Hales Hist. of Com.Laiv, c. vii. p. 158). " He established the limits of the court of common pleas, perfectly performing the direction of Magna Charta : ' Quod communia placita non sequuntur curia nostra,' and in express terms extend- ing it to the exchequer. He settled the bounds of inferior courts, of counties, hun- dreds, and courts baron, which he kept within their proper limits ; and so gradually the common justice of the kingdom came to be administered by men knowing in the laws, and conversant in the great courts, and before justices itinerant. He settled a speedier way for recovery of debts, not only for merchants, by the statutes de merca- toribus, but for other persons, by granting an execution for a moiety of the lands by elegit {Hist. Com. Larv, p. 160). That is to say, he established a species of recognis- ances or acknowledgments of debt, under which merchants could obtain summary execution without going through the ordinary formalities of an action ; and as to all creditors he gave a remedy against the land of the debtors, which it was thought in these times was the surest way of enforcing or obtaining satisfaction, since in those days, all persons of any substance at all had some property in land. THE REIGN OF EDWARD I. AN ERA IN OUR LEGAL HISTORY. CXI The result of these improvements in the judicature of the coun- try was, that in the reign of Edward I./ the legal remedies for wrongs and injuries were well settled, and the course of the com- mon law was known and established, so that it was no longer necessary for the great council of the realm to take any part in the administration of justice, which was left to take its regular course in the courts of common law, according to their respective jurisdic- tions, and subject to the proper correction by appeal. Hence the reign of Edward I. is a great era or epoch in the his- tory of our law, and hence it resulted that, as in the reign of Edward I., as Hale says,^ the law received a greater advancement than in all the subsequent periods up to the time at which Hale wrote, long after the reign of Elizabeth, where our author's history closes ; in- asmuch, indeed, that, in the opinion of that high authority, " the very scheme, mould and model, of our law was then so settled that, in a very great measure, it continued the same in all succeeding ages;" as undoubtedly it did to the end of the reign of Elizabeth, for which reason, doubtless, it was that our author there ter- minated his history. When once a regular judicature and regular administration of 1 " Let any man," says Ilale, " look over the rolls of parliament, and the petitions in parliament, of the times of Edward L to Henry VI., and he will find hundreds of answers of petitions in parliament concerning matters determinable at common law endorsed with answers to this or the like effect : ' Suez vous a le common ley ; ' ' Sequatur ad communem legem ; ' ' Mandetur ista petitio in cancellarium, vel justicia- riis de Banco ;'" and so parliament refused to review judgments given in courts of law, e.xccpt in the regular course, in writs of error carried through the courts of error, as to which, it may be observed, that in the reign of Edward IIL statutable provision was made. ^ " The laws did never in any one age receive so great and sudden an advancement : nay, I think it, I may safely say, that all the ages since his time have not done so much in reference to the orderly settling and establishing of the distributive justice of the kingdom as he did within his reign " (Hist. Com. Law, c. vii.). " Upon the whole, it appears, that the very scheme, mould and model, of the common law, espe- cially in relation to the administration of common justice between i)arty and party, was highly rectified and set in a much better light and order, by this king, than his predecessors left it to him ; so in a very great measure it has continued the same in all succeeding ages to this day. So that the mark or epoch we are to take for the true stating of the law of England as it is, is to be considered, stated, and estimated from what it was when this king left it. But in his time it was in a great degree rude aTid unpolished in comparison of what it was after his reduction thereof; and- on the other side, as it was thus ordered by him, so has it stood hitherto, without any great or considerable alteration, abating some few additions and alterations which succeeding times have made, which for the most part are in the subject-matter of the laws themselves, and not so much in the rules, methods, or ways of its ad- ministration" {Hid. of Com. Law, c. vii. p. 1C3). CXll INTRODUCTION TO THE PRESENT EDITION. justice had been established, the law became developed by judicial decisions from the first rude elements of jurisprudence contained in the treatises based upon tlie Eoman law/ or judicial decisions made with the aid of principles derived from the same source, and adapted by these decisions to Saxon usages and institutions. It is remarkable by what slow degrees the most primary and im- portant principles of law were practically carried out and enforced in this country, as, for instance, that fundamental principle which lies at the basis of all civilised justice, the supremacy of law, and the unlawfulness of force or violence for the redress of wrong, or obtaining of right. This great principle, laid down in the Eoman law and adopted into the Saxon, was for centuries in a great measure ignored,^ and it was not until a much later age that it was really carried out. It is also observable, on the other hand, how, by force of judicial decisions, legal principles derived from the Eoman law were car- ried out and developed into consequences of the most vital char- acter, so as to amount practically almost to alterations of the law, as in the instances of the judicial decisions 3 which virtually converted mere villeins into owners of their lands and tenements. During the important reign of Edward I., which, above all others, 1 And so all these elements of law will be found to have been by degrees developed into the more complete form which our law in later ages by degrees assumed. Nor is there any more interesting branch of legal studies than the observation of this gradual process of development. This, indeed, is the great scope of legal history, and in these earlier elementai-y principles of law are often to be found the only true interpretation of later laws. ^ Thus in the Paston Letters will be seen an account of a regular attack upon a castle in the reign of Edward IV. by a body of armed men, in order to obtain posses- sion of it by force (vol. ii. p. 39, letter -81), and it is most remarkable that even Mr Hallam appears to have considered it lawful. He cites Britton : "The first remedy of the disseisee is to collect a body of his friends (recoiller ducys et force), and to cast out the disseisors ; " and though he notices that the statutes of Henry VI. and Eichard II. are against it, he says they imply the facts which made them necessary {Middle Ages, vol. iii.). But Lord Coke says the statutes were only in affirmation of the common law, and if so, the common law followed the Eoman. ^ It has been seen that in the Eoman law, adopted into the Saxon and the Norman, villeins were not to be coerced into services beyond such as were estab- lished by custom. This was long afterwards deemed virtually to imply that, so long as they rendered their customary services, they could not be removed. But even in the reign of Henry VI. it was said, as Littleton tells us, that if the lord put them out, they have no other remedy than to sue their lord by petition. But he adds, Brian, chief justice in the reign of Edward IV., said that "his opinion always hath been, and always shall be, that if the tenant, liy custom tender- ing his services, be cast out, he shall have his remedy by action ; " and so was the opinion of Chief Justice Danby {Littleton's Tenures, c. ix.). EFFECTS OF DECLINE IN THE STUDY OF ROMAN LAW. CXIU marks a gi-eat era in the history of our law, and in wliicli, as Lord Hale observes, the very mould and model of our law and constitu- tion were settled, the influence of the lioman law on the formation of our own is undoubted/ Ihit after this rci^^ii, probably from the fact that ecclesiastics ceased to be judges, and that the laymen ap- pointed to the judicial office were not sulliciently acfiuainted with it, its influence in our courts declined, and the result was unques- tionably detrimental to the development of our law. The cause or the result of this disregard of the liomau law was great ignorance in the courts of law,^ with such extreme narrowness of mind among the judges, that, in consequence of their contracted notions of law, suitors were driven from the courts of law, and forced to find, in an appeal to equity, that full measure of justice which was no longer to be obtained at law. How scandalously, after discarding the civil law, our courts of law perverted justice,^ can be shown even from the language of the ^ As Mr Hallam observes, that wise monarch encouraged its study, and the great treatise of Bracton was based upon it, which Lord Coke regards as the basis of our common law. In the early part of the reign of PMward II., it was said from the bencli that the law of England was based upon the civil law. " Que respondez vous,' said the chief justice, "a la loy imperial, donques sur quel ley de terre est fondue?" {Year- Book, 5 Edio. II. fol. 148). In the next reign, however, a serjeant, afterwards chief baron, observed, when the civil law was cited, that he could not understand it ( Year-Iiook, 22 Edw. III. fol 37), but Blackstone admits the judge was probably ignorant of it {Comm., vol. i. p. 21), and Mr Phillimore states tliat Edward I. encouraged the study of the Roman law, and that it was often quoted in the temporal courts here, but that in Edward III.'s time it was quite exploded. Selden, in Fletam, c. vii. s. 9, has preserved some curious instances in which it was cited prior to the reign of Ed- ward III., in whose time he says it was "plane negkctus rejectusque," and was un- known to the practitioners in our courts, though still Jlr Phillimore thinks it exer- cised some indirect influence through the ecclesiastical judges or teachers. Mr Philli- more cites with amusing contempt the sneer of "an old savage who was chief baron of the exchequer in the reign of El ward III." against the Roman law. In the reign of Richard II. the commons protested that this realm never had been nor should be governed by the civil law, quite ignorant that all that was worth anything in it was derived from the civil law. 2 Of this ignorance many illustrations could be given. In the reign of Henry VII. a judge said from the bench that a hundred meant one hundred men, or one hundred vills, or one hundred parishes/''' (Year-Bool; 8 Hen. VII. fol. 3). No man who had traced the history of our institutions from the Roman times could have fallen into such a blunder. From the Year-Books of Edward IV., a passage might be cited in which one of the judges, probably a little less ignorant than the rest, declared that it was entirely through ignorance the suitors were driven into equity ( Year-Book, 21 Ldw. IV. fol. 21). It need hardly be stated that in the reign of Henry VIII. the jurisdic- tion of equity over cases of law was assisted and established by Sir T. ^lore. » Thus it was said in a court of law that " If a man promise to make me a house, and do not, I shall have a remedy in chancery, and that, but for ' mispleading ' (i.e., ignorance), there might be a remedy at law " ( Year-Book, 21 Edw. IV. fol. 23). So in Cxiv INTRODUCTION TO THE PRESENT EDITION. courts of law themselves, avIio admitted that justice, through their own iguorauce, constantly failed at law; that they had come to regard form more than substance ; that even in the plainest case justice was too often obstructed or perverted by technical rules, the i^lainest possible cases it was constantly said that tliere was no remedy at law, but that there was in chancery, where the rules of the civil law were followed. Thus, for instance, if a bond was negotiable until actually cancelled in chancery, the party had no remedy against it at law ( Year- Bool:, 37 Hen. VI. 13). So again, in that plainest of all possible cases, that of a man who had paid a debt and omitted to take a proper acknowledgment, — it may seem scarcely credible, but it is the fact,— that if the debt were by deed, there was no remedy at law without an acquittance by deed ! If a man pay a debt for which he is bound by deed without taking an acquittance by specialty {i.e., by deed), he shall hare a remedy in chancery ! ( Year-Booh, 7 Hen. VII. 11). That is, he was to be made to pay the debt at law twice over, and then sent to com- mence a suit in chancery to get the money back again ! This incredible absurdity was actually vindicated at the time as the perfection of right reason ! Thus it was laid down in chancery : Here we adjudge "secundum veritatem rei," and not "secun- dum allegata ; " and if a man alleges by bill that the defendant has done a wrong to him, and the other says nothing, if we can see that he has done no wrong, the plain- tiff shall recover nothing. " There are," said the chancellor, "two powers and (kinds of) processes (or procedure) : s. potentia ordinata, et absoluta. Ordinata is as posi- tive law, and has a certain order. Sed lex naturte non habet certum ordinem : sed per quemcunque modum Veritas sciri poterit ; and therefore it is called absolute pro- cedure ; and in the law of nature it is required {i.e., only) that the parties shall be present (or absent by contumacy), and that there shall be an examination of the truth" {Year-Booh of Edw. /F.,fol. 15; Bro. Ahr. Jurisdiccion, 50). Thus it was said in these times : " En le chancery (per le chancellor) home ne sera prejudice la per misplead- inge, ou pur defense de forme, mes secundum veritatem rei, et nous doyomus aduidger secundum conscientiam, et nou secundum allegata, car si homo suppose per byl : que le defense ad fait tout a lui, a que il dit riens, si avomus conusans que il ad fait nul tort a luy, recouera riens ; et sont deux powers et proces, silicet potencia ordinata et absoluta, ordinata est come ley positive, come certen ordre, sed lex naturte non habet certum ordinem, sed per que meumque modum Veritas sciri poterit, et idee dabitur processius absolutus ; ei in lege nature requiritur que les partis sont presents, ou que ils sont absentes per contumacy, silicet ou ils sont garnie, et font defense et examinatio veritatis" {Year-Booh, Bro. Abr. Jurisdiccion, 50). Thus, in the Doctor and Student, the first question of the doctors of the law of England and conscience is, " that if a man that is bound in an obligation pay the money, but taketh no acquittance, or if he take one, and it happeneth him to lose it, that in that case he shall be compelled by the laws of England to pay the money again ! " To which it is answered by the student that " it is not the law that a man in such case ought of right to pay the money iftsoons, for that would be against reason and conscience, but that there is a general rule in the law that in an action of debt on an obligation, the defendant shall not discharge himself without an acquittance in writing, which is ordained by the law to avoid a c/reat inconvenience that else might hajppen to come to many j^cople — that is, that every man by mere parol should avoid an obligation ; wherefore, to avoid that inconvenience, the law hath ordained that, as the defendant is charged by a writing, he shall be discharged by writing (c. xii.) As if this did not come practically to the same thing ! It will be seen how the chancellor sophisticated the law. And if this was the law even of a chancellor, it may be imagined what the common law judges were. EFFECTS OF A REVIVAL OF THE STUDY OF ROMAN LAW. CXV and that suitors were driven to seek in the court of chancery the remedy they coukl no longer find at hiw. A rio'id adherence to connuon law rules, sometimes not sup- ported by any sound legal })rii)ciple, hut the result only of other rules, themselves entirely arbitrary,^ and resting rather on custom than reason, too often operated to deprive the party of his remedy at law, and remitted him to the delay and vexation of a suit in chancery. In a later and more learned age, the age of Selden and of Spel- man, the study of the civil law was revived, and the result was a great improvement in our law ; and some of the most celebrated judgments afterwards delivered in our courts of law were derived from the principles of the Eoman law.2 Nor can there be any ^ Take, for instance, the rules as to tenants in common, or copartners. As long ago as the reign of Henry I. they had remedy at law, for in the Lvjas Ilenrici Primi, founded on the civil la\y, we find a section (54) : " De discessione sociorum civus pecuniae," we read, "Si ab qui fuerint ita socii, ut pecuniam suam posuerint in com- mune, et a societate et communitatc ilia discedere voluerint, afferant coram testibua quicquid habent in commune dividendum, ut si opus est super sancta jurent, quod amplius non habeant, et adquisicionem et adquisitium, sicut rectum est et pactum fecerunt, dividant inter se." This shows that no difficulty could have been made at that time about any case of joint or common property, even when it v^as a matter of adjustment and settlement, much less when it was a question of ouster of one of the common owners by the other. But in the reign of Henry VL it was otherwise at law. Thus Littleton, s. 322, and Co. Litt., 32-:5 : "Albeit one tenant in common takes the whole profits, the other hath no remedy by law against him, for the taking of the whole profits is no ejectment ; but if he drive out of the land any of the cattle of the other tenant in common, or do not suffer him to enter or occupy the land, this is an ejectment or expulsion, whereupon he may have an ejectment for the moiety, and recover damages for the entry, but not for the mesne profits. And thus one tenant in common could not have an action of trespass against the other {Bro. Ahr., "Tenants in Common," pi. 14 ; -S'. P.,Uaywood v. Danes, Salk. 4), nor account, even though the other was his bailiff ( Year-Bool:, 17 Ed. II. 552). So a tenant in common could not be a disseisor without an actual "ouster" of his companion {Goodtille, 2 ; Points, 3 ; Wihon^ 118 ; Ibid. 391). So Litt., s. 323 : " H two be possessed of chattels personal in common, and one take the whole to himself out of the possession of the other, the other has no remedy but to take this from him who hath done the wrong, to occupy in common, when he can see his time." So Coke Litt., 200, a : "If one tenant in common takes all the chattels personal, the other has no remedy by action, hut he mny take them ar/ain." So Brown v. Hedyes, 1 Salk. 290 ; Fox v. Hanhury, Cowp. 448. ■■^ For example, the celebrated judgment of Holt in the great case which settled the law of bailments, the case of Coyys v. Bernard (1 Lord liaymond's Bcp. 709), which Mr Hargreave called a most masterly view of the law of bailment {Co. Litt. 896, n. 3). Sir W. Jones, in his Treatise on Bailments, observed that it was in a great degree based on Bracton, who was derived from Justinian, and the judgment certainly is based entirely on the civil law. A very learned writer of our own time says that equity formed an ingredient in the Roman law, and was thence infused in some degree into the common law (Spcncc's Eq. Jiir., 411). As a matter of fact there can be no doubt that there wa* the most remarkable CXVi INTKODUCTION TO THE PRESENT EDITION. doubt that large portions of our law can he traced to that source, to be found in the Saxon laws, and were afterwards developed into a complicated system of lights and remedies as to real property, which, having reached to so great a pitch of refinement, was only swept away by a statute passed in our own times. In the civil as in the criminal branch of our law, there are entire heads of law, peculiar in their character and in their terms, which have been in our law from the very earliest times, and which by their very terms are obviously derived from the Eoman law.i Some of the processes of our law, which we suppose to be most resemblance between the Roman and the common law, upon a great variety of most important subjects. As to the rules of descent of real property, they were substan- tially the same, until the common law was altered as to real estates by the feudal system, and the custom of primogeniturie, introduced, no doubt, with reference thereto. And the Roman rule was retained in substance as to personalty, and restored by the statute of distributions. Then as to lineal descent, the Eoman law provided certain precautions to prevent frauds upon the real heirs, by frauds of widows pretending to be with child (Pandects, lib. xxv., tit. 4), and hence our common law writ, De ventre inspicicndo. Again, the Eoman law as to services and servile tenures, and as to servitudes, formed the basis of our own law of manors and copyholds, and our whole law of easements. So as to the Eoman law of limitation or prescription, which was always recognised by our law, though fully established by old statutes. The prin- ciple of the common law, on which the statutes of limitation were founded, was the presumption in favour of possession, which is derived from the Eoman law (Pand., lib. xliii., tit. 17). And this principle in Eoman litigation, as in our own, threw the onus on the claimant until he had established his right, when the possessor had to show a better title. Then there is the remarkable law of Ethelred. " He who sits without contest or claim on his property during life, let no one have an action against his heirs after his day," (s. 14). "Where the husband dwelt without claim or contest, let the wife and children dwell unassailed by litigation ; but if the husband before he was dead, then let the heirs answer, as he himself should have done if he had lived " (Canute, c. Ixxiii.), which was enacted in a law under Canute, and was retained in our law under the title of right of mtry " tolled," or taken away by descent, or a continual claim, until it was abolished by the Real Property Act, 3 & 4 William IV., cap. 27. So in a law of Canute as to the effect of a judgment as to the right to land, we find the origin of the use of recoveries, which afterwards prevailed until that act. " He who has defended land {i.e. against all claim) with the witness of the shire [i.e. in the county court, the onlj' court at that time), let him have it undisputed during his day, and after his day to sell and to give " (Laws of Canute, c. Ixxx.) So of fines. ^ Thus, for instance, the whole law as to gifts or donations, especially that peculiar one of Donatio mortis causa (Cod. Jiist., lib. viii., tit. 56). So as to distress (Cod. Just., lib. viii., tit. 27, " De districtione pegnorum;" and lib. x., tit. 30, " De capiuendis et distrahendis pignoribus tributornm causa;" lib. x., tit. 21, s. 1, "Ees eorum que fiscalibus debitis per contumaciam satisfacere diffescerit, distrahantur." The ap- plication of the process to the levying of I'cnt or service was easy and natural. So to the precaution provided by the Eoman law against frauds by widows upon heirs, and the writ, De ventre inspiciendo, which was derived from the Eoman law into our own (Pand., lib. xxv., tit. 4, De inspiciendo ventre). Savigny gives several instances of citations from the Roman law in the Saxon (vol. iii. p. 168.) STUDY OF ROMAN LAW NECESSARY IN OUR LEGAL HISTORY. CXVll entirely the inventions of our common lawyers, will be found to bear such a remarkable resemblance to lioman usages as to justify the persuasion that those usages suggested tliem.'^ The main importance, however, of the study of the lioman law, with reference to its influence on the formation of our own, is in this, that it was the great fountain of legal principle, whence all of our law that was not barbarous (and which, therefore, for the most part has disappeared) was derived. And it might have been imagined that writers upon our legal history would have directed attention to this source and fountain, whence were derived the principles from which our own was developed. This, however, has not been the case, and the only writers on our legal history. Hale, Blackstone, and our author, have either ignored the influence of the lioman law upon the formation of our own, or have, at all events, made no attempt to trace and to describe it, because they found it diflicult to trace particular pieces or por- tions of our law to that source. It surely must be manifest that this view is narrow and incon- sistent, — narrow, because it restricts the use and scope of legal history to a mere process of precise identification of particidar laws ; and inconsistent, because if this were all, the study of legal history would, on the narrow practical view suggested, be of little use or value. If legal history is to be looked at only with a view to the actual law as it is, its scope is limited indeed ; but in the view of the greatest writers, it has a far wider and larger scope — it teaches the principles from which laws are derived, and the pro- cesses by which they are developed ; it gives the mind the best possible training, either for law or legislation, and the best possible preparative for the study either of history or law. " II faut," said Montesquieu, " ^clairer les lois par I'histoire, et I'histoire, par les lois." And if the history of law leads to the Roman law as the true source and standard of law, then the mind is directed to the study of thatwhichisthe highest human law, and the key to all human history. 1 The action of ejectment for instance. In the Koman law there was this usage. If the thing was immovable, there appears to have been an old ceremony of the parties going to the land, and one expelling the other from it and leading him before a magistrate {Sandar's Introd. to the histitides, p. 59). Now no one can fail to be struck with the resemblance here presented to the original procedure in ejectment, the lease, and the expulsion which used to form the foundation of the action. So as to fines, learned aulliors are of opinion that they originated in a suggestion derived from a proceeding in the Roman law [Cruise's Essay on Real Property), and there ifl great foundation for the belief. CXVUl INTRODUCTION TO THE PRESENT EDITION. Since Hale wrote and since Eeeve wrote, a far wider view than theirs has been taken of legal history. That great writer, Guizot — who has, perhaps, more than either, elicited the philosophy of legal history — thus expounded its nature and advantages : " Between the development of legislation and that of society, there is an intimate correspondence ; the same revolutions are accomj)lished therein, and in an analagous order. Let us study the history of laws during the same epoch, and let us see if they will lead us to the same result — if we shall see the same explanation arise from it. Tlie history of laws is more difficult to understand thoroughly than that of events properly so called. Laws, from their very nature, are ijionuments more incomplete, less explicit, and consequently more obscure. Besides, nothing is more difficult, and yet more indis- pensable, than to take fast hold of and never lose the chronological thread. When we give an account of external facts, wars, inva- sions, &c., then chronological concatenation is simple and palpable ; each event bears, as it were, its date upon its face. The actual date of laws is often correctly known, it is often known at wdiat epoch they were decreed ; but the facts which they were designed to regu- late, the causes which made them to be written in one year rather than another, the necessities and social revolutions to which the legislation corresponds, this is what is almost always unknown, at least not understood, and which it is still necessary to unfold, step by step. It is from this study having been neglected, from the not having rigorously observed the chronological progress of laws in their relation to that or society, that confusion and false- hood have so often been thrown into their history. A little more attention to the chronological development of laws and of the social state would have prevented it " {Lettres sur la Civilez. dans France, lect. XXV.). It would be impossible to express more clearly or more correctly the objects, the uses, and advantages of legal history, or the history of law, and the necessity for tracing it from its earliest rise, and in every step of its course and progress. And the same great writer, Guizot, forcibly expounded the im- portance of the study of the Eoman laws and institutions, as a preparation for the study of those of the races they subdued. He says — " In commencing, in any quarter of Europe, the study of modern civilisation, we must first investigate the state of Eoman society there, at the moment when the Eoman empire fell — that is GRAND UNIVERSALITY OF THE ROMAN LAW. CXlX to say, about the close of the fourth to the opening of the iifih century,"! (^Lectures sur la Civilization dans France). The grand feature in the character of the Roman law was its universality. Tliis may here well be described in the eloquent lan- 2ua"e of one of the most eminent and enthusiastic of its teachers, the gifted author already alluded to : — " In conseciuence of the increasing power of the republic, new magistrates became neces- sary. Among these, one was created of the utmost importance in the history of lioman legislation ; this was the Frcetor jjeregrinus, qui inter cives et peregrinos jus dixit. Tlie function of this magis- trate was to adjust the disputes which might arise between citizens and foreigners. Thus a new element found its way into Eoman jurisprudence. In addition to the local and positive laws by which their own society was regulated, it became necessary for the Eoman judge to consider the fundamental principles of justice, from which all law derives its obligation. These principles, under the name oi jus gentium, thus became familiar to the minds of Roman jurists, and exercised a considerable and happy influence over the institu- tions of Rome itself Thus it was, that the view of the jurist be- came more liberal and extensive, and the notion of a law not dependent upon climate or on caste, common to man on the banks of the Ilissus, the Tiber, or the Euphrates — a covenant, as it were, between earth and heaven, which no human authority could abro- gate or supersede, from which all laws derived their controlling power — was transferred from the schools of Greece to the tribunals of Rome. It became every day more and more necessary to appeal to broader principles than those which the municipal institutions of any country could supply ; and these were to be found only in the naturalis ratio, the principles implanted in the man wherever be lived, and however he was governed" {PhiUimore's Study of the lioman Law, p. 80). It nmst be manifest that a law pervaded by 1 The eminent writer goes on to say : " This investigation is peculiarly necessary in the case of France. The whole of Gaul was subject to the empire and its civilisation ; more especially in its southern portions was thoroughly Roman. In the histories of England and Germany Rome occupies a less prominent position ; the civilisation of those countries in its origin was not Roman Ijut Germanic. It was not until a later period of their career that they really underwent the influence of the laws, the ideas, the traditions of Rome" {Lecf. sur la CiriUz. dans France, Lect. ii.) It will have been seen, however, that this was a mistake, and that he had forgotten his own con- temptuous allusion to Saxon sources of civilisation; when the course of those in- fluences is traced, it will be found to have commenced much earlier than this eminent writer supposes. CXX INTKODUCTION TO THE PRESENT EDITION. siicli grand views and such broad principles as these, ftiust have been singularly adapted to exercise a salutary influence upon the barbarian races reduced under its rule; and that this influence must have endured even after the power of the empire was with- drawn, by the force of moral suasion, which never fails to draw men to imitate w^hat they admire or revere. Hence we might expect to find the barbarian races — for instance, our own Britons or Saxons — so soon as the influence of Roman civilisation began to tell upon them, look up to, and lay hold of, the laws and insti- tutions of the mighty empire, whose greatness they could not but recognise even in the atie of its decline. The main interest of the question as to the connexion between the Roman law and our own, is, that our vast empire, over numerous races and peoples, occupies a position in the world very analogous to that of Rome, and in which a like necessity exists for recourse to principles of juris- prudence, wdde and broad enough to embrace all the numerous nations subject to our sway, and enable us to rule and govern them all upon the broad ground of common principles of justice, equally applicable to them all. This was the glory of the Roman law, and for that very reason does enter largely into our own law, and that of many of the colonies or countries subject to our rule ; and it is manifest that the more the attention of English lawyers is called to it, the more enlightened and enlarged will be their views of law and legislation, and the more free from the narrow bonds of more municipal law and national prejudice. This is undoubtedly the view taken by the ablest writers. A learned and able writer in our own time says — " It is scarcely pos- sible to suppose any well-read lawyer, captivated as he may be with the notion of Saxon liberty, can jiroceed far in the study of either system, without perceiving a striking analogy between the civil law of Rome and the common law of England, not only as to their maxims and principles, and their technical phraseology, but also their method of practice, showing how early, and to what ex- tent one system became the instructer and guide of the other. To some minds there is a black-letter witchcraft in the expressions, ' Anglo-Saxon liberty,' ' ancient constitution,' and the like, while the chances are, that in furnishing an example they may fall into the whimsical position of seizing vipon some relique of Roman jurisprudence to prove the perfection and justice of their own" (Goldsmith's Doctrine of Equity, p. 8). RESEMBLANCE OF THE ROMAN RULE TO OUR OWN. CXXl "When we remember that the Romans held possession of this island nearly five hundred years, and during that period some of the most celel)rated lawyers administered justice among the con- quered Britons u\nm tli(; like footing, and according to the same system adopted by the con(|uerors in their own country, we cannot be surprised that such an event liad its due influence in stamping a character upon the future institutions of the country, more espe- cially as the Eomans also imposed their language as well as their customs upon the newly-acquired colony " (Gulch mith's Doctrine of Equity, p. 8). No one can have followed the imperfect review which has here been presented of the course of our legal history without feeling that this is perfectly true. The same view has the authority of the great writer — the historian of Europe in the Middle Ages — who has left on record his opinion that the influence of the Eoman law upon those who framed our own was greater than they acknow- ledged, or even than they knew, and he added : " A full view of the subject is still, I think, a desideratum in the history of the English law, which it would illustrate in a very interesting manner " {Middle Ages, c. viii.) It has been the endeavour of the writer, in some degree, to supply this deficiency, and at all events he has now explained the views and principles upon which the present edition has been prepared. Nor is the interest of all this merely historical, nor has it only a reference to the past. The subject has a nearer interest on this account, that within the numerous do- minions or dependencies of our vast empire there are always some communities which are in a state similar to that of our own country, at some one or other of its different conditions, and are passing through periods of transition, and undergoing changes, which this country went through in ages past. Thus, for instance, in the vast dominion of India, in itself an empire, there have always been pro- vinces which have exemplified, under some species of rule, the various states or conditions through which this country passed in early times ; whether the elaborate despotism of the Roman period of occupation, the rude barbaric freedom of the Saxon popular tribunals, or the feudal system of the Normans ; all these, as de- scribed by the pen of a Gibbon, or a Guizot, or a Palgrave, in our own or other countries of Europe during the earlier or middle ages of European history, wiU be found to have been reproduced upon the continent of India, either under native rule or under our own. CXXU INTRODUCTION TO THE PRESENT EDITION. Thus the first state or condition in which we find the people of India under their Hindoo emperors, that of unmitigated des- potism, so closely resembles that in which the various races of Europe were in the later period of the Eoman empire, that the passages in Gibbon or in Mill which describe them, respectively appear like remarkable historical parallels. ^ In Mill's Hist. Brit. Tndin, vol. i. c. iv., a very similar account is given of Hindoo judicature : " As kings and their great deputies exercised the principal functions of judicature, they were too powerful to be restrained by a regard to what had been done before them by others. What judicature could pronounce, therefore, was almost always uncertain, almost always arbitrary " (p. 171). And again, in a note, " The authority of the Hindoo princes, as well as that of the vile emissaries whom they keep in the several provinces of their countrj', being altogether despotic, and knowing no other will but their own arbitrary will, there is. nothing in India that resembles a court of justice. The civil power and judicial are generally united and exercised in each district by the collector or receiver of the imposts. This tribunal, chiefly intended for the collection of taxes, takes cognisance of all affairs, civil or criminal, within its bounds, and deter- mines on all causes." This was just the state of the Saxon and early Norman system, when the shire-reeve, the sberifF, the king's steward, or bailiff, originally appointed mainly to receive his dues, was also the chief judge of the county. The sheriff was ultimately deprived of all real judicial power, and made the mere minister of the law. And the judicial powers of the 'collector system' of magistracy in India is not approved of by the best authorities. The ' collector ' commonly exercised both civil and criminal jurisdiction within the territory over which he was appointed to preside. In his criminal court he inflicted all sorts of penalties In his Adawlut or civil court, he decided all questions relating to property. His discretion was guided or restrained by no law, except the commentaries and customs, all in the highest degree loose and indeterminate. There was no formed and regular course of appeal from the Zemindary decisions, but the government interfered in an arhitrari/ manner To the mass of the people these courts afford but little protection. The expense created by dis- tance precluded the greater number from so much as application for justice. The judges were swayed by their hopes or their fears, their proceedings were not con- Irolled by any icritten memorial or record. Originally questions of revenue, as well as others, belonged to the courts of the Zemindars ; but a few years previous to the transfer of the revenues to the English, the decision of fiscal questions had been taken from the Zemindars, and given to an officer called the fiscal-deputy in each province" (MilVs Hist. British, India, vol. i. b. v. c. i. p. 314, quart, ed.) " One of the first steps in reform was to establish supreme courts of appeal ; and, of course, as a necessary condition, it was ordained that records of all proceedings should be made and pre- Berved" (Ibid. p. 316). The Zemindars, it is elsewhere stated, had an office and autho- rity, comprising both an estate and a magistracy, a species of sovereignty (Ibid. c. iii.) As kings and their great deputies exercised the principal functions of judicature, what judicature would pronounce was uncertain and almost always arbitrary (vol. i. c. iv. p. 2). " For a considerable time before the establishment of British supremacy, the people of India had been unaccustomed to any regularly organised and administered system of law or justice The main principle that everywhere regulated the administration was the concentration of absolute authority, and the same individual was charged with the superintendence of revenue, justice, and police ; with little to guide or restrain him, except his own perceptions and sentiments of equity. Even in the be.st of times the sovereign was the fountain of law and justice, .... but the lead- ing object of the native governments was the realisation of the largest possible amount BEARING OF LEGAL HISTORY UPON MODERN TIMES, CXxlli In India, from very early times, there had existed a system of natural arbitration by the neighbours, which jjrobably formed in every country the first attempt at anything like an administration of justice, and wliich substantially resembled our old Saxon county courts, being mere assemblies of the principal inhabitants, who took cognisance of the disputes which arose among them, and made the best settlements they could — a system suited to an early state of society, and which necessarily precedes a more regular adminis- tration of justice.^ Such a system was only suited to the rude and simple condition of society in which it had originally arisen ; and hence, when it was attempted lialf a century ago to restore it in India, the experi- ment failed,2 for reasons which might have been anticipated by the of revenue, and all persons engaged in thia duty were armed with plenary powers, both as magistrates and judges ; so that, in general, the people were left to the un- controlled will of individuals " (Mill's Hist. Brit. India, cont. by Wilson, vol. i. 387). ^ In the absence of courts of justice provided by the state, the people learned to abstain from litigation {Elphin-stone, iv. 194) ; or " when disputes arose among them, submitted them to the abitrament of judges chosen among themselves. This expe- dient had probably descended from ancient times, in what had been a recognised element of Hindoo judiciary administration, under the name of Panchayat," [this is a mistake, for in the next page the historian mentions " the Panchayat had no power to enforce its decrees, so it was not a judiciary body;"] but it had fallen into discredit in most parts of India." Although, he adds, they were not inaccessible to personal bias or corruption, and their proceedings were occasionally irregular and tedious, yet they were suited to the times, and congenial to the feelings of the people, and supplied the place of better organised and more solemn tribunals (Hist. Brit. India, vol. i. 389). He says, in a note, they seem to have been but clumsy instru- ments. He elsewhere says they were prized only so long as nothing better was to be had. - The effects of the regulations, (extending the system of village Panchayats) operated to lighten the duties of the judges, and to facilitate the determination of civil suits. Some of their results, however, were unexpected, and ailbrded an unanswerable proof that the sentiments of the natives of India are as liable as those of other natives to vary with change of time and circumstances. The benefits so confidently anticipated from the public recognition of the Panchayat, were not real- ised : the supposed boon to the people was rejected ; they would make little use of an institution interwoven, it had been imagined, inseparably with their habits and affections. The Panchayats, it appeared, had been highly prized, only as long as nothinrj hfttcr was to he had. In the absence of all other tribunals, the people were constrained to establish one for themselves, and willingly admitted its adjudication of disputes which there was no other authority to settle ; while, on the other hand, the most respectable members of the community, especially interested in maintain- ing property and peace inviolate, and being subject to no authoritative interference or protection, willingly discharged, without any other consideration than the influ- ence which they derived from their discharge of such functions, the duties of arbitra- tors and judges. But a court, the members of which had no responsibility, &c. ( Wilson's Hist. Brit. India, vol. ii. p. 321). As the patels or head men of the villages, and the village Panchayats, were not to receive any remuneration for the performance of CXXIV INTRODUCTION TO THE TliESENT EDITION. aid of the light to be acquired from our own legal history. It was found, as indeed had been predicted, that the ancient system of rude popular arbitration had only been tolerated when nothing better was known, and because nothing better was known ; and that when once the idea of a rational and intelligent administra- tion of justice by any judicial order of men had arisen, the pre- ventive system of natural arbitration would not be endured. And although some writers in our own times i have been dis- posed to admire what they called the " simple and natural " pro- the duties to be assigned to them, it was anticipated that they would either decline the obligation, or fulfil it with reluctance and indifference. Connected also as they must be with the parties concerned in tlie cases before them, it was scarcely to be expected that they should perform their duties free from bias or partiality ; and as it was part of the plan that their sentences should not be subject to appeal, there was no security against their committing gross injustice. As also they were neces- sarily ignorant of the laws and regulations, their judgments could not be governed by any determinate principles, and their decisions could not fail to be capricious and contradictory (Wilson's Hist. Brit. India, vol. ii. p. 518). Notwitstanding, however, these objections, the system was established in 1816 — with what result ? " The benefits expected were not realised ; the Panchayats, it appeared, had been highly prized, only as long as nothinr/ better was to be had." " In the gross and complicated mass of human passions and concerns, the primitive rights of men undergo such a variety of refractions and reflections, that it becomes absurd to talk of them as if they continued in the simplicity of their original direction. The nature of man is intricate; the objects of society are of the greatest possible complexity; and there- fore no simple disposition or direction of power can be suitable either to man's nature or to the quality of his affairs. When I hear the simplicity of contrivance aimed at and boasted of in any new political constitution, I am at no loss to decide that the artificers are grossly ignorant of their trade. The simple governments are fundamentally defective. If you were to contemplate society in but one point of view, all tliese simple modes of polity are infinitely captivating. In effect, each would answer its single end more perfectly than the more complex is able to attain all its complex purposes. But it is better that the whole should be imperfectly answered than that while some parts are provided for with great exactness, others might be totally neglected or materially injured. The advantages of government are olten " balances between differences of good, compromises sometimes between good and evil, and sometimes between evil and evil " {Burke's Reflections upon the French Revolution). ^ Mr Mill, while arguing against the uncertainty of unwritten laws, admits that this uncertainty is limited by the writing down of decisions, " when, on any particu- lar subject, a number of judges have all, with public approbation, decided in one way ; and when these decisions are recorded and made known, the judge who comes after has strong motives not to depart from their example. This advantage, the Hindoo judicial system," he observes, " was deprived of, in this respect resembling our old Saxon system." Among them, the strength of the human mind has never been suf- ficient to recommend eflFectually the preservation by writing of the ceremony of judicial decision. It has never been sufficient to create such a public regard for uni- formity as to constitute a material motive to a judge. And as kings and their great deputies exercised the principal functions of judicature, they were too powerful to be restrained by a regard to what others had done before them. What the judicature BEARING OF LEGAL HISTORY UPON GOVERNMENT. CXXV cccdings of these popular tribunals in India, tliey have been com- pelled to admit, in a great degree, their evils, especially in the absence of anything like certainty or uniformity in the administra- tion of the law; and it has been manifest from the tenor of their observations, that the view they had taken was comparative with reference to a system of procedure then established in this country, which was infinitely too formal and artificial, and led many to sup- pose that a system could not have forms without being formal, could not be regular without being technical. And these writers liave admitted the advantages of a regular judicature, and a regular system of procedure, with its records and appeals, and its guaran- tees against error or uncertainty in law. But when an order of judges were appointed, however inferior, yet acting in the regular discharge of a judicial duty under the authority of government, and imder some sense of responsibility, the great superiority of this approach to a regular judicature, and a settled system of administration of justice, was so apparent to the people, that their ancient native tribunals were soon deserted, and the new order of judges, notwithstanding all their imperfec- tions, were appealed to in preference.^ The interest and the importance of the study of our legal history may be enhanced and illustrated by some further considerations. would pronounce, was therefore almost always uncertain, almost always arbitrary {Mill's Hist. Brit. India, h. ii. c. 4). It would surely be impossible to imagine a greater fallacy. Mr Mills approved of the Hindoo and IVIohammedan systems of pro- cedure because, he says, they were so "simple and natural," merely summoning the parties, and making a direct and simple investigation. This system may do well enough for simple cases, and, as shown in the text, it has always been allowed in our law for such cases, with the advantage, however, of a central system of control in the superior courts to prevent excess or abuse of jurisdiction (p. 171, and p. 6, c. i., vol. i.) Under the Hindoo and Mohammedan systems, however, it seems to have been applied to all cases, and without control or appeal; and Mr Mills admits that it made no provision for securing uniformity : " no provision made for the preserva- tion by writing of judicial decisions; no regard for uniformity" (p. 171); "so that what judicature would pronounce was almost always uncertain and arbitrary" (Jbid.) And he admits " that the Indian system of procedure is liable to the evil of the arbitrary power with which it entrusts the judge" (p. 141, 1st ed.) His only defence for it is, that a regular — as he calls it — technical system could not avoid the Bame evil. But a regular system need not be technical ; and may, as ours docs, regard only what is substantial, and may be sufficient to guard against the evils he points out. It is due to him to add that our system of procedure has been greatly altered since he wrote ; not, indeed, in its principles, but in its forms, which were infinitely too strict and technical. 1 " But a court, the members of which acknowledged no responsibility, and per- formed their functions only for such a term or at such times as suited their own convenience; who were guided by no light except their own good sense; and who, even if incorrupt, could scarcely be impartial ; who had no power to carry their own decrees CXXVl INTRODUCTION TO THE PRESENT EDITION. Ill the numerous dominions and dependencies within the compass of our vast empire, while, on the one hand, our own law is, more or less prevalent in the greater portion of them, yet, on the other hand, there are many of them in which other systems of law are more or less prevalent ; but most of these derived, like our own, from the Koman or civil law. It is manifest that to the subjects of such an empire, in whatever portion of its dominions they may live, the study of her legal history must be of great interest and advantage, whether as being itself the law under which they live, or as derived from the same law which was the parent of their own, and which was based on great principles, capable of application in every civilised community. There is probably no empire in which the law is more honoured than in our own. In tliis respect, again, the British empire resembles the Eoman. A semi-barbarous people pay more regard to arms than to morals, to commerce, or to law. Thus, in Eussia at this day, commerce, the law, and all civil employments, are held in no esteem (Sir A. Alison's Hist. Europe, vol. ii. p. 391). So the same writer says, " Nothing astonishes the Eussian or Polish noblemen so much as seeing the estimation in which the civil pro- fessions, and especially the bar, are held in Great Britain " {Hist. Europe, vol. x. p. 566). As the Eoman empire extended the study of the Eoman law through its provinces, so it has been with our own ; and nowhere is law more regarded than in our colonies. Thus very early in the history of our American colonies, their respect for law was remarkable. Burke was struck by it. " In no country perhaps in the world is the law so general a study " {Burke's Works, vol. i. p. 188). Mr Buckle cites this remarkable testimony, and adduces more modern works to establish the same characteristic, (See Lyell's Second Visit to the United States, voL i. p. 48; and Combe's North America, vol. ii. p. 329). It is obvious that in such countries and colonies the study of our legal history must have a great interest. into effect, and whose sentences were liable to no revision ; such a court must have been a very inadequate substitute for any tribunal, the proceedings of which were regulated by fixed rules, removed from personal influence, and subject to vigilant supervision. Whatever defects might still adhere to the administration of justice through individual judges, native or European, appointed by the government, their courts continued to he crowded, while the Fanchayats were deserted, &c. . . . The patels were mostly ignorant men, little qualified by superiority of knowledge or talent to command respect for their decisions. Recourse was rareh' had to their judgments, and the chief labour fell upon the officers appointed by the state for the distribution of justice among the people" {Wilson s Ilist. Brit. India, vol. ii. p. 522). OBJECTS AND USES OF LEGAL HISTORY. CXXVll There arc, it will have been observed, many uses or objects of legal history, whicli, however, perhaps may be included under the two g-reat heads mentioned l)y Moutes(piieu : the illustration of liis- tory ])y law, or of law by history. The former belongs rather to the general student, to tlie politician, the jurist, the legislator, or the statesman. The latter alone belongs specially to tiie lawyer. It has been well said by an eminent luminary of the law that no man can be a good lawyer who is not well acquainted with the Jiis- torij of law. The reason is obvious enough, upon reflection, for to be a lawyer, and, still more, to be a jurist, demands a thorough acquaintance with the principles of law,i and these can only be ac- quired by tracing them, so to speak, to their real source and origin, an inquiry which belongs to legal history. The principles of every part of our law are to be found in their simple, original forms, in its more ancient forms and proceedings ; and though these may long ago have become obsolete, the principles endure, for, as a learned judge once observed to the writer, forms may perish, but prin- ciples remain, and they only reappear in new forms more suited to the manners and exigencies of the age.- Thus the old writs or proceedings of our law embodied the prin- ciples and objects which are now worked out by more modern pro- cedure.^ The ancient tribunals of the country are superseded by other institutions directed to the attainment of the same object, and not only the vast domain of common law, but still more complicated systems, like our systems of conveyancing or of equity, are to be de- duced from simple elements to be found in the Year- Books. ^ There is a passage in our author to this effect {vide vol. iii. c. xxxv.), et vide p. 497. - Fur instance, advertisement in the papers now takes practicalij' the place of pro- clamations in the ancient county court, or assemblies of the people. ^ Thus the old writ of ad quod damnum was superseded, as to the stoppage or diversion of highways, &c., by the Highway Act, 13 Geo. III. {Ex parte Armitarje Amhlcr, 294; Dairson v. Gill (East); Jiex v. Nctherthong, 2; B. and Aid., 179). The whole statute law as to the liability of the hundred for damage done by rioters (going back to 1 & 6 Geo. I., and the 27 Eliz. c. xiii.) is based on the common law liability, founded on customs derived from the ancient Saxon laws {Rex V. Clark, 7 T. R. 496). An action on the case was held maintainable upon the 6 Geo. I. c. xvi. s. 1, by the party grieved, to recover damages against the inhabitants of the adjoining township, for trees, coppice, and underwood, unlawfully and feloni- ously burnt by persons unknown, though the clause directed the party grieved to recover his damages in the same manner and form as given by the stat. 13 Edw. I. st. 1, c. xlvi. ,/(;>• dykes and hedges overthrown hi/ persons in the night, upon which the usual course of proceeding had been by the writ of noctantur (7'hornhill v. Iluddcr*- field, 11 East, 349). So as to the statute of Hue and Cry as to robbery {Whitworth t. Grimshaw, 2 Wils. 105 ; Eex v. Half shire, 5 T. E. 341). These are only instances. CXXVlll INTRODUCTION TO THE PEESENT EDITION. It is laid down by all great writers that the only way to become a lawyer is to study the more ancient authorities of our law, and it is often otherwise impossible to master the law on a subject;^ yet it is as impossible, without an acquaintance with the history of the law, to understand them, for the very reason that the fomis and proceedings they mention have long been obsolete, and yet without understanding them, the statutes and the reports are unintelligible, and the sources of the principles on which the law rests are sealed and inaccessible. No part of our law can be thoroughly under- stood without tracing back that tradition to its origin and source. But to do so it is necessary to have the guidance afforded by legal history. On the other hand, as one who was both a lawyer and an his- torian,2 and himself well understood and applied the m.utual illus- tration of law and history, observed, law as often illustrates history, as history elucidates law. These, therefore, are the uses and objects of legal history, and these the ideas and views upon which this history has been edited. ' Even although they have for ages been obsolete. Thus, for instance, on the im- portant subject of bail in criminal cases, Lord Coke is careful and copious in expound- ing the enactment in the first statute of Westminster, although the writ founded thereon was, as he mentions, taken away by the subsequent act, 28 Edw. III., be- cause (he says) "the statute of Philip and Mary concerning bail has relation to our act" (2 Inst. 190). So he cites the Mirror, Bracton, and Britton constantly and copiously to explain our older statutes, and he frequently speaks strongly as to the necessity for a knowledge of the history of law. For instance, he says : " It is neces- sary not only to know the law, but also the root and reason out of which the law deriveth his life — viz., whether from the common law or from some act of parlia- ment, lest, if he taketh it to spring from the common law, it may lead him into error" (2 Inst. 296). So in another place he says, "And though this act (of 18 Ed- ward I.) be repealed, yet it may serve in many respects to explain the statutes of 4 Henry VII., and 32 Henry VIII., for the true understanding of the common law, and of former statutes, is the sure master-expositor of the later" (2 Inst. 518). But it is manifest that the very language and terms of the Year-Books or old statutes cannot be understood without an acquaintance with legal history. No man who has not read Britton can well understand the Year-Books ; and to master the law, it is necessary to refer to the Year-Books, and often to the Roman law. Thus the liability of innkeepers and carriers can be traced back through the Year-Books (42 Edward III., fol. 11 ; 11 Henry IV., fol. 45) to the civil law (Die/., lib. iv. tit. 9, leg. 3, s. 2), whence, no doubt, it was derived, by custom, into our own. ^ Lord Bacon, who says — " It is a defect even in the best writers of history, that they do not often enough summarily set down the most memorable laws that passed in the times whereof they write, being indeed the principal acts of peace. For, though they may be had in the original books of laws themselves, yet that informeth not the judgment of king's councillors and persons of estate so well as to see them described and entered in the title and portrait of the times" (Life of Henry VII., p. 46). HISTORY OF THE ENGLISH LAW. THE SAXONS. Tke Laics of the Saxons — Thainland and Reveland — Freemen — Slaves — The Tourn — County Court — Other inferior Courts — The Wittenagemote — Nature of Landed Property — Method of Conveyance — Decennaries — Criminal Lav) — Were — Murder — Larceny — Deadly Feuds — Sanctuary — Ordeal — Trials in Civil Suits — Alfred's Doin-boc — Compilation made by Edward the Con- fessor — Saxon Laws. The law of England is constituted of Acts of Parliament and the custom of the realm (a) ; on both which courts of justice exercise their judgment ; giving construction and effect to the former, and, by their interpretation, declaring what is and what is not the latter. We possess many of these Acts of Parliament from Magna Charta, 9 Henry III., to the time of Edward III., and from thence in a regular series to the present time. The statutes, except some very few, enacted by the legislature before that period, are lost ; though, no doubt, many of the regulations made by them, having blended themselves with the custom of the realm, have been received under that denomination, since the evidence of their par- liamentary origin is destroyed (6). The custom of the realm, or (a) This, it will be observed, is a definition rather of law, or of the " formal grounds or constituents," as Lord Hale calls them, of the law, than of legal history. And it omits what he includes among them, judicial decisions (c. 4), which he says are in- corporated into the law (c. 1), together with the materials on which they proceeded, which are often lost to us, whether it be ancient statutes or usage. And as to this he points out that the canon or civil law has been, by immemorial usage, in some matters adopted into our own (c. 2). And, elsewhere, he also points out that these judicial decisions are in part themselves the result of a knowledge of the law (c. 4). It seems to follow that a history of our law ought to go back to, or be founded upon, that system of law which was the earliest civilised law known in the country, and was established here for ages. Because in that system of law it needs must be that we have the fountain whence our oldest customs were derived, the sources from which, by judicial decisions, all our subsequent law has been developed. (6) Lord Hale says that " acts made before the reign of Richard I., and not since repealed either by contrary usage or subsequent acts, are now accounted part of the lex non scripta, being incorporated therein and part of the common law, and many of those things that now obtain as common law had their origin by acts or institution.s, though those acts are now either not extant, or if extant, were made before time of memory: and that this appears thus, that in many of the old acts made before time of memory (i.e., temp. Richard L), and are yet extant, we find many of those laws enacted which now obtain as common law, or the custom of the realm. He says fur- A 2 THE SAXONS. [CHAP. I. the Common Law, consists of those rules and maxims concerning the persons and property of men, that have obtained by the tacit assent and usage of the inhabitants of this country ; being of the same force with acts of the legislature. The only difference between the two is this, the consent and approbation of the people with respect to the one is signified by their immemorial use and practice (a) ; their approbation of, and consent to, the other is declared by parlia- ment, to the acts of which every one is considered as virtually a party. The common law, like our language, is of a various and motley origin ; as various as the nations that have peopled this country in different parts and at different periods (h). Some of it is derived from the Britons (c), and some from the Eomans {d), from the Saxons, the Danes, and the Normans. To recount what innova- tions were made by the succession of these different nations, or estimate what proportion of the customs of each go to the composing of our body of common law, would be impossible at this distance of time (e). As to a great part of this period, Ave have no monu- ther, that these ancient acts, now ranged under the head of leges non scripta;, or cus- tomary laws, are from the Saxon laws, which he cited from Lambard's Collection, and v/hich have since been published by AVilkins, and also more lately under the title of Anglo-Saxon Laws and Institutes, edited by Mr Thorpe, and next, various statutes passed in and since the reign of the Conqueror, e.g., to Henry III. In these he includes the laws of William I. himself, which, he says, consist in a great degree of the laws of the Confessor, the laws of Henry I., published in the A nglo-Saxon Laics, vide post, p. 5, and the Constitutions of Clarendon, temp. Henry II. Then, as regards the statutes within the time of legal memory,— that is, in and since the reign of Rich- ard I., — he says there is very little exto.nt in any authentic form, and mentions nothing of importance except the Charter of King John, of which, and the other charters, he truly says that " there was great confusion, until, in Magna Charta of Henry III., they obtained a full settlement, and the substance of them was solemnly enacted by parliament." So that statutory law really commences with Magna Charta. (a) The author here forms the well-known maxim of the Roman law, which bases the force of custom on this principle, " Sine scripto jus venit, quod usus approbavit nam diuturni mores consensu utentam comprobat legem imitantur " {Inst. Just., lib. 1, tit. 2). (b) This to some extent is true, but to what extent, has already been considered in the Introduction. As to the Britons, as distinct from the Romans, it would be idle to speak of the " laws " of mere bai'barians. The bulk and body of our law, so far as it is civil, is Roman : but so far as it is criminal, it seems to be chiefly Saxon. It would be difficult to find anything now existing in our law, except our criminal system of procedure and the form of trial by jury, which could be said to be distinctively Saxon, nor anything at all which is distinctively Danish or Norman : when our author wrote, and real actions existed, and trial by battle and wager of law had not been aboli.shed, it might have been otherwise, though these parts of our law were, even then, obsolete. (c) It has already been shown in the Introduction that the Britons before the arrival of the Romans were mere barbarians, and had no " laws " at all ; so that this, to mean anything, must mean the laws of the Britons after they had become Romanised, and had to a great extent adopted Roman laws and institutions, in which sense it is in substance the Roman law. The only Briti.sh laws remaining — those of Howell Dhu — are of Roman origin, having been compiled long after the Roman occupation. (d) The whole of our municipal system — our manorial .system — the rules of in- heritance (modified, no doubt, by subsequent usage) — the general scope of our civil procedure, and the whole substance of our law, so far as it relates to civil matters, are of Roman origin. This has been shown in the Introduction. (e) This is the view conveyed by Lord Hale in his history ; but, in the comments CIIAr. I.] INSTITUTIONS TIIKY FOUND EIXISTING. 3 ments of antiquity to ^uiile us in our inquiry ; and the lights which gleam upon the other part afford but a dim prospect (a). Our conjectures can only be assisted by the history of the revolu- tions effected by these several nations. Certain it is, that the Konian had establisliraents in tliis island, more or less, from tlie time of Chiudius (It) ; that they did not finally leave it till the year 448 a.d., and that during great part of that period they governed it as a Konian province, in the en- joyment of i)eace, and the cultivation of arts. The Koman laws were administered as the laws of tlie country ; and at one time under prefecture of that distinguished ornament of (liem, rapinian. When these pco]ilo were constrained to desert Britain, and attend to their domestic safety, the rictn and /S'coAs- broke in upon the l)eaceable inhabitants of the southern parts ; who, unable to resist the attack, at length applied to the Saxons for assistance. Several tribes of Saxons landed here, and first drove the northern invaders within their own borders ; then turned tlieir arms against the Britons themselves ; and having forced great numl)ers of them into the mountains of Wales, subjected the rest to tlieir dominion, which gradually subsided into seven independent kingdoms (c). already made upon it in the Introduction, it has been observed that it affords no sufficient reason for entirely ignoring the Roman law, and its influence in the forma- tion of our own, and thus losing the light which that law sheds u))on it ; nor, on the other hand, losing sight in a great degree of the Saxon laws and institutions, so far as they related to criminal matters. From these sources of information it may, it is conceived, be made out, that the civil part of our law is of Roman origin, and the criminal part of it of Saxon origin. And it is a great deal to get at the oriyiual source of the law upon a subject. (a) On the contrary, there is the Roman law, there is the Romanised British law, in the old laws of Wales, and there are the Anglo-Saxon laws, and the Mirror of Justice — an ancient work, embodying one still more ancient, of the time of Alfred. Of the text of the former and latter of these materials, however, the author made no use ; and of the other — the Saxon laws — it will be seen that he did not sufficiently appreciate them to make a full and adequate vise of them. Had he done so, he would have found a far greater degree of light than he sujiposed to be attainable on the subject. (6) A.D. 43. Suetonius subdued the great rebellion of the Britons, a.d. 60 ; Agricola completed the conquest of the island, a.d. 80 ; and, in the pages of Tacitus, we find that the Biitisli learned the language, and imitated the usages of the Romans. " Jam vero principum filios liberalibus artibus erudire et ingenia Britannorum studiis Gallorum anteferre ; ut qui modo linguam Romanam abnuebant, eloquentiam con- cupiscerent ; inde etiam habitus nostri honor, et frecpiens toga . . . idque apud imperitos humanitas vocabuntur, cum pars servitutis esset " (In vit. Arjric.) A century and a quarter later, we find the Emperor Severus residing at York, and elevating the great jurist, Papinian, to the prefecture. His successor, Caracalla, conferred upon all free subjects in the provinces the rights of Roman citizens. This was A.D. 220. Nearly another century elapsed before the reign of Constantiiie — nearly another to the reign of tlie second Theodo.sius. The Theodosian code was not long afterwards published, and another generation had elapsed before the Roman rule in Britain terminated. Thus, therefore, during more than three centuries and a half, the country was thoroughly under Roman laws and Roman institution.s, and its inhabitants civilised under their influence. It is not possible but that during this long period the Romans should have deeply planted their laws and institutions in the country they ruled. (c) This is hardly perhaps accurate, and conveys an entirely erroneous idea. Guizot points out the fallacy of supposing that the conquests of the barbarians were bo 4 THE SAXONS. [CHAP. I. Tlie circumstances of this revolution are related to be of a kind differing from most others. The Saxons are described as a rude and bloody race ; who, beyond any other tribe of northern people, set themselves to exterminate the original inhabitants, and destroy every monument and remains of their establishment (a). In so general a ruin, it cannot be imagined that the customs of the native Britons, or the laws ingrafted upon them by the Romans, could meet with any favour (b). The kingdoms of the Heptarchy were, for a time, independent of each other ; and though a like state of society and manners pre- vailing in all of them must of course have produced the like spirit and principle of legislation in common, yet their laws must have been specifically different. Hence grew a variety of laws among the Saxons themselves (c). In the reign of Alfred, the Danes, sudden, so general, or so absolute as is supposed ; and the idea is especially fallacious with reference to the Saxon invasions, because these invasions were successive : the contest between them and the Britons lasted for centuries, their conquests were par- tial and gradual, and were not quite complete when the Danish invasion took place, but ended rather in a union of the two races, by means of intermarriages and a gradual amalgamation of institutions. Tlie contest can be traced all through the Saxon chronicles up to the tenth century, and in the course of those four or five cen- turies the process of amalgamation was going on. (a) This was so only at first and to a limited extent. So soon as they had made sure their footing in the country they were content to render the Britons their tribu- taries ; and it was only those who refused to become so who were exterminated or expelled. This appears from a passage in Bede, cited by Lingard — who says: " After the adventurers had formed permanent settlements, they gradually abandoned their former exterminating policy, and suffered the natives to retain their national institu- tions as subordinate and tributary states." Bede gives an instance of both in Edelfrid, about the year 600 — -"qui terras eorum, subjugatis aut exterminatis, indi- genis, aut tributarias gente Anglorum aut habitabiles fecit'' (Bede, Ixxxiv., Liiigard's Hist. Eng., vol. i. c. 2). Both Lingard and Sir F. Palgrave represent the Saxon sovereigns as thus rendering the Britons their tributaries. (6) This inference arises from the notion, already shown to be erroneous, that the Saxon conquest was sudden and complete, instead of which it was slow and gradual ; and thus, in the meantime, the two races becanie in a great degree united, and their institutions amalgamated, or rather the more civilised institutions of the Romanised Britons were adopted ; the Saxons, still retaining also their own, which became by degrees first mndified, and then, after the Conquest, superseded, as shown in the In- troduction. Had the author made more use of the Saxon laws (after the conver- sion of the Saxons), even so early as the reign of Ina, he would have found the Briton and the Saxon put as much as possible on a footing of equality, based upon their common Chiistianitj''. The allusion here to the "customs of the native Britons,'' anterior to the time of the Romans, is, as already shown, with any reference to law, entirely fallacious ; and instead of the laws of the Romans being ingrafted upon those customs of a barbarous race, it is manifest from history that by degrees, as the race became civilised, they adopted the laws of the Romans, not only as being the best possible laws, but as being the only laws they had any knowledge of. And for the same reason, as is amply shown by the authorities quoted in the Introduction, the Saxons, as soon as they became settled and civilised, adopted by degrees the Roman laws, discarding, by de:;rees, their own barbarous usages. (c) This was only true temporarily, if, indeed, ever really true at all ; and it cer- tainly was never true after the country was at all settled under one rule. Nothing is more remarkable, indeed, in the early history of the country, and nothing more clearly indicates the influence of the Roman law upon the barbarians, than the ten- dency shown in our earliest laws to imitate its comprehensive character by forming laws for both, or all the various races in the country. Thus, as already mentioned CHAP. I.] CHARACTER OF THEIR CONQUEST. 5 who had lon^ harassed the kingdom, were by solemn treaty settled in Northumberlatid and the countiy of the East Angles, besides great numbers scattered all over tlie realm. The Danes were after this considered, in some measure, as a part of the nation. They were suffered to enjoy their own laws within their district ; and these, when their own kings sat upon the English throne, j)ervaded in some degree all parts of the country. From these various causes it happened, that to- Laws of the wards the latter part of the Saxon times, the king- «axonb. (lorn was governed by several difl'erent laws and local customs (a). The most general of all these were the three following ; the Mer- cian Lena, the West-Saxon Laic, and the Banish Laiu. If any of the British or Roman customs still subsisted, they were sunk into, and lost in one of these laws {b) ; which governed the whole king- in the laws of Ina, the earliest Saxon laws for the kingdom, there is an endeavour to apply the same laws to Britons and Saxons, and to blend both races under the same rule ; so in the subsequent treaties between the Saxon Alfred and (Juthrum the Dane, or between Edmund and Canute. And Canute and the Nornxan Conqueror pursued the same wise policy. (a) On the contrary, " towards the latter part of the Saxon times," the endeavour was, whether the monarch was Saxon or Danish, to amalgamate the laws and render them uniform and ecpially applicaljle to all. And this was so far effected that it was carried out with few and unimportant exceptions, and those exceptions rather customs, or rude usages, which would never survive the least civilisation, than of anything like laws. For instance, in the laws of Canute this is very remarkable, the reason assigned being the common Christianity of the various races, both Danes and Saxons being then Christians ; for he lays down a whole body of laws as equally ap- plicable to all his subjects, without exception, and tipccljks several peculiar barbarous usages which could not even be translated out of the language of the race to which they belonged, and these, and these alone, he says, pertains to such or such a race in par- ticular. And there is some reason to suppose that even in these instances it is rather that there were different terms in each language for the same thing, since it is obvious that they denote substantially the same thing. With these unimportant exceptions the whole bulk and body of the laws are laid down generally of the whole people, which is shown plainly by the exceptions alluded to. And at the end there is this — "And he who violates these laws, uhich the Hikj has noiv fjiven to all men, be he Danish or be he English, let him be liable," &c. (c. 84). So of the laws of the Confes.sor, which are general, with one or two exceptions. (6) On the contrary, a general body of laws were framed, with one or two specific exceptions, applicable to the whole kingdom ; but very far from containing all the law, or excluding the Roman law, which had became incorporated in the institutions of the country ; on the contrary, there was much that was mentioned, and of which the existence was implied, but of which the origin is not to be found in any of these laws, and which, therefore, could only have been derived from the Roman law. Throughout the whole of these laws there is no law establishing the division of tlie country into counties or hundreds, or establishing courts of the hundred or county, nor manors, nor corporations, municipal or otherwise ; nor rules of descent and in- heritance, nor a variety of other matters, which nevertheless existed, and many of which are alluded to. The truth is, that these laws were only the written laws of the time, the Icries scripts; but there was a vast deal of unwritten law, leges non scripta', incorporated in institutions long established in the country, and upon some of which it may be that barbarian laws or usages engrafted some excrescencies, which soon disappeared. The greater portion of these laws are little worthy of the name ; they were for the most part either precepts of morality or embody some barbarous usages, such as pecuniary compositions, the ordeal, compurgators, and the like, all which before long became obsolete, and such fragments as at all resemble law are rough and rudimentary. To suppose that these comprised the whole of the laws of the country would be an egregious fallacy ; they were merely the written laws of the G THE SAXONS. [cHAP. I. dom, and have since received the general appellation of The Com- mon Law. The history of this hody of common law, with the divers altera- tions and improvements which its rules, its principles, and its prac- tice have received at different times by acts of parliament, and by the decisions of courts, we shall endeavour to investigate and de- duce in the following History. The great obscurity in which all inquiries concerning these times are involved, renders it impossible to trace the history of laws with much certainty (a). For the present, we must be con- tent if we can collect what were the outline and striking features of the Saxon jurisprudence in general ; without entering into any nice discussion about the time and manner of the particular changes it might undergo during the long period before the Conquest. If the law of a country is circumscribed in its extent by the bounds of a realm, much of its influence and operation depends on the internal divisions of it ; and a history of the law would be in- complete without noticing the parts of a kingdom (h) ; so far, at Saxon or Dano-Saxon races, the contributions they brought, so to speak, to the general law of the nation — happily (as already observed) before long to be discarded. And so far from the Roman law being sunk or lost in any of those barbarous laws, on the coutrarj^ it was the Roman laws and institutions which have survived and remain to this day ; while, for the most part, those rude and early attempts at law have for ages been matter rather of antiquarian research than legal study. And the only use of the study of them at all is to illustrate what Montesquieu long ago observed, that barbarous races may indeed have usages but cannot have laws, and to show that so soon as they were civilised enough to understand and appreciate regular law, they would gladly avail themselves of the resources of the Roman law, remodelling and modifiying it perhaps, but still applying it to their own use. (a) This obscurity was not a necessary incident of the study ; for the laws of Romans, of Romanised Britons, and of Saxons and Danes have been preserved, and speak ]>lainly enough ; but the author, having ignored the Roman law, and hardly given sufficient attention to the Saxon laws, lost the greater part of the light which was available, and so felt himself here in obscui'ity. The author was wrong in assuming that all the law there was in this country in the time of the Saxons vras comprised in the laws they put into writing ; whereas these were only their first rude attempts at laws, and there was a vast deal of unwritten law practically embodied and in opera- tion in actual existing institutions, to be found in the Mirror of Justice for instance, to which he did not advert ; nor was he, it will be seen, sufficiently acquainted even with the written laws of the Saxons, while he avows that he had given no attention to the Roman loeriod. (6) Of this there can be no doubt ; and therefore, as has been seen in the Introduc- tion, the Romans always established a very complete and elaborate ijolitical organisa- tion in a conquered country, and thus Britain with other " dioceses " of the empire were divided into " provinces," and these again were sub-divided into smaller districts under " comites," or counts, and hence called "comitates,'' or counties; and there is every reason to believe that there may have been another system of division into cen- turies and decennaries, for the Romans had such a division in their own country, and a large portion of this country was colonised by Roman citizens, whether of Roman, Briton, or foreign origin. Such a division was found existing here soon after the Saxon times, and no Saxon law estaVdished it, though it is alluded to in the Saxon laws as existing. And though some of the Germans had a system of dividing the population into centuries, it was only numerical and military in its natuj-e, and does not; seem to have been a civil and political division, and territorial in its character, as it was among the Romans. To adapt it, hcjwever, to the purposes of settled civil government, it is obvious that it must have been founded on the number of habitations CJIAP. I.] DIVISIONS OF THE COUNTRY. 7 least, as the process of legal proceeding is affected by provincial limits. The division of England into counties is very ancient ; but is or estates of free citizens, mther than on mere numbers of men ; and thus would give it a territorial character. On the other hand, it will be shown that this was a mode of division wliich, from its nature, as necessarily numerical, could not be formed Vjy sub-division of counties, or other divisions merely territorial, but must rather have been formed by aggregation of estates and habitations, so that the division into counties and hundreds must have been independent. The common notion that counties, which are local, were "divided into" hundreds, which were originally numerical, and oidy incidentally territorial, must therefore be erroneous, and that it is so is shown by the fact, that ))arts of hundreds are sometimes in different counties. The basis of the division into hundreds must be sought in some independent system pre- existing : and out of which it could be fonned by numerical aggregation, first into tens, and then into hundreds. Now, such a system existed among the Romans, in the manorial system, the growth of that colonial system which they ai)plied to the culti- vation of a conquered country. No grants of land would be made, except to free citizens, whether of Koman, of Briton, or of foreign birth; and these dwellings would form the basis of the division into tens and hundreds — a division which would thus be at once numerical and territorial. As the grants of land would vary in size, the hundreds would equally vary in their extent, (as is found to be the case); and also would be found partly in one county and partly in another. This latter fact, indeed, might also be accounted for by the boundaries of the counties having been subse- quently rearranged; but then, on the other hand, it woulii also show that the systems of division into counties and hundreds were distinct and iniit the feudal law, in the time of our Saxon kings, was in no part of Eur()])o brought to the perfection at wliich it after- wards arrived ; and in this country, sc[)ai'aied from the world, and receiving by slow degrees a participation of such im})rovements as were made in juris})rudence on the continent, we are not to look for a complete system of feudal law. At tlie latter part of this period, feuds on the continent were verj'- little more than in their infant state ; they were seldom gr'anted longer than for the life of the grantee. ^ Without engaging in a controversy wliose extent and difficulty have eluded the greatest learning and sagacity, it will be more satisfactory to notice such few facts as we really know respecting the landed property of the Saxons. We know that their lands were liable to the trinoda necessitas ; one of which was a miUlary ser- vice on foot ; another, arcis constructio ; and another, 2-)ontis con- slructlo. They were in general hereditary (r/) ; and they were j)art- ible equally among all tlie sons (h). They were alienable at the pleasure of the owner ; and were divisible by will. They did not escheat for felony (c) ; and the landlord had a right to seize (a) The bocland seems to have been so {vide ante), though the deed of grant might define and limit the course of descent, and hence the law of Alfred, that a man who had bocland should not alienate it from his family, if the deed provided that it should not be so alienated. (6) According to the British law — that is, after the Eoman occupation — the land was j)artible among all the sons, as is recited in the Statutum Walliaj, 12 Ed. 1., quod hcureditas parlibus est inter hwredes inascuhs. Among the Saxons, the laws of Canute, cited post, show that the estate was divided among all the children ; and Lord Hale thinks that, until the Conquest, the descent was to all the sons, and probably to all the daughters, for which he cites the laws of the Confessor (Ang.-Sax. Laics and /«s^/f.); andSelden in his notes upon Eadmerus,says "Siquisintestatur obierit,liberi ejus hicreditaten tcqualiter divident." After the Conquest, the law by degrees changed ; except in Kent, where, according to the old British, or rather Roman-British law, called the custom of gavelkind, all the land is still partible among all the sons. In the reign of Henry I., as Hale says, "the whole land did not descend to the eldest son, but began to look a little that way," and he cites the Leges Henrici Primi,c. 70, Primum patris feudum primogenitus, filius habet; upon which he observes that the eldest son, although he had jus primogenituras, the principal fee (or estate) of his father's land, yet had he not all the land. In the reign of Henry II., as appears from Glanville (lib. 7), in ordinary freehold lands called "socage" (i. e., land not held on military tenure) the jus commune, or common law, gave all the land to the eldest son, unless there was an ancient custom to the contrary, " unless the land was antiquitus divisum. Si ne vero non fuerit antiquitus divisum, tunc primogenitus totam hsereditatem obtinebit. " (c) This is a mistake, for in the law of Athelstane, it is laid down that if a thief was 1 Vol. ii. p. 48. ' Feudal Prop. 8. » Lecture 28. * Lib. Feud i. tit. 1. 20 THE SAXONS. [CUAP. T. the best beast or armour of his dead tenant as a heriot («), This is the principal outline of the terms on which landed property was possessed among the Saxons. Method of It sliould sccm that a legal transfer might be made conveyance, of hmds by Certain ceremonies, without any charter or writing (6). Ingulphus says, conferehantur prcedia nudo verho, taken, lie shoulil forfeit all he had, though part was to be given up to his family, and the rest retained by the king {Aiuj.-Sax. Laics, 229) ; and a man who had bocland forfeited it even for outlawry (Ibid., Laws of Canute, 13 ; Henry I. 13), and if he forsook his lord {Ibid. 456) ; so that it would not be probable that there was not for- feiture for felony even if there were nothing to show that there was. Lord Coke maintained that there was. (a) In the laws of Canute, the reliefs of earls and thanes, whether king's thanes or medial thanes, are described, and are entirely military in their nature, so much so, that the law is copied into the collection of laws of Henry I. They consisted of horses and their military accoutrements. There is strong evidence that the foundation of the feudal sj^stem already existed, that is, military service for the defence of the realm, and there is also the appearance of what Guizot calls the hierarchical system, which was characteristic of it. (b) In the Anglo-Saxon Chronicle, A.D. 657, mention is made of a deed of grant of lands by Wulfhere, king of the East Saxons, to the monastery of Medeshewsted (Peterborough), and it is stated that the king " subscribed it with his fingers on the cross," evidently being unable to write, and being what is called a "marksman," i.e., attesting an instrument only by putting his finger on his mark. The grant was thus, as the Chronicle says, executed in the presence of witnesses, " who subscribed it with their fingers on the cross, and assented to it with their fingers," and this was done in the presence of the nobles and bishops, and several ealdormen. Three centuries afterwards, the deed was found concealed in the walls of the monastery (which had been destroyed by the Danes), and it was solemnly confirmed by Edgar in the presence of prelates, nobles, and ealdormen, and the franchises of sack and sock, toll and theam, and infangenthef, were also granted (Sax. Chronicle, a. D. 96S). It is also mentioned that the abbot of this monastery let to an ealdorman ten copy-lands, with all that lay thereto, for £50, and each year a day's entertainment, or SOs. in money, and that, after his death, it should return to the monastery. The witnesses to this are mentioned (a. D. 777). It is added, "A copy of this grant was set forth in presence of the king, in the monastery, in the year 745." And as there is no doubt that Glastonbury monastery had large grants from early Saxon kings, and their charters have every sign of genuineness, there appears no reason to question their authenticity. As laws were written in the seventh century, deeds might well be, and there are laws of Ethelbert, who reigned in the middle of that century (Anglo- Saxon Laws and Institutes, vol. i.) It appears, however, that these kings could not write, and probably the nobles could not, as all but the prelates signed, or rather attested, by means of marks in the form of the sign of the cross ; so that they could only be cognizant of the contents of the deeds as they were read to them. And no doubt they were, when they became Christian, greatly under the influence of ecclesiastics, though, as Guizot points out, that influence was exercised in favour of civilisation. In the same Chronicle mention is made of a charter of immunities granted by Ethelwulf, the father of Alfred, a. D. 846. The same grant is mentioned by Ingulphus and by ^Esser, though in the year 855. The charter contained a a passage which has given rise to much controversy as to tithes. In William of Malmesbury, mention is made as early as a. D. 721 of a royal grant or charter by Ina, a Saxon king (the first of those who framed laws after becoming Christian), to the monastery of Glastonbury. It was thus : " I do grant one of those places which I possess by paternal inheritance, and hold in my demesne, for the maintenance of the monastic institution (so many hides at such a place, and so many hides at another), and I grant that all places and possessions of the mon- astery be free of rent, and undisturbed from all royal taxes and works which are wont to be appointed ; that is to say, expeditions, and the building of forts or bridges, and cities, as is found to be empowered and granted by my predecessors in tli.e ancient charters of the same church .-" so that, according to this recital, there were still earlier charters in the seventh century ; but these might, if they stood alone, be CIlAr. I.] DEEDS AND CHARTEES. 21 absque scripfo vd cJiartd, tanfum cum domini gladio, vel galea, vel cornii, vel cratere, et plurima tenementa cum atrujili, cum arcu, et nonnulla cum sar/itfd.'^ Thus Edward the Confessor granted to the monks of 8t Edmund, in Suffolk, the manor of T^uAi per cidfel- lum;'^^ and holding by the horn, by the sword, Ijy the arrow, and the like, were common titles of tenure. However, deeds or charters were in use («)• These were called geiorite, i.e., writings; and the particular deed by which a free estate might be conveyed was usually called landhoc, libellus de terra, a donation or grant of land. 3 The land so passed was, as has been already observed, called hocland ; and the person who so conveyed to another was said to geborum him of it. An Anglo-Saxon charter of land has also been called telligraphum ; ^ the et3'mology of which mon- grel term seems to imply that the land was therein described by its situation and bounds. 13ut this appellation was probably adopted after the Conquest, as a translation of the word landboc. The like may be said of the term cyrorjraphnm^ another name by which Anglo-Saxon charters were known : but those denoted by this name were of a peculiar kind ; such as had the word cijrograpjhum written in capital letters either at the top or bottom of the charter, and cut through or divided by a knife.^ Before the time of Edward the Confessor, the usage was to ratify charters by subsigning of names accompanied with holy crosses. This was done both by the parties and witnesses. It is generally believed that Edward the Confessor was the first who brought into this kingdom the custom of affixing to charters a seal of wax. It is said, that being in Normandy, at the court of his cousin William, lie there learned several Norman customs, and among others, which he transplanted hither, was this of sealing deeds with wax. Though the word sigilluiti often occurs in charters before his time, yet some great antiquarians (among whom is Sir Henry Spelman) have agreed that this did not mean a seal of luax, but was used synony- deemed of doubtful authority, as "William was not a contemporary. Some twenty years later, however, another charter or grant by Ina's successor is set out : " I declare that all the gifts of former kings in country houses (villaj), and in villages, and lands, and farms, and mansions, according to the confinuations made, and confirmed hy autographs and the sirjn of the cross, shall remain inviolate." (a) It is plain, however, that deeds were in use among the Saxons, although, as even their kings could not read or write, they were executed by sealing instead of signing. The very word bncland demonstrates that they had deeds. There is a law of Alfred restraining alienation of land from the kindred where it had been acquired, by a donation in writing restraining such alienation. "De eo ([ui terram hajreditariam habet quam ei parentes sui demiserunt, ponimus ne illam extra cognationem suum mittere possit, si scriptum intersit testamenti, et testis quid eorum prohibirent qui banc iin])rimis adquisierunt, et ipsorum qui dederunt ei ne hoc possit, et hoc in regis et episcopi testimonia recitetur, coram parentela sui (Laws of Alfred, c. 41). It would not appear, however, that deeds of alienation were in common use. In the Saxon version of the above, the words rendered terram han-editarium are "bocland." It is certain that deeds were used for donations to public bodies, such as mon- asteries. 1 Hist. Croy. TOl, Franc. 1601. ' Mad. Form. Diss. pa. 2. ' Mad. Form. 283. ^ From tellus and ypatpu. ^ Mad. Form. Diss. 2. 22 THE SAXONS. [CHAP. I. mously for signum, and denoted the sign of the cross and other symbols made use of in those times.^ There is no evidence that the iSaxons made any distinction be- tween real and personal property : the whole property of a man was described by the general term res, and under that denomina- tion was subject to the same succession ah intestato, and might be given or disposed of by will. We are not to imagine that the power of disposing by will was allowed without restriction («), for we have every reason to con- clude, from the prevailing custom of the realm in the next period, that they restrained a man from totally disinheriting his children, or leaving his widow without a provision. After such duties were reasonably performed, the remainder of his effects were at his own disposal. Consistently with such sentiments, we find the law, with regard to the estates of intestates, delivered in these words : ^ Sive quis inciirid, sive morte re'pentind fiierit intestatus mortuus, dominus tamen nullam rerurn suarum partem {prceter earn quae jure debetur herioti nomine) sihi assumito. Veriim possessiones uocori, liheris, et cognatione froximis, pro suo cuiquejure distrihuantur (6). There does not appear sufficient in the monuments of Saxon an- tiquity to make us assured in what manner they ordered the authen- tication of wills (c). It may, however, be conjectured, with some (a) It does not appear tbat wills were used among the Saxons. As already seen, deeds of alienation, ivter vivos, were known among them, and it would seem that their alienations were usually of that nature. The law of Alfred already quoted, restrain- ing alienations of land from the kindred, does not seem to allude to wills, but aliena- tions inter vivos. It speaks of terram Jicereditariam, and implies that land ought to descend to the children, or next of kin, at all events if it was obtained in the family ; and the greater the regard paid for the claims of descent or relationship, the less likely is it that there would be alienations by will. {b) The law of Canute implies, that all property, real and personal, was distributed among the relations, for it says that if any one should die intestate, be it through neglect or sudden death, let the property be distributed justly among the wife and children and relations, according to their degrees {Laws, Canute, 71). This implies that there were wills at that time, and also that distribvition of intestate estates was settled. (c) There is no trace to be found of wills in the Saxon times, and all the instances of alienations or dispositions of property to be found in the Chronicles are cases of alienations inter vivos. If, however, wills were known, as they involved writing, and none could write or read except the ecclesiastics, it is pretty certain, d priori, that the wills would be authenticated by being recorded or enrolled in some ecclesiastical registry ; and accordingly, as we know the registries of wills, when they afterwards became known, were ecclesiastical, the instances to the contrary were probably cases of manors originally held by ecclesiastics, or by some laymen who, for a wonder, could write and read, and therefore obtained this privilege for themselves, or rather for the convenience of their tenants. The law of Alfred already alluded to makes mention of authentication by the bishops and aldermen, and thej^ both had seats in the Saxon county courts, which, however, would be most useful for a registry of wills, or for distribution of the effects of intestates, and it is probable that both would be committed, for the sake of convenience, to the bishops. Reasons would render it convenient then which would not exist in modern times. What the author means by its being "clear" that in the county courts the estates of intestates were administered, cannot be divined. There is no trace of it, and he, of course, gives us no authorities. It would appear that, by the latest laws of the Saxons, the rule of lawwas the ' Mad. Form. Diss. 27. . ^ Leg. Can. c. 68. GHAP. I.] LAWS AS TO CONTRACTS AND WITNESSES. 23 probability, lliat cyrograi)liated or indented copies nii^^lit be left with the alderman or sherilF of the county, or with the lord who had a court or franchise, where, besides the hearinj:^ of causes, other lef^^al proceedings, spiritual as well as temporal, were usually transacted. It is more clear {(() that in this court was made the distribution of intestates' effects, according to the jjroportions above laid down. From this may be derived the privilege which the lords of some manors claim at this day, to have probate of wills in their manor-court, without the control or interposition of the bishop. All contracts for the buying or bartering of anything were re- quired to be made in the ])rcsence of witnesses (h). This was as much to prevent the sale of things stolen, or improperly obtained, as to ])rcserve the memory of contracts and obligations. A law of king Etheldred ordained,! that if there were no witnesses to a con- tract, the thing bargained for should be forfeited to the lord of the soil, till inquiry was made about the real ownershij). This regulation about contracts is frequently enforced in the Saxon laws, and the beneficial consequences of such strictness must have been universally felt. It had the effect of [)recluding ques- tions and litigations about matters of contracts, and keeping the law of property in a very plain and intelligible state. distribution of the effects of an intestate among the relations ; for, among the laws of the Conqueror, jjrofessedly founded upon the Saxon customs, there is this : Si quis paterfamilias casu aliquo sine testamento obirit, pueri inter si haereditatem pater- nam aequaliter di\'idant (Latcs of the Oonq. c. 34) ; and as regards real property, that was the rule of law as well as with regard to personalty. The law, however, implies that wills were sometimes used, though it is probable, in such a simple state of society, and writing being so little known, it was very rarely there was a testa- ment, and intestacy was the rule. (a) There is not any evidence of this. (b) It is desirable to make an explanation here upon a matter not quite under- stood by the author, and which has an important bearing upon the question of trial by jury. It is admitted that jurors, in the infancy of the system, were witnesses, and hence the origin of the rule, that they must come from the vicinage, that is, from the very " vill," or, at all events, the hundred, where the matter arose, and they were supposed to determine on their own knowledge. Hence, also, the jury arose out of the court of the hundred, and were, in fact, a certain number of the hundredors sworn, and sworn, originally, to give a verdict of their own knowledge. Now, the object of the presence here referred to was to secure that the hundred- ors should have knowledge of every contract made, and with that view it provided that no contract of which they had not knowledge should be deemed valid. The provision is repeated in the laws of all the Saxon kings (Edward I., Athelstane I. 10, Edward V., Edgar 6, Ethelred I. 3, Canute 24, Edward Confessor 28). The laws of Ethelred and Canute require that the witnesses shall be in the " borh," or hundred, and the laws of Edgar make the connexion clearer between this provision and the trial by jury ; for they required that, in everj' borh and in every hundred, so many were to be chosen and set apart as witnesses, and in every hundred, twelve — the number, be it observed, afterwards chosen for the number of a jury. These witnesses were to be sworn to speak truly in any matter that might arise, and of them some were to be witnesses of every bargain made (Laws of Edgar, 41-45), to which the law of Ethelred adds a penalty. Now, here it is obvious that this was in substance pro- viding pre-appointed jurors for jiarticular matters ; for jurors were witnesses, and this law simply provided that they should liave the requisite knowledge of the matter iu hand. This, then, was the origin of trial by jury. I Cu. 4. 24 THE SAXONS. [CHAP. I. As the forms and circumstances under which property could be- come a subject of debate in their courts were few and simple, so the proceedings must in a like degree have been uniform and un- embarrassed. While the objects of legal inquiry admitted of little modification, and contained very little artificial learning, the free- men or landholders of the county Avere, no doubt, very competent judges of the matters they were to determine, and the parties them- selves were equally qualified to be their own advocates. Causes were commenced by lodging a complaint, the admission of which by the officer of the court, and giving a day to the parties, consti- tuted, perhaps, all the practical knowledge of the bar («). Before we speak of the criminal law of the Saxons (6), let us (a) In the laws of Edgar, it is provided, under a special ordinance as to the hundred, that they meet always within four weeks, and that every man do justice to one another— that is, according to the award of his neighbours — for this is what it came to. This arbitration of neighbours, as it is the earliest form of civil jurisdic- tion resorted to, so it is most remarkable, that it is invariably recurred to in the age of highest civilisation, as most convenient, and far preferable to hostile and formal litiga- tion. The whole tendency of our own procedui-e has been for ages, and is now more strongly than ever, to encourage arbitration, and substitute it as much as possible for hostile litigation. In the same lavs' it was ordained that in the hundred folk-right should be pronounced in every suit, and that a term be fixed when it should be fulfilled {Edgar, 7), and that the sheriff hold a court in each hundred once a month {Edivard, 11). (&) It might, perhaps, have been more natural and convenient to consider first the nature of the crimes and punishments defined by the Saxon law ; next, the pro- cedure for trial and punishment ; and lastly, the peculiar proceedings provided by way of security of compensation in default of punishment, which is here described. But our author has inverted that order, and considered first the system of security, next the compensation, and lastly the crimes. It resulted, perhaps, from this that he failed to consider, except very cursorily, the law as to crime, apart from the system of compensation, and that his review of the subject is extremely imperfect ; the more so, since he did not have recourse to the amf)le exposition of the Saxon criminal law contained in the Mirror of Justice. The peculiar system of frank- pledge above explained w^as only a species of supplement to, or security for, the execution of the criminal law, and it had a close connexion with the system of pecuniary compensation, for of course pledges could only be made responsible for such compensation. But then, as the author himself mentions further on, there were crimes which did not admit of compensation, which applied only to such personal injuries as might be regarded as rather private in their nature, and more of the nature of aggravated assaults, such as would be proper subjects of actions for compensation (although in these rude times rather more severe than in our own age), and did not apply to crimes public in their nature, as tending to endanger the public peace and general security — such as housebreaking, burning of houses, open robbery, manifest homicide, and treason. These, it was declared by the law of Canute, should not be the subject of pecviniary compensation, and were, therefore, left to the ordinary criminal jus- tice of the realm, which our author hardly describes at all. Yet a remarkably full account of it is given in the Mirror of Justice, which bears upon its face, in various parts of it, and especially in those parts which relate to the criminal law, traces of an origin in an earlier work of the age of Alfred. At all events, it gives the forms of indictments in all cases of serious crimes, and the mode of trial, substantially the same as in our own time ; and there is probably no part of our law which has so little altered iu its general course and tenor. The names given are all unmistakably vSaxon ; in many instances the names of the Saxon kings, under whom the cases occurred, are given; and in others, the names of the judges, which are all evidently Saxon, and must have been before the Conquest — since after that era the names of the judges are known, and were all Anglo-Norman. Moreover, the nature of the crimes described after, afford internal evidence that the times referred to are very early. Thus, for instance, as to treason, it is defined in a way iu which it certainly would not have been defined CHAr. I.] THEIR CRIMINAL LAW AND PROCEDURE. 25 take a view of that reraarkahlo institution ro necessary towards a due execution of it; that is, the i)olice estabU.shed by AH'red. It is said that a hundred neighbouring families Decennaries, bo- composed a Jmndrcd, as the name imports ; ten rougi's. such families constituted a tyOtiiKj, dtccnncmj, or frihourg, over by any lawyer after the Comiuest, as incluJing the falsification of the nealof a manor, no lis to defraud the lord of the same. So as to the next section : of Burners, who are described as those who burn a city, farm, or house, men, beasts, or other chattels feloniously, in time of peace, for hatred or revenge. And if any one X'Ut a vutii into the Jive, whereby he is burnt or blemished by the fire, although he be not kilk'd by the lire, nevertheless it is an offence for which he shall die. Now we know from the Saxon Chronicles, that ages before the Conquest men were burnt to death by their enemies, but no trace of such atrocities can be found in the later times; and it is evident that they mark a state of society characterised by savage ferocity. So under the head of ]\layhem, which is described as " the deprivation of a member or the enfeeblement of it by breaking or cutting the bones of a man," whereby he is less able to combat — a crime very common among the Anglo-Saxons in their earlier and more savage ages, as is shown by the earlier of these laws, but which gradually dis- appeared before the Conquest, at all events became comparatively rare ; but it is evident that at the time the work quoted was originally written, it was the subject of frequent judicial decision ; for the author at once quotes several judicial dicta of judges, with pure Saxon names. " And Turgis saith that the loss of the fore teeth is ' mayhem,' and Seiinall saith that the loss of the eye is ' mayhem,' and Billinfj saith that rasure by turning the bones of the head is 'mayhem.'" Is'ow it is worth observing (L) that all these names are pure Saxon ; (2.) that in two cases the dicta are reported in the present tense : " Billing saith," as if the judge were still alive at the time it was written, and the dictum quite recent ; and (3.) it is to be noted that Bil- ling is afterwards given as the name of a judge who was hanged by Alfred ; so that, on the whole, it is manifest that these cases are as old as the age of Alfred. So again, as to the crime of larceny, it is evident that the definition given is extremely ancient, for it actually comprises all those who suffer thieves to pass when they may arrest them ; " and those who steal by false measures and false weights, or in any other manner of fraud by colour of merchandise." And it is curious to note that it includes cases of bailiffs, and receivers of goods, who .steal in not giving their accounts, as to which the old law has, in our own times, been restored by the statutes as to embezzlement and as to fraudulent bailees. So, as to felons flying to avoid arrest, judicial dicta are given of Saxon judges, one of whom was afterwards hanged by Alfred. " Bermond decided that the goods of those who fled should be forfeit to the king." Now, afterwards, this very name is given as that of a judge who was hanged by Alfred. The book purports to have begun with the time of Alfred, and to have continued in the times of subsequent kings, so that it would contain cases as old as Alfred ; though it also inclucles cases of subsequent Saxon kings up to the Conquest, and also of kings after the Conquest up to Edward I., but the ancient parts can easily be dis- tinguished, and indeed are often expressly identified with a particular reign. Thus, as to the forms of indictment, the first given is that for treason, " according as it was done in this case in the time of king Edmund." Here, again, the names also are pure Saxon. " Rocelyn saith against Wallgrot, that at such a day, in such a year of the reign of such a king, into such a place came the said Wallgrot to this lioceiyn, and found him to be in counsel and in assistance with Ashelung, Turkille, Bollard, and others, to arrest, or to make prisoner, or to kill, our said king Edmund, and, to do the same, they were sworn to keep counsel" {Mirror of J ustice, c. i., s. 11). Here is a precedent of an indictment for treason undoubtedly as old as the time of Edmund, who reigned in the middle of the tenth century, Alfred having died at the beginning of it. Again, treason is set forth in this manner, "as it is found in the rolls in the time of king Alfred. Bardulf here doth appeal Darling for that" (Ihid. s. 13). So there are precedents given of indictments for all the felonies — murder, rape, bur- glary, robbery, arson, &c. ; and it is to be observed as another mark of antiquity, that burglary is defined as housebreaking for robbery, whether in the day or night ; whereas, in our law, for ages it has been the essence of the crime that it should be committed at night. The names used are always the plainest Saxon — Osmond, Saximund, Darling, Cariiug, Billing, Harding, AtheHug, &c. There is an indictment 26 THE SAXONS. [ciIAP. T, which, an officer presided, called the head of the frihourg.^ Every man in the kingdom was expected to belong to some de- cennary, and those who did not were considered in the light of offenders, or at least of suspected persons, and were accordingly put in prison till they could get some one to take them in, or become pledge for their good behaviour. In these decennaries, every man was a security for the rest, pledging himself that all and every of them should demean himself orderly, and stand to the inquiries and awards of justice. It was from such recip- rocal engagement between the free members of a decennary, that this sort of community was commonly called frankpledge. If for heresy, which is exceedingly curious, and said to be " according to that which is found in the rolls of the ancient kings : " — " I say, Sebourge there is defamed by good people of the sin of heresy, because that he of evil art, and by belief forbidden, and by charms and enchantment, took from Bi'ighton the flower of his ale, whereby he lost the sale thereof ;'' or this, " Moiling is defamed, for that such a day he denied his baptism." No one will deny the extreme antiquity of these absurd indictments, in which slander, heresj', and enchantment were all mixed up together most strangely. Although, however, on this particular head of offence there may appear some absurd- ity, yet, speaking generally, the definitions of crimes are not only marked by sound sense, but are in substance, with some exceptions, those which prevail in our present law. Thus, inider the head of distresses, it is pomted out that men may cover that robbery by distress, that is, might commit robbery under colour of distress ; and it is said, " ye are to distinguish whether it be by those who have power to distrain, or by others, and, if by others, then therewith an appeal of robbery : " whereof it is said " HailLf gives a notable judgment ;" who Hailif was being left to the reader's pre- sumed knowledge of him — an evident indication that the passage was written when Hailif was alive, or when his memory was recent, for he is cited just as any judge might be cited in our own day. So as to criminal procedure. On the one hand, it is manifest that the procedure described is as ancient as the Saxons, and, on the other, that it was in substance the same as in our own time. Thus it is said, Thur- mond ordained that criminal actions (prosecutions) for revenge (i.e., for punishment) should cease at the year's end (s. 22) ; a passage which is evidently most ancient, for the name of the judge is Saxon, and the notion of any limitation of criminal prosecu- tion was not known in later times. Again, it is said as to indictments, ' ' there may be exceptions against the person of the indictor, for no villein can indict atiy man,'' which shows the antiquity of the passage. Or, if the indictment be not made by the whole dozen of freemen, or if it be not sealed with the seals of the twelve jurors VS. 15), which shows that indictments were presented by juries just as they are now, at all events in the king's courts. And it is equally clear that they were tried by juries ; for in a subsequent part of the work cases are given in which Alfred had executed judges for tampering with juries, &c. " He hanged Marks, because he judged During to death by twelve men who were not sworn ; he hanged Thurston, because he judged Thuringer to death by a verdict of inquest taken, ex officio, without issue joined ; he hanged Rombold, because he judged Lischild in a case not notorious, without indictment ; he hanged Fribnone, because he judged Harpen to die, whereas the jury were in doubt of the verdict, for in doubtful cases one ought rather to save than to condemn ; he hanged Cordwine, because he judged Hackwy to death with- out the consent of all the jurors, and whereas he stood upon a jury of twelve men, and because three would have saved him against the nine. Cordwine removed the three, and put others upon the jury, upon whom Hac'iwy put not himself." These words are the precise words now used and recorded in a criminal trial, when the prisoner is said to put himself upon his country to be tried, as upon a jury. These extracts will suffice to show that the system of criminal law and of criminal procedure, which prevailed as far back as the time of Alfred, was in substance similar to those which prevail at this day ; and there is probably no part of our law which is of such antiquity as that of our criminal procedure. It is only the systems of frankpledge and compensation which our author now proceeds to notice which are obsolete. 1 Leg. St Edw, 20. CHAP. I.] THEIR CRIMINAL LAW FRANKPLEDGE. 27 any one fled from justice, the term of thirty-one days was given to the decennary to produce the offender. 11" he did not then appear, the head of the fribourg was to take two principal persons of his own decennary, and from the three neighbouring decennaries, the head and two of their members: these, together with himself, making twelve, were to purge him and his drcennary from any wilfulness or privity to the olfender's crime or iHght : and if tiie head of the fribourg could not purge his decennary in this way, he and his decennary were, of themselves, to make a compensation to the party injured. 80 great care was taken that persons should be well known be- fore they were harboured, that if any one took a stranger in, and suffered him to st.iy three nights under his roof, and the stranger afterwards committed any crime, the person so harljouring was considered as having made himself a phchje for him, as for one of his own family, and was, upon the absconding of the offender, to make amends to the injured person.^ An establishment like this contributed more effectually than any other to the i)revention of crimes, as well as to the detection of offenders. We shall now take a cursory view of the penal code of this people (a). The Saxons were particularly curious in Criminal law. ^^j^^^ pecuniary compensations for injuries of all kinds, without leaving it to the discretion of the judge to pro- portion the amends "to the degree of injury suffered. These (a) The author gives a very imperfect idea of it, as he confines himself to the written laws, and those of the earlier and ruder age. Xo doubt at first not only bodily injuries but even death could be compensated, though there is reason to sup- pose that this applied rather to such cases as would now be called manslaughter; hence simple homicide is spoken uf, and there is no epithet used to denote what we would deem murder ; while, on the other hand, in the criminal law of the Saxons, as disclosed in the Mirror, murder appears to have been capital. The written laws, which bear the name of Alfred, may have been the early records of ruder customs, which, at a later period of his reign, he may have altered. Certainly, the idea of his criminal law, as conveyed in the Mirror, is very different from what it appears in his written laws. In the written laws of Ethelred, indeed, we find that homicide and even theft are punishable even with death, unless the king allows the penalty to be redeemed {Eth. vii. 15). And in the laws of Canute we find that housebreaking and mere robbery and murder are declared to be " botless," i.e. not re- deemable by pecuniary penalty {Lcnvs of Canute, c. 651). And the punishment to be inflicted by Canute's laws are horrible : cutting off the feet or hands, the nose, the ears, or the upper lip, nay, even scalping, were allowed (c. 30). The sentences which, according to the Mirror, were inflicted by Alfred, were extremely severe— in some, even cutting off the hand. The laws of the Confessor, as collected under the Conqueror, contain no criminal penalties except that (borrowed from Canute) as to the murder of a Dane. But it may be gathered that, as under the Confessor, the criminal code was mitigated, for in the laws of William, professedly based upon the customs of the Confessor, the pecuniary penalties are allowed, and there is a clause prohibiting the infliction of death for the lighter oflences l^Laivs of Conqueror, \iQ). Later in his reign, however, the Confessor adopted the more severe penalties of Canute's code. It is probable that the mildness of the Confessor's criminal justice may have been partly the cause of the fondness with which the people always spoke of his laws, and the great anxiety they always showed for the restoration of them. 1 Leff. St Edw. 27. 28 THE SAXONS. [CHAP. I. penalties were more or less, according to the time or place in which the wrong was committed, or the part of the body or member which was injured.! The cutting off an ear was punished with the penalty of thirty shillings ; if the hearing was lost, sixty shillings : so, striking out the front tooth was l>unished with a fine of eight shillings ; the canine tooth, four shil- lings ; the grinders, sixteen shillings : 2 if a common person was bound with chains, the amends were ten shillings ; if beaten, twenty shillings ; if hung iip, thirty shillings. ^ In the same manner, injuries to property were generally con- sidered in a criminal light ; and the specific amends to be made by the wrong-doer to the injured party were fixed by law. A man who mutilated an ox's horn was to pay tenpence ; if that of a cow, then only twopence. A like distinction was made between cutting off the tail of an ox or a cow.* To fight or make a brawl in the court or yard of a common person was punished with a fine of six shillings ; to di aw a sword in the same place, even though there Avas no fighting, with a fine of three shillings : if the party in whose yard this happened was worth six hundred shillings, the amends were treble, and they were increased further, according to the circumstances of the person whose house and domain were so violated.5 A system of regulations framed on this principle seems to have converted all notions of civil redress for injuries into a criminal in- quiry ; while the degree and circumstances attending the fact, both which it was out of the power of legislation exactly to reach, made no part of the judicial consideration ; but the judge was to award the same stated fine in all cases which could be brought within the letter of the legal description. However, these penalties had so far the nature of a civil redress, that they were given in the way of compensation to the injured person. The notion of compensation runs through the whole criminal law of the Anglo-Saxons, who allowed a sum of money as a recompense for every kind of crime, not excepting the taking away the life of a man. Every man's life had its value, called a loere, or capitis estimaiio. This had been various at different periods ; ^ in the time, therefore, of king Athelstan, a law was made to settle the tve7-e of every order of persons in the state. The king, who on this occasion was only distinguished as a superior personage, was rated at 30,000 thrymsf^e ; 7 an archbishop or earl, at 15,000 ; a bishop or ealderman, at 8000 ; belli impcrator, or summus 'proe- fectus, at 4000 ; a priest or thane, at 2000 ; a common person, at 267 thrymsaj. It seems this ivei^e was sometimes different in dif- ferent parts of the country.^ When any person was killed, the 1 Leg. Ina;. 6 ; Leg. Alf. 23. ^ Leg_ ^jf, 40. 3 Leg. Alf. 31. 4 Leg. Inx, 59. '^ Leg. Alf. 35. 6 Leg. Inse, 69. 7 A thrymsa, according to Du Fresne, was worth fourpence. According to this, .'50,000 thrj-msas ^ £500; 15,000 = £250; 8000 = £133, 6s. 8d. ; 4000 = i66, 13s. 4d. ; 2000 ^ £33, Os. 8d. ; 267 = £4, 9s. 8 Leg. Atheist. 3. CHAP. I.] TIIKIR ClilMINAL LAW— COMPENSATION. 29 slayer was to make compensation to the relations of the deceased, according to such valuation. In the case of the king, half the luere went to his relations, and half to his people. If the deceased was a stranger, or had no relations, the lucre was to be divided, half to go to the king, and half to the most intimate companion of the deceased.! As the manners and notions of this people would not allow them to submit to any harsher punishment in the first instance, it was endeavoured to render this as severe as possible. The ictre was not to be remitted ; '^ and, to make the offender an example, as well as to prevent the effusion of blood, all his own relations were, by a law of king Edmund,'^ discharged from the oldigation of abetting him against i\\Q friid of the relations of the deceased, whose deadly resentment he was to support alone, till he had paid the ivere. A person guilty of homicide was also excluded from the presence of the king. But this loere, in cases of homicide, and the fines that were paid in cases of theft of various kinds, were only to redeem the offender from the proper })unishment of the law, which was death ; and that was redeemable, not only by paying money, but by undergo- ing some personal pains : hence it is that we hear of a groat variety of corporal punishments. A person often charged with theft was to lose his hand or foot.'^ There was also the pain of banishment and slavery,^ and at one time it was enacted ♦J that house-breaking, burning of houses, open robbery, manifest homicide, and treason against one's lord, should be inexpiable crimes ; that is, not to be redeemed by any pecuniary compensation, or any pain or mutila- tion. - Thus far of punishments. We come now to consider the no- tions they had of crimes, and their nature (a). A person present (a) It is curious that this law is not to be found among the laws of Canute ; and, on the contrary, the scope and spirit of the laws (which bear the impress of great candour) is to exhibit a perfect equality between the two races ; and by the previous laws the fine or penalty was the same whether a Dane or an Englishman. In the Mirror of Justice, however, there is this passage: — " King Canute ordained for the safeguard of the Danes whom he left in England, that if a man unknown was killed, the whole hundred should be amerced to the king by the judgment of murder," which was only an application of Alfred's law of frankpledge, that every freeman should enter into a hundred or a tithing, who wishes to be entitled to " were," in case any one should slay him {Lairs of Canute, c. 20, A nglo-Saxon Laws, p. 387). And he who violates these laws, which the king has now given to all men, be he Danish or be he Eiujlish, let him be liable to the king {Ibid. 84). The only references given by the author are, it will be observed, not to that of Canute, but to the laws of the Confessor (those very laws which he in a subsequent part of this chapter describes as spurious) ; and in the pas- sages to which he refei-s there is nothing of the kind. Sec. 15 is only to the etfect that in case of murder the " vill" or the hundred shall be responsible, and section 16 is "de inventioue murdre"— " murdm quidem inventa fuerunt tempore Canuti regis qui post acquisitam terram, et secum pacificatam, remisit domine excercituni snum preclari baronum de terrai: et ipsi fuerunt fidejussoresergaregem quod illiquos retinent in terra primam pacem haberent. Ita quod si quis de Anglis aliquem ipsorum 1 Leg. Inre, 22. 2 Leg. Edm. 3. ' Ca. 8. * Leg. lua;, 18. '•> Leg. Can. 6. ^ Leg. Can. 61. 30 THE SAXONS. [chap. I. at the death of a man was looked on as particeps criminis, and as such was liable to a fine.i A person killing a thief, unless he purged himself by oath before the relations of the deceased, relat- ing all the circumstances of the fact, and that immediately, was to pay a fine.^ If one in hewing a tree happened to kill a man, the relations were entitled to the tree, provided they took it within thirty days ; 3 which was in the nature, and might perhaps be the origin, of deodands. It does not appear that they made any dis- tinction in the degrees of homicide ; except in one instance, which deserves particular notice ; and that is, where the fine called murdrum was to be paid. It is said, that Canute, being about to leave the kingdom, and afraid that the English might take advantage of his absence to oppress or destroy his own subjects, the Danes procured the following law in order to prevent secret homicides : That when any person was killed, and the slayer had escaped, the person killed should be always con- sidered as a Dane, unless proved to be English by his friends or relations ; and in default of such proof, that the vill should pay forty marks for the Dane's death ; and, if it could not be raised in the vill, that the hundred should pay it. This singular pro- vision, it was thought, would engage every one in the prevention or prosecution of such secret offences. ^ It was upon this sort of policy that presentments of Englishery, as they were afterwards called, were founded. Larceny, called by the Saxons stale, might have arceny. i^gg^-^ committed by a child of ten years old \^ but afterwards this crime was not imputed, unless the child was twelve iuterficeret, si non possit defendere se judicio Dei ferro vel aquo, fieret justiciar de eo." It will be seen that there is nothing in this to support the above version of the sup- posed law. In the laws of the Confessor allusion is made to a law of Canute's, simply to the effect that if a Dane were killed by an Englishman, and the latter could not defend himself b^^ ordeal, he should suffer death, the hundred being liable to a fine if he escaped. This was applied by William to the protection of the Normans (Laws of William the Conqueror, c. 21); but as the law only apj^lied if it was a Norman killed, it was taken that, so far as regarded that part of the law, unless the deceased was shown to have been an Englishman, he should be taken to have been a French- man (Laivs of Henry I., c. 75, and c. 92). So, according to Bracton, " Pro Anglico veo et de qui constare possit quod Anglicus sit, non dabitur murdrum," i.e., the fine so called (Ibid. c. 15, p. 135). This was the origin of presentments of English- ery, which are explained in the Mirror, where it is laid down that it should be inquired of what kindred or lineage those that were killed were, so that we may know by their parents whether they were of the English nation or not. And thence it is that we called that parentage Englishery, where the parentage could be found of the father's or of the mother's side ; and if no Englishery be found, then it hath the judgment of murder. It is remarkable that no mention of this should have been made in the laws we have of Canute, but it may be explained, perhaps, as a mere temporary law, enacted on a special occasion in the earlier portion of the reign of Canute, and that the laws which go by his name, which were enacted in the latter part of his reign, and represent the results of his more mature and enlightened policy, deliberately excluded the law in question, as founded upon a bad principle, or tending to perjietuate feelings of jealousy between the two nations, whom it was his object to consolidate and unite. 1 Leg. Inte, 38 ; Leg. Alf. 26. " Leg. Ina;, 34. 3 Leg. Alf. 13. < Leg. Confess. 15, 16. ^ Leg. Inije, 7. CHAP. I.] THEIR CRIMINAL LAW. 31 years of age.^ If all the family of the offender were privy to the stealing, they were all to bo made slaves.'-^ Where there was not that privity in a family, the mulct was, at one time, sixty shill- ings ; at another time, one lumdred and twenty shillings.^ Such regard was paid to the cliaracter of a wife, and the subjection slie was sup[)0sed to 1)0 under to her husljand, tluit wlien anything stolen was found in their house, the law considered her as no party in the stealing, unless it were manifestly in her separate custody.^ The more atrocious of these offenders, wlien they came in a body of seven, were called thcof, ov prcedones ; if more than seven, they constituted hloflie, or turma ; if more than tliirty-hve, they were then called lierge, or exercitus.^ These distinctions show in wdiat maimer these people cariied on their depredations in the times before Alfred reformed the police. False swearing was, at first, only punishable by a fine of one hundred and twenty shillings. *J Afterwards,^ false swearers were considered as no longer entitled to credit, and were oljliged to purge themselves not by their own affii-niation on oatli, but by the ordeal : they were sometimes excommunicated. Breaches of the peace were severely punished, as leading usually to bloodshed and death. If a person fought in the king's palace, his life was in the king's hands, unless he redeemed it with a fine ; ^ and particular penalties were inflicted on those wdio fought in the presence of the bishop and ealdcrman ; ^ or in the city or town where the bishop and ealderman were then holding their court.^*^ A law of king Edmund's was so severe,^^ that if any one attacked another in his house, or broke the peace there, he was to forfeit everything, and his life was to be at the king's disposal. The great occasion of violent breaches of the peace, were the deadly feuds by which people in those times ^^^ ^ revenged the death of a relation. This method of prosecuting offenders had become so habitual to the people, that it appeared necessary even to make it a part of the penal code ; and it was accordingly inserted under reasonable restrictions in a law of Alfred.i2 At length, it was thought expedient to impose additional checks on this singular piece of criminal jurisprudence. This was done by a law of Edmund -,13 which directs tiiat somebody, in the nature of an arbiter, should be deputed to the relations of tlie de- ceased, and engage that the slayer should make compensation. He, in the meantime, was to be put into the hands of this arbiter, who was to see that sufficient sureties were taken for paying the loere in twenty-one days ; during which time there was to be peace, by mutual compact. 1 Leg. Atheist. 1. 2 Leg. Inac, 7. ^ Leg. Atheist. 1. * Leg. In.-E, 58 ; Leg. Can. 74. « Leg. In:e, 13, 14, 15. « Leg. Idk, 12. 7 Leg. Edw. 3. 8 ],eg. Alf. 7. » H'id. 15, 34. 10 Ibkl. 36. 11 Leg. Etlm. i- Leg. Alf. 38. 1^ Leg. Edm. 7. 32 THE SAXONS. [cHAP. I. Very early after the Saxons had been converted to Christianity, places of public worship were held in such reverence auc uaiy. ^j_^^^ ^ criminal flying thither was, during his stay there, allowed protection, whatever his crime might be (a).i It was usual to Hy to such a place of security, to avoid the instant resentment of the aggrieved party, till provision could be made for paying the legal compensation. In a state of society like that among the Anglo-Saxons, the immunity indulged to places of wor- ship was ]wlitic, humane, and necessary. It prevented the shed- ding of blood, and preserved the peace. Accordingly a penalty was inflicted on those who dared to violate this place of sanctuary by evil treating the culprit Avhile there ; 2 the jmx ecclesice being more sacred, and in this instance better protected by law, than the pax regis. The offender might stay there thirty days, and was then to be delivered to his relations unhurt and safe.'^ Notwith- standing this regard for churches, there seems to have been no immunity granted to the persons of churchmen (b). If a clerk committed homicide, he was to be degraded from his orders, and was, moreover, to make his compensation, or suffer punishment, in the same manner as any other person (c).^ (a) The Saxon laws carried to the utmost extent the power, privileges, and immuni- ties of the church, of which the sanctuary was only an instance. That particular right is expressly sanctioned in the laws of Alfred, Ethelred, and all the subsequent Saxon kuigs. The Saxon laws al.so enforced the payment of tithes, church rates, and Rome feoh or St Peter's pence {Laws of Edfjar, Ethelred, and Edward). The bishops were to sit in the county courts {Edgar 5, Canute 18), and the preambles of the Saxon laws show that the bishops also sat in the Wittenagemote or Great Council. The law also recognised the canon or ecclesiastical rules, and as far as possible enforced them {Laws of Ethelred and the Confessor). Thus, in the laws of the Confessor, " Si qnis sanctae eeclesitC pacem fregerit, episcoj^orum tunc est justicia. Et si eorum sententiam depigiendo, vel superbe contempnendo, parvipenderit, justicia regis mittet eum usque dum Deo primitus et rege j^ostea satisfacerit." Any one who held of the church was not to be compelled to plead in any other than the ecclesiastical court. " Quicumque de ecclesia tenuerit, vel in feudo ecclesise manserit, alicubi extra curiam ecclesiasticam non placitabit, si in aliquo forisfactum habuerit donee quod absit in curia ecclesiastica de recto defecerit " {Laws of the Confessor, c. 4). The church was above all to be free in the appointment of her own ministers, of whatever order. No one was to reduce a church to servitude, or turn out a church minister, without the bishop's consent {Ariglo-Saxon Laws, vol. i., p. 34-3). Lastly, ecclesiastical persons could not be prosecuted in the lay courts. Thus, the laws of Ethelred : "If a priest become a homicide, or otherwise commit a flagrant crime, let him forfeit his order and be an exile, or what the Pope may prescribe to him. If a priest stand in false witness, let him be cast out of the community of ecclesiastics, unless he do as his bishop mat/ direct him" {Anglo-Saxon Laivs, vol. i., p. 347). This is repeated in the laws of Canute, where it is said, " We will that men of every order submit each to the law which is becoming to him " {Ibid., p. 367). If a man in holy order defile himself with a crime worthy of death, let him be seized, and held to the bishop's doom, according as the case may be {Ibid., p. 403). And in the Mirror of Justice it is stated that king Alfred hanged a judge who had hanged a clerk in holy orders, who was not subject to his jurisdiction {Mirror of Justice, c. 5). The author, in his quotation in the next sentence, has omitted the essential words, as the bishop may direct. {b) Sed vide ante. (c) These are mistaken references, and the laws referred to have nothing to do with the period ; but there are two of Canute's laws directly to an effect the contrary of what 1 Leg. Inse, -5. " Leg. Alf. 2. 3 jua. 5. •» Leg. Can. 36, 38. CHAP. T. ] CniMINAL TRIAL ORDEAL. 33 The l)i-ini;inii^ of criminals to justice was very much facilitated by the j)olice established in the rei<^n of Alfred (a). The objects which next present themselves, are the procee(lin). The prosecutor, or accuser, as he is stated in the text. " If a servant of the altar he a liornicide or work iniquity cnorniou.sly, let him forfeit hoth de^u'rce and order, antl go walk as the ixypti hhail pre- scribe to liiin and do penance." And if he would ck\ar himself, i.e., if he elected to di> so, then he was to do it in the way pointed out for priests by a former law (Eihcl- red, c. ix., 19) ; but if he did not do so, or j)racti8e the penance prescribed, then he was to be an outhiw {Canute, c. 41) In no ease was he to be tried before the lay courts. So again, " If a man in holy orders do a crime worthy of death, let him be seized and lield to the bishop's doom" {Canute, 43). (a) The system of frankpledge, vide ante. {!)) The author does not give any intelligible account of it, and cites no authority about it ; and it will be manifest that he had not given much attention to it, and had only attended to the two barbarous and primitive modes of procedure by compur- gation and by ordeal. No authority is cited for the next proj)o8ition, that a meie accusation was sufficient to put the accused ui>on his defence ; and it is quite contrary to the whole tenor of the later Saxon laws and the cases recorded in the Mirror of Justice. As early as the reign of Edgar and Ethelred mention is made of present- ments by twelve sworn freemen jurors, who answered to our modern j urors ; and Alfred is recorded to have hanged a judge who sentenced a man to bo hanged without an indictment or presentment on oath by such jurors or sworn indictor.s. The laws of Ethelred begin, "that every freeman have a ' borh,' or borough, that they may present him to every justice if he be accused, but if he be infamous let him go to the ordeal," so tliat the ordeal was only for those who were not worthy of credit, and then only upon sworn j)resentment. If the man could obtain compurgation he would avoiil the ordeal, which was only the ultimate resource, failing compurgation, upon a charge made by the neighbours upon oath {Ang.-Sax. Luxes, v. i. 282). And again, the laws of Ethelred ]irovided that in the hundred twelve thanes or freeholders were to be sworn that tliej^ would accuse no innocent man, nor conceal any guilty one {Ibid. 295), which is precisely the present oath of the grand jurors. In the laws of Ethelred there is this remarkable provision set down, " and where thanes (or freeholders) are of one voice ; if they disagree, let that stand which eight of them say " {Ibid. 2;J9). So. from the Mirror of Justice, it appears that indictments were by the oaths of jurors (c. ii. s. 15), and that it was only if there were no witness the trial by ordeal was resorted to, and it was even then discredited and discouraged as a relic of heathenism (c. iii. s. 23). And unless the ordeal was resorted to, the proof lay upon the prosecutor. The su\)ject of the criminal procedure of the Saxons, with reference to the mode of trial, and the recourse to compiirgation, ordeal, or jurors, is one of extreme difficulty and obscurity, and as to which, it will be observed, the author gives little, if any. assistance. After much study, the editor ventures to propound this view, that these proceedings arose, one after the other, by gradual growth, as the result of practical experience ; and that tliej^ arose in this onler, lir.st, simple denial on oath, then com- purgation, then ordeal, and trial by jury. If a thief were taken in the act, the case was quite clear {Ina, 28), and no trial was needed (12). If the accused was not taken in the act, then at first he was required to clear himself by his own oath {Ina, 17, 46, 57) — that is, if oath worthy (54). But it would be necessary to judge whether the man was credible, and hence some one else of known credit might join with him, and even tlien it would be necessary that some sort of tribunal should decide whether the man had cleared himself ; and hence it was said, "if he be found guilty," then there should be a penalty (/«rf, 54). "Found guilty" could only mean found guilty by the hundred court, and hence there was a trial, and compurgation was only a species of evidence or mode of proceeding at the trial. In the treaty between Alfred and Guthrum the practice of compurgation is brought out clearly ; and the accused, to clear himself, had to get eleven freeholders to join with him in swearing {Anfj.-Sax. Laws, 155). It is remarkable that no mention is made of ordeal, ancesses were blended, and if the jurors did not know enough of tlie matter to enable them to judge, and the compurgation or oaths failed to satisfy them, then there was recourse to the ordeal, which was thus only used as the resort when aU other means of getting at the truth had failed. Mention is made of the ordeal in the laws of the Confessor (e.r/., Ang.-Sax. Laws, v. i. p. 445). And after the Conquest, trial by battle prevailed, which was not less barbarous. But as jurors grew more intelligent, and would attend to evidence, those barbarous usages died out by degrees. That the hundred court was the crimmal tribunal, and that evidence was used when available, appears from the later laws of Edgar. For there it is said, that if a thief denied the doom of the hundred, and it be afterwards proved against him, he should pay a penalty (Edgar, 3). But at the end of those laws the ordeal is mentioned. Subsequent laws of Edgar provide for sworn witnesses of every transaction, and that if a criminal charge arose out of it, they might determine the matter by their testi- mony or verdict to the hundred ; for if the accused said that he had bought the things in the presence of the witnesses, and they so declared to the hundred, he would be absolved ; but if they declare that it was not so, he would be convicted (Edgar, ii. 10). What was this but in effect trial by jury, seeing that the first jurors were witnesses ? Thus came the law of Ethelred, that, at the hundred court, twelve free- holders were to be sworn to present no one untruly ; and after this, men not credible are to go to the ordeal, and if the purgation failed, then by the compurgation (Eilitl- red I. c. iii. s. 5). And afterwards, ordeal and oaths are mentioned together as modes of trial (Ethelred, v. 18). So, in the laws of Canute (c. 22), mentinu is made of men who never failed in oath or ordeal (Ang.-Sax. Laus, i. p. 389). And as to men who had failed, and were not ci-edible, the words of the law are, "we have ordained con- cerning those men who were perjurers, if that were made evident, or an oath failed to them, or were not proved, that they should afterwards not be oath-worthy, but worthy of the ordeal " (Edivard, 3). So, in the laws of a later reign, " And we have ordained, respecting the single ordeal, for those men who have been often accused, and have been found guilty, and they knew not who shall take tliem in pledge," &c. (Atluht. 7). And then the law of ordeal is c:irefully and minutely laid down. This is very remarkable, and almcst inexplicable ; for it is after Alfred's time (when there were juries), and it looks as if the ordeal had been re-established after trial by jury; and as though the barbarian m!nd, unable to solve cases of doubtfid character, took refuge in the ordeal, and thus revived the practice of their ignorant heathen ancestors. CHAP. I.J CRIMINAL TRIAL — ORDEAL. 35 The ordeal was considered as a religious ceremony. The per- son, the water, and the iron were accordinf^ly prepared under the direction of the ])rieKt, by exorcisms and otiier turmalilies, and the wliole coiuhicted with great soleninily. F(»r three days before the trial, tlie cul})rit was i to attend the priest, to be constant at mass, to make liis offering, and in the meantime to sustain himself on nothing but bread, salt, water, and onions. On the day of trial, he was to take the sacrament, and swear tliat he was not guilty of, or privy to, the crime imputed to him. The accuser and the accused were to come to the place of trial, attended with not more than twelve persons eacli, probably to prevent any violence or inter- position ; and a production of moi-e than that number by the accused would have amounted to a conviction. The accuser was then to renew his charge upon oath, and the accused to j)roceed in making his purgation. If it was by hot water, he was to put his hand into it, or his Avhole arm, according to the degree of the ofTence : if it was by cold water, his thumbs were tied to his toes, and in this posture he was thrown into it. If he escaped unhurt by the boiling water, which might easily be contrived by the man- agement of the priests, or if he sunk in the cold water, which would certainly happen, he was declared innocent. If he was hurt by the boiling water, or swum in the cold, he was considered as guilty.^ If the trial was to be by the hot iron, his hand was first spi-inkled with holy water ; then taking the iron in his hand, he walked nine feet. The method of taking his steps was particularly and curi- ously appointed. At the end of the stated distance he threw down the iron, and hastened to the altar ; then his hand was bound up for three days, at the end of which time it was to be o])ened ; and from the a})pearance of any hurt, or not, he was declared in the former case, guilty, and in the latter, acquitted. Another method of applying this trial by hot iron, was by placing red-hot plough- shares at certain distances, and requiring the delinquent to walk over them ; which, if he perfoi-med unhurt, was considered as a proof of his innocence. These trials by water and fire were called judicia Dei {a). Another method of trial was by the offa execraia, or Corsned (a) Or, as it is called in the Mirror, the miracle of God : that is, the priest was to do sometliing which it were impossible to do without a miracle from God ; " but Christianity sufR-red not that they be by such wicked arts cleared, if one may other- wise avoid it" (c. 7, s. 24). Nevertheless, the ordeal is mentioned in the laws of the Confessor ; and the only substitute the Normans afforded for the stupid ordeal, was the brutil battle. The persuasions of the clergy, Lord Hale says, were used to the utmost to abolish it, and he thinks it died out in the reign of John ; but so tenacious are an ignorant people of their barbarous usages, that it is actually mentioned at the end of the Mirror as "an abuse," "that purgations are not alloweil by the miracle of God, where other proof faileth " (c. 5, s. 1). That w:u! written in the time of Edward I. As to the Norman substitute for the ordeal, the duel or battle, it was hardly obsolete until the time of Elizabeth; at all events, iu civil cases; but in criminal cases, no doubt much earlier. ' Leg. Atheist. 23. Ihid. 36 THE SAXONS. [CHAP, I. "wliicli was that by which the clergy were used to purge themselves, aud which they chose, probably, as the least likely to put the party to any peril. A morsel of bread was placed on the altar with great ceremony and preparation, which the person to be tried was to eat : if it stuck in his throat, this was to be considered as a token of his guilt. Thus, in this instance and that of the cold water, a miracle was supposed to be wrought, to prove the guilt of the per- son ; in those of the hot water and hot iron, the like divine inter- jiosition was expected to demonstrate his innocence. Another ordeal was that of the cross. This was performed by placing two sticks, one with a cross carved upon it, and one without ; and mak- ing the culprit choose one of them blindfolded. If he hit upon that which had the cross upon it, this piece of good fortune was looked upon as an evidence of his innocence. These seem to have been the methods of investigating truth in criminal inquiries. It may be observed, that the Anglo-Saxons made a distinction between manifest or open offences, and such as w^ere not so public ; and the degree of punishment was proportioned accordingly (a). It has been observed, that this implied some doubt entertained by themselves of their methods of proofs (a) ; but it maybe remembered, that the Romans made the like distinction, and inflicted only half the punishment onfurtum non manifestum, which they did on that which was manifestum. Trial in civil Next as to civil causcs, and the manner in which suits. they were tried. It seems that causes in the county and other courts were heard and determined by an indefinite num- ber of persons called sectatores, or suitors of court ; and there is no great reason to believe that they had any juries of twelve men, which was an invention of a much later date (h). These sectatores used to give their judgment or verdict both upon the matter of fact and of law (c). It may be a doubt whether they ever acted as an inquest to make inquiry of crimes and delinquents, as juries did after the Conquest. 2 In a law of king Ethelred {cl) , there is a provision (a) There seems no sufficient authority for this. None is cited by the author. (h) No authority is cited for this ; aud it is manifest, from the tenor of the later Saxon laws, and from the traces of the Saxon law to be found in the Mirror of Jus- tice, that it is correct only as to earlier and more primitive times. For as early as the laws of Edgar, we find provision is made for the securing of twelve men in every hun- dred as witnesses of transactions within the hundred ; and these men were after- wards, if any question arose, either in a civil or criminal matter, to testify thereof to the hundred (Laws of Edgar, c. 3, s. 56). These were in truth juries ; for the juries were originally witnesses, determining of their own knowledge ; and the object of these laws was to provide that they should have knowledge of all matters within the hundred. Thus it came to be a fixed rule that some of the jurors must come from the hundred, who were called hundredors ; and tlis, which was the case until modern times, shows that the jury arose out of the hundred. (c) Sed ride siqjra. (d) This law was, that a mote or court be held in every hundred, and that the twelve senior thanes or freeholders should go out — i.e., be selected out of the hundred, and the sheriff with them, and that they should swear that they would accuse no inno- 1 Littl. Hen. II. vol. v. 292. ^ Leg. Ethel, ca. 4. CHAP. I. "I TRIALS IX CIVIL CASES. 37 that there should be twelve thanes, or liheri Jiomines of superior considerMtion and parts, whose concurrence was made necessary. It should seem, however, these were rather assessors to the judf^o of the court, tlian a i)art of the suitors, or indeed anytliin<; like a juryj ]'y all the monuments that remain of these times, it ai)pears that the number of sedatores was various, accordinj^ to the custom of different places ; and perhaps in most instances depended on chance and convenience ; but in no case is there the least reason to believe that it was confined to twelve - (a). These secfafores dis- charged their office, it is thought, without any other obligation for a true performance of it, than their honour; for it does not appear that they were sivorn to make a declaration of the truth/^ It is not improbable that the thanes in the counties, the citizens in boroughs, and those who were the secfafores in other courts, might determine all causes in like manner as peers of the realm, at this day, deter- mine in criminal cases, without an oath. There is at least a per- fect silence as to this subject in the remains of antiquity ; and the most we can conjecture is, that they might ])erhaps solenmly en- gage to speak the truth in all matters which should come before them, without renewing it in every particular cause. '^ It is not unsuitable with what has been already said of the modes of proof used by these people, to suppose that they admitted the oath of the defendant in civil causes, when that oath was sup- ported by comimrgafors, who swore they believed what he said to be true. The laws requiring witnesses to all contracts supplied evidence almost in all inquiries about him ; but where that was not the case, it seemed consistent enough with the established order of cent man, nor conceal any guilty one, the very oath which is now taken by a grand jury ; and there can be no question that this was a jury; for it would be difficult to define a jury in any other way than as a selected body of men sworn to determine judicially. In the times of Edgar, it had already been enacted, that in every hundred there should be twelve men sworn as witnesses (Edgar, 6). And in the Mirror of Judice — which, there is no doubt, embodies the Dom-boc of Alfred, and certainly records many proceedings which had taken place in his time^urors and juries are repeatedly mentioned in criminal cases. As regards civil suits, no doubt the suitor was judged in the county court, a turbulent and tumultuous body, unsuited for the administration of justice ; but the necessity for having a selected number of them sworn would soon be recognised ; and that, in reality, would be a jury. («) On the contrary, as will be seen from the Anglo-Saxon law, and from the Mir- ror of Justice, there is no mention made in the latter of these laws of any judicial function of the hundred court, either in civil or criminal cases, without the number twelve being alluded to; and in the instance just quoted, the author omits the words which show that the twelve men were jurors. It is evident, indeed, from his cita- tion of Hickeis, instead of the laws, that he took his authority at second-hand, and had not himself much studied the Saxon laws. He is equally incorrect, it will be seen, in the next statement, as to the suitors not being sworn ; whereas, as will have been seen, mention is repeatedly made of those of the suitors being sworn who were really to determine, as jurors or witnesses. No doubt these decisions might be rati- iied by the voice of the whole body of the hundred, and in the earlier state of the Saxons this general voice might have been the only mode of decision. But it ia manifest, from the later laws, that the danger and mischief of this had been made apparent, and that, therefore, sicorn men were delegated really to determine. 1 Hickes' Thcs. Diss. Ep. 3-1. "- Ibid. 33. ' Ibid. 42. Ibid. 42. 38 THE SAXONS. [CHAP. I. living in those times to allow credit to a man's oath, ivlien sup- ])orted by tlie concurring testimony of others to his credit (a). The small districts into which the people were divided, and tlie conse- quent relation which by law they bore to each other, furnished abundant opportunities for a man's character to be known, and de- clarations of his neighbours concerning his credibility might be re- ceiv^ed with no small degree of confidence. It cannot be dissembled that some learned men have been of opinion, that the trial by jury was in use among the Saxons; and this point, like some others, had been maintained with great perti- naciousncss by those who have laboured to prove the antiquity of our juridical constitution. This opinion may, probably, have been founded on the similitude between secfatores and jurors, an appearance which, on a superfi- cial view, may indeed deceive (6). However, it may be laid down with safety that the trial by jury did not at this time exist ; and if the reader will suspend his judgment till he comes to those times when the trial by jury was really established, he will then see dis- tinctly the essential difference between sectatores, comjjurgatores, and J uratoi'es, and will agree with us in declaring that the frequent mention of secfatores is no proof oi Juries, properly so called, being known to our Saxon ancestors. Thus have we attempted to give a sketch of that system of juris- prudence which subsisted among the Saxons. The materials which furnish any knowledge of it are so few and scanty, that it is with the utmost difiticulty anything consistent can be collected from (a) No doubt ; and the practice of compurgation was the origin of " wager of law," in which the defender was examined on oath, with others ; and, as Lord Coke says, "this countervailed a jury." But the author failed to see how what he said applied equally to jurors, who differed from compurgators simply in this, that the latter were called by tiie defendant to swear that they believed him innocent, and the former by the court, to swear whether they believed him guilty or innocent — both swearing equally upon their own knowledge. For this reason the Saxon laws, it has been seen, made provision that all transactions should be before some sworn men of the hun- dred, who should afterwards decide disputes arising out of the transactions they wit- nessed — i.e., as jurors ; for jurors were witnesses. Hence it was that, as the jury arose out of the hundred, and were supposed to be witnesses, and determine upon their own knowledge, it was an inflexible rule or custom, until abolished by statute, that there must be some hundredors upon a jury. And to this day, in matters of a public nature, juries may decide of their own knowledge. (b) As already shown, the jurors were sworn suitors, and the suitors who really decided cases were sworn, iu the later Saxon times. The author had misunderstood the provisions in the laws as to the witnesses, forgettmg that, in the infancy of trial by jury, the jurors were witnesses, and determined upon their own knowledge ; and he had failed also to see how one institution grew out of another in the course of experience. Thus, the original course, no doubt, was to put the defendant to purge himself by his own oath ; then he was called upon to add the oaths of others ; and if he failed to find a sufficient number to swear in his defence, then a certain num- ber were sworn to determine the case. Both compurgators and jurors were simply suitors sworn ; and there is no authority in the Saxon laws for saying that the hun- dred, after these laws were made, decided cases without some mode of inquiry by sworn men, either as compurgators or jurors. The only difference between them was, that the compurgators swore to their belief m the man's innocence, and the jurors swore to their belief that he was guilty or innocent, as the case might be — both equally swearing from knowledge. CHAP. I.J TRIALS IN CIVIL CASES. 39 them («). This must give rise to a vfvricty of opinions, according as jtersuus are biassed by prejudices and diti'erent turns of thinking. Perhaps, after all, the clearest opinion that can be formed respect- ing such distant and obscure times, is not worth defending with much obstinacy. Of this tiie render will l)e able to judge when, in the course of this history, lie finds institutions either so abundantly sn])erinduced upon the original groundwork, or so entirely substituted in the place of it, that very little remains of the 8axon jurisprudence can be traced even in the earliest times of our known law, after the Conquest (b). The i)arts which alone survived that revolution seem to have been the methods of trial, some notions of criminal law, and the scheme of police. The others were gradually super- seded, and at length are no longer known. It remains now to inquire what steps were taken by the Anglo- Saxons in collecting and improving their laws (c), and what monu- ments they left of their legal polity. (a) Unfortuiiatelj' our author \v;vs not at all aware of the materials which existed, nor was he sufficiently acipuiinted with tho.se of which he was aware. Instances have already been adduced which show that he had derived his knowledge of the Saxon laws at second-hand, and had not studied them hiniselt ; and he wholly ignores the Mirror of Jualire, which, as has been shown, contains a great deal of matter which obviously belongs to the Saxon age, and affords much information as to the Saxon system. No doubt it was rude and imperfect, and in its best time only a -striving after better things ; but in these attempts lie much of the interest of legal history, and in their criminal system the Saxons had made great advances. Our author had derived a ver}' imiicrfect idea of the Saxon system, because he had derived it entirely from their written laws, and had uii.ssed the valuable evidence we have of their unwritten laws. It is in these, the unwritten laws of a nation, in its earlier stages of advance, that the alterations suggested by practical experience are more usually made, and therefore the course of progressive improvement is more distinctly marked. The author had failed to realise this progressive improvement, and his idea of the Saxon sy.stem is therefore imperfect. (6) 'J his is very true. It may indeed be said that no institutions peculiarly Saxon have survived ; for although trial by jury, esi>ecially in criminal cases, virtually came to us through the Saxons, it would be an error to suppose that the principle of it was exclusively Saxon; and in substance it was known to the Romans, though no doubt it was nut fully developed, until its union, so to sj)eak, with the free popular element in the Saxon institution of the hundred court, out of which it really arose. And the whole of our criminal system of procedure, with its presentment by grand jurors, is distinctively Saxon ; but this is all. The barbarous practice of the ordeal did not survive the reign of John. The practice of compurgators soon became obsolete in criminal cases, and the practice of wager of law in civil cases, which arose out of it, had been obsolete for ages long before its abolition, although its legal existence was an inconvenience. The sj-stem of '• frankpledge " also became obsolete. Nothing except tlie criminal system of the Saxons survived civilisation. (e) The author lightly speaks of these collections as confined to the laws of the Saxons. This may be the proper place in w^hich to give some general notice of those written collection of Saxon laws to which the author here alludes. It is to be espe- cially oliservetl that these were by no means complete codes or bodies of law, contain- ing all the laws existing in the country. On the contrary, it can be shown from the laws themselves — and this is the first and most important point to be observed in them — that they dioc. kingdom were, made a collection of them, and out of them composed his Dom-hoc, or Liber Judicialis (a). It seems this these laws make mention of the ecclesiastical organisations and endowments, for they make mention of the property of the churcli, and of bishops, and of priests (Ethelbert, 1), and church scot (ina, 61), and tithes {Edgar and Ethelbert). And so of the civil organisations — one of the earliest of their laws make mention of counties, while not mentioning their formation. " If any one demand justice before a shire man or other judge," — which last, no doubt, means hundredor \Ina, 8, 3G). In the same laws mention is made of tens, which implies hundreds (Ina, 54). This was long before Alfred, who by a popular error is supposed to have established counties, hundreds, and tithings. So, mention is made of the manorial institution, — that is, of serfs or villeins, which implies its existence. " If anj' one go from his lord without leave, and steal into another shire, and he be discovered, let him go back" [Ina, 22, 39). This is a rough translation of an imperial edict as to the coloni ; it comes between two clauses as to ceorls (churls) or husbandmen. In the Latin version, ceorl is translated " coloni," added to which there is another clause speaking of ceorls having meadow in common. All which points plainly to the state of villenage and the existence of manors. So mention is made of reeves, sheriffs, shire-reeves [Laws of Ina). Mention is next made of " borhs" (burghs), and pledges (Ina, 1). All this was before the time of Alfred, who is supposed to have been such a remarkable legislator, but whose laws, on the contrary, are very inferior to those of Ina. There is little at all new, and nothing which can be called original ; and they commence indeed by a preface in which the king states that he had gatliered from the laws of Ina and Ethelbert those which he thought best, and had a.dded little of his own {Laws of Alfred ; Anglo-Saxon Laws, p. 59). These laws established nothing, unless it were the right of sanctuary in a church (c. 5). They make mention of royal manors or farms (c. 8). They like- wise mention the folcmote or court of the county or hundred (c. 22). They contain an enactment as to bocland (already quoted), implj-ing tliat the distinction of such land was already known and established (c. 41) ; and there is no previous law about it. It may here be mentioned that these "laws" were the Saxon, called "dooms," and that thus the laws of Alfred are called " Alfred's dooms." So Edward's " dooms" or laws ; they allude to bocland and folcland (the first time the latter is mentioned), and to serfs and sheriifs, and requires that each sheriff have a court once a month. So of the " dooms'' or laws of Athelstane ; the first thing new is the ordinance for the payment of tithes (I. 1). The next is that if a lord denied justice, the king might be appealed to (II. 3). So alkisions are made to trial by ordeal as already established (Edw., 3 ; Ath. I., 4-6). And there are specific regulations about it. So as to the county court and hundred court, which had been mentioned as existing in previous laws, it is provided that the county court shall be held twice a year, and the hun- dred court once a month {Edgar, 5). So, in the laws of Canute, there is a i-equisi- tion that every man be brought into a hundred and into a tithing (c. 20). It would be difficult to find anything established or constituted in the Saxon laws (except, in- deed, the payment of tithes and church scot, and "Rome-fee," or the "hearth-penny" to St Peter (Laws of Ethtlred, Edward, Edgar, and Canute). With these exceptions, all the provisions in these laws are matter of mere regulation of existing institutions, and for the most part lelate either to more barbarous usages, long since obsolete, or, on the other jjand, to jiious duties and religious obligations. It is obvious, then, that these successive collections were not complete codes of law, nor even of the Saxon law — that is, of the whole of the law they had — nor even collections of their laws, in the sense of all their laws, but they were only collections of their written laws ; that is to say, of the neio laws they made to alter, or regulate, or enforce laws already existing, or institutions already established. Each king put forth a kind of edict, or collection of edicts, on such matters as appeared to require to be altered or enforced, and thus they afford only a kind of indu-ect and incidental evidence of the system of law then existing, which is not embodied or codified in these laws, but, on the contrary, is only to be collected therefrom by close examination and careful induction. (a) it did not occur to the author that this might be the Dooms or Laws of Alfred CHAP. I.] TIIEIK WlilTTEN LAWS. 41 was intended as a code for the government of his whole kingdom, above mentioned ; and wiiich, it will be seen, were only a compilation from a former collection uf general laws better than liis own. The name of Alfred has become associated with the revival of law and literature, but it is manifest that his merit mu.st have been more in the administration of law than in legi-lation ; and it is remarkable that, although the chroniclers speak of him in terms of high eulogy, they do not mention his laws, or those which pass under his name as the Anglo-Saxon Laws, nor the " Dom-boc," or Liher Judici-Iis, which is Bpoken of by the autlior in this passage. Ana.s.sage in William of Malmesbury, but it was i)erhap8 misunderstood, and, at all events, it was corrected by Lord Coke. The chronicler says most truly that Alfred perceived that ''literature had gone to decay all over the island, because crery one v."iis occupied in the defence of his life, and so had no time to devote to books," a sentence which speaks volumes as to the barbarous condition of the countiy at the time, and the entire insecurity of life and limb which existed ; and the impression to be derived from it is confirmed by the earlier Anglo-Saxon laws, which are full of l)jnalties against the most brutal bodily injuries. Hence, it is plain, it was the policy of Alfied to restore literature by establishing security of person, and with that view to restore the reign of law — a most remarkable illustration of the inseparable con- n-ixion between law and civilisation, and the absolute necessity of peace and order as agents of civilisation. With this view, the chronicler says, '' he appointed centuries, which they call hundreds, and decennaries, that is to say, tithings, so that every ICnglishman living according to law must be a member of both, and if any one was accused of a crime, he was obliged immediately to produce persons from the hundred and tithing to become his surety, and whoever was unable to find suiety must dread the severity of the law," i. e., he had to undergo either the ordeal or some form of trial. And if any one who was impleaded matle his escape either before or after he had f.'und surety, all persons of the hundred and tithing paid a fine to the king (William if Malmeshwnj, B. 2, c. 4). Now, comparing this carefully with reference to contem- ]iorary history, it will be found that the true meaning of it, or, at all events, all that i.s true in it, is, that Alfred adapted the institution of tithings and hundreds to the object he had in view, by founding on it the Saxon institution of frankpledge, making all the inhabitants pledges for each other, a system the principle of which remains to this day, having been adopted by the act of George L, which made the hundred liable for damage done by rioters. To suppose that he instituted hundreds and tithings is a great error, since they were known to the Romans long before his time, and the truth is, as Lord Coke explains, he restored or renovated the institu- tion, though even as to that it is remarkable that these things are not mentioned in tlie laws u.itil Edgar. Neither Malmesbury the chronicler, nor Asser, his biographer, make any mention of the laws which pass under his name, but they both concur in one statement, that he was a strict inquirer into the sentences passed by his judges, and a severe corrector of such as leere unjust (Ibid.) This statement — which is far stronger and more pointed than Asser' s — is remarkably exemplified in the severe sentences of Alfred recorded in th/; Mirror of Justice, a book which, although written in its present form in the reign of Edward I., bears internal evidence of having been founded upon one originally written soon after the reign of Alfred, since almost all the names of judges or parties mentioned are unmistakably Saxon, and the names of judges under Edward are known, and were all Norman ; and, moreover, it professes and ))urports to record what took place under Alfred, and to give a kind of comparative account of the law as it existed under Alfred and under Edward. In this respect, then, it is one of the most interesting of the sources of our legal history. And it is curious that the author should not have mentioned it here, especially as he mentions an obsolete and doubtful book, of which all trace has been lost, unless by it is meant either the collection of laws which jiasses under Alfred's name, or the original of that very treatise which is now under notice, and which may have been called Alfred's Liber Judicial is, or Book of Dooms. And for this latter supjiosition there is great reason, for the treatise in question bears upon the face of it evidence that it teas founded upon an ancient book of the age of Alfred, and purporting to record a number of " Alfred's dooms " — that is, of judgments pronounced by Alfred or by judges under his authority : and these dooms appear all to have been preserved and incorporated in the work in question, and afford such valuable and remarkable illus- 42 THE SAXONS. [chap. I. and it obtained, with great authority, during several reigns, being trations of the legal history of the period, that they may properly and usefully be here extracted ; that is to say, all those passages which bear traces of being as old as Alfred. The treatise begins with a statement that the realm was divided into shires, the names of which are given, and in which it is remarkable that War- wickshire is spelt in the Saxon way, Euerwickshire. The Roman origin ui our terri- torial divisions and civil institutions is betrayed in the statement that eighteen of the shires had been committed to counts or comites (called by the Saxons earls), and therefore had been by the Romans called comitates, as each had been com- mitted to one of the comites ; and it is stated that, " so at this day these shires are called in Latin ' comitatus,' and that which is without these counties belongs to the English by conquest" — a remarkable statement for more reasons than one; it may explain how it is that some counties end with the w-ord shire and others do not, and next, it shows that the Saxons, in the main, preserved the old institutions and divisions. It then mentions the division of the country into centuries or hundreds, and tithings or decennaries, — not ascribing it to Alfred. Then it states that, for the estate of the realm, king Alfred caused the earls to meet, and ordained that twice in the year, or oftener if need be, they should meet at London ; " and that by this estate many ordinances were made by many kings until the time of the king that now is," i.e., Edward L ; and then it states the substance of these laws, which are here stated, only as far as it appears from the Saxon laws, was really the law of the time of Alfred. The sheriffs were ordained to defend their counties, and bailiffs, in the place of centiniers or hundredors. And the sheriffs and bailiffs caused the free tenants of their bailiwick to meet in their counties and hundreds, at which justice w;is so done that every one so judged his neighbour by such judgment as a man could not elsewhere receive in the like cases, until such time as the customs of the realm were put into writing and certainly established. And altho\igh a freeman commonly was not to serve without his assent, it was assented to that free tenants should meet together in their counties, hundreds, and the lords' courts, if they were not especially exempted to do such suits, and there judge their neighboLU-s. And that right should be done from month to month in the counties, if the largeness of the counties required not a longer time ; and that every three weeks right should be ad- ministered in other courts ; and that eveiy free tenant was bound to such rule, and had ordinary juiisdiction. The turns of sheriffs and view of free pledges were ordained ; and it was ordained that none of the age of fourteen years or above, was to remain in the realm above forty daj's, if they vvei'e not first sworn to the king by an oath of fealty, and received into a decennary (B. 1, s. 2). Then afterwards (s. 15), that county courts were held monthly, and the judgment was by the suitors, and the other inferior courts were the courts of every lord, to the likeness of hvmdred courts, "where right was to be administered without delay" (sec. 15). And again, "the sheriff's by ancient ordinances held meetings twice in the year in every hun- dred," where all the freeholders within the hundred were bound to appear, and be- cause sheriffs, to do this, made their turn of the hundred.?, and such appearances are called the sheriffs' "tourns,' — where it belongeth to them to inquire of all personal, offences done v\ithin their hundreds, and of all wrongs done by the king and king's officers, and of wrongs done to the king (sec. 16). Then " it was ordained that there should be in each hundred a view of frankpledge, that is, to show the fiankpledges, and if all the frankpledges had their dozens entire," whence it appeared that they were not in decennaries but ui dozens, that is, that the number of eacli was not ten but twelve, which was, it will be observed, the number of a juiy. And this meeting of the hundred was called the "leet" (sec. 17), and made presentment of nuisances, &c. Then there is this paasage, which seems to show that these " leets," or assem- blies, were the origin of juries: "and though the bailiffs cannot determine any actional the leet, if any be grieved by wrongful presentment,it is lawful for the bailiff or steward, by twelve of the more discreet men, to inquire of the truth, though no decennary or juror is not attestable with less than two juries" — treating the decennaries and grand jurors as identical (sec. 17). "And if any one proffer himself to swear fealty to the king, he is to be pledged in some frankpledge ;md first in the decennary" (Ibid.) All this is evidently of the time of Alfred, for it relates to the very constitution of frankpledge which he first established, and it connects it with the jury system. In a previous pa.ssage it is said, "The panel (of jurors) are to be of decennaries; for sheriffs at their tourns, or bailiffs at their view of frankpledge, have power by authority of their office to send for the people, which none other have without the king's con- CHAP. I.] THEIR WRTTTKN LAWS. 43 referrcf] to, In a law made by king Athelstan, as an authoritative guide ^ {(I). sent, and that is for the keepinp; of the pence, and f(jr the ri;^ht of the king and the common people " (sec. 13). All this, again, relates to frnnkpledfje, and therefore is of the age of Alfred, and connects it with juries, and identifies decennaries with jurors. And there are numerous evidences that the hook had its basis in a work composed after Alfred's time. There is mention made of a judge who is afterwards said to have been hanged by Alfred (sec. 1). There is mention made of a case decided in the time of king J'^dmund (Hook ii., sec. 17). There are many instances of indictments, in which, witlioiit any exception, all the names are Saxon (sec. i:3-2"2). The part of the work, however, which most unmistakably points to the time of Alfred, and most conclusively iilentifies it with the "doom-book'" above referred to by the a\ithor, is that in which, literally, Alfred's dooms are set forth. " It is an abuse that judges and their officers who kill men by false judgment, are not destroyed as other murderers, which Alfred caused to be done, who caused forty-four judges to be hanged in one year as muiilerers for their false judgments." This is, as other facts show, wilfully false. " He hanged Segnor, who judged Selfe to death after sulficient acquittal. He hanged Cadwine, because he judged Ilackwy to death, without the consent of all the jurors, and whereas he stood upon the jury of twelve men, and three could have .saved him against the nine. Cadwine removed the three, and put others upon the jury, upon whom Hackwy put not himself. He hanged Markes, because he judged During to death by (wrlre men ic/io uvrc not airorn. He hanged Seafaule, because he judged Olding to death for not answering. He hanged Thurston, because he judged Thurn- ger to ileath by a verdict of inquest taken ex officio without issue joined. He hanged Athelstane, because he judged Herbert to death iur an offence not mortal. He hanged lloiiibold, because he judged Lisehild in a case not notorious, without appeal, and without indictment. He hanged Freburne, because he judged Hari)in to die, tchcrens the jar ij vvre in doubt in their verdict ; for in doubtful cases one ought rather to save than to condemn. He hanged Hale, because he saved Tri.stram the sheriff from death, who took to the king's use from another's goods against his will, fora.smtich as between such taking from another against his will, and robbery, there is no difference. He hanged Bermond, because he caused Garbolt to be beheaded by his judgment in Eng- land, for that for which he was outlawed in Ireland. He hanged Alflet, because he judged a clerk to death over whom he had not cognisance. He hanged Muclin, be- cause he hanged Helgaire by command of indictment, not special. He hanged Sax- mund, because he hanged Bunold, in England, where the king's writ runneth, for a fact which he did in the same land where the king's writ did not run. He hanged the suitors of Calevot, because they had adjudged a man to death in a case not notorious, although he were guilty thereof ; for no man can judge within the re^lm but the king or his commissioners, except those lords in whose lordships the king's writ df)th not run. He hanged the suitors of Dorchester, because they judged a man to death by jurors in their liberty, for a felony which he did out of the liberty, and whereof they had not the cognisance by reason of property. He hanged the stntors of Ciren- cester, because they kept a man so long in prison that he died in prison, who woidd have acquitted himself by foreigners. In his time the suitors of Doncaster lost their jurisdiction, besides other punishments, because they held pleas forbidden by the customs of the realm to judges and suitors to hold. In his time, Colgrin lost his franchise of enfangenthief, because he could not send a thief to the common gaol of the county, who was taken within his liberty for a felony done out of the liberty. In his time, Buttolphe lost his view of frankpledy;e, because he charged the jurors with other articles than those which belonged to his view. In les.ser offences he did not meddle with the judgments, but removed the judges, &c. In his time every plaintiff might have a commission, and a writ to the sheriff, to the lord of the fee. or to certain justices, upon every wrong done (Book 5, sec. 1). Now, it is manifest that all this is recorded of the time of Alfred ; and it shows plainly that trial by jury was fully established in criminal c;i.ses, and, no doubt, in civil cases also. (a) Had the author read the laws he would have found that there was no founda- tion for the statement. Athelstane makes no allusion to Alfred's laws, but simply says that such a fine shall be paid, as the doom book may say ; which may mean his own, or any other, and there were express provisions on the subject in most of the laws, as in Edward's, for instance : and not especially in those of Alfred. 1 Ca. 5. 44 THE SAXOXS. [chap. I. However, tliis work, valuable as it wa??, had probably the defects of all original attempts. On that account, as well as on account of the irruption and settlement of tlie Danes, and the consequent pre- valence of their customs, it was found necessary in the days of king CompUation Edgar to revisc this compilation, or make another more by Edward the full, and more suitable to tlie then state of the law. But Confessor. ^|-^|g undertaking was left unfinished ; so that the grand design of making a complete code of English law fell to the part of Edward the Confessor (a), wlio is saidi to have collected from the Mercian, West Saxon, and Danish law, a uniform body of law to be observed throughout the kingdom.- From this circumstance, the character of an eminent legislator has been conferred on Edward the Confessor by posterity ; who have endowed him with a sort of praise nearly allied to that of Alfred : for as one is dignified with the title of legum Anglicanarum Co7iditor, the other has been called legum Anglicanarum Restitutor (U). It is said, that the Dom-hoc of Alfred was in being about the time of Edward IV. ; but we hear nothing of the fiite attending the volume compiled by Edward the Confessor (c). As to the (a) Had the author read the laws of Canute he would have seen that his collection is far more full than any other ; but, as already mentioned, there was no attempt by any one to embody or codify all the laws, and these successive collections were only collections of written laws. There is no contemiDorary evidence that the Confessor ever made such a code as is supposed, and the idea of such a code was far beyond his age. The notion, no doubt, arose out of a misapprehension of the cause of the great regard shown by the people for the customs of liis time. (h) There is no more foundation for tlie one title than the other, nor an atom of contemporary authority for either. On the contrary, contemporary authority points rather to Edgar as the author or restorer of our laws, and his laws are far superior to those of Alfred, and as good as tliose which have come down to us as those of the Confessor. In the collection of the laws of the Confessor, made by royal authority, only a few years after his death, it is said : " Et sic auctorizati sunt leges regis Edwardi ; qua prius adinventce et constitutwfutrunt tempore regis Bdgari, Sivi aui {Ang.-Sax. Laws and Inst., v. i. p. 458). Popular ideas are often not supported by authentic contem- porary authority. In the next sentence, the author shows he assumed that Alfred's " dooms " had not come down to us, and in the next he shows that he equally assumed the non-existence of any of the laws of the Confessor. But on both points it will be seen he was in error. (c) Because there was no such code. If there had been, it must have been known of in the next reign, and it would not have been necessary for the Conqueror to order a compilation of the Confessor's laws to be made, as he undoubtedly did, according to all historians, in the fourth year of his reign. This collection has come down to us, and it is headed thus : " Post quartum annum adquisicionis regis Willielmi consilio Vjaronum suorum, fecit summoniri per universes patrije comitatus Anglos nobiles sapiente.s, et in lege sua eruditos, ut eorum consuetudmes ab ii^sis audiret. Electis igitur de singulis totius patriae comitatibus 12 jurejurando iniprimis sanxerunt ut quoad possent recto tramite incedentes, legum suarum ac consuetudinum sancita edicerent ; nil pretermittentes, nil addentes, nil prevaricando mutantes" (Ang.-Sax. Laws, V. i. p. 442). It would be impossible to imagine anything more appai-ently authentic than this collection. These laws are general in their application to the whole kingdom, with several si^ecial exceptions which are expressly mentioned. One of the first shows that the prerogative of the king to administer justice in the supreme courts was recognised, for it runs thus : " Ubicumque justicia regis vel alia qufelibet jasticia cujuscumque sit, tenuerit placita," &c. {Ibid. p. 443). It appears that the ordeal wda still resorted to, and it is laid down, " assit ad judicum minister episcopi i Hoveden, Hen. II. Lag. St Edw. 35 to 3o ; Lamb. p. 149. ' 1 Ela. 66. CHAP. I.] TIIEIK WKITTEN LAWS. 45 nature of tlie work ; it seems probable, that as tlie Danes bad now become incor[)orated into tlie body of the i)eoj)le, their laws were melted down into one mass with tlie Mercian and West Saxon ; and all to<>;ether composed a set of laws to i;overn both ]>eoples. This, most likely, was done with eqiialile <|iinlifications of all these laws, so as to render submission to them, by both nations, neither strange nor oppressive. It should seem, there was throughout that book a constant intimation what was fSaxon, Mercian, or Danish ; as Ave find in the laws of William the Conqueror, which were de- signed to make certain alterations in those of Edward, fi'equent mention of them by their reK[)ective names, as different sub.sisting laws. As the collection of Edward the Confessor comprised in it the cum clericis suis, et justicia regis cum legalibus honiinibus i)rovinci!B illius, ut videant et audiaiit omnia ajqiie fiant et quos salvaveiit Domimis per misericordiam suam et justicia eorum, quietis int et libL^ri abscedant ; et quos iniquitixs et iiijusticia sua condeinpnaverit, justicia regis de ipsis fieri faciat justiciam " (c. ix., p. 44G). It ap- peared tliat tliere were civil and criminal courts in the hundreds and the counties, and also courts-baron in manors. There is little in the collection relating to anything except the rights of the church and the administration of justice ; there is no refer- ence to the rights or customs of the people, except in a clause referring to their right to assemble in their counties in full " folkmote," and to elect a sheriff, and discuss public affairs (which is omitted in some copies). It is i-emarkal>le that though there is a recognition of the rights of the church, there is no recognition of the rights or institutions of the laity. It is ditticult indeed to imagine any popular enthusiasm excited by anytiiing in this collection, except as to the county assemblies ; the main importance of which, however, would be as necessary for the maintenance of the rights and customs of the people. And though this collection is clearly, as far as it goes, authentic, it is not surpri.sing, therefore, that people should have doubted whether these could be indeed the laws of Edward the Confessor, about which the people were so anxious. But a little attention will solve the difficulty, and show that it arose from an error, already pointed out, in confounding the written laws with the unwritten ; and an attentive refereuce to contemporary lii.story in the chronicles will show that what the people were chiefly anxious about was the maintenance of tlie '■ customs" of the Confessor — that is, the customs which existed in his time, which were erroneously imagined to have been put into writing by him, a notion for which there is no foundation. \\Tiat these customs were, and that they were not written in his time, will appear from the laws of the Conqueror, which commence thus, " Istte sunt leges et cuii-suetudines quos Willielmus rex post adquisicionem Anglise omni populo Angloruni concessit tenendas £cadem,quas predecessor suus Edwardus,servavit.'' And then among the "laws and customs" are these, "Coloni et terrarum exercitores non vexentur ultra debitum et statutum, nee licet domiuos removere colonos a terris dummodo debita servicia persolvint." This, which was a reproduction of a law of Ina almost, the earliest Saxon king, and of an imperial edict in the time of the Roman occupation (vide Introduction), was a recognition of the right of the great body of the agricultural tenants all over the country, to retain their tenements so long as they rendered tlieir services, and it would be impossible to conceive anything mcne vitally important to the great body of the people. There was another custom recog- nised, the right of inheritance, and the equal division of land, " Si quis paterfamili;is casu aliquo sine testameuto obierit, pueri inter se ha}reditatem paternam ajqualiter dividant." And there was another as to the local administration of justice in the courts of the county, or hundred: " Nemo querelam ad rcgern deferatnisi ei jus defe- cerit in hundredo vel in comitatu" (c. 43), which was a reproduction of similar pro- visions in Saxon laws. These two customs may have strongly interested pojnilar feel- ings, through the medium rather of their prejudices than their real and solid interests; but the tlrst-mentioned one, as to the rights of the agricidtural tenantry all through the country, must have been of vital importance to the great body of tlie people, and a reference to these " customs " thus recognised by the Conqueror as existing under the Confessor, will amply explain the anxiety of the people about the customs of the Confessor's time. 4Q THE SAXONS. [ciIAP. I. whole law of the kingdom, it contained not only the unwritten cus- toms, but the laws and statutes made by the several kings. By the loss of this volume, we are left very much in ignorance as to the extent, scope, and nature of these customs. It is not so with the written laws of these times ; for we have many of these still re- maining. These remains of Saxon legislation give us some insight into the nature of their jurisprudence. As laws, if not made to create some new regulation, are designed to restrict, amend, or enlarge some pre-existent custom, or law ; they always enable us to make some conjectures respecting the sub- ject upon which they are intended to operate. From these Saxon laws w^e may pronounce, that matters of judicial inquiry were treated with great plainness and simplicity. Like the laws of a rude people, they are principally employed about the ordeiing of the police ; and accordingly contain an enumeration of crimes and their punishments (a). As this makes the greater part of the (a) No doubt this is so, and these laws are, for the most part, the mere records of the barbarous usaijes of a barbarous race- — these written laws being the peculiar laws or usages of the Saxons themselves, which they brought here, and theref.jre of the rudest and most barbarous character. It has been already shown that they estab- lished no institutions, though tliere are recognitions of existing institutions (as, for example, the manorial and ecclesiastical) ; which were entirely of a rural character, and had little applicable to cities, or relating to municipal institutions ; and as already shown, the earlier conquests of the Saxons would be in the rural districts, their progress would be gradual, the cities would be the last subdued, and in the rural districts the amalgamation of the races would be the most slow, and the barbarous usages most deeply rooted. Moreover, it is to be remarked of these laws that the earlier of them were local, and only related to particular kingdoms of the Heptarchy. Those of Ethell)ert, for instance, relate to the province of Kent; those of Ina and Alfred to the West Saxons. It was not until after the Danish invasion that there is any indication in the laws of a general application to all England ; and it is in the laws of Athelstane that first there are expressions which denote that they have that character {Anrjlo-Saxon Luivs, p. 22.5). These laws contain internal evidence that they were framed for the whole realm, as they establish a general coinage and cur- rency, enumerating the cities where there are to be mints, and these include all the chief cities in the country, at least as far north as London ; these laws likewise include the cn.stoins of London. These laws, however, seem to indicate that the more northern and central counties were under the Danish rule, and the laws of Ethelred are said to have been made in Mercia, according to the laws of the English, and he is called King of the Lnglish (p. 305). It is only in the laws of Cnnute for the first time declared that they were made by the king of all England and king of the Danes (p. 359), and to be observed over all En'.dand (p. 377) ; and these establish one general law for all the races with special exceptions, which are specified. Thu.s, then, up to the time of Athelstane these laws were merely local. Athelstane was the first king of all the EnglL-'h, and his were the first laws for the whole of the Saxon race, but his dominion only extended over half England ; and Canute was the first monarch who reigned over all England, and who framed a collection of written laws for the whole of the population of the country. His, therefore, was the first compilation of laws which could be considered general or national : those of Alfred were entirelj- local ; and, as to the supposed compilation by the Confessor, it has already been shown to be a mere fiction. It may be of intere.st here to select from these collections all the laws which appear worthy of mention. First, as to the established church : as already men- tioned, the earliest of these laws mention bishops and priests, and church property, and further disclose that the bishops had seats in the national or local councils, for the laws of Ina commence with a statement that they were made with the council of the bishop and his eldermen, and the rest of the distinguished members of the witan (Anglo-Saxon Lav:s, 103). These laws ordain payment of church scot (Ibid. 105 ; Ilia] 4), as do subsequent laws {Edyar I., 3; Ethel., vi. 18 ; ix., 11 ; Edyar, i. 2, &c.; CHAP. I.] THEIR AVUITTKN LAWS. 47 Sassage appears from its mentioning the excheciuer as the only "curia regis" then known, so that the passage must have been written before the Magna Charta. 1 Mad. Ex. 543. ^ Il^id. 544. 96 WILLIAM I. TO HENRY II. [cHAP. II. used to seal and supervise the king's charters, and, whenever there arose a debate concerning the efficacy or policy of royal grants, it was to his judgment and discretion that a decision upon them was referred. He used to sit with the chief justiciary and other barons in the curia regis and at the exchequer, in matters of ordinary judicature and on questions of revenue : though it was to the latter court he seemed mostly allied in his judicial capacity.^ Mr Madox, observing that the rolls of chancery begin in the reigns of Eichard and John to be distinct from those of the exchequer (a method of arrangement not observed before),- is inclined to think that the chancellor began about that time to act separately from the ex- chequer. In this conjecture he strengthens himself by a corro- borating fact, as he imagines. In the absence of King Richard out of the realm, AVilliam de Longchamp, chief justiciary and chan- cellor, was removed from the former office by the intrigues and management of John earl of Morton, the king's brother. After this, it is thought, he might discontinue his attendance at the ex- chequer ; and the business of the chancery, which before used to be done there, might be transferred by him to another place, and put into a new method; in which it might be judged proper and convenient to continue it ever after, separate and independent. If this conjecture may be admitted, concerning an establishment beyond the reach of historic evidence, the court of chancery was erected into a distinct court nearly at the same time when the other three received their present form and jurisdiction ; which will go a great way towards justifying one part of the maxim of the common lawyers, that the four courts of Westminster Hall are all of equal antiquity : though it refutes the other part of it, that they have been the same as they now are from time immemorial. The chancery was the ojjicina justitice, the manufactory, if it may be so called, of justice, where original writs were framed and sealed, and whither suitors were obliged to resort to purchase them in order to commence actions, and so obtain legal redress. For this purpose the chancery was open all the year ; writs issued from thence at all times, and the fountain of justice was always accessible to the king's subjects. The manner in which the busi- ness there was conducted, seems to have been this : the party com- plaining to the justices of the king's court for relief, used to be referred to the chancellor (in person, perhaps, originally), and re- lated to him the nature of his injury, and prayed some method of redress. Upon this, the chancellor framed a writ applicable to the complainant's case, and conceived so, as to obtain him the specific redress he wanted. When this had been long the x^ractice, such a Bracton, writing after the charter, speaks of the sheriff as deciding, under a writ like the above, called a Justicies, causes he could not, ex officio, decide, which marks a great change, for it is manifest from the chapter in the Mirror that there was ori- ginally no other court but that of the county, for common suits, in the first instance. 1 Mad. Ex. 1.31. 2 jii^^ 132. CHAP. II. J THE CHANCERY. 97 variety of forms had been devised, that there seldom arose a case in wliich it was required to exercise much judgment; the okl forms were adlierod to, and became precedents of established authority in the chancellor's office. After this, tlie making of writs grew to be a matter of course ; and the lousiness there in- crcasin<^, it was at length confided to the chancellor's clerks, called clerlci cancellarke, and since curstores canceUurke. A strict ob- servance of the okl forms had rendered them so sacred, that at leuf'th any alteration of them was esteemed an alteration of the law, and tliei-efore could not be done but by the great council. It became not unusual in those times for a plaintiff, when no writ could be found in chancery that suited his case, to a})ply to })arlia- ment for a new one. Thus far the chancellor seemed to act as a kind of officer of justice, ministering to the judicial authority of the king's courts. The chancellor's character continued the same, after this separa- tion, as it had been before, without any present increase or diminu- tion. In the reign of Ilemy \L he was called the second person in tlie government, by whose advice and direction all things were ordered. He had the keeping of the king's seal ; and, beside the sealing of writs, sealed all charters, treaties, and public instru- ments. He had the conduct of foreign affairs, and seems to have acted in that dei)artment wliich is now filled by the secretaries of state. He was chief of the king's chaplains, and presided over his chai)el. His rank in the council was high ; but the great justi- ciary had precedence of him.i He is said to have had the pre- sentation to all the king's churches, and the visitation of all royal foundations, with the custody of the temporalties of bishops ; but those writers who have taken upon them to speak fully of the office of chancellor, say notliing of any judicial authority exercised by him at this time. In the curki regis he was rather an officer than judge ; but as he assisted there, so he was sometimes asso- ciated with the justices in eyre.^ There is no notice, even in Avriters of a later date than this, neither in Bracton nor Fleki, that the chancellor, after he sat separate from the exchequer, exercised any judicial authority, or that the chancery was properly a court; but it is always spoken of as an qlfice merely, bearing a certain re- lation to the administration of justice, in the making and scaling of writs. Notwithstanding the hereditary lords absented themselves so so entirely from the curia regis, they still retained an judicature of inherent right of judicature, which resided in them the council, as constituent members of the council of the king and kingdom. When the curia regis was divided, and the departments of ordinary judicature were branched out in the manner we have just seen, the peculiar character of this council, now separated and retired within itself, became more distinguishable. 1 Mad. Ex. 42, 43 ; Litt. Hen. II. vol. ii. 312. 2 yi^,\. Ex. 42. G 98 WILLIAM I. TO HENRY II. [cHAP. II. This council was of two kinds and capacities : in one, it was the national assembly, usually called ma/jmnn concilium, or commune concilium regni («); in the other, it was simply the council, and consisted of certain persons selected from that body, together with the great officers of state, the justices, and others whom the king pleased to take into a participation of his secret measures, as per- sons by whose advice he thought he should be best assisted in affairs of importance. This last assembly of persons, as they were a branch of the other, and had the king at their head, were con- sidered as retaining some of the powers exercised by the whole council. As they both retained the same appellation, and the king presided in both, there was no difference in the style of them as courts ; they were each coram rege in concilio, or coram ipso rege in concilio, till the reign of Edward I., when the term 2J0.rUament was first applied to the national council ; and then the former was styled coram rege in parliamento. The judicial authority of the barons, which still resided with them after the dissolution of the curia regis, was this : they were the court of last resort in all cases of error ; they explained doubt- ful points of law, and interpreted their own acts ; for which pur- pose the justices used commonly to refer to the great council matters of difficulty depending before them in the courts below. They heard causes commenced originally there, and made awards thereupon; and they tried criminal accusations brought against their own members. The council, properly so called, seems to have had a more ordi- nary and more comprehensive jurisdiction than the commune con- cilium ; which it was enabled to exercise more frequently, as it might be, and was continually summoned ; while the other was called only on emergencies. In the court held coram rege in con- cilio, there seems to have resided a certain supreme administration of justice, in respect of all matters which were not cognizable in the courts below : this jurisdiction was both civil and criminal. They entertained inquiries concerning property for which the ordi- nary course of common-law proceeding had provided no redress, and used to decide ex cequo et bono, upon principles of equity and general law. All offences of a very exorbitant kind were proper objects of their criminal animadversion. If the persons who had taken part in any public disorder were of a rank or description not to be made amenable to the usual process, or the occasion called (a) All that relates to tlie subject of concilio regni, or concilio regis, or curia regis, ■which in early times very likely meant very much the same thing, is involved in ob- scurity. The avithor, it will be observed, cites no contemporary authority, and it is believed that all that exists has already been cited in the notes, except, perhaps, a passage in Glanville, in which, speaking of the assize or trial of real actions, he says, " list autem assisa regale, quoddam beneficium dementia principis, de concilio pro- cerum populis indultum ;" to which, perhaps, it may be added that several passages in the Mirror speak of ordinances of kings on the subject of the law, or the administra- tion of justices, which no doubt meant ordinances made by the king, with the counsel of his chief officers of state, the principal barons, &c. CHAP. II.] OF THE ECCLESIASTICAL COURTS. 99 for somctliinf^ more exemplary tlian the animadversion which could be made l)y ordinary justices, these were reasons for bringing in- quiries before the council : in these, and some other instances, as well touching its civil as criminal jurisdiction, it acted only in concurrence with, and in aid of, tlio courts below. Thus was tlie administration of justice still ke])t, as it were, in the hands of the king, who, notwitlistanding tiie dissolution of his great court, where ho presided, was still, in construction of law, sup))Osed to be present in all those which were derived out of it. The style of the great council was coram rege in concilio, as was tliat of his ordinary council for advice. The chancery, when it afterwards became a court, Avas coram recjc in cancelhirid ; and the principal new court which had s})rung out of the curia rrijis, was coratii ipso rege, and coinm rege ubicunqiie/uerit in Anglid. The separation of ecclesiastical causes from civil, of the spiritual was not the least remarkable ])art of the revolution court. our laws underwent at the Conquest («). The joint jurisdiction (rt) There is no subject upon which the author fell into greater error than this. It was a complete fallacy to suppose that the separation of ecclesiastical causes from civil first took place on the occasion of the decree here adverted to, which merely enforced it. The distinction between ecclesiastical and secular causes is drawn throughout the Saxon laws with great acuteness, as has been shown. Several of the kings were .so careful to draw it, that they ajeparated their ordinances ecclesiastical, niado either in synods or councils, from their secular laws, made in the council. (See the laws of Edgar, Ethelred, Athelstane, .and Canute, An;j.-Sax. Laws, vol. i.). And these again were distinguished from the canons and constitutions of the prelates, made of their own authority in ecclesiastical synods, which form quite a distinct collection [Anr/.-Sax. Laics, v. ii.). And it was likewise distinctly recognised that the adminis- tration of the ecclesiastical law belonged to the bishops, though it might be enforced by the secular law. Thus Edward lays down in his ecclesiastical laws that men in holy orders who were immoral were worthy of what the canon had ordained — that is, to forfeit their possessions (A.-S. Z., v. i. p. 245). So, if any one committed homi- cide, he was not to cf)me into the king's presence until he had done penance, as the bishop might teach (Laics Ed. Ecc, 3 ; 1 bid. p. 257) ; and then, in the secular laws, this is enforced further {Ibid. p. 2-19). So the laws of Ethelred speak of fines as secular correction for divine purposes [Ibid. p. 319). So the ecclesiastical laws of Canute lay down that men of every order submit each to the law which is becoming to him {Ibid. p. 315); and then the secular law says that if a man in holy orders commit a crime worthy of death, let him be seized and held to the bishop's doom {Ibid. 403). And so Alfred hanged a judge who judged a clerk to death over whom he had not cognizance {Mirror, c. v. 213-235). So the distinction was drawn clearly in the laws of the Confessor, collected by the Conqueror : " A sancta ecclesia, per quam rex et regnum solidc subsistere haberent, pacem et libertatem concionati sunt dicentes (c. i.). " Et si aliquis excommunicatus ad emendacium, ad eioiscopum venerit, absolutus eundo et redeundo pacem, Dei et sanctic ecclesitc habeat. Et si pro justicia episcopi emendare noluerit, osteudat regi, ut rex constringat forisfactorcm, ut emendet cui forisfecit, et episcopi et sibi " (c. ii.). " Quicunque de ecclesia tenuerit, vel in feudo ecclesia) manserit, alicubi extra curiam ecclesiaticam uon placitabit ; si in aliquo foris- factum habuerit, donee, quod absit, in curia ecclesiastica de recto deficeiit" (c. iv.). " Si quis sauctre ecclesiffi pacem fregerit, episcoporum turn est justicia" (Ibid. p. 444). The distinction, then, was well established, and w.as not now first drawn, but only enforced ; and enforced, not bj' taking the bishop from the county court, but by taking the ecclesiastical causes from that court, and remitting them to the court of the bishop. The edict, therefore, was in aid of episcopal jurisdiction, and merely en- forced the existing law. It did not purport to be, nor was it, a new law ; it was a charter declaratory of and enforcing the established law of the land, that spiritual matters were for the bishop. It recited tliat it was issued with the consent and 100 WILLIAM I. TO HENRY II. [cHAP. II. exercised in the Saxon times by the bishop and sheriff was dissolved, as has been before mentioned, by an ordinance of William ; and the bishop was thenceforth to hold his court separate from that of the sheriff. 1 This ordinance of William is comprised in a charter relating to the bishopric of Lincoln ; and therein he commanded, " that no bishop or archdeacon should thenceforward hold plea de legihm episcopalihus in the hundred court, nor submit to the judgment of secular persons any cause which related to the cure of souls ; but that whoever was proceeded against for any cause or offence according to the episcopal law, should resort to some place which the bishop should appoint, and there answer to the charge, and do what was right 2 towards God and the bishop, not according to the law used in the hundred, but according to the canons and the episcopal law." In support of the bishop's jurisdiction, it was moreover ordained, "that should any one, after three notices, refuse to obey the process of that court, and make submission, he should be excommunicated ; and, if need were, the assistance of the king or the sheriff might be called in. The king, moreover, strictly charged and commanded, that no sheriff, j^rapositus sive miiiister regis, nor any layman whatsoever, should intromit in any matter of 'judicature that belonged to the bishop." 3 This is the whole of that famous charter. When the spiritual court was once divided from the temporal, different principles and maxims began to prevail in that tribunal. The bishop thought it noways unsuitable, that subjects of a differ- ent nature from those concerning which the temperal courts decided, should be adjudged by different laws ; and, being now out of the influence and immediate superintendence of the tempo- ral judges, he was very successful in introducing, applying, and o-ainino- prescription for the favourite system of pontifical law, to which every churchman, from education and habit, had a strong partiality. The body of canon law soon exceeded the bounds which a concern for the government of the church would naturally affix to it. Instead of confining their regulations to sacred things, the canonists laid down rules for the ordering of all matters of a temporal nature, whether civil or criminal (a). The buying and counsel of the prelates, and it concludes thus : " Hoc etiam interdico, ut aliquis laicus homo de le'dbus quEe ad episcopum pertinent se intromittant, nee aliquis laicus homo'alium hoiuinem sine justicia episcopi ad judicium adducat " {A.-S. L., v. i. p. 496). " The language of the charter," says Sir J. Mackintosh, " and probably its imme- diate effect, was favourable to clerical independence" (Hist. Eng., v. i. p. 113). It is true that the acute historian— for once in error, and not aware of subsequent laws recognising and even enforcing the attendance of the prelates in the county courts- went on to observe that the effect was to withdraw them from the courts ; a manifest mistake. The bishops continued to sit in the court {Leges Henrici Primi, c. vii. 11 K (a) Only in foro conscieniia', and as jjart of the great moral duty of justice ; in order to ascertain breaches of it, with a view to spiritual correction. In times when 1 Wilk. Leg. Sax. 292 ; Seld. Tithes, 413. ^ Paciat rectum. 3 Wilk. Leg. Ang. Sax. pp. 202, 203. CHAP. II.] ECCLESIASTICAL LAW. 101 selling of land, leasing, mortgaging, contracts, the descent of inher- itance ; the prosecution and punishment of murder, theft, receiving there wum really no Law, this wa-s very necessary ; and the Roman ecclesiastics founded upon the llonian law a system "f (Jhristian jiiris]ir>i(lence of great use and value, which had, as already has been shown, had a great inlluenee on the formation of our own law. M(jreover, it should he observed that the law of England fully recognised the canon law for the purposes of spiritual correction, and, imleed, to a great extent enforced it. This has been already shown in the Saxon laws, being confirmed by the Conqueror, and it will have been seen that these laws repeatedly recognised the canon law and the right of the bish(;ps to apply it in the exercise of their spiritual authority. So the law of the Conqueror, already alluded to, distinctlj' recognised this spiritual jurisdiction and canon law, for it directed — " ut nvdlus episcopus, de legibus episco- palibus, amplius in hundreto placita teueant, nee causam qua; ad regimen animarum pertinet, ad judicium socularium homiuem aducant : sed quicunque secundum ejiiscopales leges, de quacunque causa vel culpa, interpellatus fuerit, ad locum Sa.r. Ldtr, v. ii. p. 247). " And we enjoin that every priest declare in the synod if in his district he knows any man contumacious to God, or sunk in sin, whom he cannot incline to amends, or care not for worldly opinion" (Ibid.). And in the Civil and Ecclesias- tical Institutes it is laid down, " To a bishop belongs every direction, both in divine and worldly things. He shall in the first place inform men in orders, so that each of them may know what properly it behoves tliem to do, and also what they have to enjoin to secular men. He shall not consent to any injustice, nor false weights or measures ; but it is fitting that every legal right go by his counsel, and that every balance and measure be by his sanction very exact, lest any man should wrong another, and thereby sin " {Ibid. 313). These latter words clearly convey the whole scope of the canon laws, and the principle on which it entered into secular matters; that is, entirely infora conscicntiw, and with a view to spiritual correction. And this, unless so far as the state chose to enforce it, was, of course, entirely of voluntary observance; and had no force or obligation save in conscience ; in other words, to 110 WILLIAM I. TO HENRY II, |_CHAP. II. But a compilation of canon law was made by Ivo de Chartres, in the time of Henry I. containing many extravagant opinions (a), calculated to advance the dominion of the pope, and the preten- the extent to which a man's ovrn conscience or moral sense impelled him to observe it. It was a purely moral power, and had no connexion with the domain of the municipal law, except so far as enforced by the state, which was its own volun- tary act, resulting from the collective conscience of the community, and a sense that it was right so to enforce it. To represent the canon law, therefore, as encroaching, hj reason of its extension, upon the municipal law, shows an entire misapprehension. These domains were so entirely distinct and independent, that the greatest possible extension or development of the former could not encroach upon the latter. How could moral law encroach on municipal ? The canon law was entirely moral law, resting on religious liberty and spiritual sanctions; and so far as the state did not interfere, a man was free to regard it or disregard it as he pleased. In the only matters on which there was an appearance of interference with the secular law, the claim of exclusive jurisdiction over ecclesiastical persons and propertj^, the canon law followed the municipal law ; for, as already seen, it had been the law for ages, and a law in those times extremely rational, although the reasons upon which it rested have long since disappeared. To reiwesent these claims, therefore, as en- croachments, is an historical error. In point of fact, they were not encroachments, for they rested on the consent of the state. And to the full extent, in all other respects, the legality of canon law and civil jurisdiction was recognised by the law. (a) The learned author did not appreciate the grounds on which the canon law rested. The popes themselves, whose decrees formed the bases of the decretals, always put the exercise of their authority either upon the ground of spiritual direc- tion to men as the members of the church, and acknowledging her spiritual authority, or upon the authority derived from the acknowledgment and the recognition of the church liy the state. Thus, for instance. Pope Gregory VII. based his decree, de- posing the emperor, upon authority derived from human laws — the laws of the empire, as well as upon his spiritual authority over the emperor as a member of the church, " propter qufe (i.e., sceleribus suis) eum excommunicari, non solum usque ad dignam satisfactionem, sed ab omni honore regni, debere destitui, divinarum et humanarum legum testatur auctoritas " ( Vita Greg. VI IF., Benrkd, c. Ixxviii. ; Muratori, Rer. Ital. Script., tom. iii., part 1, p. 357). Rightly or wrongh', it was the view of the popes, and of most people in those days, that the laws of the empire gave the pope the power to declare this ; and so it was professedly based upon human laws. So Pope Innocent III., by whom the pretensions of the Koman see were cer- tainly pressed as far as by any pontiff, put it entirely upon his pastoral power over members of the church, and upon his acknowledged function as its head, and dis- claimed any teinpnral jwwer except as far as conferred by the laics of the state. " Non enim intendimus judicare de feudo, cujus ad ipsum (regem Gallise), spectat judicium, nisi forte jure communi, per speciale privilegium vel contrariam consue- tudinem, aliquid sit detractum ; sed decernere de peccato, cujus ad nos pertinet sine dubitatione censura, quam in quemlibet exercere possumus et debemus " {Decretal, lib. ii. tit. 1 ; De Judiciis, c. xiii.). According to this, it is obvious the papal power was one of mere spiritual direction, inforo conscientice, resting only on moral sanction ; or it was an emanation from the secular law, derived from state concession ; in either case, no assumption antagonistic to state power. The excommunication was pro- nounced under the former power ; its effect, as to deposition, entirely depended upon the latter — that is, upon the laws of the state. It was a consequence of excommuni- cation, according to the belief of the age, founded on the laws of the empire, with reference to the oath, and the condition of allegiance. And as the former was based upon the acknowledgment of the spiritual authority of the church and of the pope as its head, it could make no pretensions to the exercise of the jurisdiction where that authority was not acknowledged ; so that it rested entirely on voluntary acknow- ledgment. The pope simply administered the laws of the church as its head, be- tween those who acknowledged those laws, and acknowledged him as its head. Moreover, at the age when this jurisdiction was exercised, it was so entirely in accord- ance with the popular belief, that it was the expression of the popular will. Voltaire admits this general belief. Speaking of the great struggle with the empire, he says, " Vous en verrez I'unique origine dans la populace ; c'est elle qui donne le mouve- ment h la superstition " {Essai sur Us Moeurs, tom. iii. c. xlvi.). He terms it, indeed, CHAP. II.] THE CANON LAW. Ill sions of the clergy. After this, and about fourteen years after the discovery of the Pandects, in the year 11.51, a more comi)letc col- lection of canon law was made by Gratian, a Benedictine Monk of a superstitious fecline:, but he admits its universality in that age ; and it has been seen that it had a strung foundation in the laws of the empire. The princes them- selves, he elsewhere says, admitted the jurisdiction, they everywhere had recourse to it {Ibid. tom. iii. c. Ixiv.). It can scarcely Ijc deemed surprising that the papacy should, in such an age, have exercised a jurisdiction Avith whieli it appeared to Ijc invested by the traditions of ancient law, by popular belief, and even by the acknowledgment of sovereigns. Quoting the language of the popes in the middle ages, Voltaire .says, " tiueUiues temdraires que paraissent les entrepri.ses, ellcs sont toujours la suite des opinions dominantes. 11 faut certainement que I'ignorance cftt misalors dans beau- coup de totes que I'eglise etait la maitresse des royaumcs, puisque le pape ecrivait toujours de ce style " (Essai sur les M(eurs, tom. iii. c. xlvi.). It might be the result of ignorance ; and no doubt, in that age, the clergy possessed most of the knowledge, and therefore most of the iniluence : but the fact is beyond dispute, that these were the dominant and prevalent opinions of the age, and that therefore, in the exercise of this jurisdiction, the papacy acted as much in accordance with public opinion, as it would now be acting in detiauce of it, were it to pursue a similar course. Even in that age, the popes never went in temporal matters beyond public opinion. Thus the popes knew the distinction between excommunication and deposition, and while they asserted the former power upon all occasions, and in every age, over the mem- bers of the church, of which they were the leaders, they never pronounced a prince deposed except when they knew they only registered the public voice. Thus, so early as the sixteenth century, at the very foundation of our Saxon monarchy, the pontiir, to whom the Saxons owed their conversion, Gregory the Great, declared, " Si quis regum, sacerdotum, judicum, personarumque sajcularium banc constitutionis nostrie paginam agnoscens, contra eam venire tentaverit, pokstatis honorisqiie sui diijn'datc carcat, reumqne se divino judicio existere de perpetrata inifjuitate cognos- cat" (Greg. Epist., lib. xiii. ; Epid. viii. 9, 10). Thus Gregory Yli., having pro- nounced excommunication, declared deposition as the consequence, according to the law of the empire, knowing that public opinion supported that view. But as Voltaire points out in a subsequent case, the pontill' pronounced excommunication, but not depo.sition. " 11 est tres remanjuable que dans ces longues dissensions le pape Alexandre 111. qui avait fait souvent cette cdremonie d'excommunier I'empereur, n'alla jamais quisqu' ii le deposer." He adds, "Cette conduite ne prouve-t-elle pas non seulcmcnt beaucoup de sagesse dans ce pontifte; mais une condamnatione gene- rale des exces de Grdgorie VII." {Essai sur les Mveurs, tom. iii. c. xlviii.) ; but Vol- taire forgot that the popes well knew they had no proper power to depose, as they deemed they had to excommunicate, and that the deposition was another matter altogether, which must depend upon public opinion, and the circumstances of the times ; and he admits the sagacity of the pontiff" in the course which he pursued on the occasion. What, however, is most important is, that the popes knew and observed the distinction between the power of spiritual direction and power of temporal rule, which could only be derived from the consent of the state, and the general voice of the people ; and could only be properly exercised for their protection, or in support of justice, of liberty and of law. That it would, so far as it was so exercised, not be in opposition to, but in favour of, liberty and law, is admitted by Voltaire, and by the most enlightened historians of our own or any other country. Thus Voltaire says, speaking of the struggle between the pope and our Henry II., "L'intdret du genre humain demande iin frein qui retienue les souverains, et qui mette h, convert la vie des peuples. Ce frein de la religion aurait pu etre 2)ar une cotivention 7niirerselle dans la main des j7apes. Les premiers pontifes en ne se melant des querelles tcmpor- ellcs, que pour les appaiser, en avertissant les rois et les peuples de leurs devoirs, en reprcnant leurs crimes, en reservent les excommunications ]>our les grands attentats, auraient toujcnn-s etd regardes comme des images de Dieu sur la terre, mais les Inunmes sont reduits h, n'avoir pour leur de'fense que les lois et les mocurs de leurs pays, lois souvent me'prisdes, et mccurs la souvent corrompues '' {Essai sur les Maurs, tom. iii. c. i.) It has always been forgotten that, rightly or wrongly, the popes, in their contests with the emperor, always maintained and based their jurisdiction upon the fact, that the emperor had taken oaths of fidelity to them, and had contracted, owing to the peculiar relations of Italy and Germany, feudal obligations to them ; and the 112 WILLIAM I, TO HENRY II. [cHAP. II. Bologna, and was published under the title of Decretum : it was made in imitation of the Pandects, and was a digest of the whole 'pontifical canon law. This is a collection of opinions and deci- fact is beyond dispute, that the emperor did take oaths of fidelity to the popes, which are inserted in the " Decretum of Gratian," and to be found in the Corpus Juris Canonici, and this oath is admitted by Bossuet to imply at all events a great degree of obedience or submission. It is not material here whether the papacy was right or wrong in its view. The important point to keep in view, in its bearing on legal history, is, that the papacy always based its temporal jurisdiction upon this assump- tion, i.e., upon the assumption of an acknowledgment of it, just as the popes based their spiritual jurisdiction on the acknowledgment of it, and the recognition of them as the heads of the church. That the deposition of a sovereign was a consequence of liis excommunication was the general belief in this, as in every other country in that age. Thus, in the reign of Henry IL, John of Salisbury, whom Sir J. Mackintosh describes as far beyond his age in learning, and who was an attached friend and adviser of Archbishop h Becket, held that as an admitted principle, and so speaks of the pope as " Vicarius Petri, a Domino constitutus super gentes et super regna " {Joannes Salis., ep. 210; Bihlioth. Patnnn, tom. xxiii. ). Nay, more, kings them- selves — as our Henry among the number — admitted the jurisdiction, and only disputed its exercise ; this is manifest from the contemporary^ accounts left by that eminent prelate, or the letters of the archbishoj), for it appears that when Cardinal Gratian asserted it in his conferences with the king, the latter, so far from resenting or protesting against it, desired the council to testify his desire or reconciliation, " rex rogavit ut testificarentur vires quanta et qualia obtulerat, restitutionem scilicet archiepiscopatus et pacis " {Ep. FL, lib. iii. ep. 61). This being the view of the popes themselves, it is to be expected that they would also be the views of the compilers of these decretals, Ivo and Gratian, and so it is ; and these ancient authorities on the canon law base their doctrine as to the jurisdic- tion of the church, primarily, on its " directive'' authority, purely spiritual and volun- tary, and exercised only in foro conscientid', and, secondarily, on its recognition by the civil law itself {Ivonis Decretum, part v., c. 378). And in his letter to our Henry I., although he asserts that the temporal power ought to be subject to the spiritual, he shows his consciousness that, to the extent to which it is so, it must be the concession of the state. " Celsitudinem vestram ohsecrando monemus, quatenus in regno vohis commissi verhum Dei currere j^ei'mittatis, et regnum terrenum coelesti regno, quod ecclesise commissum est, subditum esse debere semper cogitetis; sicut enim sensus animalis subditus debet esse rationi, ita potestas terrena subdita esse debet ecclesiastico regimini" (Ivo de Chartrcs, epist. 101) — language which, no doubt, (naturally enough, in an age when ecclesiastics had all the knowledge) implies that the church represented the intellectual power of the age, and ought to be superior; but at the same time also implying that it could only be so by the concession of the state, and that it was not the prerogative of the church by divine right. So Gra- tian's doctrine is in substance the same {Gratiani Decretum, part i. dist. 96, c. x.). The contrary notion, founded on an isolated sentence — " A fidelitatis etiam jura- mento Eomanus pontifex nonnullos absolvit, cum aliquos h, sua dignitate de- ponit" {Ibid., causa xv., qutest. vi., c. iii.) — is disproved by the context, and the whole texture and tenor of the authorities he cites. So Hugo de St Victor, who thus distinguishes the temporal and spiritual powers : " Secundum causam justitia determinatur, ut videlicet negotia ssecularia h, potestate terrena, spiritualia vero et ecclesiastica, a spirituali potestate examinentur ; sa3cularis autem potestas caput habet regem, ab illo per subjectas potestates, et duces, et comites, et prajfectos, et magis- tratus alios descendens ; qui tamen omnes a prima potestate auctoritatem sumuut, in eo quod subjectis prajlati existant" {Ibid. c. viii.). The interest of all this here, and its bearing on the history of the English law is, that the doctrines thus laid down formed the basis of those denounced in the text, and were afterwards the subject of the great contest between the church and state in the reign of Henry II., which forms one of the most memorable epochs in our legal history ; and that much the same doctrines will be found laid down in Bracton, who, moi'C than any other ancient author, is regarded by Lord Coke himself as the parent of the Englisli law. Enough has now been stated to enable the reader to form a judgment upon that great con- troversy, and to appreciate the above observations of our author. All that he has to bear in mind, however, is, that the question as to the merits of that controversy CHAP. II.] THE CANON LAW. 113 sions, extracted from sayings of the fathers, canons of councils, and, above all, from decretal epistles of po))os ; all tendin?^ to exalt the clerical state, and to exempt the clergy from secular subor- depends not upon the ideas now entertained, hut upon those which wore entertained in the aL,'e in which it arose. So far from the canonical law or the writers upon it beiuLC so cxtrciiic in their view.s as is rej)reseiitc(l liy the author, tlie very canonist wlioni he cites as the ciiief cxijounder of tlie extrava;^ant d(jctriucs he denounces — Ivo of Ciiartres — vindicated tiie right of tlie pope to pronounce the sentence of ex- communication against sovereigns, as founded on the laws of the state, as well as of tlie church (Ivonis Decrctum, part v. c. ccclxxviii.). And in his letter to our Henry I., already quoted, this eminent prelate only puts it upon the ground of tlie union between tlie church and tlie state, and of liberty allowed to the church to carry out its discijiline in a country where tlie church and its dis- cipline are acknowledged. And while he implies the subordination of the temporal to the spiritual, in the sense of what theologians call the directive power, he says not a word which implies a jurisdiction of divine right over temporalities ; but teaches that this is founded on divine and human laws (fro dc Chartrex, epist. lOtj). All this, it is evident, was not understood by the author, in whose exaggerated representation may be observed tlie influence of prejudice, arising from that cause. It is in very dilFcrent language Hallam writes. Speaking of the civil law, he says : " Some of tlie more ancient ecclesiastics, as llincmar, and Ivo of Chartrcs, occasionally refer to it, and bear witness to the regard which the Koman church had uniformly paid to its decisions" (Midd. Afjcs, c. viii.). And our author himself says, a little further on, that the canon law was founded on the civil. Not having read the laM's of Henry I., he was not aware that not only, as Hale say.s, they " had a taste of the canon and civil law," but that whole passages arc taken from the canon law — that is, the later canon law, which he denounces as so full of what was '• extravagant," though Hale had observed nothing in those laws to provoke animadver- sion ; and the compilation forms the foundation for the great treatise of Glanville, the basis of our common law. The foundation of the canon law is laid in the decrees of councils, and in the rescripts, or decretal epistles of the popes to questions pro- pounded upon emergent doubts relative to matters of discipline and ecclesiastical economy. As the jurisdiction of the spiritual tribunals increased, and extended to a variety of persons and causes, it became almost necessary to establish a uniform system for the regulation of their decisions. After several more compilations had appeareci, Gratian, an Italian monk, published, about the year 1140, his Decrctum, or general collection of canons, papal epistles, and sentences of fathers, arranged and digested into titles and chapters, in imitation of the Pandects, which, very little before, had began to be studied with great diligence (Midd. Ages, c. vii.). But he adds that Gregory IX. caused the five books of decretals to be published in 1234, and that these form the most essential part of the canon law, the Bccretum of Gratian being obsolete. " In these books," he says, "we find a regular and copious system of juris- prudence, derived in great degree from the civil law, but with considerable devia- tion, and possibly improvement" (Ibid.). And a sixth was afterwards added, con- taining subsequent decisions. Of the body of canon law, Hallam observes : " The superiority of the ecclesiastical to temporal power, or, at least, the absolute inde- pendence of the former, may be considered the key-note which regulates it," and then he cites several passages, which, it may be presumed, were about the strongest he could select, by every one of which, it will be seen, the proposition is limited to spiritual or ecclesiastical matters. " Constitutiones principum fcc/e.v/o.s'i'/c/.v consti- tutionibus, non prajeminent, sed obsequuntur" (Dec, dist. 10.) " Statutum gencrale laicorumaf^ ecclcsias vel ad ecclesiasticasj>erso7ias vef corum bona, in eorum pr.TJudicum non extenditur " (Decretal, 1. i. tit. ii. c. x.). " Qurccunque ii principibus in ordinihus vel in cedes iasticis rebus decreta inveniuntur, nullius auctoritatis esse monstrantur" (bccretum, dist. 96). The historian gives his readers the opportunity of observing this by quoting the terms of the decretals. And although he goes on to say, '• It is expressly declared that subjects owe no allegiance to an excommunicated lord, if, after admonition, he be not reconciled to the church," and cites the following rubric from the decretals (i. 5, tit. xxxvii. c. xii.) :— " Domino cxcommunicata manente subditi fidelitatcm non debent ; ctsi longo tempore in ea pcrstitercnt, ct monitus non pareat ecclesiic, ab ejus debito absnivuntur" — the historian has the candour to add : " 1 must acknowledge that the decretal epistle of the Tope scarcely warrants this H 114 WILLIAM I. TO HENRY II. [CHAP, II dination. The applause this book received from the see of Rome aud the clergy, raised it soon above all former collections ; and i' became the grand code of ecclesiastical law, upon which the popish hierarchy rested all its hopes and pretensions. The canon and civil law had before been studied and professed by the same persons ; and the union of these two laws was now drawn closer. The canon law was from the beginning under great obligations to the civil ; the very form in which it now appeared was evidently borrowed from thence ; and whatever was most excellent in it, was acknowledged to be copied from that model (a). general proposition of the rubric, though it seems to lead to it." And though he quotes another rubric: — "Papa imperatorem deponere potest, ex causis legilimis" (c. ii. tit. xiii. c. 2), he adds, " The rubrics to the decretals are not, perhaps, of direct authority as part of the law, but thej' express its sense." And no doubt, at the period now in question, these papal pretensions were maintained. But then they were maintained, in the first place, as against sovereigns, who professed to be subject to the Koman see, as members of the itomau church, of which that see was the head, and who acknowledged the autiiority of the pope as the vicegerent of Christ ; and, in the next place, these pretensions were entirely in accordance with national law, and proceeded upon premises laid down in that law. This has already been amply shown, so far as regards this country, from the Saxon laws, in which the authority of the pope is recognised in many ways : by the payment of Peter's pence, or Rome's fee, as it was called, which is enforced all through the Saxon laws up to the Conquest; by recognition of the papal authority, not only in matters in their nature ecclesiastical, at variance with secular law, but even as regards the clergy, in matters in their own nature properly municipal : as in cases of murder by a priest ; and, in short, by his being practically and expressly recog- nised as the supreme spiritual authority. All that was done in the most extreme or extravagant pretensions of the canon law, with respect to papal or civil authority, was simply to carry out these premises, granted by municipal law itself, to their ex- treme logical conclusions. And no authority can be found (it is believed) for any such pretensions, except as to states which had made such concessions and laid down such premises. Whence it is that, in modern times, when such principles are not admitted, we hear of no such pretensions. But it is most imi^ortant, in forming a judgment upon the acts or conduct of men in distant times, to take into considera- tion the circumstances under which they took place; and in judging of the contests between the civil and ecclesiastical power at this period, it is necessary to bear in mind the j^remises admitted at the time on both sides, which the author has failed to observe. (a) It may be of interest here to present an analj'sis of the canon law, or of the contents of the decretals, their chief and most authentic source, from which may be derived, in some degree, a just idea of their nature, and also how far our own laws may have derived advantage therefrom. Lord Hale states, as to the laws of Henry I., that they have a "taste " of the canon law. He might have gone further, and said that entire passages are taken therefrom, and that large portions — most of that which relates to the important subject of the jjrinciples of procedure, were founded thereon ; and further, that these laws form the basis of the treatises of Glanville, Bracton, and the Mirror (if Justice, the most authentic sources of our own law. So that the author, in deriding or denouncing the canon law (of which it has been shown he knew little or nothing), was really deriding and denouncing the sources whence our own law, in a great degree, was derived. The canon law was simply the civil law adapted to the use of a country acknowledging the Koman church as the head. The first book of the decretals treats, in the first place, therefore, of the doctrines of that church, the acknowledgment of which is presumed and supposed to be the basis of all the rest. It was in forgetfulness of this that the fundamental fallacy of our author lay. Tlie canon law professes, at the outset, to be the canon law of countries which acknowledge the lioman church. The next book treats of rescripts, constitutions, and customs, and their authority ; then the law as to election, confirmation, and consecration of bishops, the resignation or renunciation of benefices, aud other purely ecclesiastical matters ; then as to discipline CIIAr. II.] THE CANON LAW. 115 These two systems now became so connected, and in so near a def^ree of relation, that a learned writer says, the one could not subsist without the other. They afforded each other a mutual of the clergy.^ Next there comes a head of ecclesiastical law, which formed the basis of our law of legal terms ; and that was the law as to the Pux Dei w Pax L'ccleake — the peace of the ciiurch— i.e. , sacred period.s, during which war or litif/ation ought not to he allowed, and which the ecclesiastical authorities, tijerefore, were to procure to be observed, so far as it was p(jssible for them to do so ; and accordiiiglv. in order to enforce ob.servancc of these periods or intervals, thej- were to issue excommuni- cations against those — that is, members of the lioman church — who failed to observe them. It may here be observed that excommunication, as the plirase itself implies, was simply a putting out of communion — i.e., the communion of the Komaii church ; whence, of course, it followed that it did not cj'j'/'j, except to members of that church, nor (iji'cit those who did not care to be so. Under tiiis purely spiritual penalty, the periods of the peace of the church were observed ; and during those periods, neither priests nor laymen, nor ehartnien nor rustics, either going to the field, or being in the field, or coming from the field (the origin of our legal phrase as to privilege from arrest — cundo et redcundo), or the cattle with which they ploughed, could be arrested or seized. Again, it was laid down to be the duty of judges, before men entered into a lawsuit, to persuade the parties by private covenants and agreements, to compound the controversy between them; and this, there is little doubt, led to the devising of fines, or concords in court, which became used in the time of Henry J., and which the learned Hargreave considered were originally real concords of really existing suits. So also, there can be little doubt that this led to the encour- agement of arbitration in our courts, which is to be observed from the very earliest records of these proceedings. Various rules and principles are laid down a.^ to arbitrations and arbitrators, which form the basis of our rules of law upon the sub ject. And be it observed, that for a century or two after the Conquest, during which our law was moulded, the chancellors and chief judges were ecclesiastics, and took their ideas of luxe from these very rolumes noio under aiicdysis. Again, if, pend- ing a suit, a party alienated away the subject-matter, he was nevertheless held liable to answer for it as though he were still owner of it ; and this, again, formed the basis of our rules of law or equity as to lis pendens, or fraudulent alienations, pending a suit. In short, the greater portion of this first book of the Decretals deals, and deals admirably, with the subject of litigation. The second book expountls the principles of j>rocedure and judicature, a competent court, a prcptr citation, and declaration of the cause of suit. Then came the "exceptions," a phrase borrowed from the Roman civil law, and from the civil and canonical law, adopted by our earliest legal authors — Glanville, Bracton, and the iiy/rco?', and in the statute of Westm. Then the nature and the order of rights is laid down : as, that rights or causes which convey possession — causes "possessory," as they were and arc called— :)re firi't to be determined before a right of property, and that he who has been forcibly expelled from or deprived of property, is first to be restored to the thing or place of which he has been thus deprived, even although he has no other than a possessor's right, and has not the right of property — a principle founded upon the doctrine of the lioman law, which has already been noticed, and forming the basis of our whole law of disseisin or forcible dispossession of property, of wliich the possessor can obtain restitution irrespective of actual strict right. Then, as to the procedure for the elimination of the question in dispute ; if the facts were admitted, then, it was pointed out, it became a question of law for the judge, and not a question of fact; and the judge, upon the admitted facts, was to pronounce judgment — a principle, that of the separation of the law from the fact, which, as Sir James Jlackintosii observed, formed the basis of our whole system of procedure, and which, he adds, it is impossible not to admire [Hist. Eruj., v. i.) ; althougii it is true, that afterwards, under /(///judges, often so ignorant as to mistake technicality for sulitlety, the sys- tem was ratlier perverted. If the facts were not admitted, then they were to be determined by witnesses, instead of by the absurd ordeal or the brutal duel, and after proofs on either side, judgment was to be given on the facts thus ascertained, with provision for appeal. With some alterations as to the mode of taking evidence, this system formed the basis of our system of trial, superadding the jury in common law cases, though not, until ages later, making them judges of evidence, not mere witnesses; while, in some of our courts, the canonical system of trial continued until 116 WILLIAM I. TO HENRY II. [CHAP. 11. support ; tlicy had the same professors ; and it was requisite to the fame and preferment of a churchman, that he should be both a civiUan and a canonist. When these two hiws were brought into this high repute, Vacarius came into Engknd, and, a.d. 1149, towards the end of Stephen's reign began to read lectures, at Oxford, on the canon and civil law. Upon this an alarm was raised, and the king, apprehensive of the consequences to which these new doctrines might lead, in the year 1152, or thereabouts, is said to have forbid the reading of books of the canon law^ («) ; a prohibition that could not be meant to extend to that canon law which had long been admitted and ratified, but probably only to the novel and bold opinions contained in the collection of Ivo de Chartres, and more particularly in that lately made by Gratian. Indeed the use of the canon law became now a subject of very serious consideration. The canons before admitted here were very ancient ; many of them had received a legislative sanction, and_ by long continuance they had ingrafted themselves into the constitu- tion of the country ; but a set of opinions entirely new was advanced by the publication of the Decretum, which, from the parade of the our own time. The third book of the Decretal.? treats of such civil matters and causes as were deemed to be triable in the ecclesiastical court.s— as the conduct of ecclesiastics, non-residence, and the like. So it treats of the possessions of the church, and when they may be alienated, &c. It treats also of wills and testaments, and of succession in cases of intestacy ; of tithes and of first-fruits ; of the right of patronage, &c. And it is laid down that ecclesiastical persons are not to trouble themselves about civil matters, contrary to their office and profession ; in accordance with which, under Henry II., Archbishop A'Becket gave up the chancellorship; and the Roman see objected strongly to ecclesiastics taking poli- tical and judicial office, although in an age when few of the laity were com- petent for civil offices, it was necessarily, to a great extent, tolerated that eccle- siastics should hold them. The fourth book treats of matters matrimonial, and of legitimacy, as to which the canon law Avas assumed to be that marriage legi- timated previous issue. The fifth book treats of such criminal matters as are dealt with in the ecclesiastical courts, expounding offences according to their moral and religious aspect, as in foro conscientia;. The decrees— that is, general, not made at any suit— were first collected by Ivo of Chartres, a.d. 1114, and were completed by Gratian in 1149. The first volume of the Decretals, which were royal epistles at the suit or instance of some party for the determination of any controversy, were put forth in 1231, and ordered to be read in schools. The second was half a century later ; but, as our author elsewhere observes, many of the decrees or decretals had obtained currency long before they were collected. {a) But Seklen, recording this, adds—" Sed parum valuit Stephani prohibitis nam eo magis invaluit virtus legis, Deo favente, quo eum amplius nitebatur impietas subvertere," {Dissert, ad Flet., c. vii., p. 6). And Sir J. Mackintosh says, that "the civil law was taught with applause by Vacarius, as we are told by his pupil, John of Salisbury— the friend of liecket, distinguished in the learning of the age," (History of England, v. i.). And elsewhere the historian speaks with just contempt of Stephen as " a captain of banditti " {Ihid., StcpL). That the study of the law should have been forbidden by such a man, is its highest praise. Mr Hallam's account of the matter is this : " The students of scholastic theology opposed themselves, from gome unexplained reason, to this new jurisprudence, and these lectures were pro- hibited'' {Midd. Ayes. c. viii.). The prohibition, doubtless, arose from that jealousy which was incident to an ignorant age ; the name of the Roman law associating it with the pretensions of the papal power, which began to be viewed with hostility. ' Joh. Salisb. de nug. curia. CHAP. II.] THE CANON LAW. 117 work and the support it received from the see of Rome, had the appearance of a promulgation of laws imposed on the Christian world by the sole and supreme authority of the pope. Fi'om a question on the utiUfy, as it had been before in some respects, it became now a question upon the autlioritij of these laws.i The contest between the secular and ecclesiastical state was thencefor- ward more violent, as the points upon which it arose were more important. Notwithstanding the prohibition of king Stephen, the study of the civil and canon law was universally promoted by the clergy. Educated in opinions calculated to promote the benefit and emolu- ment of their own order, it was not much to be wondered, that they struck in with the designs of the pope, and stood firmly upon the maintenance of their own i)retended rights and privileges. The active spirit of the clergy did not want instruments to work with : the body of canon law lately published by Graf km furnished authority and arguments for every species of usurpation. The doctrines of the canon law, as delivered in the Decrefum, tended to mark more strongly the distinction betw^een Doctrines of the clergy and laity, and the great deference due to the ^^■^^^^^ ^'^^• former. It is there laid down, that a custom against the decree of a pope is void ; and that all men must observe the pope's com- mand (a). It is made an anathema to sue a clergyman before a lay judge; if a lay judge condemn or destroy a clerk, he is to be excommunicated ; a clerk may implead a layman before what judge he pleases ; judges who compel a clerk to answer to a suit before them, shall be excommunicated ; a layman cannot give evi- dence against a clerk ; with numberless extravagancies of the same kind (b). Such notions did the canonists propagate for law re- specting churchmen, in the reigns of Henry II., of Richard, and of John. Indeed it was not till these doctrines had generally prevailed, (ff) That is, all members of the Roman church, who acknowledge him as the head of their church, and in matters which involve religious or ecclesiastical questions. These important qualifications are omitted by the author, and make all the differ- ence in the world. That a custom, against a decree of the pope, should have been held void, in a country acknowledging the pope as the head of its church, Avas only natural, seeing that the papal decrees were only upon such matters in which religious questions or ecclesiastical interests were involved. There would surely have been an absurd inconsistency in holding, in such a country, that a custom, contraiT to what the head of its church declared on such subject, was nevertheless valid. (h) " Extravagancies," nevertheless, to be found in the Saxon laws, as already has been shown, and all of which, except so far as expressly altered, were repeatedly con- firmed at the Conquest. It is obvious that in that age they were not considered "extravagancies," and that is the important point. That they would be so now is certain, for many reasons; but there is no greater extravagance of absurdity than making the ideas, the circumstances, the impressions of a modern age the standard or the measure of another and a distant age. Yet this form of fallacy is prevalent in most histories of the middle ages. That it has been even to some extent avoided by such writers as Sir J. Mackintosh and Mr Hallam, is one of the greatest of their many merits. But it was not always avoided by our author. 1 Litt. Hen. II. vol. ii. 471. 118 WILLIAM I. TO HENRY II. [CHAP. IT. that the separate establishment of ecclesiastical judicature gained much strength. It was not till the iniblication of the Decretum, and the growing authority of the canons had given some order, consistence, and stability to spiritual government, that the exclu- sive jurisdiction of these courts was an object of very important consideration, or that their claims were urged to any great extent. Some causes, apparently clerical, had continued to hang about the temporal courts, particularly those concerning tithes ; which, being the issues of freehold property, and so partaking of its nature, could hardly be considered as merely spiritual.^ Accord- ingly such pleas were held both in the ecclesiastical and temporal courts till the time of Henry II. After that, tithes came under the notice of our courts of common law only in an indirect proceeding ; such as on prohibitions, writs of right of advowson, or hj scire facias,^ an ancient proceeding since abolished by parliament.-^ The pre- rogatives of the hierarchy, and the jurisdiction of the ecclesiastical courts assisted each other in extending their influence. The courts grew in authority and the bishops rose in their pretensions. Amongst other attempts to aggrandise themselves, the clergy did not omit so valuable a subject of acquisition as benefices. A benefice, being an eleemosynary provision for a person who offici- ated in the discharge of religious duties, was originally in the sole disposal of the founder, and was conferred, like other donations, by investiture ; but the bishops, as having the su])erintendence over 6j)iritual things, claimed a right of control over these gifts (a). (a) This is not a correct representation. The bishops claimed what they had always had, the right of appointing the clergy, just as the pope, as the head of the church, claimed the right of appointing the bishops, on the general principle that these offices were all pastoral, and purely spiritual. Nor was this claim disputed until they had long become the subject of endowments, nor even then, until after the feudal system had become firmly established ; and it was then insisted that the tem- poralities were benefices, or were fiefs, in the feudal sense, and subject to feudal inci- dents, one of which was the right of the crown, or the patron, to confer them (so as to secure a veto upon the appointment), and also to have the custody of them when vacant, so that by combining the veto with the power of possession during vacancy, the king might secure the possession of the temporalities until he coerced the pope into the appointment of some corrupt prelate, with whom he could make his own arrangements as regarded the inferior clergy. What they would come to, no one ■with the least knowledge of history can doubt ; and it is thus described by Sir J. Mackintosh: "The power of nomination (for such it was) had been converted by secular powers into an indecent and scandalous means of raising money, by setting up for sale the dignities and benefices of the church" {Hist, of Eng., vol. i., p. 147). This, the historian says, was the result of the claim of the king, which " involved a previous negative on every choice, and, in efiect, amounted to the ecclesiastical patronage of Europe" (Ibid.). So Mr Hallam says — "The sovereigns, the lay patrons, the prelates, made their powers of nomination and investiture subservient to the grossest rapacity," to which be ought to have added, the prelates appointed by the sovereign; the great object was the struggle, on the part of the sovereign, to get control over the appointment of the bishops, so as to be enabled to obtain, by corrupt arrangement with them, control over the appointment of the clergj'. And this, indeed, was the next important feature in the matter ; for, of course, to have all Christendom covered with a corrupt and ignorant clergy, would have been de- structive of Christianity. And Mr Hallam says — "Through bribery, or through 1 Seld. Tithes, 387. ' lUd. 422. ' By Stat. Ed. IIL CHAP. II.] ECCLESIASTICAL JURISDICTION. 119 Tliis occasioned a contest between patrons and the bishops for many years ; till at length the ancient way of investiture entirely ceased about the rei<^ns of kings Kichard and John, and lay-jiatrons became obliged first to present their clerks to the bishop, who, according to his discretion, gave them i7istilutionA A like method of filling vacant bishoi)rics was claimed by the pope ; but the corrupt agreements with princes, a large proportion of the bishops had no valid tenure in their sees. Tho cane was perhaps u-orse icilh the inferior clerks" (Midd. Af/e», c. v.). As to the importance of the (luestion, therefore, there gun be no doubt; neither can there be any doubt in the mind of any lawyer as to the utter absence of any pretence for the claim set up by tlie sovereigns. This can be sliown in many ways. The shortest and clearest way, perliaps, is to refer to the general principle already alluded to, that these offices were pastoral and purely spiritual, and that by the constitution of any country acknowledging the Itoman church, and the pope as the head of it, and a.'i the supreme pastor, the nomination of episcopal pastora must pertain to him, and of parochial pastors to the bisliop.s. And, as already noticed, this claim was not disputed, until some time after the Conquest, nor until after the establishment of the feudal system, when the grossest oppressions and exactions took place ; as was noticed and acknowledged in the Le;jes llenrici Primi — " Quia regnum oppressum erat, injustis exactionibus :— ego sanctam Deo ecclesiam liberam facio, ita quod nee vendam, ncc ad firmam ponam : nee, mortui archiepiscopo sice episcopo, vel abbate, aliquid accipiam de dominio ecclesiw donee suceessor in earn iii'jrcdiatur" (Anylo-Snxon Lav^, vol. i. p. 4lt8). So that it is certain, as it is solemnly recited in a legal record, that these things had been done by the Conqueror and his sons ; the voice of contemporary history (in the chronicles) also abundantly attests it, and it there appears that, as above stated, kings set up a claim to practise upoa the endowments of the church the same exactions and oppressions which they practised on the other estates of the realm, upon the pretence that the feudal principles applied. That this pretence was false and unfounded, has already been shown from Littleton, who, long after these controversies was over, laid it down as undoubted law, that in tenure by frankalmoigne (which is the tenure of bishoiirics and other benefices), there is no temporal service due at all, as the service is pmrely spiritual. And, as already has been shown, the whole scope and tenor of the Saxon law was to leave to the church the control of whiit was spiritual. It is fully admitted by all the writers who uphold the royal claim now, and is implied by our author in his use of the feudal word, investiture, that it was based upon feudal principles, and, therefore, was unfounded. The pretence that because the endowment was tcmjioral, the benefice became no less clearly fallacious, for it was a well-known maxim that the principal draws it to the accessory, not the accessory the principal. And this, in fact, was the whole point of the question, whether the spiritual was to yield to the temporal, or the temporal to the spiritual. Of course, the rapacious sovereigns who ravened after church spoil, and kept sees vacant in order to enjoy it, or to force the pope to sanction the appointment of corrupt men, who would allow them to share the plunder of the diocese, and farm ont benefices to the highest bidders; of course theydeemed the temporalities themost important, and cared little for the spiritualities. But the original donors, who were not merel)' sovereigns, but multitudes of other persons (as the statutes state), gave the endowments in aid of the spiritualities and in support of the church, not for her enslavement and subjection. They gave to the church as she then existed — viz., free, and under the spiritual care of her pastors ; and it would be irrational to suppose that they meant their donations to be the founda- tion of future usurpations. That, therefore, which the author, unaware of the contents of Henry I.'s charter, represents as an innovation introduced in the reigns of Richard and John, had been the original usage, and had been wrongly violated by the Conqueror and his sons, as Henry I. confessed. It will l)e apparent that the great, the fundamental question was as to the appointment of the bishops ; for if the king could either appoint them at his pleasure or keep the temporalities of the sees in his hands until his nominee was admitted, the whole of the diocese would virtually be in his hands; and such kincs as then reigned were capable, aa the chronicles show, of any amount of corruption, plunder, or oppression, 1 Seld. Tithes, 3S3. 120 WILLIAM I. TO HENRY II. [cHAP. IT. spirited resistance of some of our kings defeated all his at- tempts ; though, as usual, he never receded from the pretended right. The appointment, however, to bishoprics, was, to a degree, put under the control of the pope (a). In the time of Henry I. a bishop elect was to receive investiture of his temporalties from the king, of whom all bishops held their lands as baronies {h). This was performed by the king's delivering to the bishop a ring and crosier, as symbols of his spiritual marriage to the church and of his pas- toral office ; and hence called investiture |ier annidum et baculum: after this the bishop used to do homage to the king, as to his liege lord. But that king finding it expedient to give way to the de- mands of the pope (c), resigned this power and ceremony of inves- titure, and only required that bishops should do homage for their temporalties : and king John, to obtain the protection of the pope, was contented to give up, by charter, to all monasteries and cathe- drals, the free right of electing their prelates, whether abbots or bishops. He reserved only to the crown the custody of the temporalties during the vacancy; the form of granting a licence to proceed to election (since called a conge delire), on refusal whereof the electors might make their election without it ; and the right of approbation afterwards, which was not to be denied with- out a reasonable and lawful cause (cZ). This grant was expressly recognised and confirmed by king John's Magna Chaiia ; was again established by stat. 25 Ed. III. st. 6, c. 3 ; and continued the law and practice till the time of Henry VIII. To return to the progress of ecclesiastical judicature. There were two subjects of jurisdiction which the spiritual court gradu- ally drew to itself and endeavoured to appropriate : these were (a) Had always been so, as the charter of Henry I. admits, of which the author was not aware, vide cmte. (b) Not so at all. Quite the contrary. There was the fallacy. The baronies were held on secular tenure, which was feudal ; the bishoprics were held on spiritual tenure, which was not feudal. Thus Littleton says — " They who hold in frank- almoigne shall do no fealty to their lord, because the very words exclude the lord to have any earthly or temporal service, but to have only divine and spiritual service," (c. vi.). Glanville had laid down the same law, under Henry II. (c) The charter of Henry I. has been already quoted, in which he acknowledges that his claims had been abominable and oppressive exactious. He had kept bishoprics vacant, in order to exact money, or the admission of his own nominees. Of course he cared not about the ceremony ; it was the power of nomination and the right of patronage, which he strove to obtain, for the sake of these exactions. (d) Thus, then, after all, the position taken by the church has been admitted to have been in substance right ; for at this moment, even in this country, the letter of the law allows of free clerical choice in the election of bishops ; and if the law is only a dead letter, it is only because, by reason of the separation from Kome, there is no supreme ecclesiastical authority to whom the clerical choice can be referred, and all authority is virtually merged in the royal prerogative.' In the period re- ferred to, however, the papal supremacy was in full force, and was acknowledged by the law and constitutions of this country ; and, therefore, as it is at this moment admitted that the election of a bishop ought to be a matter of free clerical choice, it is admitted that it is properly of a spiritual nature, and, therefore, according to the principles of the period in question, the papal claim was right. CHAP. II.] ECCLESIASTICAL JUDICATURE. 121 marricu/es and toills ; which latter led to the cognizance of lega- cies, and the disposal of intestates effects. Marriage, being a contract dictated and sanctioned by the law of nature, and entitling the parties to certain civil rights, seems to have nothing in it of s[)irituul cognizance ; but the church of Piorne having converted it into a sacrament, it became entirely a si)iritual contract, and as such lell naturally within the ecclesiastical juris- diction, very soon after its separation from the secular court ; it followed almost of consequence («), that the spiritual court should likewise determine questions of legiliniaci/ and bastard//. (a) All this is put as if it arose about tlie same time. " The jurisdiction over matri- monial causes granted to bishops by Christian emperors was a very natural conse- (juence of the religious rites with which marriage was solemnised, and the character of a sacrament, or eminently sacred rite, attributed to tiiat important union " (Mack- intosh's J/ id. Kri'j., vol. i. p. 2(i8). The rite of marriage was certainly, as Sir J. Mackintosh says, considered of the most sacred character from the earliest times in this country, for in tiie Penitential of Theodore it is said, " Presbyter debet messam agcre et benedicere ambos, sicut in libro sacramentorum continetur" {Pen. Tlieod. c. xvii. s. 0). At the same time, it is curious that there is in that same Penetential this remarkable provision, " Si mulier discesserit a viro suo, despiciens cum, nolens revertere et reconciliare viro, post v. annos, cum consensu episcopi ; ipse aliam acci- piat uxorcm " {Ihid. c. xix. s. 23). There is no doubt, however, that any Roman counsel or canonist would condemn this as unsound ; and it is well known that the whole spirit of the Roman system is, and always was, to treat marriage as sacred, and indeed sacramental ; and the union ;u3 indissoluble. This being so, it was surely very natural that it should be deemed (^f ecclesiastical cognizance. It is to be observed that in the Mirror of Jadice marriage is treated as a con- tract, but one perpetual (c. ii. s. 27), indissoluble (c. iii. s. 5), and of ecclesiastical cognizance. " A contract is a speech between two parties that a thing is to be done, of which there are many kinds, whereof .so we are, perpetual, as those of matrimony " (c. ii. s. 27). " And note that matrimony is the lawful order of joining together of a Christian man and woman, by their assents ; and as of the deity and humanity of Christ, there is made an indisxolublc unity, so was matrimony, and according to such unity was such coupling found to be; and therefore none can remain in that unity who takes to himself a plurality" (c. iii. s. 5). It is added that bigamy is triable in the lay court ; but if the jury doubt thereof, in the case of a clerk, tlien the ordi- nary is to certify the same as in the case of matrimony, when it is denied {Ibid.). It is very remarkable that it appears from the Saxon laws, and from this part of the Mirror (which is evidently as old as the Saxon time), that priests were allowed to marry, for it is said that a clerk's claim of privilege might be met by showing that he was " bigamous," either by having twice married, or by having married two wives at the same time (Ibid.). And it is plainly implied that his merehj hariiuj married would be no offence. And in the Saxon laws there appears no prohibition of clerical marriages ; the language of the Saxon canons on the subject rather imply the legality of such marriages, for it is put rather as a matter of continence becoming to the sacred state, than of utter disability to contract marriage, " Lex continentite est altaris rainistris qute episcopisaut prcsby teris, qui cum essent laici, licete uxorcs ducere et filios proereare potuerunt, sed cum ad prajdictos gradus pervenerint, co^pit eis non licere quod licuit. Unde et de carnali ht spirituale connubium. Oportet eos nee dc- mittere uxores, et quasi non habeant sic habere, quo salva sit charitas connubiorum et cesset operatio nuptiarum " (Capit. Theod., Anr/.-Sax. Laus, v. ii. p. 74). In the canons indeed it was laid down that if a priest married, he should forfeit his order, " Si presbyter vel diaconus uxorem duxerit, perdat ordinem suum ; et si postea fornicati fuerunt, non solum online priventur, sed ctiam jejunent juxta scntentiani episcopi" {Pen. Eijb. lib. iii. c. 1 ; Auf/.-S((x. Lawn, v. ii. p. 11'7) ; but this appears to imply that the marriage was valid, or why should it be a deprivation of the order ^ and the prohibition of intercourse would be mere penitential discipline. In the Institutes of Polittj it is said that marriage is not allowed to the clergy {Ibid. p. 335) ; but then afterwards it is said that a priest's wife is a snare {Ibid., p. 337). In the Saxoa ecclesiastical laws there are repeated declarations that the clergy ought not to 122 WILLIAM I. TO HENRY II. [(.HAP. II. Cases of wills and intestacy, as they were, in their nature, less Probate of allied to the spiritual function, did not entirely sub- wiiis. mit to the ecclesiastial jurisdiction. It appears from Glanville, that in the reign of Henry II. the jurisdiction of personal legacies was in the temporal courts.-^ But notwithstanding this, if "there was a question in the temporal court, whether a testament was a true one or not ; whether it was duly made, or whether the thing demanded was really bequeathed ; such plea was to be heard and determined by the court christian ; because, says our author, all pleas upon testaments are properly cognizable before the ecclesi- astical judge. '^ Thus, the validity of a testament, or the bequest of a legacy, was to be certified by the spiritual court : nevertheless, as in cases of bastardy the court christian did nothing more than answer the mere question, whether bastard or not, and the conse- quence of descent and title was left to be determined at common law ; so were the consequences of a testament, as the recovery and payment of legacies, to be heard and determined in the temporal courts. By the manner in which Glanville speaks of the probate of wills, it seems as if that course of authenticating wills had been long in use. The beginning, or steps, by which this innovation established itself, it is not easy to trace (a) : it lies buried in that obscurity which involves not only the origin of our municipal customs, but the encroachments gradually made upon them by the civil and canon law. When the ecclesiastical court had once the probate of wills, it appeared no very great enlargement of jurisdiction to add the power of enforcing the execution of them, in payment of legacies. But there are no testimonies of those times that warrant us to con- clude, that this had generally obtained before the reign of Henry III.-3 It seems doubtful, whether the mode used by the Saxons for the distribution of the estates oiintestates continued during the whole of this period. A law of Henry I. says, that upon a person dying intestate, those who were entitled to succeed should divide his marry (Can. Ecd. Laws, c. 1 ; Any. -Sax. Laios, v. i. p. 365) ; but it is doubtful -whether bj' the secular law the marriages were illegal and void. It was undoubtedly considered indecent, and a cause of deprivation. But the Mirror appears to imply that a clerk might be married legally. (a) On the contrary, it is perfectly eas}', when reference is made to the Roman law, which had long ago provided a regular mode of authenticating wills, doubtless established in this country during their occupation, and virtually the same as that found adopted here; the courts of the bishops being substituted as the places of registry, for the obvious reason that in those days ecclesiastics were the only persons who could read and write. The existence of a custom in some manors for the lord to have the registry is easily explained, either by the supposition that the manor atone time belonged to ecclesiastics, or that the lord had the exceptional endowment of being able to read and write, and so acquired this privilege. In some of our most ancient cities, as York and Loudon, there are customs as to wills, probably as old as the Romans. 1 Lib. 7, c. 6, 7. * Ibid. ' Seld. Works, vol. iu. 1C72. CHAP. II ] TESTAMENTS AND INTESTACY. 123 effects pro animd ejus (a). This is the first mention in our law of a disposition of an intestate's etiects for the benefit of his soul ; but there is no mention of the control or intermeddlin). This clause, it is said, was word for word in the charter 9 Hen. 111. and is to be seen in several manuscripts of it ;^ but being left out of the exemplification of this charter on the roll 25 Ed. 1., from which is co[)ied the BIcigna Charta in our statute books, it is not now found there. The provision was probably inserted by the contrivance of the bishops, who, with Pandolfo, the pope's nuncio, were with John at Eunnymede (c). There was not wanting col- our for a provision like this ; for as the statute of Henry 1. before alluded to, had expressly said, that the distribution was to be 2^ro animd intcstati, the bishops seemed, by their holy function, to be best qualified to see this office performed with fidelity. Hence it was that, in after-times, this power was delegated by the ordinary to the next of kin, in letters or otherwise ; an authority grounded upon these words of the charter, 2)cr visum ecclesice ;' though there are no documents that assure us this law was put in force during the reign of king John. In the reign of Stephen the clergy began to draw into the (a) There was no such law ; and if there had been, it could not have been carried out consistentlj- with canon law, which requires that the obligations of justice should first be satisfied before those of piety. The " law of Henry" was the charter of that king, recognising and promising to observe the law of the land settled long before the Conquest, and recognised in the laws of Canute, that the effects of an estate should, in certain proportions, be divided amon'j his relcdions" (Lavss of Canute, s. 73). This meaning, of course, his available effects, after payment of debts. " Si quis preventus, peeuniam suam non dcdcrit nee dare disposuerit, uxor sua, sive liberi earn pro anima ejus diridant, siciit cis melius visum futrif' (Lce/cs Hen. Prim., c. i. p. 7). That is, divide his effects according to what in their judgment would be riglit and proper, and for the benefit of his soul ; and according to canon law and common 8en.se this would imply that they, his nearest relations, should have the reasonable share the law allowed them. And no one will doubt that they took proper care of their own interest. Then tlie charter of John conceded, in pursuance of the charter of Henry, and in order to secure to the relatives their due share of the cftccts : " Si aliquis liber homo intestatus decesserit, catalla sua per manus propinquorum paren- tum et amicorum suorum, per visum ccclesite, distrihuantur : salvis unicumque dcbitis quce defuuctus ei debebat" {Charter of John, c. 27). That is to say, that the effects, after payment of debts, sliould be distributed according to lau; that law being, that the greater part, as Glanville states, should be distributed among the relatives, and the residue be applicable for the benefit of the soul of the deceased, according to the ideas and the belief of that age ; but this, after paj'ment of just debts. (b) Here, again, the charter was not so. It was that the effects should be distri- buted among the relatives as provided by law, vide supra. (c) A provision for distribution of the effects according to law, vide supra. 1 Seld. Works, vol. iii. 1C76. ' Ibid. 1679. 124 WILLIAM I. TO HENRY IL [CHAP. XL spiritual court the trial of persons pro Icesione fidei^ that is, for breach of faith in civil contracts. By means of this they took cognizance of many matters of contract which belonged properly to the temporal court. This was the boldest stretch which that tribunal ever made to extend its authority, and would, in time, have drawn within its jurisdiction most of the transactions of man- kind. The pretence on which they founded this claim was pro- bably this : that oaths and faith solemnly plighted being of a religious nature, the breach of them more properly belonged to the spiritual than to the lay tribunal. The circumstances of the times tended very much to encourage the clergy in their scheme of opposition to the secular power. The provision for the clergy was in those days very precarious, and left them at the mercy of their patrons. Being, in general, from their function, considered as a sacred body of people, when oppressed and ill-treated by potent lords, they drew the compassion of many, and particularly the support of their bishops ; who, in their turn, receiving as little favour from kings, were continually increasing their store of merit with the sovereign pontiff by the many struggles they engaged in on their own account, and on account of their inferior brethren. The pope, no ungrateful sovereign, always dis- tinguished his zeal in supporting his bishops, as they did in sup- porting the lower clergy ; till the several orders of ecclesiastics, united in a common cause, and sharpened against the laity by long contention, encouraged each other, by every motive of defence and aggrandisement, to contribute in their stations to promote the power of the church. The pope having made use of the bishops to gain and govern the clergy, united all their powers to establish a dominion over the laity ; and no occasion was let pass in which any of them could snatch an advantage (a). Henry I. being seated on the throne by a doubtful title, thought it prudent to gain the clerical part of his subjects by some conces- sessions (h). Stephen, who owed his authority entirely to them, (a) All this is mere general assertion, not founded upon any authority, nor sup- ported by any, and the value of it may be estimated from the degree of verity to be found in the next statement. (6) So far from it, that as he himself acknowledged, there had been great oppres- sions and exactions, and he only promised not to continue them, " Quia regnum Anglia oppressum erat, iiijustis exactionibus; ego sanctam Dei ecclesiam liberam facio, ita quod nee vendam nee ad firmam pouam ; nee, mortuo archiepiseopo, sive episcopo aliquid aliquam de dominio ecclesite donee successor in earn ingrediatur. Et omnes males consuetudines qualis regnum Anglia opprimebantur, inde aufero " {Leges Hen- rlc'i Primi, 1). But how far he kept his promise, let contemporary history tell. When Rufus died, says William of Malmesbury, three bishoprics were in his hands ; in a few years Henry had^i'c. And when after the controversy about investiture he yielded, so far from acting upon considerations of policy, the chronicler states that he had held out mainly in consequence of the persuasions of his nobles, who, of course, were desirous of prolonging the reign of ravage and rapine. Upon the relin- quishment by the king of his unfounded claim, no less that five bishops were conse- crated, whose sees had been kept vacant in order to enable the king to plunder their temporalities {William of 3Ialmeshur)j, b. ii., a.d. 1107). CHAP. II.] ECCLESIASTICAL CONSTITUTIONS. 125 went further (a). By these means they acquired such confirmed stren,£;th and hal)itual reverence from the people, that notwith- standinf^ all the power of Henry II., and the spirit with which he asserted his sovereij^nty and independence, the contest he had with Becket tended to an issue directly contrary to that which he liad promised himself; so that, alter some concessions and connivance, to which lie submitted in fits of repentance, his reign ended in a firm establisliment of the clergy in most of their extraordinary claims of privilege and jurisdiction. The contest that Henry II. had with Becket concerning the limits of ecclesiastical power, fills up a great part of that king's reign. To give weight to his side of the contest, and, instead of de))ating, to effect a clear decision, Henry procured an act of the legislature formally enacting the principal points of controversy for which he contended (b). This was the famous Constitutions of Clarendon. (a) Went mucli further in exaction and oppression. Sir J. Mackintosh terms him a captain of banditti {Hist. £ng.). He plundered tiic church without mercy. {b) The autlior liere, as Henry had done, begged the wliole question, and, like the king, would decide the case without debating it. It is impossible to form a judgment upon the merits of this most memorable controversy, merely by looking at these Con.stitu- tions, without attending to the previous events. This would be necessary even if the Constitutions could really be considered as in the nature of a statute or an act of parliament. For though they would of course determine the question as a matter of Jaw, that would still leave the question open as a matter of legal history, what was their real nature and origin, and what their real meaning, and whether they were aa alteration of the law or not. But whether they were indeed of the nature of a statute, or were rather a mere device of a despotic monarch to give the colour of authority to his aggressive tyranny, is a question which itself must depend upon all the surrounding facts and circumstances of the case. And the iirst thing to carry clearly and carefully in mind is this, as in any other legal controversy, what was the state of the law when the controversy arose ? The next thing is to have a clear knowledge of the facts, so far as they throw any light upon the controversy. Now, as to the law, the reader has the means of forming a judgment by referring back to those copious quotations from the Saxon laws which have already been given, and which were all confirmed by the Conqueror and his successor, Henry I., especially as to the rights and liberties of the church. This is of the more importance, because the archbishop was of Saxon origin, and would no doubt have a strong attachment to the laws of his Saxon ancestors. By those laws, in a legal point of view, he must be judged. Mackintosh, with characteristic candour, appears to allow that the only way to judge fairly of Becket is to put ourselves as much as possible in the position in which he was at the time of these events, and admit that the archbishop sincerely supposed and believed that he was in the right as to the law of the land at the time. It is to be observed that Becket, before he was archbishop, had been eight years chancellor, and that he had also acted for years as justiciary (Foss's Lives of Judgfs, vol. i. p. 198), and that under his auspices the administration of justice had greatly improved (Ibid). It is manifest that such a man must have known the Saxon laws, and the charters confirming them, and of course was well aware of what had taken place in the reign of Henry I., when the rights of the church as to the episcopate were established. That being so, the probability is that he would know what the law was ; and, at all events, it is manifest that to enable us to judge of his conduct, the first great question is ^rhat the law was ? This the reader can judge for himself from the citations already given; and it need only be said that it is conceived they show that the law was clear that the church should be free — that is, free in her elections, and free in her sentences, and free from all secular jurisdiction. Contro- versies had, however, arisen between the crown and the church in the reign of Henry I. as to the right of the crown to give investiture of bishoprics, on the pretence that they were baronies, and so held of the crown, like feudal benefices. The eflect of 126 WILLIAM L TO HENRY IL [CHAP. IL At a great council held at Clarendon, a.d. 1164, in the 10th Constitutions jear of his reign a code of laws was brought forward of oiaieudon. fjy the king, uudcr the title of the ancient customs of the realm ; and as Becket had solemnly promised he would observe this -would have been to give the crown virtually the control over the episcopate, as it could exercise a reto upon any election by refusing investiture, and thus keep sees vacant for any time. And as the crown claimed and exercised the right of custody of vacant sees, and received and enjoyed all the temporalities, it is manifest that there was the strongest motive to abuse the power thus claimed ; nor is there any doubt that, as a fact in history, it was so abused. After a great struggle, in the reign of Henry I. the claim of investiture was relinquished by the crown, but it still claimed the right of custody of vacant sees. What that law was has been shown, and the reader can refer back to the statement of it, and see how far it recognised the canon law and the rights of the church. It is most natural to refer also to the terms of the charters, as to the church, and especially as to its bishoprics. The charter of Henry I. acknowledged that the church and the country had been oppressed by most grievous extortions, especially in the selling of bishoprics or benefices : " Quia regnum oppressum erat injustis exactionibus, ego sanctam ecclesiam liberam faciam ita quod nee rciuhan, nee ad firmam ponam, nee, mortuo archicpiscopo sive episcopo, vel abbate, aliquid accepiam de dominio ecclesiiB, donee successor in earn ingrediatur" (c. 1). This was a confession that the Conqueror and his sons had interfered with the liberties of the church, and had made the vacancies of sees the occasion of enormous oppressio:;s and exactions. It was also a distinct acknowledgment that these prac- tices were illegal. Thus the liberty of the church meant, and that is included, liberty to proceed to give elections of bishops, so as to put an end to vacancies in the sees, appears from subsequent charters. That of Stephen declared, " I promise to do nothing in the church or in ecclesiastical affairs simonically, nor will I permit it to be done. I defend and confirm that the power, possessions, and dignities of ecclesiastical persons, and all clerks, and the distribution of their goods, shall be in the hands of the bishops. And I grant and establish that the dignities of churches, confirmed by this privilege and the ancient customs, shall remain inviolable " (See Blackstone's C7tarto-s). Then Stephen granted a further charter of all those liberties and good laws and customs which Henry 1. had granted, and which were held in the time of king Edward. Then Henry II. himself had granted a charter, which was in these terms: " I have granted, and restored, and confirmed to the church all the customs which kin"- Henry I. gave and granted to them, and abolished all evil customs which he abol- ishecl, and I will that the church do have and hold all usages, liberties, and free customs as freely and fully as he granted to them," so that there had been under the Conqueror and his" successors certain usages introduced contrary to the ancient usages, and con- trary to the law. And closely connected with, and indeed disclosed in the charters, are the facts of history to which they had reference, that the Norman sovereigns had been in the habit of keeping sees vaeant in order to enjoy their temporalities, and to extort money for the liberty to come to an election, or even assent to the nomination of a corrupt and vicious prelate, who would be willing to collude with the king in the plunder and corruption of his diocese. It is an undoubted fact that Henry and his predecessors thus held sees vacant — sometimes as many as five or six at a time — and plundered them meanwhile (Lmgard's Eag. Hist., v. i. c. 3), and in the inter- vals, valuable possessions of the church were alienated to royal favourites. It appears, ho-wever, that so soon as A'Becket was made archbishop, he showed himself resolute in recovering the lost possessions of the cliurch, and that he at once claimed a barony belonging to his see, which had for some time been in the possession of one of the king's most powerful and favoured vassals. If this claim had not been warranted by law, it could and would have been contested, and as it was not, it may be presumed that it was valid. The archbishop also presented to a living (of Eynsford) belonging to a manor which, beyond all doubt, belonged to his see ; the fact is admitted by Hume (Hid. Eng., v. i. c. 8, p. 34), and it appears from the record of the great suit by the archbishop of Canterbury in the time of the Con- (jueror, to which allusion has been made more than once (ride ante. p. 81). One of the king's military tenants who had possession of the manor forcibly expelled the presentee, pretending to be patron. Whether he was so or not, however, is not material, for of course the forcible ejection of the archbishop's nominee was not a CHAP. II.] ECCLESIASTICAL CONSTITUTIONS. 127 what were really such, the king procured the principal propositions in dispute to be enacted, and declared by the council under that denomi nation. Nothing will enable us to judge so well of the pre- l)roper way of deciding a question of cimrch patronage, and was, moreover, a high contempt of the head of his church. The archbishop accordingly excommunicated liim : tlie king sent orders to the arciihisiioi) to talvc the sentence ofl". The arch- bishop refused, replying that it was not for the king to prescribe whom he should or should not excommunicate. No one who has given the least attention to the laws of that time can doubt that the arclibishop was rif,'ht. The refusal, however, it is clear from the result, greatly offended the monarch, and he soon afterwards seized upon another ground of dispute, in which lie was ecjuuUy in the wrong ; and in which his object— as his suljse([uent conduct showed — was to acquire greater power over the clergy. In the time of the archbishop's predecessor, one of the priests of his province had been accused of homicide, and tried before his bishop, according to the law still in force. One of the king's justices in circuit took occasion, the priest Ijeing in court, to denounce him as a murderer : the priest uttered expressions of anger and contempt, for which he was tried, and severely punished. The king, however, then insisted that henceforth the clergy should, after they had been first degraded by the sentence of the spiritual judge, be afterwards delivered over to the lay tribunal to be tried according to the secular law. This, it is plain, would be an alteration of the law, and the king's language, as Lingard observes, in making it, showed that he knew it was so— " Peto et volo ut tuo, Domine Cantuarensis, et coepiscoporum tuorum consilio." And it was obvious that it would hare enabled him easily — by means of servile judges — to get rid of an obnoxious prelate. The prelates objected, on the double ground that it would be punish- ing a man twice for the same ofTence, and that it would be placing the English clergy in a dillerent position from that which the cleruy occupied all over Europe. It was then that the king demanded of them if they would observe " the ancient customs of the realm." This, as Lingard observes, was a captious (piestion, for it left all open what were the " customs" intended ; and it might be tliat what the king intended were the evil customs as to the church, which the Conqueror and his sons had introduced, and which Henry I. had renounced, and there is abundant reason to believe that this was so, from the very nature of the demand, from the circum- stances under which it was made, and from what soon afterwards followed. The demand had no reference to the immediate subject of dispute, the jurisdiction over clerks, for it was not pretended that there had been any custom upon that matter at all in favour of the claim to lay jurisdiction. There had, however, been customs — evil customs though they had been admitted to be — which had for some time been in existence, though again and again renounced, and these customs were of immense practical importance to the king; while the jurisdiction over clerks was probably a matter of little concern to him. For the efl'ect of these customs, it will have been seen, was, that the king kept sees vacant for the sake of plundering the temporalities, and also of enforcing the admission of corrupt and servile prelates who might connive at his doing so. The controversy with the archbishop, be it observed, had begun with his endeavour to recover the temporalities of his see. The king would, no doubt, foresee that such a man was likely to prove an independent and determined antagonist in any plans of church-spoliation he might contemplate, and therefore it would be of the most vital importance to the king to commit the prelates, and especially the archbishop, to some vague admission of customs which might appear to cover their encroachment. Moreover, the actual facts and circumstances of the time show that this was really what the king was aiming at, for it appears that he had in his hands, a few years after this, an archbishopric, five bishoprics, and three abbeys ; and a few years later, no less than seven bishoprics, and an archbishopric, besides several abbeys, and had divided the greater part of one of the bishoprics among his knights (Lingard, Hist. Enrj., v. ii. c. 3). This was exactly the course the Conqueror and his sons had pursued, and was the very course Henry I. had renounced ; it was grossly illegal, yet it might, perhaps w-ith some colour, be pretended that it was a custom. There can be no doubt, therefore, that it was this the kin? was aiming at, and it affords an explanation of his sudden demand on the prelates for a recognition of his customs. The prelates replied that they could only assent, saving the rights of their order ; an answer which, of course, foiled the wily monarch, lie was enraged, and at last extorted an assent to the customs, and a council was 128 WILLIAM I. TO HENRY II. [CHAP. II. tensions of the clergy, as a perusal of these Constitutions •, they shall therefore be stated at length. They are contained in sixteen articles ; ten of which were considered by the see of Kome as so hostile to the rights of the clergy, that pope Alexander in full con- sistory passed a solemn condemnation on them ; the other six he tolerated 7iot as good, hut less evil. These six articles were the 2d, 6th, 11th, 13th, 14th, and IGth. The 2d, Churches belonging to the see of our lord the king can- not be given away in perpetuity, without the consent and grant of the king. 6th, Laymen ought not to be accused, unless by certain and legal accusers and witnesses, in presence of the bishop, so as that the archdeacon may not lose his right, nor anything which should thereby accrue to him ; and if the offending persons be such as none will or dare accuse them, the sheriff, being thereto required by the bishop, shall swear twelve lawful men of the vicinage or town before the bishop, to declare the truth according to their conscience. 11th, Archbishops, bishops, and all dignified clergy- men,! who hold of the king and chief, have their possessions from the king as a barony, and answer thereupon to the king's justices and officers, and follow and perform all royal customs and rights, and, like other barons, ought to be present at the trials of the king's court, with the barons, till the judgment proceeds to loss of mem- bers, or death. 13th, If any nobleman of the realm shall forcibly summoned at Clarendon, at which these customs were drawn up, and one of them was, that the custody of every vacant Ushopric, archbishojiric, or abbey should be given, and its revenues, during the occupancy, paid to the king, and that the election ought to be by the king's writ: the efiect of wliich was to establish the vicious and pernicious practice renounced by Henry I., and to enable the king to keep sees vacant as long as he pleased, thus receiving the revenues all the time, which of course would be the strongest inducement to prolong the vacancy. Then it was claimed that the pro- ceedings of the clergymen should be in the king's court, an undoubted innovation. So of the next, that there should be no excommunication of any of the king's prin- cipal tenants or officers without application to him, which, of course, deprived the church of its only weapon of defence against the greatest plunderers of the age, and was also an undoubted innovation on the ancient law, which left the bishops full power of excommunication. Two other articles were directed against appeals to the see of Kome, and another gave the king's courts jurisdiction in various ecclesiastical matters, advowsons, &c. The archbishops, not at first apparently understanding them, signed the Constitutions ; but the pope disallowed most of them, and the arch- bishop then resisted. It may be of interest to present the archbishop's view of the question, conveyed in a letter to the king : "Ecclesia Dei in duobus constat ordinibus, clero et populo. In clero sunt apostoli, apostoliciviri ; episcopi, et cceteri doctores ecclesias, quibus cummissa est cura et regnum ipsius ecclesia} : qui tractare babent negotia eccleslastica : ut totium reducatur ad salutem animarum. In populo sunt rea7^iiim, so often found in writings of this period. Successive attempts gradually introduced jurors to the exclusion of the sedafores (c); their determination, among others, trial by jury ; the jurors of cases being in those days »io« judges, but witnesses. It followed, that if it happened that no suitors had any knowledge of the matter, there could be no jurors; for jurors were sworn to declare the truth of their own knowledge. Hence, iu criminal cases, the resort to the ordeal ia the absence of jurors, or compurgators; hence, in civil cases, the care taken to provide jurors by having witnesses for all transactions, who might afterwards be jurors. Hence, also, in cases where, from their nature, there could not be certain personal knowledge, or only from uncertain memory, as in cases of claims of land, resting on past events, at some distance of time ; suits in the county court would be determined more by clamour or partisanship, tiian by evidence or consideration. (a) And it is one of the most curious instances of the extreme antiquity of judicial forms of expression, and the evidence they afford of ancient usages, that until recently the phrase used as to trial by jury in civil cases (and it still is so in criminal cases), was, that the party put himself upon the country — i.e., the county, or the men of the county. This is a relic of that ancient jurisdiction of the county court, out of which, by a course of change which has been amply described, the trial by jury arose. And when the jury was first used, as the general body of the freeholders, the suitors were the judges, and the jurors were only witnesses ; the record would continue to state that the case was determined by the men of the county. The author failed to observe this, and hence draws a totally wrong inference from the fact that the records so state it. As it did so in cases where there are known to have been juries, of course it affords no evidence that juries were not used even where the fact is not known. (b) Here, again, we observe that the author had fallen into some confusion upon this subject. The suitors did not try the cases, they w^ere the judges, and they resorted to various modes of trial; of which trial by jurors was one— the jurors being any of their own body who had knowledge of the matter, and were sworn to declare the truth about it. Hence trial by jurors did not, as the author supposes, exclude the suitors, and was for ages used at county courts. (c) Jurors did not exclude the suitors ; the suitors were judges, the jurors witnesses. 3 Bib. Cott. Faustina, A. 3, 11, 31. ^ Hickes Thes. Diss. Ep. 36. CEAr. II.] TRIAL BY THE ASSIZE. 139 and a variety of practice, no doubt, prevailed till the Norman law was tliorouf^hly established.! It was not till the reign of Henry II. tluit the trial by Jurors became general ; and by that time, the king's itinerant courts, in Avhich tliere were no p«)-e.9 curias {a), had attracted so many of the county causes, that the scciaiorcs were rarely called into action.- The sudden progress then made in bringing this trial into common use, must be attributed to the law enacted by of trial by that king. As this law has not come down to us, we ^^^"^ ussi/'X'. arc ignorant at what part of his reign it was })assed, and what was the precise extent of its regulation : we can only collect such intimation as is given us by contemporary authorities, the chief of which is Glanvillc, who makes frecpient allusion to it. It is called by him assisa, as all laws then were, and regalis constiiulio ; at other times, regale quoddam bene/icium, clementid 'principis de concilio proceruvi popuUs indidtum. It seems as if this law ordained, that all questions of seisin of land should be tried by a recognition of twelve good and lawful men, sworn to speak the truth ; and also that in questions of rvjlit to land, the tenant might elect to have the matter tried by twelve good and lawful knights instead of the duel. It appears that some incidental })oints in a cause, that were neither questions of mere rigid, nor of seisin of land, were tried by a recognition of twelve men ; and we find that in all these cases, the proceeding was called j^er assisam, and per recognitionem ; and the persons com]iosing it were called juratores, jurati, recognitores assisce ; and collectively assisa, and recogniiio : only the twelve jurors in questions of right were dis- tinguished with the appellation of magna assisa ; probably because they were hiigids, and were brought together also with more ceremony, being not summoned immediately by tlic shcrilF, as the others were, but elected by four knights, who for that ])urpose had been before summoned by the sherilF. We are also told, that the law by which these proceedings were directed, had ordained a very heavy penalty on jurors who were convicted of having sworn falsely in any of the above instances.-"^ Thus far of one species of this trial by twelve men, which was called assisa. It likewise appears, that the oath of twelve jurors (a) Wliat tlie author means is, tliat tlic suitors as judges were superseded by the king's justices, who still held their courts in the counties, and either in the old county court assemblies, or at special assemblies of the counties, and by the Icing's commis- sions. So enduring is custom, and so closely did the people cling to the idea that the body of the freeholders were judges, tliat it was not until the reign of Kichard II. they were actually excluded from the bench where the king's justices sat. ^ The following law of Henry I. seem to be in support of the ancient usage. Uiuts- quif(juc PER PAUKS SUDS judicandus est, et cjusdcm provincice ; peregkina ixro judicia modia omnibus sulimoreinus. Leg. 31. 2 Persons of a new character, under the name of secta, and scctntores, in a subsequent period, made a necessary part of most actions brought in the king's courts, as will be seen hereafter. 3 Glanv. lib. 13, c. 1 ; lib. 2, c. 7, 19, 140 WILLIAM I. TO HENRY IL [CHAP. II. was resorted to in other instances than those provided for by this famous law of Henry II. and then this i)roceeding was said to be 2)er Juratam patrue, or vicineti, per inquisitionem, per Juramentum legalium hominum. This proceeding by jury was no other than that which we before mentioned to have gained ground by usage and custom. This was sometimes used in questions of property ; but it should seem, more frequently in matters of a criminal nature. The earliest mention of a trial by jury, that bears a near resem- blance to that which this proceeding became in after times, is in the Constitutions of Clarendon, before spoken of. It is there directed, that, should nobody appear to accuse an offender before the archdeacon, then the sheriff, at the request of the bishop, /ac/e^ jurare duodccha legcdcs homines de vicmeto, seu de vdld quod inde verifatem secundum conscientiam suain mcmifestahunt.^ The first notice of any recognition, or assise, is likewise in these Constitu- tions ; where it is directed, that, should a question arise, whether land was lay or ecclesiastical property, recognitione duodecim Jegcdium liomimim, per capitcUis justitice consider ationem, termin- abitur, tdrilm, &c. ;2 this was a.d. llG-t. Again, in the statute of Northampton, a.d. 1176 (which is said to be a republication of some statutes made at Clai-endon, perhaps at the same time the before-mentioned provisions were made about ecclesiastical matters), the justices are directed, in case a lord should deny to the heir the seisin of his deceased ancestor, faciant inde Jieri recognitionem pter duodecim legcdes homines, qualem seisinam defunctus inde habuit die qudfiiit vivus et mortuus ; and also facicmt fieri recognitionem de disseisinis factis super assisam, tempore quo the king came into England, after the peace made between him and his son. We see here, very plainly described, three of the assises of which so much will be said hereafter ; the assisa utrilm foedum sit laicuni an ecclesiasticum ; the assisa mortis antecessoris ; and the assisa novce disseisinoi. Again, in the statute of Northampton there is men- tion of a person rectatus de murdro per sacramentum duodecim militmn de hundredo, and per sacramentum duodecim liberorum legalium hominum,. Thus have we endeavoured to trace the origin and history of the trial by tiuelve men sivorn to speak the truth, down to the time of Glanville : a further account of it we shall defer, till we come to speak more minutely of the proceedings of courts at tliis time. Another novelty introduced by the Normans, was the practice of making deeds with seals of wax and other ceremonies.^ The variety of deeds which soon after the Conquest were brought into use, and the divers ways in which they were applied for the purpose of transferring, modifying, or contirming rights, deserve a very particular notice. Deeds or writings, from the time of the Conquest, were some- 1 Ch. G. 2 Ch. y. 3 wilk. Leg. Sax. 289. CHAP. II.] DEEDS OF CHARTER. 141 times called chirogvaplia, but more gcneriilly cZ/roVw ; the latter became a term of more common use, and so continued for many years ; the former rather denoted a species of the charfce, as will be seen presently. Charters were executed with various circum- stances of solemnity, which it will be necessary to consider : these were the seal, indenting-, date, attestation, and direction, or com- pellation. Ciiarters were sometimes brought into court ; either the king's, or the county, hundred, or other court, or into any numerous assembly ; and there the act of making, or acknowledging and j)er- fecting the charter was performed. This accounts for the number of witnessess often found to old charters, with the very common addition of cum multls aliis. When charters were not executed in this public manner, they were usually attested by men of character and consequence : in the country, by gentlemen and clergymen ; in cities and towns, by the mayor, bailiff, or some other civil oflftcer.i The Anglo-Saxon practice of affixing the cross still continued ; yet was not so frequent as before ; but gave way to a method which more commonly obtained after the Conquest, namely, that of aflix- ing a seal of loax. Seals of wax were of various coloui's. They were commonly round or oval, and were fixed to a label of parch- ment, or to a silk string fastened to the fold at the bottom of the charter, or to a slip of the jmrchment cut from the bottom of the deed, and made pendulous. Besides the princii)al seal there was sometimes a counter-seal, being the private seal of the party. If a man had not his own seal, or if his own seal was not well known, he would use that of another ; and sometimes, for better security, he would use both his own and that of some other better known. The original method of indenting was this. If a writing con- sisted of two parts, the whole tenor of it w^as written twice upon the same piece of parchment ; and, between the contents of each ])art, the word cliirogrcvphuni was written in capital letters, and after- wards was cut through in the midst of those letters ; so that, when the two parts were separated, one would exhibit one half of the capital letters, and one the other ; and when joined, the word would appear entire. Such a charter w^as called chirographum. About the reigns of Richard and John, another fashion of cutting the word chiwgntjihum came into use ; it was then sometimes done indent-ivise, with an acute or sharp incision, instardcntiton ;^ and from thence such deeds were called indenti(rcv. Charters were somtimes dated, and very commonly they had no date at all ; but as they were always executed in the presence of somebody, and often in the presence of many, the names of the witnesses were inserted, and constituted a particular clause, called his testibus. The names of the witnesses were written by the clerk who drew the deed, and not by the witnesses themselves, who veiy ' Mad. Form. Diss 2G. » Ihid. 14. 28, 29. 142 WILLIAM I. TO HENRY II. [CHAP. II. often could not write. It seems tliat wives were sometimes wit- nesses to deeds made by their husbands ; monks and other relij^ious persons to deeds made by their own houses ; even the king is found as witness to the charters of private men ;i and in the time of Kichard and John, it came in practice for him to attest his own cliarters himself in the words teste meipso.^ ' Charters were usually conceived in the style of a letter, and, at the beginning, they had a sort of direction, or compellation. These were various. In royal charters, it was sometimes, omnibus hominibiis suis Francis d' Anglis : in private ones, sometimes, omnibus sanctce ecdesice filiis ; but more commonly, sciant prce- sentcs etfuturi, or omnibus ad quos prcesentes literce, &c. Thus far of the circumstances and solemnities attending the execution of cliarters. Let us now consider the different kinds of them ; and it will be found, that as tliey were called chirograpJia, or indent urce, from their particular fashion, so they received other appellations, expressive of their effect and design. A charter was sometimes called conventio, concordia, Jinalis concordia, and fjialis conventio. There were also feoffments, demises for life and for years, exchanges, mortgages, partitions, releases, and confirmations? Conventio and concordia had both the same meaning, and signi- fied some agreement, according to which one of the parties con- veyed or confirmed to the other any lands, or other rights. Of all charters the most considerable was o. feoffment. After the time of the Conquest, whenever land was to be passed Of feoffment. .^ ^^^^ -^ ^^^^ generally done by feoffment and delivery or livery of seisin. 4 This might be without deed ; but the gift was usually put into writing, and such instrument was called cJiarta feoffamenti. A feoffment originally meant the grant of a feud or/ee; that is, a barony or knight's fee, for which certain ser- vices were due from the feoffee to the feoffor : this was the proper sense of the word : but by custom it came afterwards to signify also a grant of a free i7ilierilance to a man and his heirs, referring rather to the perpetuity of estate than to the feudal tenure. The words of donation were generally, dedisse, concessisse, confirmdsse, or donctsse, some one or other of them. It was very late, and not till the reign of Kichard II. that the specific term /eq/^at)i was used. These feoffments were made pro liomagio et servitio, to hold of the feoffor and his heirs, or of the chief lord. At this early period feoffments were very unsettled in point of form; they had not the several parts which, in after times, they Avere expected regularly to contain. The words of limitation, to convey a fee, whether absolute or conditional, were divers. A limitation of the former was sometimes worded thus : to the feof- fee et suis ; or suis post ipsum, jure hcereditario perpetue possi- dendum ; or sibi et Jueredibus suis vel assignatis : of the latter thus : sibi et Jueredibus procedentibus ex pra3dictd : liichardo et uxori su(b 1 Mad. Foi-m. Diss. 31. ' Ihid. 32. = Ihld. 3. * Wilk. Leg. Sax. 2S9. CHAP. II.] FEOFFMENTS. 143 et hcerecULus suis, qui de eddein veniunt : sihi et koeredihas qui de illo exibunt: from wliich divers ways of limiting estates (and num- berless other ways might be produced) it must be concluded, that no specific form had been agreed on as necessarily requisite to express a specific estate ; but the intention of the granter was col- lected, as well as could be, from the terms in which he had chosen to convey his moaning.i It ai)pears that a charter of feoffment was sometimes made by a feme covert, though generally with the consent of the husband ; and a husband sometimes made a feoffment to his wife. A feoff- ment was sometimes expressed to be made with the assent of the feoffor's wife ; 2 or of such a one, heir 3 of the feoffor ; or of more than one, heirs of the feoffor ; ^ though in such cases, the charter a[)pears to be sealed only by the feoffor. ]3y the assent of the wife, probably, her claim of dower was in those days held to be barred ; and indeed, when such feoffment was made publicly in court, it had the notoriety of a fine ; and might consistently enough with modern notions, be allowed the efficacy since attributed to fines in the like cases. The assent of the heirs was, probably, where the land had descended from the ancestor of the feoffor ; or where by usage it retained the property of locland, not to be aliened extra cognat'onein, without the consent of the heir, where such restric- tion had been imposed by the original landhoc. A clause of ivarranty was always inserted ; which sometimes, too, had the additional sanction of an oath. The import of this warranty was, that should the feoffee be evicted of the lands given, the feoffor should rccomi^ense him with others of equal value.^ A charter of feoffment was not a comi)lete transfer of the in- heritance, unless followed by livery of seisin. This was done in various ways ; as per f astern, i^er haculum, j)^^" haspam, jjer annulinn, and by other symbols, either peculiarly significant in themselves, or accommodated by use, or designation of the parties, to denote a transmutation of possession from the feoffor to the feoffee. Tliis was the nature of a feoffment with livery of seisin, as prac- tised in these early times. It was the usual and most solemn way of passing inheritances in land ; but yet was not of so great authority as a fine, which had the additional sanction of a record to preserve the memory of it. The anti(piity of fines has been spoken of by many writers («). Some have gone so for as to assert their existence and use in the time of the Saxons. *5 But upon a strict in- ' °*^' quiry, it is said, there were no fines, properly so called, before the (o) Of this there can be no doubt. Mr Harccreavc's opinion also, that fines were originally real concords of existing suits, is clearly well founded. There is a chapter in the Alu-rur about final concords of suits. At what period they became used for 1 TVilk. Leg. Sax. 5. « Mad. Form. MS. » Tbid. 316. * Mad. Form. 31'J. » Ibid. 7. • Plowd. 3G0. 144 WILLIAM I. TO HENRY II. [CHAP. 11. Conquest, though they are frequently met wiUi l soon after that period.2 We shall now consider the manner in which fines have been treated, or, as it is now called, levied. The account of fines giv^en by Glanville does not enable us to fix any precise idea of the method of transacting them. It only ajipears from him, that this proceeding was a final concord made by licence of the king, or his justices,^ in the king's court. But the nature of a fine may be better collected from the more simple manner in which it was originally conducted. The parties having come to an agreement concerning the matters in dispute, and having thereupon mutually sealed a chirograplium, containing the terms of their agreement, used to come into the king's court in person, or by attorney, and there acknowledge the concord before the justices : it was thereupon, after payment of a fine, en- rolled immediately, and a counterpart delivered to each of the parties.'* This was the most ancient way of passing a fine. In course of time, fines came to be passed with a chirographum, upon a placifmn commenced by original writ, as in a writ of covenant, ivarrrantia charke, or other writ. When the mutual sealing of a chirographum was entirely disused, there still remained a footstep of this ancient practice ; for there continues to this day in every fine a chirograph, as it is called, which is reputed as essentially neces- sary to evidence that a fine has been levied. The design of final concords seems to have been anciently as various as the matters of litigation or agreement among men. By fines Avere made grants of land in fee, releases, exchanges, par- the purpose of transfer or conveyance, irrespective of any real concord of a suit, is uncertain; but there is every reason to believe that it would occur very readily to the minds of people in that early age, when the tendency was to have everything recorded. A law of Canute says, " He who has defended land with the witness of the shire {i.e., the county court), let him have it undisputed," which might suggest recovery; and in the laws of Henry I. it is said, speaking of the county court, " Eecordationem curia) regis nuUi negare licet" (c. xxxi.), which might easily suggest the idea of fines or recoveries, in. the Saxon law mention is more than once made of trans- actions being attested in the county court. Tliere was a particular reason why fines or recoveries should be of very early origin in our law, that the great body of the people held their land then without deeds or charter of conveyance. This is fully explained in the Mirror, in a passage, the antiquity of which is evident. It is said there that the first conquerors enfeoifed persons in knight-service, or villenage (no mention is made of freehold feoffments), and that many held their lands by villein customs — as to plough, &c., the lord's land. The lords might give them estates of inheritance, or if the lord received their homage for such estates, it would be the same thing. Thus the people, it is said, had no charters, deeds, nor muniments of their lands; but it is said many fines were levied of such services, which make mention of the doing of these services {Mirror, c. ii. s. 25). It would be natural in such a state of society to resort rather to public transactions in the county courts than to formal conveyances. J Mad. Form. Diss. 7. " The origin of fines is very fully considered by Mr Cruise, in his valuable Essay on Fines, wlio thinks, and with great show of reason, that fines were contrived in imitation of a similar judicial transaction in the civil law. — Cruise's Fines, p. 5. ' Lib. viii. c. 1. * Mad. Form. Diss. 14. CHAP II.] OF WRITS. 145 titions, or any convention veliiting to land, or otlicr riglits : in a word, everytliin<^ might be transacted by fine whicli might be done by chirographum} Thus far of the two great conveyances in practice for transfer- ring estates of inheritance, namely, feoffments and fines. The maimer in which estates for life or for years (since called demises) were made, was in the way of convention or covenant.^ Two <^*ther S2)ecics of conv^eyance then used were confirmations and releases. In those unsettled times, when feoffees were fre- quently disseised upon some suggestion of dormant claims, charters of confirmation were in great request. ]\Iany confirmations used to be made by the feoffor to the feofl'ee, or to his heirs or successors. Tenants in those times hardly tliought themselves safe against great lords who were their feoffors, unless they had repeated confir- mations from them or their heirs, lleleases were as necessary from hostile claimants, as confirmations from feoffors. The words of confirmation were dedi, concessi, or confirmavi ; and such deeds are distinguishable from original feoffments, only by some expres- sions referring to a former feoffment. Uchascs are known Ijy the words qtiietum ckonavi, ronisi, relaxavi, and the like. During the time which had elapsed since the Conquest, the Norman law had sufficient opportunity to mix with all parts of our Saxon customs. This change was not confined to the article of tenures, duel, juries, and conveyances. The manner in which justice was administered makes a distinguished part of the new jurisprudence. In the Saxon times, all suits were commenced by the simple act of the plaintiff lodging his complaint with the officer of the court where the cause was to be heard ; and this still continued in the county and other inferior courts of the old consti- tution. But when it had become usual to remove suits out of these inferior courts, or of beginning them more frequently in the king's court, it became necessary to agree upon some settled forms of precepts applicable to the purpose of compelling defendants to answer the charge alleged by plain- tiffs (a). Such a precept was called hreve ; probably, because it (a) King's writs indicate the jurisdiction of king's courts, for in the count}' courts men could sue without writs, which were only required to commence actions in the king's superior courts. The usage of such writs, therefore, marks an important era in our legal history. As already shown, the primary jurisdiction, after or before the Conquest, in common suits between party and party, was in the county court, which was called "curia regis" (Leges Hen. Prim.) And hence the Mirror, in an early chapter, headed, " Of the lime of Alfred," gives as the form of remedial writ, a writ to the sheriff to compel him to decide the case and do justice. In a subsequent chapter, however, .stating what the law was at the time the book was compiled (Edward I.), it is said, "There are two kinds of jurisdiction, ordinary and assigned ; everyone hath ordinary jurisdiction," {i.e., in the county,) "but this jurisdiction is now re- strained by the power of kings, as none hath power to hold plea of trespass, or of debt which passeth forty shillinirs, but the king. Nor hath any one power of conveyance of fees " [i.e., of freehold estates) " without a writ " (e. iv. s. 2), which is also laid down in Bracton and Fleta. Now this change must have taken place after the Conquest, and 1 Mad. Form. Diss. IG, 17. ' Hid. 22. K 14G WILLIAM L TO HENRY IL [CHAP. II. contained hriefly an iuthnation of the cause of complaint. It was directed to the sheritf of the county where the defendant lived, the origin of it can be traced. Before the Conquest writs went to the sheriff to compel liim to hear a case, and it was then contended that writs were necessary to enable him to do so. And the writs were often required to give a belter judge. In the case of the Archbishop of Canterbury, already mentioned as having occurred under William I., the case was tried at the county court, but before a foreign prelate, who of course could not have been sheriflf, and who could only have sat under the king's writ. And thus the practice having arisen of using the king's writ in important cases, in order to secure a better judge than the sheriff, it by degrees came to be considered that the writ was necessary to give jurisdiction in any but comparatively minor cases. Not a trace of any such doctrine is to be found before the Conquest, nor until long after- wards ; and we have seen cases of the greatest character come into the county court. It had, however, evidently become established at the time of tlie Great Charter, for it is laid down by Bracton; whereas, in the Mirror, we find that forty shillings was the limit, not of the county court, but of the court baron (c. i. s. 3). But Bracton, writing just after the time of the Charter, says that the sheriff under the king's writ tried cases he could not try ex officio, but tried them as the justice of the king (s. 6). Thus, therefore, the king's writ being required to give jurisdiction, it of course was natural that the suitor should seek to sue in the king's superior court ; and hence, just before the Charter, common pleas were brought, as all the records show, in the ex- chequer ; wherefore the Ciiarter said they should not follow the king as that court (lid, and hence the court of common pleas. Thus, therefore, now the king's writs to the sheriff were required either to give him jurisdiction to try the case, or to give the king's court jurisdiction to try it. In either case the writ went to the sheriff — a curi- ous trace of the old system ; for otherwise they would have gone to the party, or to the court. The Mirror says that these writs used to contain the names of the parties and the name of the judge, and were directed sometimes to sherifls, &c., and that they were necessary to give jurisdiction not possessed at common law. At common law, as has been seen, the primary jurisdiction was in the county court in "common pleas" between subject and subject, though they could be removed into the king's court for sufficient cause. But in order to derive a revenue out of the administration of justice, and at the same time promote its improvement, a practice had arisen of requiring the suitor in cases above forty shillings to sue out a writ from the king. And, in like manner, in order to remove a case from the county court into the king's superior court, a writ ■was required; and to commence an action in the king's court. When the suitor was required to sue out a writ to commence a suit in the county court above a certain value, there was, of course, an inducement to sue in the king's court, as probably the fee was the same. Jloreover, there were cases in which the party sued did not reside in the county where the matter arose, and in such cases the suit could not be brought into a county court without a king's writ— as the sheriff of one county had no juris- diction over men in another, and the men of one county could not try cases arising in another. But the king's writ went into any county, and the case commenced in the king's superior court could still be tried in the county where the matter arose. Hence, for various reasons, the necessity for writs from the king's superior courts. These writs were, it will be seen, of two classes — either to the sheriff to empower him to do justice, and try the case in his county, which was called a writ of justices, or a writ to commence an action in the king's superior court, and therefore "return- able," as the phrase was in that court. In either case, however, so deeply rooted was the county court in our judicial system, the writ went to the sheriff of some county, who was to summon the party sued, to answer in the suit; and to enable him to do fo, or inform him what steps to take with a view to the proceeding he might desire to take, the writ briefly stated the cause of complaint. The reason for this was, that the writ commanding appearance in court, and the appearance being personal, and the pleading oral, the parties upon appearance could at once commence their contro- versy, the plaintiff narrating iiis cause of complaint more fully ; and the defendant, unless he desired time to consider his defence, would at once make his answer; and of course the more clear the writ, the better he would be able thus to answer. The course, upon appearance in the king's court, would, it should seem, as the pleading was oral, be very much the same, at fiist, as in the county court, until the point in dispute appeared. If it was matter of law, it would at once be decided by the court ; if matter of fact, it would be seut into the county to be tried, and that -would require a record. CHAP. II.] RECORDS. 147 comraandinfi^ that he should summon the party to appear in some particuLir ccirem, multb minus superiorem. But in burgage- tenure the king had not this preference to other lords. The king might commit to any one such custodies as belonged to him (a) ; and they were committed sometimes p)leno jure, and sometimes not. In the latter case, the committee was to render an account thereof at the exchequer ; in the former, not : in the former case, he might present to churches, and do other acts, as he might in his own estate.3 This was the law concerning the custody of heirs, in military tenure. The heirs of so^•e??len, upon the death of their ancestors, were, according to Glanville, to be in the custody of their con- sanguinei propinqui, which must mean, as in a former passage, the next of kin ; with this qualification, that if the inheritance de- scended ex parte p)atris, the custody belonged to the descendants ex jjarte matris ; and so vice versa. For the opinion was, that the custody of a person should not, by law, belong to one who, standing near the succession, might be suspected of having views upon the inheritance.* We shall next speak of the custody oi female heirs. If a woman {a) This is not said by Glanvillo, who only sug'gests it ivas done. " If the king- should commit the custody to another, then the distinction ivill arise which is next adverted to. It appears, as Lord Littleton states, that the wardships of the crown were sold by Henry II., and mention is made, he says, of the practice, without any blame, in the charters of Henry III. and John (Hwt. 11m. II. ami III, f. 109). He, however, explains that, by his statement that the other lords did the same, and they w'ere the promoters of the charters. There can be no doubt that it Avas a vicious and pernicious practice, entirely contrary to legal principle, for the office of guardian is essentially a matter of personal trust and confidence. 1 Glanv. lib. 7, c. 9. ^ ma. 3 iii,i c. 10. ■» Ibid. e. 11. CHAP. III.] OF MARIIIAGE. 1G7 was a minor, she was to be in the custody of her lord till she became of full a":e («), and then the lord was bound to .. . „ - . o V /' . TP ii Ai Marriage. nnd her a proper marriage, it there were more than one, he was to deliver to each her reasonable portion of the inherit- ance. If a woman was of full age, then also she was to be in tlie custody (jf her lord till slie was married by his advice and dis[)Osal ; for it was the law and custom of the realm, that no woman who was heir to land should be married but by the disjjosal and assent of her lord (b) : and this rule operated so far, that if any one married his daughter, who was to be his heiress, without the assent of his lord, he was by strictness of law to be for ever de- ])rived of his inheritance ; nor could he retain it but by the mercy and j)lc'asure of the lord. Nevertheless, when sucli a person ai)plied to the lord for licence to marry his daughter, the lord was bound to give his consent, or show some reasonable cause to the contrary: if not, the father might even proceed to marry her according to his own wish and inclination, without the lord's concurrence. Upon this subject of marrying women, Glanville puts a case : Whether a woman possessed of land in dower might marry as she pleased, without the assent of her icarrantor, that is, the heir of her husband ; and whether by so doing she would lose her whole dower ? Some thought she ought not to lose her dower, because such second husband was not by the law and custom of the land bound to do homage to the warrantor, but only a simple fealty ; which was merely, in case the wife should die before the husband, to preserve the liomage from being entirely lost, for want of some outward mark of tenure. But notwithstanding that, Glanville thought she was bound to obtain the assent of her warrantor, or lose her dower, unless she had other lands, either by maritagium or by inheritance ; for then it was sufficient if she had the assent of the chief lord : and this was on account of the simple fealty only which the husband was bound to do to the lord. If the in- heritance was held of more than one lord, it was sufficient to obtain the assent of the chief lord.i If women, while in custody of their lords, did anything which was a cause of forfeiture (c), and this was made out against them in a lawful way, the offender lost her right to the inheritance, and (rt) Tliis was fourteen {Bracton, 86, b ; Year-hool; 8 £dw. IV., 7). {b) This was, Glanville says, only lest he should be compelled to receive an enemy or improper person as tenant, i.e., military tenant, for all this applied only to mili- tary tenures. Lord Littleton indeed thought the reason applied to all fiefs for which homage was done, as well as to those held by knight-service {Ilist. Htn. II. and III., 104) ; but it is conceived that it is not so. Henry I. in his charter promised that he would take nothing for his consent, nor withhold it, unless it were proposed to unite the ward to his enemy {Leijes Ilcuricl Pr'aiii, c. 2, s. 3). It appears plainly that this usage applied only to female heirs, though it was afterwards, abusively, extended to male wards ; and even after Magna Charta, on a forced construction of the words, " Heredcs mantentur sine disi)aragatione," (c) " Do corporibus suis forisfecerent ; " that is, forfeited through incontinence. Lord Littleton observes " that this was a severe punishment for the frailty of a single 1 Glauv. Hb. 7, c. 12. 168 HENRY II. [chap. III. her share accrued to the rest ; but if they had all incurred a for- feiture, then the whole inheritance fell to the lord, as an escheat Widows were not to be again in custody of their warrantors, though, as has been already related, they were to have their assent before they married. Women were not to forfeit their inheritance on account of any incontinence: not that the maxim, jnitagium hcereditatem non adimit, meant this indemnity of women in case of incontinence, for that was to be understood of the consideration the law had of a son begotten under such circumstances, and born after lawful wedlock ; who was thereby intitled to succeed to the inheritance as a lawful heir ; according to another rule, filius hceres legitimus est, quern viiptue demoiistrxint^ This brings us to consider the law of legitimacy.^ _ It was held, that no &asto7-cius,2 or bastard was a legitimate or law- Of bastardy. ^^^^ ^^^.^^ ^^^ ^^^ ^^^ ^^^ ^^^.^ -^ lawful wedlock. If any one claimed an inheritance as heir, and it was objected that he was not heir, because he was not born in lawful wedlock ; then the plea ceased in the king's court, and it was commanded to the archbishop or bishop, whichsoever it might be, to make inquiry of the marriage, and to signify to the king, or his justices, his judgment thereon ; for which purpose there issued a writ to the following effect : Bex episcopo salutem : Veniens coram me W. in curia med petit versus B. fratrem suum quartam partem foedi unitis militis in villa, &c., sicut jus suum; et in quo idem B. jus non hahet, ut W. dicit, eh quod ipse bastardus sit, natus ante matri- monium matris ipsorum. Et quoniam ad curiam meam non spectat agnoscere de hastardid, eos ad vos mitto, mandans ut in cvrid christianitatis inde factatis quod ad vos speciat. Et cmn loquela ilia debitum coram vobis finem so7'tita fuerit, mihi Uteris vestris significetis, quid inde coram vobis actum fuerit, d'C.^ Upon the subject of legitimacy, there was this curious question : If a person was born before his father married his mother, whether, after the marriage, such child was to be considered as a lawful heir ? And Glanville says, that though by the canons and Roman law (meaning a law of Justinian adopted in a constitution made in the time of Pope Alexander III. about tliirty years before) such a child was a lawful heir ; yet by the law and custom of this realm woman, and Avithout example in other laws ; but it undoubtedly arose not so much from a rigorous sense of the heinousness of the fault, as from the notion of an ad- vantage due to the lord from the marriage of his ward, which he probably might be deprived of by her being dishonoured " (3 Hit. Hen. II., 119). But a little con- sideration of the character of the Norman sovereigns may suggest the suspicion that this, which was obviously an indecent encroachment, and an oppressive and abusive exaction, was rather continued with the view of their profiting by the seduction of their wards, to rob them of their lands. Instances of conduct like this in their his- tories are not infrequent, and Mackintosh hints at it in the reign of John. 1 Glanv. lib. 7, e. 12. 2 In German bastart ; from bas, says Spelman, which signifies iiifimus, and meta- phorically spuriv.s, impurus ; and start, which signifies oHus, or editus. So we say in English upstart ; as it were, suhito exortus. Vide Spelm. voce Bastardus. 3 Glanv. lib, 7, c. 1.3, 14. CHAP. III.] OF BASTAIiDY. 1C9 he was not to be received as an heir, to hold or claim any inherit- ance (a). The question, whether born before or after marriage, we have seen, was examined before the ecclesiastical judge, whose judgment was to be reported to tlie king or his justices ; but when the s[)iritual judge had ceitified the answer to that question, the king's court made use of it as it pleased, and denied or adjudged the inheritance in dispute to either party, according to its own rule of determination : so tliat the ecclesiastical court only answered whether the party was born before or after marriage ; the king's court determined wJio was heir.i As a bastard could have no heir but of his body, this gave occasion to a very })articular question of inheritance and succes- sion. If a person made a gilt of land to a bastard, reserving a service or anything else, and received homage, and the bastard died in seisin of the land, without leaving any heir of his body, it was a doubt in Glanville's time, who was to succeed to the land ; it being clearly held that the lord could not ; though it was determined, that if a bastard died without a will, his goods went to his lord ; and if he helil of more than one, each was to take that which was found witliin his fee.- It may be remarked here, that all the effects of an usurer, whether he made a will or not, belonged to the king: this „ was meant as a penalty upon usury, after the death of the party; for in his lifetime he could not be proceeded against criminally. Among other inquisitions which used to be made for the king, one used to be mndeof a person dying in tliis offence (for so it was called) by twelve lawful men of the vicinage, upon their oaths : and if it was proved, all the movables and chattels of the deceased usurer were taken for the king's use ; his heir was disinherited ; and the land (a) Lord Littleton observes upon this that it shows the entire independence of the law of Eiiiiland on the canon and civil law at tiiis time (3 Iligt. Ihn. II., p. l'2o). Xo one ever supposed tliat the Roman law, propria rlgore, bound this couiitiy ; but, as Selden put it, Valet pro ratione non pro inducto jure. And the question is, whether the Koman law was not in this, as in every other instance in which ours departed from it, right. Tiiere can be no doubt that in tiiis country, in which tiie law had been mainly customary, and the spirit of insular independence, or perhaps prejudice, arising from ignorance, was so strong; it was this spirit, rather than reason which dictated an adherence to the national customs, often senseless, and vicious, and per- nicious, and jirobably of very recent introduction. Thus it was that Henry II. talked of his "customs," which had simply risen up under the Conqueror and his sons, and were so bad that even one of them himself declared them bad (Lcf/es Henri Primi, 1). And so it was with the custom that only those born in matrimony should inherit ; as the lloman law was otherwise, and had been recognised here for centuries, there can be no doubt that our law had licen in accordance with it, especially as it wa8 so in the Grand Custumary of Normandy (c. 27). When, therefore, in the reign of Henry III.it was i)roposed toassimilateour lawtothatof Europe, the reply of the barons, *' Nolumus quod noluit leges Anglia; mutari, qua? hucusque usitatai sunt et approbatac," a reply so much vaunted as a proof of patriotism ; it was simply an evidence of pride, the result of prejudice, and prejudice, the result of ignorance. For that be- yond all doubt the lloman law is the sounder is shown by modern law, as well as by ancient usage. The I*'rench code allows, under certain restrictions, the subsequent legitimation of children {Code Nap., s. 331, 332). ' Glanv. lib. 7, c. 15. ^ jn^i c. 16. 170 HENRY II. [chap. III. reverted to the lord. If a person had been notoriously guilty of usury, but had desisted from the practice, and died a penitent, his property was not to be treated as the property of an usurer. The point therefore was, whether a man died an usurer ; and only in such case could his effects be confiscated. ^ To finish the subject of descent to heirs ; it must be remarked, that next after those we have mentioned, the ultimus hares, if he could be so called, of every man was his lord : for when a person died without a certain heir,"^ the lord of the fee might, of right, take into his hands and retain the fee, whether such lord was the king or any other person. Never- theless, should any one afterwards come and say he was the right heir, he might, either by the grace of the lord, or at least by the king's writ, be let in to sue for the inheritance, and make his claim out in court ; yet in the meantime, the land remained in the lord's hands ; it being a rule, that when a lord had any doubt about the true heir to his tenant, he might hold the land till that was made out in due form of law. This was like what we have seen was done, when there was a doubt whether an heir was of age or not ; with this difference, that in this case the land, in the meantime, was considered as an escheat, which was to all intents and purposes the absolute property of the lord ; in the other, it was not looked upon as his own, but only as de custodid. Lands reverted to the lord by escheat, not only on failure of heirs, but by various causes oi forfeiture. If any one was convicted of felony, or confessed it in court, he lost his inheritance by the law of the land, and it went to his lord as an escheat. Where a person held of the king in capite, in such case, as well his land as his movables and chattels, wherever they were found, were taken for the king's use. Again, if an outlaw, or one convicted of felony, held of any one but the king, then also all his movables belonged to the king, and his land was to remain in the king's hands for a year ; but at the expiration of that time, it was to revert to the lord of the fee : this, however, was cum domorum suhversione et arborum extirpatione, that is, according to the barbarous and unwise policy of those days, not till the king had first subverted all the houses, and extirpated all the trees thereon. In short, when a judgment passed in court, that a man should be exhoeredatus, his inheritance reverted to the lord of the fee, as 1 Glanv. lib. 7, c. 17. 2 This law of ultimus hcercs, laid clown so generally by Glanville, is said by himself, just before, not to take place where a bastard died without heirs of his body. The reason of this exception to the analogy of tenures does not appear. In cases of forfeiture where the goods even went to the king, yet the land escheated to the lord. We shall see, that in the time of Bracton, the land, in this case of bastardy, escheated to the lord, and so it does at this day. It is worthy of remark, that in Scotland, where feudal rights were in general more regarded tlian in England, the lord has long been deprived of this casualty, and the king is considei-ed as the ultimas h aires not only of the bastard, but in all cases of failure of heirs ; upon the prinoiijle, quod nnllius est, cedit domino rcgi. 2 Blackst. 249; Ersk. Prin. b. iii. tit. 10. CHAP. III.] OF MARITAGIUM. 171 nn csclicat. If any one was condemned for theft his movaljles and chattels went to the sheriff of the connfy ; ])ut the hjrd of tlie fee took tlie hind withont Availin^^ tiio year, as in the former case, because theft was not an offence against the king's crown, as robbery and homicide were. When any one was regularly and legally outlawed, he forfeited his lands ; and though he was after- wards restored by the king's pardon, neither he nor his heirs could, by reason of such pardon, recover the land once forfeited, against the lord ; for notwithstanding the king remitted the ])ains of for- feiture and outlawry as far as regarded himself, he could not thereby infringe the rights of others.! It was to illustrate the title of maritagium that we were at first led into this long digression about the law of descent, legitimacy, and escheat: to that we now return ; and shall conclude what is to be said uj)()n it, by speaking of the temu'e by Avhich a tenant in m Glanv. lib. 1, c. 3. » Glanv. lib. 1, c. 6. ■* Esuonium, or Exoniura, says Spelman : ex privativum, et gnivff, cura ; ab angnstin, curS, vel labore liberare ; which is a more probable derivation than e^ofivvadai ; though it should signify to excuse by means of an oath ; M-hich, to be sure, is the precise nature of ail Etso'n. Vide Spelm. voce Essoniare. CHAP, in.] OF CIVIL PLEAS. 170 his not coming. If he neither came, nor sent an es.soin, the de- mandant was to aj)pear in court, and wait liis adversary for three da3-s. If he did not appear at the fourth day, and tlie summoners oficred to prove they had (hily Hunuuoued him, another writ of summons issued, a])poiutin«^ his ;i])]iearance in fifteen days at least; and this writ required liim, as well 1o answer u))()n the merits of the comi)laint, as for his contemi)t iti disobeyinjj^ the first summons. When three writs in this form had issued, and he neither appeared nor sent any or.e to essoin him. his hind was taken into the king's hands, and so it remained for fifteen days ; and if he did not ap- pear within that time, the seisin of it was adjudged to the com- jilainant, nor could the owner have any remedy to recover it, but ])}■ writ of right: yet if he appeared within those fifteen days, and was willing to replevy the lantl, he was commanded to come again on the fourth day, and right should be done , when, if he appeared the seisin was restored. Indeed, if he had appeared at the third summons, and acknowledged all the former summonses, he would lose the seisin of his land, ludcss he could ])roduce a writ from the king to the justices, declaring that he had been in the king's ser- vice at the time ap])ointed by the court, and commanding that he should not be held as a defaulter, nor suffer as such.^ If the party denied that he was summoned, he was to swear it dnodecimd manu ; and at the appointed day, should any of the jurors who were to swear it, fail, or any be lawfully excepted to, and no other ])ut in his place, that very instant the defendant lost the seisin of his land, as a defaulter. If he disproved the sum- mons in the above way, he was, the same day, to answer to the action. Thus far of appearance and non-appearance : next as to essoins. If the party did not appear at the first summons, but . sent a reasonable essoin, it would be received : and he might, in like manner, essoin himself three times successively. The causes of excuse, called essoins, allowed in the king's court, were many. The principal essoin was that de injirmitcite. This was of two kinds : one was, de infirmitate veniendi ; the other, de infirmitate reseantisce ; of which the first was called afterwards, de nialo veniendi ; the latter, de nialo lecii. If at the first summons the essoin de infirmitate veniendi was cast, it was in the election of the com])lainant, upon his appearing in court, to demand from the essoniator, or person who made it, a lawful proof of the essoin, on the very day ; or that he should find pledges,^ or make a solemn engagement to bring a warrant or ])roof of the essoin, that is, the principal sunmioned, at a day appointed. And in this manner might the tenant be essoined three times successively. If he did not come at the third day, nor send an essoin, the court awarded that he should a})pcar on 1 Glanv. lib. I, c. 7, 8. ^ Glauville'a words are : vel plegium invenict, vclfidem dabit. 180 HENRY II. [chap. III. another day, in person, or by a sufficient attorney (or responsalis, as he was then called), who would be received ad lucrandum vel perdendum in his place. If the pai'ty summoned ap})eared on the fourth day, after three essoins, and avowed them all, he was re- quired to prove the truth of them by his own oath and that of another, and on the same day was to answer to the action : and if he did not appear at the fourth day, nor send his attorney, his land was taken into the king's hands, as before mentioned. There issued also an attachment against the essoniators tanquam fal- sai'ios, for not performing the engagement they had made for their principal ; and in the meantime the principal was summoned, to show cause why he did not avow and make good what his essonia- tor had engaged for in his name : a summons went also against the pledge put in, as above mentioned, by the essoniator, to show cause why he did not produce the principal to make good the essoin. 1 If the principal appeared within fifteen days, and was willing to replevy the land, a day was given him; and if he then gave his sureties, he recovered his seisin. If he denied all the smnmonses, and disproved them duodecimd manu ; or if he admitted the first, avowed his three essoins, and on the fourth day produced the above- mentioned writ, testifying that he was in the king's service ; he could in that case recover seisin of the land ; but if he did not appear within the fifteen days, the seisin was adjudged to the complainant, as before mentioned. The direction in the writ to the sheriff for taking the land in the case of the king was capias in manum meam ; and of that for giving possession of it to the complainant was seisias M. de tantd terra, &c. In the same manner a man might essoin himself three times de infirmitate reseantisa, or de malo lecti ; and if the party appeared not at the third summons, the judgment of the court was, that it be seen whether the infirn:iity be a languor, or not. For this pur- pose a writ issued, commanding the sherifi" to send four lawful men of his county to view the party : and if they saw that it was lan- guor, they w^ere to appoint him to appear, or send his attorney, in a year and a day ; but if they thought it not to be a languor, they were to appoint a certain day of appearance for him or his attorney, at which time the four viewers were likewise to a})pear [md testify their view. Two essoniators were necessary to make this essoin. 2 Perhaps the first two essoins might be veniendi, and the third de reseantisd ; in which case, persons were to be sent to view whether languor or not : but if the first two were de reseantisd, and the third veniendi, they were adjudged as if all were veniendi: for it was a rule, always to judge according to the nature of the last essoin.^ We have seen that the land of a person who did not appear, was taken into the king's hands. It was also the practice, if a 1 Glanv. lib. 1, c. 12-15. j ^ ijjUi. c. 18, 19. ' Ibid. c. 20. CHAP. III.] WKIT OF RIGHT. 181 person had a])ponre(l and answered, and a future day was given, and at that day he neither came nor sent his attorney, that Ills hind shouhl be taken into the king's hands; but GLinville states this material difterenee, that lie could not in this case replevy it; he was also suinmoned to hear the judgment of the court upon his default: however, whether he appeai'cd or not, he lost his seisin for the iirst default, uidess he could avoid the summons by the befbi-e- mentioned writ de servifio regis. A person who had answered in court and departed in a lawful way, might recur to the three essoins, unless there was any agreement to waive them. If a person had essoined himself once, and at the second day he neither came nor essoined himself, we have seen that a writ issued to the sheriff to attach the essoniator tawiwiiii falsariam, as be- fore mentioned. 1 That the essoniator might be treated with a reasonable fairness, lie also was allowed to essoin himself. Thus, if any obstacle lia]ipened to retard him in going to essoin his prin- cipal, so that he could not get to the court at the appointed day, he had till the fourth day, as his principal had ; and if any one came within that time to essoin him, he was received in like manner as the essoniator of the ])rincii)al.- The ])rincipal might also, if he pleased, send a second essoniator, who was to state to the court the excuse of the principal, that he sent that excuse by an essoniator who was detained by accidents on the road, and that he would prove this as the court should award.'^ In all cases of essoins, if the adverse party had departed, upon a day having been given by the essoniator, the appearance of the principal within the fourth day signified nothing : for the day given by the essoniator must still be observed.* Thus far of the essoins de infirmitate veniendi, and de injirmitate reseantisce ; or, as they have since been called, de malo veniendi, and de malo lecti. Glanville mentions several others ; as that de idlra mare ; upon which the party had at least forty days. An- other was, suhita aquaruni inundatio, or the like unexpected accident, which was allowed to save the four days.^ Another was called per servitium regis ; and in that case the plea was put without a day, till the party returned from the service he was on : wherefore this was never allowed to those who were constantly in the service of the king, such persons being left to the ordinary course of the court. This essoin de servifio regis lay only for persons in the king's service before the plea was commenced. If any went into the king's service after the plea commenced, and essoined himself, there was this difference, whether he was there j}er mandatuni regis ex necessitate, or ex voluntate, without any mandate. In the former case, the above-mentioned order was observed, and the jdea was put sine die: in the latter, it was not. Another distinction was made, whether the service was idtra mare, ' Olanv. lis. 1, c. 20, 21. " Ibid. c. 21, 22. ' Ibid. c. 23. * Ibid. c. 24. 5 Ibid. c. 25, 26. 182 HENIIY II. [CIIAT. IIT. or citra mare : if the former, he had the usual forty days, and was expected at the expiration of them to appear and show the king's writ, as we liave before seen : in the latter, it was at the discretion of the justices to give a less or a greater time, as they thought it best suited the king's service. ^ There was an essoin ^er infirmitatem, which infirmity must be such as had happened since the party airived in the town where the court was. In this case the court ordered that he should ap- pear the next day, and so on for three days successively ; and if he made the same excuse the third day, then four knights were directed by the court to attend and see whether he was able to make his appearance or not : if not, and they testified the same in court, he had a respite for, at least, fifteen days. 2 Another essoin was de esse in peregtnnatione. There was a dis- tinction in this case, as in that of the king's service, whether the party had commenced his journey before the suit, or since. If he had been summoned first, the proceeding took its course, as before stated ; if not, then there was a difference, whether his journey was towards Jerusalem or otherways. In the former case, he had a resj)ite of a year and a day, at least ; in other cases, the respite lay in the discretion of the justices.^ Having considered the circumstances relating to the tenant's appearance in court, let us pause a while, and look back summous. ^^ ^j^^ nature of the writ which was to compel this ap- pearance, and the method taken for its execution. The writ of summons had in it this clause addressed to the sheriff, " et habeas ibi siimmonitores, et hoc hreve :" in consequence of which the first inquiry, when the demandant offered himself at the appointed day in court, was whether the sherifi' had there the writ and the sum- moners. If he had, and the summons was proved, they proceeded as before mentioned ; but if the sheriff did not appear within the fourth day (which was allowed also to the tenant), then there issued a writ de secundd simimonitione, directing him to summon the tenant, and to appear himself and show cause why he did not summon him upon the first writ. This contained the first writ of summons, with the addition of this clause : et tu ipse sisihi osten- surus quare illam sumvionitionem ei 7wn feceris^ sicut tibi j^rce- ceptum fuit iier aliud breve meum, et habeas ibi hoc breve, et illud aliud breve. If the sheriff came at the day, and confessed that he had not executed the writ, he . was then, as they termed it, in misericordid regis, that is, he was amerced ; the demandant lost a day without effect, and the tenant was to be summoned again : but if the sheriff averred that he commanded lawful summoners to make the first summons, and they, being present, admitted it, they as well as the sheriff were amerced, if they had not obeyed it. But if they denied that the sheriff gave them charge of the summons, then there was a distinction, whether the sheriff gave it in the 1 Glanv. lib. 1, c. 27. . ^ md. c. 28. 3 /5td. c. 29. CHAP. III.] WKIT OF UIGllT : SUMMONS. 183 county-court or not. Such matters out;ht, properly, to be trans- acted in that court ; and if tlie plea was commenced some time before the county-court, Glanville says, attachiahitiir usque ad coinitatum, and then a complete summons was to be made. If, then, the summoners had been enjoined in the county, and it was 80 proved, the summoners were amerced ; for this was a solemn act, which they would not be allowed to deny: if out of the county, and they denied the command, then the sheriff alone was amerced, for executing the writ in a private and impro|X3r manner : for all public acts, such as enjoining summons to be made, taking ])ledges of prosecuting, and pledges de stando ad rectum, ought to be transacted in a puldic manner, that there might be no debate concerning such prelatory process ; a circumstance which would lead to great impediments in suits. If the summoners were not })resent at the appointed day, but sent their essoniators, who essoined them ; and added, that they had properly summoned the party ; in that case, the first day was considered as not lost to the demandant, and the summoners were amerced for not appearing and proving the summons, as was enjoined them, unless they could e.KCUse themselves by the king's writ dc ssrvitio. It should be remembered, that one or other of the summoners might excuse himself at the first day; and in that case the first day was not considered as lost to the demandant.'^ !Such was the proceeding where the tenant was simply summoned, without any pledges being given. It may be proper to of attach- mention in this place, what the process would be, when '"^nt. an attachment was necessary. If the suit was of a kind to make it necessary for the tenant to find pledges de stando ad rectum for his appearance (as was the case in pleas for breach of a final con- cord made before the king or his justices, and for novel disseisin), and these pledges had been recorded in the county court, or before the justices; then if the tenant did not appear, nor essoin himself, the pledges were adjudged to be amerced, and further pledges were re(|uired, to engage for his answering to the suit. This Avas to be done three times ; and if he did not come at the third summons, his land was taken into the king's hands, in like manner as before mentioned ; and the pledges likewise were amerced, and summoned to appear in court at a certain day, in order to hear the judgment. This was the course oi cdtacJtnient in civil causes : but in criminal ones, as in those de pace domini regis in/ractd, if the party did not appear at the third summons, there issued a capias to take the body, the pledges being amerced as in the former cases. "^ Thus far of the default of the tenant. If the demandant did not api)ear at the first day, he might essoin himself in like manner as the tenant. If he neglected both, the tenant was dismissed sine die ; so, however, as that the demandant might institute another suit for the same cause of action. But as to this, and the couse- 1 Glanv. lib. 1, c. 30, 31. ^ Ihid. c. 31. 184 HENRY II. [chap. III. qnence of the tenant's default, there was a diversity of opinions in Grlauville's time. Some held, that he only lost his first writ, with his costs and expenses, but not liis action ; so that he was at liberty to commence another : others thoug:ht he lost his action totally, without any right of recovery ; and that he should be amerced for his contempt of court. Others were of opinion, that he lay at the king's mercy, whether he should be admitted to bring his action again. In either case, if the demandant had found pledges de clamore suo ]3rosequendo, as was the case in some suits, his pledges were likewise to be amerced. Glanville further adds, that in criminal matters and those relating to the peace, where the king had an interest, as he was bound to prosecute, his body was to be taken and kept in custody until he prosecuted his appeal : besides which, his pledges were still to be amerced.i If both demandant and tenant were absent at the day, it was in the discretion of the king or his justices to proceed against both ; against the tenant for contempt of court, and the demandant for false claim. 2 When obedience had been paid to the writs of summons, and both parties were in court, the demandant made his demand of the land in question ; and then the tenant might, if he pleased, pray a view of the land. If the tenant had no other land in the same vill, the view was made without delay ; but if he had, the tenant was respited, and another day given in court. When he departed in this manner from court, he might claim three essoins ; and a writ was directed to the sheriff to send liberos et legates homines (not specifying any number) of the vicinage of the vill to view the land in question, and to have four of them to certify their view to the court.3 After the three essoins accompanying the view, and after both parties had appeared in court ; then the demandant was to set forth his claim in the following manner : Fefo, &c., " I demand against B. one hide of land in such a vill (naming it) as my right and inheritance, of which my father (or grandfather, as it might be) was seised in his demesne as of fee, in the time of Henry I. (or after the first coronation of the king, as it might be), and from which he received produce to the value of fifty shillings at least (as in corn, hay, and other ])roduce) ; and this I am ready to prove Counting upon by this my free man John : and if anything should the writ. happen to him ; by him, or him " (for he could name several, though only one could wage battle) " who saw and heard this.^' Or he might conclude in this form : " and this I am ready to prove by this my free man John, whom his father, on his death- bed, enjoined, by the faitli a son owes a father, that if he ever heard of any plea being moved concerning this land, he would de- raign (or prove) this,4 as what his father had seen and heard." ^ 1 Glanv. lib. 1, c. 32. « Ibid. c. 33. 3 Ibid. lib. 2, c. 1, 2. * (ilanville's words ure : Hue dirationaret, sicut id quod pater suus vidit, et audivit. B Clanv. lib. 2, c. 3. CHAP. III.] WIMT OF RIGHT: TRIAI, IlY r.ATTLE, 185 This was tlic rnaniier in wliicli tlie (Icinatidant spread ont tlie sub- stance of his writ ; and his reliance was always upon the testimony de visu et aucl'itu. After the demandant liad thus made lu's claim, it was in the election of tlie tenant, whether h^; would defend by duel, rpj^^, j^,^j or avail himself of the privile<^e j^ranted by the kinj,''s late statute, and demand that a rccof/iri/ion should be made, which of the two had the efore we enter on the proccedint^ of the assize, let us reflect with (jlanville upon the nature and desi^^n of this innovation upon the old method of trial. " The assize," says tliat author,- " is a royal benefit conferred on the nation by the prince in his clemency, by the advice of his nobles, as an expedient (a) whei'eby the lives and interests of his subjects might be [)reserved, and their property and (o) Nevertheless (wliatever may be the true reading, as to wliicli the Mirror, Bractoii, and Flcta, all cun temporary authorities, im^qiort the reading contested liy the autlior), it can be clearly shown from history that the constitution was not estab- lished cither by Henry II. or Glanvilie; nor does Glanville say so, nor say (as the author evidently supposes him to mean) that there was any formal ordinance or constitution establishing it, in this reiirn or in any other. What he .says is merely that it was " a constitution wliich the subject owes to the administration of justice, under the royal authority, with the advice of his council," that is, the chancellors and chief justiciaries lor the time being. There is nothing to denote or indicate that Henry 11. was par- ticularly referred to, and Glanville him.self was chief justiciary, and would well know if there was any new ordinance or constitution establishing the trial, and would state it if there had been ; but he does not state anything of the kind. And he speaks of the assize, all through his work, as a trial by twelve jurors, who are called " recognitors," because they found their verdict upon their own knowledge; and the trial is called an assize merely because it decided the right to real property, whereas trial by jury was a general term apiilicable to all matters. The assize, then, was simi)ly trial by jury, regulated and adapted to the trial of real actions iu the k'iny his fee ; others thought he was to }>e attached by pledges. ' If the heir, when he appeared, admitted what the Avidow alleged, he was bound to recover the land against the tenant in possession, and deliver it to the widow ; and for this purpose the suit was con- tinued between him and the tenant. If he declined prosecuting the suit, he was bound to give her an equivalent in recom})ense ; for in all events the widow was to be no loser. If he denied what was alleged by the widow, the suit went on between him and her ; and if she could produce those who heard and saw the endowment at the church-door, and was ready to deraign it against the heir, the matter might be decided by the duel : and if she prevailed, he must in that case also deliver to her the land in question, or a sufHcient equivalent. It was a rule, that no woman could main- tain any suit concerning her dower without her warrantor.^ This was the course for a widow to take, when she was obliged to sue for part of her dower : but when she could get Dower unde possession of no part of it, and was put to sue for the "'^"''• whole, the suit was connnenced originally in the curia regis, and the person who withheld her dower was summoned by the following writ, called a writ of dower unde niliil hahet: — Rex vicecomifi saluiem. Prcecipe N. quod juste et sine dilcdione faciat Jiahere A. quoi fuit uxor E. rationahilem dotem suam in villa, Sc, quam clamat habere de dono ipsius E. viri sui, unde nihil habet, id dicit ; et unde queritur quod ipse ei injuste deforceat: et nisi fecerit, summone eum per bonos summonitores quod sit die, Ibid. c. 14-lG. < Ibid. c. 17. 5 ma. c. 17, 18. CHAPTEK IV. HENRY II. TO JOHN. («) Of Fines — Of Records — Writ de Homagio recipiendo—Purp'esture — De Dehitis Laicorum — Of Sureties — Mortgages — Debts ex empto et vendito — Of At- tornies—Writ of Right in the Lord's Court — Of Writs of Justicies— Writs of Replevin — and of Prohibition — Of Recognitions — Assisa Mortis Anteces- soris — Exceptions to the Assize — Assisa Ultimce Proisentationis — Assisa Novce Disseisince — Of Terms and Vacations — The Criminal Law — Of Abjuration — Mode of Prosecution — Forfeiture — Homicide — Rape — Pro- ceeding before Justices Itinerant — The King and Government — The Char- ters — The Characters of these Kings as Legislators — Latcs of William the Conqueror — Of the Statutes — Domesday Jiook — Glanville — Miscellaneous Facts. We have hitherto been speaking of compulsory methods of re- „„ g covering and confirming rights ; hni it often hap- pened, as Glanville expresses it, that pleas moved in the king's court were determined by an amicable composition and final concord : this was always by the consent and licence of the king or his justices ; and was done as well in pleas of land as other pleas. Such a concord used sometimes, by the assent of parties, to be reduced into a writing of several parts : from one of these was the agreement rehearsed before the justices in open court ; and, in the presence of the justices, there was given to each party his part, exactly agreeing with the other's {b). The following is a specimen of such an instrument, literally translated from one in the reign of Henry II. " This is a final concord made in the court of our lord the king, at Westminster, on the vigil of the blessed Peter the apostle, in the thirty-third year of the reign of Henry II. before Kanulph de Glanvilla, justiciary of our lord the king, and before H. E. W. and T. and other faithful and trusty persons of our lord the king, then there present ; between the prior and brethren of the hospital of St Jerusalem, and W. T. the son of Norman, and Alan his son, whom he appointed as attorney in his stead in the court of our lord the king, ad lucrcmdum et perden- dum respecting all the land which the said W. held, with its ap- (ffl) Vide ante, p. 149. (h) As to fines or final concords, ride ante, p. 1 45. They were originally, no doubt, as Mr Hargreaves says, real concords of existing suits, and in that sense they are alluded to in the Mirror, c. iii. s. 1G7, "Of final accord " — " No law prohibits pleas nor accords, wherefore it is lawful for every one to release and quit-claim his right and bis action." At what period fines or recoveries were fictitious, and used only as modes of assurance, is uncertain : but no doubt soon after the use of records, as to which vide p. 147. CHAP. IV.] OF FINES. 203 purtenances, except one oxland and three tofts. Of all which land (except the said oxland and three tofts), tliere was a plea between them in the court of our lord the king ; to wit, that the said W. and Alan concede and attest and quit-claim all that land from them and their heirs to the hospital and aforesaid prior and brethren for ever, except the said oxland and three tofts, which remain to the said W. and Alan, and their heirs, to be held of the said hosi)ital, and the aforesaid prior and brethren, for ever, by the free service of fourpence per arm. for all service ; and for this conces- sion and attestation and quit-claim, the aforesaid prior and brethren of the hospital have given to the said W. and Alan an hundred shilHngs sterling."! A concord or agreement of this kind was called fiimJ^- because finem iniponit negotio ; so that neither of the parties could recede from it. If one of the parties did not perform what he was there- by bound to do, and the other })arty complained of it ; the sheriff would be commanded to put him by safe pledges, so as that he appeared before the king's justices, to answer why he did not keep the fine ; that is, if the complainant had previously given security to the sheriff for prosecuting his claim. The writ was as follows : — Praecipe N. qubdjusth ct sine dilatione teneat finem factum in curid meet inter ipsum et B. de una hidd terrce in villd, &c., unde placi- tum fait inter illos in cund med: et nisi fecerit, et prcedicius B. fecerit te securum de clamore suo presequendo, tunc pone einn per vadium et salvos plegios, quod sit coram me vel justitiis meis, osten- surus die, d'C, quare non fecerit, d&c.^ If he did not appear, nor essoin himself; or after the three essoins, if he did not appear, nor send his attorney, they were to proceed as was before shown in case of suits prosecuted by attach- ments. AVhen they both appeared in court, if both parties ac- knowledged the writing containing the concord ; or if the concord was stated to be such by the justices before whom it was taken, and this was testified by their record ; then the party who had broke it was to be in the king's mercy, and to be safely attached till he gave good security to perform the concord in future ; that is, either the specific thing agreed on, if it was possible ; or other- wise, in some instances, what was equivalent : for it was invariably expected of every one who had acknowledged or undertaken any- thing in the king's court, in presence oi him or his justices, ever after to observe such ackrtowledgment and undertaking. ]\Iore^ over, had the final concord been made in a plea of land, then he who was convicted of breach of the fine, if tenant of the land , was ip)so facto to lose the land. If one or both the parties denied the chirographum, then the justices were to be summoned to appear and record, says Glanville, in court the reasons why such a plea, between such parties of such land, ceased ; and, if the parties came to a concord and agreement by their assent, what the form of that ,' Glanv. lib. 8, c. 1,.2. » Vide ante. 145. 3 Glunv. lib. 8, c. 3, 4. 204 HENRY II. TO JOHN. [CHAP. IV, concord was. As to the method of making this record, there was this difference observed between a concord made in the king's chief court and that before the justices itinerant: if in the latter, then the justices were summoned, that they, with certain discreet knights of the county where the concord was made, who were present at making the concord, and knew the truth of the matter, should ap- pear in court, there to make a record of the plea. Accordingly a writ to that effect was directed to the sheriff to summon the justices and knights. i Besides this, the sheriff of the county where the plea had been, was commanded to have the record of the plea then before the king or his justices by four discreet knights of the county. This is the first mention we have of the writ of recordari, so named from the words of it : Prcecipio tihi quod facias recor- DARi in comitatu tuo loquelam, &c? When the justices appeared, and had agreed upon the record, that record was to be abided by, neither party being allowed to make any exception to it; only, if such doubts should arise, which there was no possibility of re- moving, then the plea might be recommenced, and proceeded in afresh.^ Having said thus much of records of conrts, it may be proper on this occasion to inquire a little further concerning these Of records. jj^^^j^jj-Qej^^g of judicial proceedings («). No court had, generally and regularly, such remembrances of its proceedings as were called and esteemed records, except the king's court, that is, as it should seem, the court where the Idngs justices sat; though, by what we have just related, it should seem that the justices itinerant had not regidaiiy a court of record. In other courts, if any one had said that which he would not willingly own, he might be permitted to deny it, in opposition to the whole court, by the oaths of three persons, affirming that he never said it ; or hj more or less, according to the custom of different courts. In some special instances, however, county and other inferior courts had records ; and that, as we are informed by our great authority, Grlanville, by virtue of a law made by the council of the realm. 4 Thus, if in any inferior court duel was waged, and after- wards the plea was removed into the king's court, then the claim of the demandant, the defence of the tenant, the form of words in {a) Vide ante, p. 147. " Qui placetatin curia cujuscunque curia sit, excepto ubi per- sona re^is est, et quis eum sistat super eo quod dixerit, rem quam nolit empteri si non potest disrationari per intelligentes iiomines qui interfuerunt placito, ct videntes quod non dixerit, recuperet juxta verhum suum" {Leges Will. i. c. 28). " Et omnemjecorda- tionem domini regis curiaa non potest homo contradicere" {Leges If en. Prinu, e. xlix. s. 4). " Si pluresaliciijus homines simul implacitentur secundum quod causae fuerint vel pactum inter eos, de omnibus cura die simul vel de singulis sigillatum, rectum faciat: pactum eum legem vincit et amor judicium" {Ibid. i. 5). " Eecordationem curiae regis nuUi negare licet : alias licebit per intelligibiles homines placet! " {Ibid. cxxxi. s. 4). 1 Glanv. lib 8, c. 5, 6. ^- I'nd. c. 6, 7. _ 3 jbia, c. 8. * "When tliis law was made, we do not know ; nor is it ^mentioned anywhere, that I know of, but in this passage of Glanville. CHAP. IV.] OF RECORDS. 205 which the duel was awarded and waged ; of all these the court had a record, which was acknowledged as such hy the king's court. But it had a record of nothing else, except only of the change of a champion : for if, after the removal of the plea into the king's court, another champion than he who had waged duel in the infe- rior court was produced, and a question arose upon it ; in this case also it was decided by the record of the inferior court, according to the direction of the statute before alluded to. Besides, any one might ol)ject to the record of an inferior court, dcclaiiug that he had said more than was now to be found in the record ; and that wliat he had so said he would prove against the whole court by tlie oaths of two or more lawful men, according as the usage of the court rerpn'red; for no court was bound citlier to maintain or defend its record by duel ; this, tlierefore, was the only proof that could be had. We are informed by Glanville, that a particular law^ had been made, ordaining that no one should except to a record in part, and admit the remainder ; though he might deny tlic wliolc by oath, as just stated.'-^ The king might occasionally confer on any court the privilege to have a record. Thus, upon some reasonable cause being shown, he might, as has just been observed, direct a court to be summoned to muhe a record of a matter for the inspection of his own court ; so tliat, if the king pleased, there could be no contradiction admitted to such record. It often happened that a court was summoned to have the record of some plea before the king or his justices, although it had, in truth, no such record. In this case, the parties, by admission and consent, might settle a record of the matter between them. The writ on this occasion used to be of the following kind: — Rex vicecomiti sahdem. Prcecipio tihi quud facias recordari in comifatu tuo loquclam qtue est inter A. et B. de terra, &c., in villa, (tr., et habeas recordum illiiis loquelce coixim me vel justitiis meis ad tcrminmn, d'c, per qucdnor legales milites, qui interfuerunt , ad recordum id faciendum. Et summone per bonos summonitores A. qui ierram illam clamat, qtidd tunc sit ibi cum loqueld sua, et B. qui terrain illam tenet, quod tunc sit ibi ad audiendum illud, &c.^ Again, inferior courts had occasionally records of what was done there, which were transmitted to the king's court : as when a lord had a plea in his court of some doubt and difficulty, which coukl not be well determined there, then he might curiam suam ponere ill curiam doniini regis, as they called it, or adjourn the matter into the king's court, to have the advice of that tribunal what was proper to be done — an assistance which the king owed to all his barons. When a lord was in this manner certified what was advisable to be done, he returned with the plea, and proceeded to determine upon it in his own court. County courts had a record 1 Of tliis law also, ami the time when it was made, there is no remembrance but this slight intimation. ■' Glanv. lib. 8, c, 9. ' Rid. c. 9, 10. 206 HENRY II. TO JOHN. [CHAP. IV. of pledges, or sureties taken there, and of some few other matters.! We before said that courts were not bound to defend their records by duel ; but they were obliged to defend their judgments in that manner : as if any one should declare against a court for passing a false judgment against him, and should state it to be therefore false, because when one party said thus, and the other answered thus, the court gave a false judgment thereon in such and such words, and passed that judgment by the mouth of N., and should conclude, that if it was denied, he was ready to prove it by a lawful witness there ready to deraign it ; in this case, the question might be decided by the duel. But there were some doubts whether the court was to defend its judgment by one of its own members, or by some stranger. Glanville seems to have been of the former opinion ; for he says, the defence was to be by the person who passed the judgment. If the court was convicted in this manner, the lord of the court was in the king's mercy, and lost his court for ever ; and besides this, the whole court was in the king's mercy.2 We shall now speak of the remedy the law allowed to compel a Writ de homa- lord to receive the homage of his tenant, and so enable gio recipiendo. \^{y^ ^0 claim the protection consequent thereon. ^ If a lord would not receive the homage of the heir, nor a reasonable relief, then the relief was to be kept ready, and to be repeatedly tendered to the lord by good men: and if he would not at any rate accept it, the heir might complain of him to the king or his jus- tices, upon which he would have this writ : — Prcecipe N. quod juste et sine dilatione recipiat liomagium et rationabile relevium K. de libero tenemento quod tenet in villa, &c. , et quod de eo tenere clamat. Et nisi fecerit, summone, (&c. The process against the defendant was the same as has often been mentioned before in cases of summons. If he appeared and ac- knowledged the complainant to be the heir, and confessed he had tendered his homage and relief, he was to receive it instantly, or appoint a day for doing it. The same was to be done, if he denied the tender, but admitted the complainant to be the heir ; but if he denied he was the heir, then the heir, if he was out of seisin, might have an assize against the lord de morte antecessoris ; if he was in seisin, he niiglit hold himself in, till it pleased the lord to accept his homage ; for the lord was not to have the relief till he had accepted homage. But if the lord doubted whether he was the lawful heir or not, and it had appeared to the vicinage that he was not, the lord might then take the land into his own hands, till it was made appear whether he was the heir. And this was the way in which the king always dealt with his barons : for the king, upon the death of a baron holding of him in chief, immediately retained 1 Glanv. Hb. 8, c. 11. _ - Ibid c. 9. ■^ Wo havb before seen how important it was for tlie heir that the lord should receive his homage. Vide ante, 175. CHAP. IV.] HOMAGE AND RELIEF. 207 tlie barony in liIs own hands, till the heir gave security for the relief; and this, notwithstanding the heir was of full age.^ Lords might defer receiving homage and relief, upon reasonable cause shown ; as suppose some other jjcrson than tlie heir pretended a right to the inheritance, or any part of it ; for while that suit depended, he could not receive homage or relief. Another cause was, when the lord thought he had a right to hold the inheritance in demesne. In such case, if he commenced a suit by the king's writ, or that of his justices, against the person in seisin of the land, the tenant might put himself upon the king's great assize, which })roceeded nuich in the way we before stated, as will appear by the following writ: — Bex vicecomiti salutem. Siimmone per honos sunimonUores qiiatuor legales milites de vicineto villce, dtc, quodsint coram me vel Jusf itiis meis die, d:c., ibi, ad eligendum siqjer sacra- menium suum duodecim, dtc, qui melius ret verilatcm sciant, et dice7'e velinf, ad faciendam rccognitioncm, ubmm N. majus Jus habet tencndi unam hidam terrce in villa, d'c., de I. vel ipse It. tenendi earn in d.ominico siio, quam ipse R. petit per hreve meum versus prcedictum N. et unde N. qui terram illam tenet, posuit se in assisam meam, et petit recognitionem fieri, utmm ille majus jus liaheat tenendi terram illam in dominico, vel j^t'cedictus N. tenendi de eo. Et summone per honos summonitores prcedictum N. qui teiTam illam tenet, quod time ibi sit auditurus illam electioncni, d'c.^ If a lord could not, by distress or otherwise, compel his tenant to render his services and customs legally due, recourse was then had to the king or his chief justice, from whom he might obtain the following writ to the sheriff, directing that he himself should see justice done to the complainant; which is the first instance we have yet mentioned of the form of a writ of justicies : — Prcecijno tibi quod justicies N. cjuud juste et sine dilatione facial B. consue- tudines et recta servitia quce ei facere debet de tenemento suo quod de eo tenet in villa, d'c, sicut outionabiliter monstrare p)oterit eum sibi deberi, ne opoi'teat eum ampliils inde conqueri pro de/ectu recti, &c. In pursuance of this writ, the sheriff, in his county court, held a plea of the matter in question, and the party complaining might therein recover his services and dues, according to the custom of the county. If he made out his right, the other party, besides rendering what was due, was in the mercy of the sheriff; for the onisericordia or amercement which arose out of any suit in the county court always went to the sheriff. The quantum of this was ascertained by no general law, but depended on the custom of different counties, and the opinion of the persons who assessed it (a).3 ((?) But it ought to be reasonable. Thus, Henrj- I., in his charter, admitted that amercenieuts liad been grievous, and pruuiised that they should be hencefortii reason- able : " Si quis baronum vel hominum mcorum forisfecerit, nou dabit vadium ia misericordia totius pecuniae sua;, sicut faciebat tempore patris mei et fratris mei, sed secundum niodum forisfacti, ita emeudabit sicut cmendassct retro a tempore 1 Glanv. Ub. 0, c. 4-6. ' Ibid. c. 6,7. , ^ j!,ij c. S-10. 208 HENRY II. TO JOHN. [CHAP. IV. Next, as to the remedy to be pursued in case of purprestures. Purpresture, or, according to Glanville, porpresture. ui-pies ure. ^^,^^^ when any unlawful encroachment was made upon the king, as intruding on his demesnes, obstructing the pubhc ways, turning pubhc waters from their course, or building upon the king's highway ;! in short, whenever a nuisance was committed upon the king's freehold, or the king's highway, a suit concerning such nuisance belonged to the king's crown and dignity (a). These purpre-^tures were inquired of either in the chief court of the king, or before the king's justices, who were sent into different parts of the kingdom for the purpose of making such inquisitions, by a jury of the country, or of the vicinage.^ Whosoever was convicted by a jury of having committed such purprestures, was in the king's mercy for the whole fee he held of the king, and was obliged to restore what he had encroached upon. If the purpresture consisted in building in some city upon the king's street, the edifice, says Glanville, so built, was forfeited to the king, and the party remained in the king's mercy. The misericord ia domini regis, which has been so often mentioned, is explained in this passage by Glanville to be, when any one is to be amerced by the oaths of twelve lawful men of the vicinage ; so, however, ne cdiquid de suo honorabili con- tenemento amitat, as not to lose his co^mtenance, or appearance in the world. When any purpresture was committed against a pri- vate person, it was considered in a different way. If it was against the lord of the fee, and not within the provisions of the statute about assizes, then the transgressor was made to appear in the lord's court, provided he held any tenement of him. This was by the following wait: — Bex vicecomiti scdutem. Prcecipio tihi quod, justicies N. quod sine dilatione veniat in curia I. domini sui, et ibi stet ei ad rectum de lihero tenemento suo quod super eum occupavit, ut dicit, ne oporteat, dtc.^ If, upon this writ, he was convicted of the purpresture in the lord's court, he lost, without recovery, the freehold he held of the lord. patris mfei et fratris mei, in tempore aliorum antecessorum meorum " (Leges Hen. PH., c. 1 ; A.-S. L., V. i. p. 500). How utterly, therefore, Henry II. violated all law in the case of Archbishop A'Becket, when, upon a supposed contempt in non-appear- ance in court — though he sent four knights to represent him and excuse his absence — he was declared to have forfeited the whole of his goods and chattels, may easily be judged {Hume's Hist. Eng., vol. i. c. 8). And so outrageous were the exactions of the Norman sovereigns under the pretence of amercements, that a special clause was introduced into Magna Charta to repress them ( Videjyost, et vide 2 Inst. 27). (a) " It is properly when there is a house built or an enclosure made of any part of the king's demesnes, or of a highway, or a common street, or public water, or such like public thing. It is derived of the French iwurpris, which siguifieth an enclosure " {Co. Lilt. 277 b.). It might be committed, as understood by our legal authorities — (1) against the king by a subject, (2) by a tenant against his lord, (3) by one subject against another {Spelm. Glons., and in CoweWs Interpret. Mamrood's Forest Laivs, p. 119). The word used by Glanville is " occupation,'' and Lord Coke says "occupationes" are taken for usurpations upon the king, and, in a large sense, includes purprestures as well as intrusions and usurpations (2 Inst. 272). ^ Regiam plateam. ^ Per juratam patria: sive vicineti. ^ Glanv. lib. 9, c. 11, 12. CHAP. IV.] OF DEBTS. 209 If he held no freehold of the lord, then the lord mif^jht implead him by a writ of right in the court of the chief lord. In like manner, if any one committed a purpresture ui)on a person not his lord, and the fact did not come within the provision about assizes, 1)0 mii;ht be im})leaded in a writ of right. But if it was within that law, then there should be a recognition ui)on the novel dis- seisin to recover seisin ; of which proceeding we shall have occa- sion to si)eak more hcrcaftei-. In these ])urprestures it usually ha])i)ened that the boundaries of lands were broke in upon and confounded; upon which, at the prayer of any of the neighbours, the following writ might be issued : — R,ex vicecomiti salntem. Prw- ripio iibi quudj lisle el sine dilatione facins esse rationahiles clivhas inter terrani It. in villa, pear by attorney " (Hid., art. 138), but it is also said, " It is an abuse to receive an attorney where the jolea is not to be judged in the presence of the parties" (art. 103) ; and again, "It is an abuse that no one can make an attorney in personal actions, where corporal punishment is to be awarded " (art. 104) ; and again, " It is an abuse to receive an attorney where no power to do so is given by writ out of the Chancery " (art. 102). It is not easy to understand the lirecise meaning and force of these objections, but it- is manifest that attorneys did appear in court, and it is plain, fiom other passages, that they were quite different from essoiners. " It is an abuse that an essoiner is admitted in a personal action " (art. 100). There is a distinct chapter, however, upon "attorneys," following that upon e.'-soiners, which shows that they were closely connected. " Before a plea put into court by essoins, attachment, or by appearance — essoins being excuses for non- appearance — none is to be received by attornej'', nor is any to be received by attorney in a suit not pending, but only in a suit pending in the county court or elsewhere. All may be attorneys which the law will permit : women may not be, nor infants, nor villeins. Plaintiffs, notwithstanding they have attorneys in jier.sonal actions, are not to a] ijiear or answer in judgment by attorney (Ibid., c. ii. s. 31 ). Elsewhere, it is said that attorneys who yield up the inheritance or freehold of their clients in judgment fall into the offence of wrongful disseisin, for it behoveth not attorneys to lose their clients' rights, but to defend them, until a rightful judgment is given (Ibid., c. ii. s. 26). It appears that accountants in the exchequer were usually obliged to come in person (Madox's L'xch., c. xxvii. s. 5). ' Vide aide, 212, 2 Glanv. lib. 10, c. 13. 218 HENRY II. TO JOHN. [CIIAP. IV. be appointed attorney, or two, jointly or severally ; so as, if one was not i)resent to act, another might ; and by such an attorney a plea might be commenced and determined, Avhethcr by judgment or by final concord, as effectually as by the principal himself It was not enough that any one was appointed bailiff or steward for the management of another's estate and affairs, to entitle him to be received as his attorney in court ; but he must have a special authority for that particular purpose, to act in that particular cause, ml lucrandum vel i^crdenthnn, for him in his stead. It was the practice to appoint in the curia regis an attorney to act in a cause depending in some other court ; and there then issued a writ of the following kind, commanding the person appointed to be re- ceived as such : — Rex vicecomiti (or whoever presided in the court) salutem: Scicis quddN. posuitcorum me (or, Just Hi is meis) B. loco suo ad hicrcnidum vcl 'perdendum pro eo in placito, dec, qnod est inter eum et R. de una carucatd terrce in villa, (S:c. ; et idea tihi prcecipio quod pjrcedictum R. loco ipsius N. in placito illo recipias ad lucrandum vel perpendum pro eo, c&c.i When a person was appointed attorney, he might cast essoins for the principal (and for him only, not for himself) till his appointment was vacated. When an attorney was appointed, and had acted in a cause, Glanville puts a question, whether his principal could remove him at his pleasure and appoint another, particularly if there had arisen any great disagreement between them. And he thought that the principal had that power ; .an attorney being put in the place of another only in his absence ; and the practice was to remove an attorney at any part of a cause, and appoint another in court, in the form above mentioned. ^ A father might appoint his son his attorney, an instance of which we saw in the fine above stated, and so vice versa; and a wife might appoint a husband. When a husband acted as attorney to his wife, and lost anything in a plea of rnaritagimn or dower, or gave up any right of the wife's, whether by judgment or final con- cord, it was made a question by Glanville, whether the wife could afterwards institute any suit for it, or was bound, after her hus- band's death, to abide by what he had done. And it should seem, says he, that she ought not in such case to lose anything by the act of her husband ; because, while she was in potestate viri, she could not contradict him, or contravene his acts ; and therefore could not, unless he pleased, attend to her own property and con- cerns ; and yet, adds our author, it might be said on the other side, that whatever is transacted in the king's court ought to be held firm and inviolable. 3 Abbots and priors of canons regular used to be received as attorneys for their societies, of course, with- out letters from their convent ; other priors, whether of canons or monks, if they were cloistered, even though they were aliens, were never received in court without letters from their abbot or chief 1 Glanv. lib. 11, c. 1, 2. 2 ijjia. c. 3. 3 Ibid. CHAP. IV.] WaiT OF RIGHT IN THE LORD'S COURT. 219 l)iior. The master of tlie Temple, and the cliief prior of the hos- pital of St John of Jerusalem were received of themselves, but no inferior persons of their order. When one or more were appointed attorneys in the above manner, it was made a question by Glan- ville, whether one nii'o omni servitio. Et nisi feceris, vicecomes de NortJiauiplone faciat, ne amplius inde claniorem (indiani p)ro defectu justifiw, d-<'. The form of these writs Avas capable of infinite variety, according to the subject and circum- stances of the demand. 't Glanville says nothing upon the order and course of conducting these pleas in the lord's court, except in- timating that they depended on the custom of the particular court •'> where they were brought. The way of proving a court de recto defecisse, to have failed in doing justice was this : The demandant made his complaint to the sheriff in his county court, and there showed the king's writ ; upon this, the sheiifi' sent some officer of his to the lord's court, on the day appointed by the lord for the parties to appear, that he, in the presence of four or more lawful knights, who were to be present by the sheriffs command, might hear and see the demandant make proof that the 1 Glanv. lib. 11, c. 5. -' Ihid. c. 4. = Ibid. Ub. 12, c. 1. * Ibid. c. 0-5. ' Ibid. c. 6. 220 HENRY II. TO JOHN, . [cHAP. IV. court de recto defecisse ; this proof was to be by his own oath, and the oaths of two others swearing with him to the fact. By this solemnity were causes removed out of many courts into the county court, and were there heard over again, and finally determined, without the lord or his heirs being allowed to make any claim for recovery of their judicature, as far as concerned that cause. Should a cause be removed before it had been proved in the above manner that there was a failure of justice, the lord might, on the day appointed for hearing the cause, make claim of cognizance, and for restoration of liis court ; but this was never done in the curia regis, unless he had claimed it three days before, in the presence of lawful men, it not being suitable to the dignity of that court to be ousted, upon slight grounds, of the cognizance of a cause once entertained there. If no day was appointed in the lord's court, and therefore proof of failure of justice could not be made in the above way, the complainant might falsare curiam, falsify the court, or deprive it of its cognizance, by making that proof anywhere within the lord's fee, if the lord did not reside usually there ; for though a lord could not hold his court without his fee, he might by law have it anywhere within it ; if he did reside there, it was probably to be made at his mansion-house, i The writ of right, of which we have just spoken, was to be directed to the lord, of whom the demandant claimed to hold im- mediately, not to the chief lord. But it might sometimes happen that the demandant claimed to hold the thing in question of one lord, and the tenant claim to hold of another ; in this case, because one lord should not be enabled to dispossess another of his court and franchise, the suit of necessity belonged to the county court ; and from thence it might be removed to the curia regis, wdiere both lords might be summoned, and their several rights discussed in their presence, as we before mentioned in cases of warranty.^ We have said that the above mentioned writs of right be- Of writs of longed to the sheriff, upon failure of the lord's court. justicies; Tq \\^q sheriff also belonged several other suits, one of which, namely, that de oiativis,'^ we have already mentioned. In short, all causes where the writ of the king or his justices directed him to do right between the parties (called since writs of Justicies). and such as contained the provisional clause quod si non rectunt fecerit, tunc ipse facias, &c., all these gave the sheriff a judicial authority to hear and determine.'* These writs were very numerous ; some of them are mentioned by Glanville, from whom may be extracted a short account, that will give an idea of this provincial judicature. There was a writ directed to a lord, com- manding him ne injuste vexes, by demanding more services than were due ; and unless he desisted, the sheriff was commanded to see right donc.^ This is the only provisional writ ; the rest are all peremptory, directed to the sheriff solely. One was to give posses- 3 Glanv. lib. 12, c. 7. * Ibid. c. 8. ^ vide ante, 198. * Glanv. c. 9. s jiia. c. 10. CHAP. IV.] OF PROHIBITION. 221 sion of a fugitive villein and his chattels;! for admea.surement of jiastiire which was superonerated ;- quod perniitfai habe/e certain easements ; •■^ to make rationahiles divisas;^ to observe a ra//o«a- hilan divi.sarih of chattels that had Lefore been made ;5 to respite a recofi^nition directed to be taken by the justices;'^ a facia.s ]i(d)(:re rdlionahiloii do/cm; to take care of a decea.sed man's chattels for payment of his debts;" and to give possession of chattels that had l)een taken at a disseisin of the land, after the land had been re- covered in an assize of novel disseisin. ^ To these we nnist add writs ol replevin, and two oi jyroh ibition to the ecclesiastical conrt, which deserve to be mentioned more at length. In the former ])art of this inquiry into judicial ])roceedings, we have seen that when land was seised into the king's hand for default or contempt of the tenant, he might within a certain time replevy his land, upon performing what was required of him by the court. The power of distraining, which lords exercised over their tenants, required a similar qualification — either that the tenant should porlorm what was due, or at least till it was ascer- tained by judgment whether anything or what was due, he should rei)levy ; that is, have a return of his goods vj^oji pledges given as a security to stand to the award of justice in the matter. Tn order to effect this, several writs of rej^legiare or replevin were devised. One was in this form, and seems to approach nearest to the modern writ of replevin: — Hex vicecomiti mlntem. Frcecipio lib i, quod Juste et sine dilatione facias habere G. averia sua per vadium ET PLEGiUM ; nnde queriiur, quod R. ea cepit et detinet injuste pro constietudinibus quas ab eo exigif, quas ipse non cognoscit se debere ; et ipsum p)r(eterea inde juste deduct facias, tie oporteat eum, duC.^ The next is in the nature of a prohibition, as well as a writ of replevin, though it is not properly a prohibition, which was always to prohibit a judicial proceeding. It is as follows: — Bex vicecomiti saiutcm. Prohibeo tibi ne permittas quod B. injuste exigat ab S. de libero tenemento suo quod tenet de N. defoido ipsius R. in villd, &c.,plus seo'vitii qiidm pertinet ad illud liberum tene- mentum quod tenet ; et averia sua qu^e capta sunt pro ilia demandd, quam ille non cognoscit ad libenim tenementum suum, quod tenet, pertinere, ei replegiari facias donee loquela ilia coram nobis audiatur, et sciatur utriini illud servitium debeat vel non, d:c}^ To these may be added the two writs of prohibition to the ecclesiastical court, just alluded to : — Rex, d:c.,judici- and of prohi- bus cedes iasticis salutem. Prohibeo vobis ne teneatis bition. placitum in cm-id cJ/ristianitatis quod est inter N. et R. de laico foedo prarlicti R. mule ipse querifur quod N. cum trcdiit in placitum in curici christianitatis coram vobis, quia j^lacitum illud special ad coronam ct dignitatem meam, rf'c.^^ Besides this writ to the judges, 1 Glanv. lib. 12, c. 11. '■' lUd. c. 13. =* I>>;>1. c. M. 4 //„•,/. c. 16. 5 Ibid. c. 17. 6 lUd. c. lit. 7 Ihid. c. 20. 8 lOid. c. 18. 9 Ibid. c. 12. » Ibid. c. 15. " Ibid. c. 21. 222 HENRY II. TO JOHN. [CHAP. IV. there went also an attachment against the party suing in the court christian, to the following effect : — Rex vicecomiti salutem. Prohibe B. ne sequatur placitum in curia christanitatis quod est inter N. et ipsmn de laico foedo ipsius 'prcedicti N. in villa, &c. , mide ij^se queriiio', quod prcefatus B. inde eum traxit in placitum in curia christanitatis coram judicihus illis. Et si pra'fatus N. fecerit te securuin de clamore suo ]jrosequendo, tunc pone per vadium et SALVOS FLEGios pradictum B. quod sit coram me vel justitiis meis die, cf-c, ostensurus qiiare traxit eum in pjlacitum in curia chris- tianitatis de laico foedo siio, in villa, &c., de sicict illud p>lacitum spectat ad coronam et dignitatem oneam, (f'c.i The manner of ordering the hefore-mentioned suits in the county court, depended on the customs of different counties ; for which reasons, as well as because it was not strictly within the design of his work, there is no notice in Glanville.- Before we leave the subject of writs of right, it will be proper to add some observation respecting the form of writs and of the proceed- ings thereon. The form of words in which a title to land was stated by the demandant, was called his petition,'^ or demand, from the word peto, with which it begun. It sometimes happened that the writ contained more or less in it than the j^etitio stated to the court, as to the appui'tenances of the land, or particular circumstances of the case, KSometimes there was an error in the writ as to the name of the party, or the quajitum of service, or the like. When the writ contained less than the petition, no more could be recovered than was stated in the writ ; but when the writ contained more than the petition went for, the surplus might be remitted, and the remainder might well be recovered by the authority of that writ. If, however, there was any error in the name, then by the strictness of law another writ should be prayed : again, when there was an error in stating the quantum of service, the writ was lost. Su})pose a writ of right, directed to the lord, stated the land to be held by less services than were really due, Glanville thought that, in such case, the lord could not refuse to receive the writ, and proceed upon it, under pretence of his being concluded thereby, and suffering a detriment to his service ; but he was left to make good his claim of service against the de- mandant, should he recover against the tenant. ^ This is all that is to be collected from Glanville on the formal part of Pleading ; a Ijranch of our law which grew, in after times, to such a size, and was considered with so much nicety and refinement. It had become the law and custom of the realm, says Glanville, that no one should be bound to answer in his lord's court concern- ing his freehold, without the precept or writ of our lord the king, or his chief justice, if the question was about a lay fee ; but if there was a suit between two clerks concerning a freehold held in frankal- 1 Glanv. lib. 12, c. 22. ^ /j,^^;, ^ 23. 3 This term is borrowed from the civil and canon law, where it is used in a similar sense. The petitio is called count in our law French. * Glanv. Ub, 12, c. 22. CHAr. IV.] OF RECOGNITIONS. 223 moij^nc, or if a clerk slioukl be tenant of ecclesiastical land lield in frankalinoiu;nc, whoever might chance to be demandant against him, the ])lea concerning the right ought, in such case, to be in foro ccdcHuintico ; unless it should be prayed to have a recognition utrtiin /(L'dnm ccdcHiasticwn sit vel laicuin, Avhether it was an ecclesiastical or lay fee, of wiiich we shall say more hereafter ; for then that recognition, as well as all others, was had in the king's court. 1 AVe have now dismissed the proceedings for the recovery of rigJds, with all their incidents and api)endages, as far as any of recogni- iiitimation upon this subject has come down to us. tions- The next thing that |)resents itself to our consideration, is the method of recovering seisin, or mere possession. The remedies for recovery of seisin seem to be founded on the policy of ])reserving ])eace and quiet in matters of property. As seisin was the prinm facie evidence of right, the law would not allow it to be violated on pretence of any better right : and had provided many ways of pro- ceeding to vindicate the seisin, sometimes in op])osition to the mere right. As questions concerning seisin came within the benefit of the late statute of Henry II., to which we have so often before alluded, and were accordingly in general decided by recognition^ we shall therefore speak of the different kinds of recognitions.^ One of those recognitions was called de morte antecessor is; another, de ultima ■pra^scntatione ; another, vtrilm tenementum sit fa^dum cedes iasticitm vel laicum ; anothcr,^whether a person was seised at the day of his death id de fcedo, or ut de radio ; another, whether a person was within, or of full age ; another, whether a person died seised id defa^do, or ut de wardd ; another, whether a person made the last presentation to a church by reason of being seised in fee or in ward ; and the like questions, which often arose in court be- tween parties ; and which, as well b}" the consent of parties as by the advice of the court, were directed to be inquired of in this way, to decide the fact in dispute. There was one recognition which stood distinguished among the rest, and was called de nova des- seisind, of novel disseisin.^ We shall speak of all these in their order. First, of the recognition de morte antccessoris, which seems to be a proceeding particularly calculated for the protection As.-ii.sa mortis of heirs against the intrusion made by their lords, upon (">iecessoris. the death of the ancestor last seised («). If any one died seised of land, and was Hcisad in domi7iico suo sicut de faedo suo ; that is, had (a) Before Magna Charta, says Lord Coke, the writs of assize, of novel di.sseisin, or mort d'ancestor, were returnable either coram reye, or mto the court of common pleas, and this appeareth by Glanville, "coram me vel coram justitiariis meis." But after Magna Charta, tlie writs were retui-nable, " coram justitiariis nostris ad assissas cum in partes ilhis venerlnt " (2 In&t. 24). The '"ancestor" meant not merely a parent, but brother, sister, uncle, aunt, nephew, or niece of the claimant {Bracton, 254, 261 ; 3 Just. ;591t). 1 Glanv. lib. 12, c. 25. 2 Jbid. lib. 13, c. 1. Jbid. c. 2. 224 HENRY II. TO JOHN. [CHAP. IV. the inheritance and enjoyment thereof to him and his heirs ; the heir might demand the seisin of his ancestor by the following writ: — Bex vicccomiti salutcm. Si G. filius T. fecerit te securum de clamore suo jyyosequendo, tunc summone per bonos siimmonilores duodecim Uberos et legales homines de vicineto de villa, &c., quod sint coram me veljustitiis meis die, cite, parati sacramento recog- noscere, si T. pater proidicti G. fuit seisitus in dominico suo sicut de foido suo, de una virgdto terras in villd, dtc, die qua ohiit; si obiit p>ost primam coronationem meam, et si ille G. propinquior hceres ejus est. Et interim terram illam videant, et nomina eorum imhreviari facias. Et summone pter honos summonitores B. qui terram illam tenet, quod tunc sit ihi auditurus illam recognitionem. Et habeas ibi summonitores, dc. This writ was varied in some parts of it, according to the circumstances under which the person died seised; as, whether he was seised the day he undertook a peregrination to Jerusalem, or St Jago, in which journey he died ; or the day he took upon him the habit of religion, the latter being a civil death, which entitled the heir to succeed immediately.^ If the heir was within age, the clause " si G. flius T. fecerit te se- curum de clam,ore suo prosequendo" was left out, the infant not being able, by law, to bind himself in any security ; as was also the clause, " si T. pjcder piraidicti G. obiit post primam coronationem meam.'"^ When the sheriff had received this writ, and the demandant had given security in the county-court for prosecuting his claim.s they proceeded to make an assize in this way : Twelve free and lawful men of the vicinage were chosen, according to the direction of the writ. This was in the presence, perhaps, of the parties ; though it might be in the absence of the tenant, provided he had been pro- perly summoned to attend: for he should always be once sum- moned, to hear who were chosen to make the recognition ; and, if he pleased, he might except to some upon any reasonable cause. If he did not come at the first summons, they did not wait for him ; but the twelve jurors were elected in his absence, and sent by the sheriff to view the land or tenement whose seisin was in dispute : and Glanville says, that the tenant was to have one sum- mons more. The sheriff caused the names of the twelve to be inserted in a writ;^ then summoned the tenant to be present at the day appointed by the writ, before the king or his justices, to hear the recognition. The tenant might essoin himself at the first and second day (provided the demandant was not an infant), but there was no essoin allowed him at the third day ; for then the recog- nition was taken, whether he came or not ; it being a rule, that no more than two essoins should be allowed in any recognition upon a seisin only ; and in a recognition upon a novel disseisin, there was no essoin at all. At the third day, then, the assize was taken, 1 Glanv. lib. 13. c. 2, 3, 4, 6. ^ Ibid. c. 5. 3 De clamore suo prosequendo. * Imhreviari. CHAP. IV.] ASSIZE MORT D'ANCESTOK, 225 whether tlie tenant came or not. If the jurors declared for tlie demandant, the seisin was adjudged to him, and a writ of the following kind went to the sheriff to give execution thereof: Scia.s quod N. diratioiKivit in curid med seisinam tankc ferrcn in villa, . 107, in the plea upon a right of advowson, where this writ is awarded to try a collateral matter, arising in a writ of right of advowson. CHAP. IV.] ASSIZE OF NOVEL DISSEISIN. 231 remain ignorant, for want of knowing the terms of the famous law made by Henry II. about assizes. We shall, lastly, speak of that which was called the recognitio de nova disscisind {a). When any one disseised another Asuimdcmva of his freehold unjustly, and without any judgment dissdgina. of law to authorise him, and the fact was within the king's assize ; that is, if it was since the last voyage of the king to Normandy. ^ which was, it seems, the time limited for this purpose in the famous law so often alluded to; he miglit then avail himself of the benefit of that law, and have the following writ to the sheriff : Ql'estus EST ni/'hi N. quod It. injuste ct fiine jndicio disselsivit cum de lihero tencnwuto sua in villn, d'c, post idtimam transfrctalionem mernii in Norinanniam : et idea tibi prcecipio, quod si pr^fatus N. fecerit TE securum declamore suo prosequendo, tunc facias tenementum illad reseisiri de cataUis quoi in co capta fuerunt, et ipsum cum catalUs esse facias in i^ace usque ad clausum Paschce. Et interim facias duodecim libcros ct legates homilies de vicineto videre terram iJlam; et noinina eorf/m imbreviari facias. Et summone iUos per bonos summo7iitores, quod tunc sint coram me vel Justitiis meis, parati indefacere recognitioncm. Et pone per vadium et salvos plegios pr.edictum R. vel ballivum suum, si ipse non fuerit inventus, quod tunc sit ibi auditurus illam recognitioncm, &c.'^ (a) As to the word novel, it applied when the action Avas brought since the last eyre or circuit. The term disseisin is very ancient in our law, and is used in the sense of wrongful seizure by force. Tims the terms are expounded in a chapter in the Mirror upon the subject (c. ii. 125) : Disseisin, it is said, is a personal trespass in a wrongful putting out of possession, "and if I take from you forcibly anything of which you have had the peaceable possession, I do disseise you ; and I do wrong to the king when I use force where I ought to use judgment." The wrong is here taken as well for deforcemeut or disturbance as for ejection. " Deforcement, as if one entereth into another's tenement when tlie rightful OAnier is elsewhere, and at his return cannot enter therein, but is kejit out, and hindered so to do. Disturbance is if one disturb mo wrongfull}' to use my seisin which I have peaceably had, and the same may be in three ways — \. As where one driveth away a distress, so that I cannot distrain in the tenement liable to my distress ; 2. Another is where one doth replevy his distress wrongfully ; 3. As if one distrain me so outrageously that I cannot manure, plough, or use my land duly." It is further said, "All right is of two kinds — either a right of possession or of property ; and therefore the right of property is not determinable by this assize, as is the known possession, ov that which savoureth of a possessory right. The remedy of disseisin holds not of movables, nor of anything which falleth not into inheritance, as land, tenement, rent, advowson of a church, whether holden in fee or for term of life, or year, or mortgage, until so much be paid. Ejection of a term of years falleth to the etsaize, which sometimes cometh l)y lease, &c. Into this ofTence fall farmers (lessees) who lease their land for a longer time than their term endureth in j^rejudice of the lord or the reversioner " {ibid.) ' This was a.d. 1184, in the 30th year of Henry II. ; so that the time of limitation, duruig that reign, was never more tlian about four years. In the printed te.xt of Glanville, there are these words between brackets : Qiiod quan- doque majas quandoque minus censetvr; which jiassage has been tliought to import, that the time of limitation was often varied in this king's reign. Another meaning of this passage may be, that the period (tlie terminus a quo) being fixed, it must necessarily, by the lapse of time, be lengthening every day. After all, the passage lies under some suspicion of interpolation, and was, perhaps, for that reason put between brackets by the editor. This voyage into Normandy is referred to by later wiiters, as the limitation before the statute of Merton altered it. 2 Glanv. lib. 13, c. 32, 33. 2.^2 IIEXRY II. TO JOHN. [cil A P. IV. These writs of novel disseisin were of different forms, according to the nature of the freehold in whose prejudice the disseisin was made. There is one in Glanville for razing or prostrating a dyke ad nociimentum Uheri tcnementi; another for razing a mill-pool ad nocninenfnm libcri tcnementi; another for a common of pasture appertaining ad lihcrum tenementum.'^ These are all the writs of novel disseisin mentioned in Glanville. In this recognition no essoin Avas allowed, but the recognition proceeded at the first day, Avhether the disseisor appeared or not— for here no delay was suffered either on account of minority, or a vouching to warranty; unless a person would in court first acknow- ledge the disseisin, and then he might vouch a warrantor, and the recognition would remain ; the disseisor would be in the king's mercy — the warrantor was summoned, and the proceeding went on between him and the disseisor who vouched him. It must be observed that in this recognition whoever lost his suit, whether the demandant or tenant, or, as Glanville terms them (with a view perhaps to there being a sort of criminality 2 in a disseisin, the appellor and the appealed, he was in the king's mercy. If the appellor did not prosecute, by keeping the day appointed, his pledges also were in the king's mercy; and the like happened to the other party if he made default. The penalty ordained by the constitution which established this proceeding was only the miseri- cordia regis, so often mentioned. It often happened in this re- cognition that the demandant, after he had proved the disseisin, wanted a writ to the sheriff to be put in possession of the produce and chattels upon the land, the form of which writ we have before shown.3 It should be remarked that this writ to recover the chattels pursued the original writ of novel disseisin, which directed the party to be reseised of the chattels ; in no other recognition was there any mention in the judgment defructihus et cataUisA Of terms ami Having taken this view of the divers manners in vacations. wliicli justice was obtained, it seems to follow that something should be said of the times which were allotted, at this early period, for the regular administration of it. The division of the year into term and vacation has been the joint w^ork of the church and necessity. The cultivation of the earth, and the collec- tion of its fruits, necessarily require a time of leisure from all attendance on civil affairs ; and the laws of the church had, at various times, assigned certain seasons of the year to an observance of religious peace, during which all legal strife was strictly inter- dicted. What remained of the year not disposed of in this manner was allowed for the administration of justice. The Anglo-Saxons had been governed by these two reasons in distinguishing the periods of vacation and term ; the latter they called dies pads regis, the ' Glanv. lib. 13, c. 34-37. - In the canon law, a forcilile intrusion into an ecclesiastical benefice is construed ra)nna. Corv. .Jus. Can. lib. 4, tit. 24. i Glanv. lib. 13, c. 38, 39. * Ihid. c. 38. CHAP. IV.] OF THE CllIMIN'AL LAW. '2?i?> former, dies pact's Dei et sandce ecclesioi} 1'lie particular portions of time wliich the Saxons had allowed to these two seasons wei-e adhered to by the Normans, together with other Saxon usages, and their term and vacation were as follow: — It seems that llibiry term began Octahis E2ni')liama' — that is, the 13th of Januar}'-, and ended on Saturday next before Septua- gesima ; which, being movable, made this term longer in some years tlian others. Easier term began Octahis Fasciae (nine days sooner than it now does), and ended before the vigil of Ascension (that is, six days sooner than it now does). TrinHij term began Octahis Pentccostcs; to which there does not seem to have been any precise conclusion fixed by the canon which governed all the rest ; it was therefore called terminus sine terrnino; it seems to have been determined by nothing but the pressing calls of hay- time and harvest, and the declension of business very natural at that season. But the conclusion of it was fixed afterwards by l)arliament ; by stat. 51 lien. 111. it was to end witliiu two or three days after quindena sancti Johannis — that is, about the 12th of July. In later times, by stat. 32 Hen. VIII. Trinity term was to begin Crastino sanctw Trinitatis. Michaelmas term began on Tuesday next after St Michael, and was closed by Advent ; but as Advent-Sunday is movable, and may fall upon any day betw^een the 2Gt]i of November and 4th of December, therefore tlie 28th of November, as a middle period, by reason of the feast and eve of St Andrew, was appointed for it. Thus were the terms in the latter part of the Saxon times, and during this period, almost in the same state we have them now; and by them the return of writs and ap- pearances were governed. ^ Having gone through the law of private rights, and the several remedies furnished for the recovery and })rotection of The criminal property, it remains to say something of the criminal law l-^'^^- as it stood at the latter end of the reign of Henry II.; but, previous to this it may be proper to take a view of some few regulations that had been made on tlie sul)ject of crimes and punishments antecedent to the time of which we are now writing. We have seen that a law- was made by William the Conqueror, which took away all capital punishments, and, instead thereof, directed various kinds of mutila- tion. Tliis law was repealed in one instance, a.d. 1108, in the 9th year of Henry I., when it was enacted, that anyone taken in furto vel Icdrocinio sliould be hanged, without allowing any pecuniary loere to be paid as a redemption^ («). The law of William, however, still operated in other cases ; the punishment of crimes consisted in {a) This is a mistake. The law was. that among- the olTonccs which put a man in minericnrdia rcr/i.i, was theft if worthy of deatli, " Furtum probatum et niorte (lignum '' [Leges llenrici Primi, c. xiii. ) But, in the same eliupter, even homicide is allowed its compensation. 1 Le^'. Confes. c. 9. " Spclmau, Orig. of Tcrm.s. 3 Wilk. Leg. Ang. Sax. p. 304. 234 HENRY II. TO JOHN. [cHAP. IV. mutilations of various kinds ; and it will presently be seen that tliis law of Henry I. was dispensed with or repealed. Some provisions respecting the administration of criminal justice had been made by the statutes of Clarendon that were published at Northampton!. It was thereby directed, that any one charged before the king's justices with the crime of murder, theft, robbery, or receipt of such offenders, of forgery, or of malicious burning, by the oaths of twelve knights of the hundred ; if there were no knights, by the oaths of twelve free and lawful men, and by the oaths of four out of every vill in the hundred ; that any one so charged should submit to the water ordeal, and if he failed in the experiment he should lose one foot ; and afterwards at Northampton it was added, in order to make the punishment more severe, that he should lose his right hand as well as one of his feet ; and also that he should Of i- .. f abjure the realm, and leave it within forty days; and a JUKI ion. ^^^^ .J j^^ ^^^^ acquitted by the water ordeal, that he should find pledges to answer tor him, and then he might remain in the realm unless he was charged with a murder or some other heinous felony by the commonalty and lawful knights of the country. If he was charged with any of those crimes, notwithstanding his acquittal by the ordeal, he was to leave the kingdom within forty days, and carry all his goods with him (with a saving of all claims his lord might have on them), and so abjure the realm and be at the king's mercy as to any permission to return. This regulation was to be in force so long as the king pleased, in all cases of murder, treason, and malicious burning ; and in all the before-mentioned crimes, except in small thefts and robberies committed during the war (which was just concluded), in taking horses, oxen, and the like. Thus an offender was subjected to a trial, by which, if convicted, he was to lose a limb and be banished ; if acquitted, he was likewise to be banished. Such a method of proceeding can be imputed to nothing but some doubt entertained of the j ustness of this trial by ordeal. It is related that, before this, William Rufus having caused fifty Englishmen of good quality and fortune to be tried by the hot iron, they escaped unhurt and were of course acquitted ; upon which that monarch declared he would try them again by the judgment of his court, and would not abide by this pretended judgment of God, ivhich was made favourable or unfavourahle at any mans 'pleasure. The king looked upon this trial to be fraudulently man- aged, as no doubt it was; and Henry II., convinced of the fraud, would not allow such an acquittal to have its full effect ;^ though it is a strong mark of the barbarism and prejudices of these times, that a practice liable to such suspicions v/as still suffered to continue as a judicial proceeding, and that they would rather punish those who were lawfully acquitted by it than altogether abandon such an abominable proceeding. 1 Litt. Hen. II. vol. iv. 279. CHAP. IV.] CRIMINAL PROSECUTIONS. 235 Another provision made by the statute of Nortlianipton related to the ohl law concerning decennaries. It declared that no one in a borough or vill sliouhl entertain any strange guest in his house more tliaii one niglit iniless he woukl engage to answer for liis ap- pearance ; or i^ncli guest had some reasonable excuse for staying, which his host was to make known to the vicinage ; and when he went away, it was to be by day and in the presence of the vicinage. Another ordinance was to secure the punishment of criminals who had been prosecuted and appealed before the inferior magistrates in order to a final trial before the king's justices ; it declares, that any one taken tor murder, theft, robbery, or forgery, and confessing himself guilty before the chief officer of the hundred or borough, or before certain lawful men, should not be permitted to deny the fact when brought before the justices.^ Such is tlie substance of certain statutes made for the improve- ment of criminal proceedings, in this and the preceding reigns. We shall now sjieak of the i)cnal law in general, and the way of prosecuting offenders, as practised towards the end of the reign of Henry II. But in this we shall confine our inquiries to such objects as relate to the curia regis only ; contenting ourselves with subjoining a short account of the proceedings before justices itinerant. When a person was infiimatus, as Glanvillc terms it, or accused of the death of a man, or of any sedition moved in the Mode of pro- realm or army, it was either upon the charge of a cer- sedition, tain accuser or not. If no certain accuser appeared, but he was accused only by the voice of public fame, or, as Glanville says, fama tantummodo ijnhlica accused (which signified probably no- thing more than what the statute of Northampton calls jjer sacra- mentum legalium Jiomininii), he was immediately to be safely attached, either b}'' proper pledges, or by a much safer security, that is, 'per carceris inchisionem. Then the truth of the matter was inquired before the justices, by many and various inquisitions and interrogations ; every probability was to be weighed, and every conjecture to be attempted, from facts and circumstances, which could be thought to make either on one side or the other. In con- clusion, the criminal was either to be entirely acquitted, upon such inquiry, or was to be put to purge himself 2)er legem apparentem ; that is, by a number of compurgators. If upon tliis trial per legem he was convicted, his life and members depended upon the judgment of the court, and the grace of the king, as in cases of felony; for so Glanville calls this offence of seditio regni vel cxer- cilus.'^ If a certain accuser, or, as he is sometimes called by Glanville, and was afterwards more commonly called, an appellor, appeared at first, he was to be attached by pledges, if he could find any, for prosecuting the suit ; if he could not find i)ledges, he was trusted ' Wilk. Leg. Ang. Sax. p. 330. -' Glaiiv. lib. 11, c. 1. 236 HENRY II. TO JOHN'. [CHAP. IV. upon his solemn promise and engagement to prosecute ; and this was the more common security for prosecuting felonies ; lest bind- ing by too severe an obligation might deter persons from assisting in bringing offenders to justice. When the accuser had given security for prosecuting, then the person accused, as in the former case, used to be attached by safe l)ledges ; and if he had none, was committed to prison : and it was a rule, that in all pleas of felony, except homicide, the accused per- son was to be discharged upon giving pledges. Then a day was appointed, upon which the i>ai'ties might have their lawful essoins. At length the accuser would propose what charge he had to make. He might perhaps say, that he saw, or would by some other means prove, the accused to have attempted or done something against the king's life, or towards moving sedition in the realm or army; or to have consented, or given aid, or coimsel, or lent his authority towards such an attempt ; and add that he was ready cUrationare, to deraign or prove it, as the court should award : and if to this the person accused opposed a flat denial, then the whole was decided by the duel. When the duel was once waged in suits of this sort, neither party could de- cline or go back, under pain of being esteemed joi^o victo, and suf- fering all the consequences attending such a defeat ; nor could they be reconciled, or the question between them be compromised, any otherwise than by the licence of the king or his justices. If the parties at length engaged in the duel, and the appellor was vanquished, he was to be in misericordia regis ; in addition to which he incurred perpetual infamy, and certain disabilities which always attended the being vanquished in a judicial duel. If the party accused was vanquished, he suffered the judgment of life and limb above-mentioned; and besides that, all his property and chattels were confiscated, and his heirs were disinherited for ever. A remarkable difference is here to be ob- served between a conviction per legem apparentem, and by duel : on the former, which was a remnant of the old Saxon jurisprudence, a felon suffered only the pains of death ; but if convicted on the latter, which was a mode of trial introduced by the Normans, he suffered the additional penalty of forfeiture. Every freeman, being of full age, might be admitted to this sort of accusation, or appeal ; yet should a person within age appeal any one, he was nevertheless to be attached in the manner just men- tioned. A rustic (by which it may be supposed that Glanville means a person not free) might bring such an appeal ; but a woman was not admitted to prosecute an appeal of felony, except in some particular cases, which will be hereafter mentioned. The party accused might decline the duel, in suits of this sort, on account of his age; or some mayhem received; that is, if he was sixty years of age, or if he had broke a bone, or had suffered in his head, either per incisionem, or per abrasionem; for such only were CHAP. IV.] HOMICIDE. 237 considered as mayliems. And in these cases, the party accused was to pur^sisiators. which effected no inconsiderable alteration, by introducing tenures, and the trial by duel in criminal questions. Besides these express ordinances, he contrived all means of ingrafting the laws of Nor- mandy upon the common law ; for this purpose, he appointed all his judges from among his Norman subjects, and made that language be taught in schools.^ By the constitution of his courts of justice, and every act of his administration, he did all in his power to change the jurisprudence of the country. the same land again to hold of the same house ; nor shall it be lawful for any reli- gious house to take the land of any, and to leave the same to him from whom they were received. Therefore, if any do give his land to any religious house, his gift shall be void, and the land shall accrue to the lord." Then there was a general saving to all persons, ecclesiastical or lay, the liberties and free customs they had formerly had. (a) This is not quite so. On the contrary, as the charter of John Tvas the original, it is of the greater importance in an historical point of view, and, at all events, it forms an important step or stage in our legal history; and the comparison of its terms with the articles and with subsequent charters, afford very interesting illus- trations of the history of the subject, for which reason some account of them has been given. ' Wilk. Leg. Sax. p. 289. 248 HENRY II. TO JOHN. [cHAP. IV. We hear nothing of Rufus as a legislator; nor are there any laws of Henry I. except his charter («) ; but there is every reason to believe that the latter of these princes paid great regard to the improvement of the law. He was himself a man of learning, and had a disposition to quiet the minds of his subjects by a good ad- ministration ; the laws, therefore, which go under his name may be considered as a compilation, at least, made in his reign, and as an instance of his attention to the subject of legislation. The reign of Stephen was a period of continual war and disturb- ance, and of course gave little room for improvement in legal establishments. The introduction, however, of the books of canon and civil law must have contributed to the great advances made in the time of his successor, Hemy II. ; for, though there was always an extreme jealousy in the practisers of the common law, with respect to those two systems, it went no further than to an exclusion of their authority as governiiig laws ; they were still cultivated by them as branches of the same science, and had a great effect in polishing and improving our municipal customs. The wise administration of Henry II. operating on the advan- tageous circumstances concurring in the latter end of his reign, when all things were reduced to peace, contributed more to advance our legal polity than all the preceding times from the Conquest put together. Without recapitulating what has been before related, let any one compare the work of Grianville with the laws (or, as it might more properly be called, the treatise of laiv in the time) of Henry I., the great regularity in the order of proceeding, and the refinement with which notions of property ai-e treated, and he will see the superiority of the later reign in point of knowledge. It is probable, that the additions and amendments made in the law of this kingdom were by this prince transplanted into Normandy, and occasioned a still further improvement in the law of tenures ; as lawyers were, by these communications, engaged in a kind of com- petition to enlarge and polish the same subject of inquiry. The whole of our municipal law was improved to a high degree during the reign of Henry II, and afforded an ample foundation for the superstructure raised on it in the time of Eichard and John, and more particularly in the reign of Henry III. It dees not appear that Richard took any part himself in con- tributing to further the great designs of his father, in matters of municipal regulation, but left things to the course they had been put in by him. This prince, however, stands very high in the history of maritime jurisprudence. UiDon his return from the Holy Land, while he was in the Island of Oleron, on the coast of France, he compiled a body of maritime law. This was designed (a) This is not so. There are, as already mentioned in tlie Leges Henrki Primi, many which are of his reign, tliougli the whole is a compilation, and some have also been already alluded to as scattered in the Mirror of Justice. The Leges ILenrici Primi, however, is rather a treatise of the laws, than a mere collection of them. CHAP. IV.] LAWS OF THE TEUIOD. 249 for the keepin«j of order, and the determination of controversies a])road ; and the wisdom witli wliicli it was framed, has been evinced by the general reception it has obtained in otlier nations.^ Kini,^ John did nothing,' memorable in the -way of legislation in this kingdom ; thongh he lias the praise of having first introduced the English laws into Ireland,^ wliere he instituted slier iffs and other officers to interpret and execute them. He likewise appointed a grand justiciary to preside over the administration of justice in that kingdom.^ The monuments which remain of the jurisprudence of these times are not very numerous. They consist of some laws, charters, records, and law treatises. Of the laws of William the Conqueror, some are in Norman- French, and some in Latin. The first fifty capitula in j.^^^ ^^ ^vii. Norman-French are what, Ingul[)hus says, he brought liam theCun- down to his ahbey of Croyland, as those which the king 'i^eror. had confirmed, and commanded to be observed throughout England."* Though the time when they were enacted is not mentioned, it is tolerably clear, that it was not long after Ingulphus went to London on the affairs of his monastery, in the sixteenth year of William's reign. These therefore were, probably, such alterations and addi- tions as he chose to make in the laws of Edward, Avhich had been allowed in the fourth year of his reign.^ There follow some other laws of William in the form of a charter ; and as the first mostly concern the criminal code, these latter constitute some alterations in the civil. These are in Latin, and go from the fifty-first chapter to the sixty-seventh inclusive. There are also some others in the form of a charter, which, together Avith the preceding, make in all eighty-one capitula of laws of William the Conqueror. There are no laws remaining of William Kufus, if any were made ; nor of Henry L except his charter. Those that usually go under the title of laws of this king, and are entered in the Red Book of the exchequer, seem to have been reduced into that form by some person of learning, as containing a sketch of the common law then in use; a manner of entitling treatises not then imconimon: for there is now to be seen, in the Cottonian collection, a manuscript of Glanville which bears the title of Lmcs of Henr?/ 11.^ There is no evidence that these laws were enacted by the great council, or granted by any charter. They contain ninety-four capitula, and are to be found in the collection of Lambard and Wilkins. We have no remains of legislation in the time of Stephen. The laws of Henry II. are the Constitutions made at Clarendon, auTio 1164, and the statutes made at Northampton, anno 1170. The first fourteen of the Constitutions of Clarendon made several altera- tions in the civil and criminal jiart of our laws ; the remaining 1 Black., vol. iv. p. 423. * Qiiccre, if not Henry II., vide Harris's Ilihcniia, part ii. p. 215, et seq. » Tyrr. vol. ii. p. 809. •» Ingulph. => Tyrr. vol. ii. p. 69. 6 Claud. D. 2. 250 HENRY ir. TO JOIIX. [CIIAP. IV. sixteen concern ecclesiastical afFuirs, and contain those points which were disputed between Henry and Becket, and between this king- dom and the see of Rome. Besides laws, there remain some public acts of this reign; as articles of inquiry concerning the extortion and abuses of sheriffs, and the assize of arms. During the reigns of Richard and John, there are no laws which can be properly so called ; but there are commissions and ordinances of a public nature respecting the ad- minstration of justice. In the reign of the former, there are some articles of the crown, with the forms of proceeding in those pleas; and directions for preserving the laius of the forest.^ Besides the laws of these kings wliich have been mentioned, there are many other provisions made in these reigns which may be found, arranged in the order of time in which they passed, in the Codex Legum Vefej'um, intended for publication by Spelman, and now annexed to the end of Wilkins' Anglo-Saxon Laws.^ The great monuments of this period are the charters. Under this title might indeed be reckoned those laws of William the Conqueror which we have just noticed to have passed in that form. But the charters, properly so called, and which have become so famous on account of the object they all had in view, namely, the removal and redress of certain grievances, are the following: — The charter of Henry I., containing eighteen chapters; that of Stephen, containing thirteen chapters ; that of Henry II., contain- ing only two chapters, and expressed in very general terms ; the Capitula Baronum, being those heads of grievances which were proposed by the barons to John to be redressed ; and the Magna Charta of that king, drawn up in pursuance of them ; these are all to be found in the late Mr Justice Blackstone's correct edition of the charters,'^ where that great ornament of English law has given a critical and very curious history of these valuable remains of antiquity. The laws, or assisce, as they were called, made at this early period, Of tiie civil deserve a little further consideration. It has been statutes. before observed, that our law is composed of the custom of the realm, or leges non scriptce, and the statutes, or leges scriptce. Our lawyers have made a distinction among statutes themselves ; they have distinguished between statutes made before tlie time of memory, and those made since. The time of memory has been fixed in conformity with a provision made in the time of Edward I. for settling the limitation in a writ of right ; which was, by stat. 1 West. c. 39, fixed at the beginning of the reign of Richard. Though the limitation in a writ of right has been since altered, this period has been chosen as a distance of very high anti- quity, at which has been fixed the time of memory, as it is called ; so that everything before that period is said to have happened before the time of memory. 1 Tyrr. vol. ii. p. 578. ^ See the Preface to Wilk. Ang. -Saxon Laws. 3 Jjlack. Tracts, vol. ii. ClIAr. IV.] THE STATUTES OF THE PERIOD. 2r)l Those statutes wliioh were made before tlie time of memory, and liave not since been repealed nor altered by contrary usage, or sub- sequent acts of parliament, are considered as a part of the Icrjcsnon scriptoB ; being, as it were, incorporated into, and become a part of, our common law : and notwithstanding copies of them may be found, their provisions obtain at this day, not as acts of parliament, but by ininieiiinrial usage and custom; of which kind is, no doubt, a great })art of our conunon law.i Laws were termed sometimes assisa', sometimes coniititulioncs. Though the most solemn and usual way of ordaining laws Avas to get the concurrence of the commune concilium regni, it should seem that in these times the king took upon himself to do many legisla- tive acts which, when conformable with the established order of things, were readily acquiesced in, and became the law of the land. The very frame, indeed, of such laws as were sanctioned with all possible formalities, carried in them the strongest appeai-ance of regal acis : if a law passed concih'o haronum suorum, it was still rex conslituit.- Of the laws of William the Conqueror, though in some parts they seem to have the authority of the great council, statuimus, vohimus, iiraicipimiis ; yet in others they speak in the person of the king only, lioc quoqve j^'i'cccipio, et j^rohibeo.^ The form of a charter, in which the king is considered as a person granting, was a very common way of making laws at this time ; and this carries in it the strongest proof of the sentiments enter- tained in those ages concerning legislation: nevertheless, it is to be remarked, that some of these chaiters, from the solemnities attend- ing the execution of them, might be regarded as having all the validity of laws; as the charter of king John, to which the barons of the realm were parties. There were, however, several other charters which seem to have no authority but that of the sovereign. Indeed, several hiAvs, or assisce, even so low down as Henry II. and the reigns of Kichard and John, vouch no other sanction but orx constituit, or rex pnecijrif, for everything they command or direct. There is no way of accounting for this extraordinary appearance of the old statutes, but by sujiposing tlie state of our constitution and laws to have been this : That the judicature of the realm being in the hands, and vmder the guidance of the king and his justices, it remained with him to supply the defects that occasionally appeared in the course and order of proceeding; which, being founded ori- ginally on custom and usage, was, in its nature, more susceptible of modification than any positive institution, that could not be easily tampered with without a manifest discovery of the change. In an unlettered age, it was convenient and beneficial that the king should exercise such a superintendence over the laws as to declare, explain, and direct, what his justices should do in particu- lar cases ; such directions were very readily received as positive 1 Hale Hist. 3, 4. ' Vide Schmidt dcr Dcutchcn, Gcschkhtc, vol. i. DS2. « Wilk. 217, 218. 252 HENRY II. TO JOHN. [cHAP. IV. laws, always to be observed in future ; and, no doubt, numbers of such regulations were made of which we have at present no traces. While this supreme authority was exercised only in furthei-ance of justice, by declaring the law, or even altering it, in instances which did not much intrench upon the interest of the great men of the kingdom, it was suffered to act at freedom. But no alteration in the law which affected the persons or property of the barons could be attempted with safety, without their concurrence in the making of it ; as, indeed, it could not always be executed without the assistance of their support. Thus it happened that when any important change was meditated by the king, a commune concilium was summoned, where the advice of the magnates was taken ; and then the law, if passed, was mentioned to be passed with their con- currence. On the other hand, had the nobles any point which they wanted to be authorised by the king's parliamentary concur- rence, a ccrnimime concilium was called, if the king could be pre- vailed on to call one ; and if the matter was put into a law, the king here was mentioned to have commanded it, at the prayer and request of his barons ; so that, one way or other, the king is men- tioned in all laws as the creative power which gives life and effect to the whole. As laws made in the solemn form by a commune concilium were upon the points of great importance, and often the subjects of violent contest ; they were in the nature of concords or compacts between the parties interested, and were sometimes jiassed and executed with the ceremonies suitable to such a transaction. The Constitutions of Clarendon (which too were called the ancient law of the kingdom, and therefore only to be declared and recognised as such) were passed in-" that way. Becket and all the bishops took an oath to observe those laws; and all, exce})t Becket, signed, and put their seals to them. The laws were drawn in three parts. One counterpart, or authentic copy, was given to Becket, another was delivered to the archbishop of York, a third was retained by the king himself, to be enrolled among the royal charters.i The Magna Charta of king John was executed with similar solemnity, and bore a similar appearance of a compact between the king and his nobles. It was not uncommon that the people, as well as the makers, should be sworn to observe laws ; the assisce stahdce, et juratce, are mentioned by Bracton as an article of inquiry before the justices in eyre in the reign of Henry III. The rotuli annales, or great rolls of the pipe, in which the accounts of the revenue were stated, are the most ancient rolls now remaining, and the series of them is pei'fect from the first year of Henry II. Besides this there is still remaining in the same archives, a great or pijje roll, which has been supposed to belong to the f/ih year of king Stephen, but has been proved by Mr Prynne and Mr Madox^ to be entitled to an earlier date ; indeed, 1 Litt. Hen. II., vol. iv, p. 26. '^ Mad. Hist. Dis. Epist. CHAP. IV.] DOMESDAY Bv:)OK. 253 to belong; to some year of Henry I.; and, according to Mr Prynne, to the ei<;litcenth of that k'mj Book, which, though Domesday not strictly a monument of a legal nature, yet has ^t"'^- this connexion with the history of our law, that it is said to have been made with a view to the establishment of tenures. This book contains an account of all the lands of England, except the four northern counties; and describes particularly the quantity and value of them, with the names of their possessors. King Alfred is said to have composed a book of this kind about the year 900, of which this was in some measure a copy. This work was begun in 1080, and completed in six years. It has always been esteemed of the highest authority, in questions of tenure ; and is considered by antiquarians as the most ancient and most venerable record that now exists in this or any other kingdom. The Black and Bed Book of the Excliequer^ seem very little more connected with our ancient laws than the foregoing work, except that in both of them was found a transcript of a law treatise which will be mentioned presently. 1 See AylofFe's Ancient Charters, Introd. 2 Domesday Book is a document belonging to the Receipt of the King's Exchequer, and is iu tlie Chapter House at Westminster. It is in two volumes. For a more satis- factory account of this ancient i-ecord we must refer the reader to a small quarto pamphlet, entitled, " vl short Account of some Farticttlms conca')iin(j Domcsdaii Book, icith a V'icto of its bcin// pi(blishcd. By a Mernber of the Societi/ of Antiquarians." This is a performance of Mr WeLb, and was read at tlie society in the year 1755. In this little essay is brought together in one view all that had been said by former historians and anti(iuarians on the subject of Domesday. I)y tlie niuuiriccnce of parliament, J)omcsdai/ has been printed ; but we must regret that this laudable regard of the legislature towards our ancient records has not been seconded by tlie common attention which has been paid to every other publication since the earliest times of printing. The reader will be surprised when he is told that this book has no prefatory discourse, or index, not even a title-page, or the name of the printer : it is a mcvo fac-simile, constituting a very large folio, full of abbreviations and signs, that cannot be understood without a key, and much previous information. 25-4 HENRY II. TO JOHN. [cHAP. lY. There are two treatises written in the reign of Henry II. which contribute greatly to illustrate the state and history of our law : the one is the Dialogus de Scaccario^ before alluded to ; the other is the Tractatus de Legihus Anglice, by Grianville. The Dialogus de Scaccario has generally passed as the work of Gervase of Tilbury ; but Mr Madox thinks it was written by Richard Fitz-Nigel, bishop of London, who succeeded his father in the office of treasurer in the reign of Richard I., and was therefore well qualified for such an undertaking. This book treats, in the way of dialogue, upon the whole establishment of the exchequer, as a court and an office of revenue ; giving an exact and satisfac- tory account of the officers and their duty, with all matters con- cerning that coui't, during its highest grandeur, in the reign of Henry II. This is done in a style somewhat superior to the law- latinity of those days. Glanville's book is of a very different sort : this is written with- out any of the freedom or elegance discoverable in the Glanv e. Q^|^gj, . g^^^j ^^^ ^Y[ j^^q formality and air of a professional work. It is entitled, Tractatus de Legihus et Consuetudinihus Regni Anglian; but notwithstanding this general title, it is con- fined to such matters only as were the objects of jurisdiction in the cwia regis. Having stated this as the limit of his plan, the author very rarely travels out of it. Glanville's treatise consists of four- teen books ; the first two of which treat of a writ of right, when commenced originally in the curia regis, and carry the reader through all the stages of it, from the summons to the appearance, counting, duel, or assize, judgment and execution. In the third, he speaks of vouching to warranty ; which, being added to the two former books, composes a very clear account of the proceeding in a writ of right for recovery of land. The fourth book is upon rights of advowson, and the legal remedies relating thereto. The fifth is upon actions to vindicate a man's freedom ; the sixth, upon dower. The seventh contains very little concerning actions ; but considers the subjects of alienation, descent, succession, and testaments. The eighth is upon final concords ; the ninth, upon homage, relief, and services ; the tenth, upon debts and matters of contract ; and the eleventh, upon attorneys. Having thus disposed of actions 1 Liher Buher and Liber Niger Scaccarii are two miscellaneous collections of charters, treatises, conventions, the number of hides of land in several counties, escuage, and the like ; many of which, as well as the Dialogus de Scaccario, are to be found in both those books. The Liber Niger has been printed by Hearne, together with some other things, in two volumes Svo ; of which the Liber Niger fills about 400 pages. He entitles it, '' Exemplar vetusti codlcis 3fS. [tiigro rclamine cooperti) in Scaccario," d-c. The col- lector of the contents of the Liber Ruber is supposed by Mr Madox to have been Alexander de Swereford, archdeacon of Shrewsbury, and an officer in the Exchequer in the latter end of Henry II. It seems as if the Dialogus de Scaccario had been considered as the whole of the Liber Niger, till the publication of Hearne ; and since Mr Madox has pronounced Richard Fitz-Nigel to be the author of the Dialogue, and not Gervase of Tilbury, the whole of the Liber Niger has been given to Gervase, though it does not appear for what reason. The Dialogus de Scaccario is published by Mr Madox, at the end of his History of the Exchequer. See Nicholson's Eng. Hist. p. 173 ; Hearne's Liber Niger, p. 17. CHAP. IV.] LEGAL WRITERS— GLANVILLE. 255 commenced originally in the curia regis, in his twelfth book he treats of writs of right l)rought in the lord's conrt, and the manner of removing them from thence to the county court and curia i-cr/in; which leads him to mention some other writs determinal>le before the sherilf. In his thiiteenth book he speaks of assizes and dis- seisins. The last book is wholly upon pleas of the crown. The subject of this treatise is all along illustrated with the forms of writs ; a species of learning which was then new ; was probably l)ronglit into order and consistency by dlanville himself ; and first exhii)it(jd in an intelligible way, and with system, in this book. The method and style of this work seem very well adajfted to the subject : the former opens the matter of it in a natural and per- spicuous order ; while the latter delivers it with sufficient simpli- city and clearness. The latinity of it, however, may not satisfy every taste; the classic car revolts at its ruggedness; and the cursory reader is ]ierpetnally impeded by a new and harsh phrase- ology. But the language was not ad()])ted without design ; the author's own account of it is this: stylo vulgari, et verbis curia- libus idens, ex inclustria, ad notitiam compairiyidam eis, qui Jmjus- modi vidgaritaie minus sunt exerciicdi} The author seems not to be disappointed in his design even at this distance of time ; for a person who reads the book through, cannot fail of finding in one place an explanation of some difficulty he may liave met with in another : the recurrence of the same words and modes of speaking makes Glanvillc his own interpreter. When the style of Glanville is mastered in this way, it will appear that many obscure sentences have been rendered such through too great an anxiety to express the author's meaning ; and perhajis it will not be an affectation of discernment to say, that the plain English which it is thus at- tempted to convey, may be seen through the awkward dress which this latinist has spread over it. If Glanville confines himself to a part only of our law, he treats that part with such conciseness, and sometimes in so desultory a w^ay, that his book is to be looked upon rather as a compendium than a finished tract ; notwithstanding which, it must be considered as a venerable monument of the infant state of our laws ; and as such, will always find reception with the juridical historian when thrown aside by the practising lawyer.. It has been a general persuasion that the writer of this book was Ramdplms de Glanvilld, who was great justiciary to Henry II. This great officer, though at the head of the law, united in himself a ]M)litical as well as a judicial character ; and it seems that Glan- ville was likewise a military man, for he led the king's armies more than once, and was the commander who took the king of Scots prisoner. It might therefore be doubted whether a person of this description was likely to be the author of a law-treatise containing a detail of the practice of courts in conducting suits. There was a ' Prolog, ad fmem. 256 HENRY II. TO JOHN. [cHAP. IV, Ranulphus de Glanvilld who was a justice itinerant,^ and who, it is said, was a justice in the king's court towards the close of this reign. If the author was really of this name, it may be doubted whether he was not the latter of these two jjersons. Perhaps, after all, this work might be written by neither, but may be ascribed to the great justiciary for no other reason than because he presided over the law at the time it was written, and might be the promoter of the work, and patron to its author. Whatever doubt there may be concerning the author, there is no question but it was written in the reign of Henry II.— there are many internal marks to prove it to be of that period ; and from one passage it seems to have been written- after the thirty-third year of that king. If Glanville is the earliest writer in our law from whom any clear and coherent account of it is to be gotten, this book is also said to be the first performance that has anything like the appearance of a treatise on the subject of jurisprudence since the dissolution of the Koman empire.^ When this book is considered with a view to the progress of our law, it makes a remarkable event in the history of the new juris- prudence. Notwithstanding the attempts of William the Conqueror to introduce the Norman laws, and the tendency in the superior courts to encourage every innovation of that kind, not much had yet been done of a public and authoritative nature to confirm that law in opposition to the Saxon customs. The laws of William, excepting those concerning tenures and the duel, were in the spirit and style of the Anglo-Saxon laws ; the same may be said of those which go under the name of Henry I. It is observed that the Constitutions of Clarendon, made about the eleventh year of Henry II., are in the scope of them, as well as the style and language, more entirely Norman than any laws or public acts from the Conquest down to that time.-* It was not, then, till the reign of this prince that the Norman law was completely fixed here ; and when it was firmly established by the practice of this long reign, and had re- ceived the improvements made by Henry, then was this short tract drawn up for public use. It is probable this was done at the king's command, in order to perpetuate the improvement he himself had made, and to effect a more general uniformity of law and practice through the kingdom. The work of Glanville, compared with the Anglo-Saxon laws, is like the code of another nation ; there is not th(^ least feature of resemblance between them. While the Norman law was establishing itself here, that nation gradually received an improvement of their own polity from us. The two nations had so incor[iorated themselves, that the govern- ment of both was carried upon the like principle, and the laws 1 Vide Leg. Ang.-Sax. 2 Glanv. lib. 8, c. 2, 3. •* Barr. Ant. Stat. This is not true if the Decretam is to be considered as a treatise ; for Henry II. came to the crown in 1154, and Glanville being written after the thirty- third year of his reign, could not appear till 1187. Now the Decrttum was published by Gratian in 1149. ^ Mad. Exch. 123. CMAP. IV.] LEGAL TREATISES. 257 of each were reciprocally communicated ; a consequence not at all unnatural while both people weie governed by one prince. Much more had been done of late in this country tlian in Normandy for the promotion of legal science. It was not till after the publication of Txlanville, and even of Bracton and Biitton, that tbe Normans had any treati.se upon their law. One was at length produced iu the Grand Coustwiiier of Norniandij ; ^ a work so like an English performance, that should there remain any doubt of its being formed upon our models, there can be none of the great similarity between the laws of tiie two nations at tins time. There are some ancient treatises and statutes in the law of Scot- land which bear a still nearer resemblance to our English law. The close agreement between Glanvilleand the Jtcfjiam Majeskdem leaves no room to doubt that one is copied from the other ; though the merit of originality between them has occasioned some discu.s- sion. An essay has been written expressly on this subject, in which it is said to be clearly ])roved, by the internal evidence of the two books, that Glanville is the original. It is observed by that writer, that Glanville is regular, methodical, and consistent throughout ; whereas the Begiam Majestatem goes out of Glanville's method for no other assignable reason than to disguise the matter, and is thereby rendered confused, unsystematical, and in many places con- tradictory.2 To this observation upon the method of the Begiam Majestatem it may be added, that on a comparison of the account given of things in that and in Glanville, it ])lainly ap[)ears that the Scotch author is more clear, explicit, and defined ; and that he writes very often with a view to ex])lain the other, in the same manner in which the writer of our Fleta explains his predecessor Bracton. This is remarkable in numberless instances all through the book, and is perhaps as decisive a mark of a copy as can be. The other Scotch laws, which follow the Begiam Majestatem in Skene's collection, contribute greatly to confirm the suspicion. These, as they are of a later date than several English statutes which they resemble, must be admitted to be copied from them ; and so closely are the originals followed that the very words of them are retained. This is particularly remarkable of the reign of Robert II. in which is the statute quia emptores, and others, plainly copied from our laws, without any attempt to conceal the imitation. These laws, at least, can impose upon no one ; and when viewed with the Begiam Majestcdem at their head, and com- 1 The Coustumier of Nor man J >i, according to Basnnge, could not have hocn composed till the reign of Philip the Hardy, who came to the throne in 1272, and reigned fifteen vears ; and our Edward I. came to the tlirone in 1272. Upon this statement of dates, it is possible that it might be written after the time of Britton. The language seems to have a more modern form than that of Britton ; though this must be attributed to some other cause than such a small space of time as could by any possibility intervene between the writing of these two books. — (Euvrca de Henri Biisnai/c, Arcrtii'scmrnt. * The essay here alluded to is written by Mr Davidson, of Edinburgh. Of this tract I have not been able to get a sight, and am obliged to the preface to the new edition of Glanville for this account of it. R 258 HENRY II. TO JOHN. [cHAP. IT. pared with Glanville and the English statute-book, thej' seem to declare very intelligibly to the world that this piece of Scotch jurisprudence is borrowed from ours.i The Begiam Majestatem is so called, because the volume opens with those words : the prologue to Glanville begins Regiam Potes- tatem. This whim of imitation is discoverable among our own writers. Fleta begins his Prooemium in the same way, and goes on, for several lines, copying word for word from Glanville. Indeed, the leading idea in all is taken from the Prooemium to Justinian's Lisfitutes. The law-language of these times was Latin or French, but more commonly the former. The only laws of this time now subsisting in Norman-French, are those which compose the first collection of William the Conqueror. All the other laws from that time to the time of Edward I. are in Latin. There are some few charters of the first three Norman kings which are either in Anglo-Saxon or in Latin, with an English version ; of which sort there are several now remaining in the Cottonian and other collections.^ Without doubt the Norman laws of William were proclaimed in the county court in Anglo-Saxon, for the information of the English, w^ho still continued to conduct business there in their own language, as they did in all inferior courts ; but in the curia regis and ad scaccarium William obliged them to plead in the Norman tongue, as most consistent with the law there dispensed, and that which was best understood by the justices. However, notwithstanding this language was used in pleading and argument, all proceedings there, when thrown into a record, were enrolled in a more durable language, the Latin. This was the language in which all writs, laws, and charters, whether public or private, were drawn, so that the Norman tongue was of no extensive use here ; nor was it till the time of Edward I. that French became of common use in the laws, jDarliamentary records, and law-books ; and this was not the provincial dialect of Normandy, but the language of Paris. It is believed that few were learned in the laws before the Con- ^ It seems unnecessary to contend for the originality of the Regiam Majestatem, while a doubt of much more importance remains unsettled ; this is, whether that treatise, as well as the others in the publication of Skene are now, or ever were, any part of the law of Scotland. Upon this point, some of the most eminent Scotch lawyers are divided. We find Craig and Lord Stair very explicit in their declarations against these laws, as a fabrication and i:)alpable imposition ; on the otlier hand, Skene the editor is followed, among others, by Erskine, Lord Karnes, and Dalrymple, who continually refer to them, as comjirising the genuine law of Scotland in former times. That a large volume of laws, and law treatises should be pronounced by persons of professional leai-ning to be part of their law and customs, and should be as positively rejected by others, is a very singular controversy in the juridical liistory of a country : nor is it less singular that this volume should bear such a close similitude with certain laws of a neighbouring state, whose legislature had no power to give it sanction and authority. "While a fact of this sort continues unascertained, the history of the law of Scotland must be involved in great obscurity. See tVaigii Inst. Feud., lib. 1, tit. 8, sect. 7. Stair's Inst., fo. 3, tit. 4, sect. 27. Skene's Preface to the Rcfiium Majestatem. Ersklne's Prin. Kames' Hi.Horical Lavj Tracts; and Dalrymple's Feudal Property, passim. 2 Tyrrell, ii. 101. CHAP. IV.] MISCELLANEOUS FACTS. 2,j9 quest, except the clergy. The warlilce condition in which that people lived, and the extreme ignorance wliich univer- Miscellaneous sally prevailed among the laity, left very little ability f^^ts. for the management of civil affairs to any but the clergy, who I)Ossessed the only learning of the times ; in the reign therefore of the Conqueror, in the great cause between Lanfranc and Odo, bisliop of Bayeux, it was Agelric, bishop of Chichester, to whom tliey looked lor direction. He was brouglit, says an ancient writer,^ in a chariot, to instruct them in the ancient laws of the kingdom, lit Jcyuin ienxe saplcntissuiius. It was the same long after the Normans .settled here. In the time of Rufus, one Alfwin, rector of Sutton, and several monks of Abingdon, were persons so famous for their knowledge in the laws, that they were universally consulted, and their judgment frequently submitted to by persons resorting thither from all parts.- Auother clergyman, named Ranulph, in the same reign, obtained the character of invictus causidicus. So generally had the clergy taken to the practice of the law at that time, that a contemporary writer (a) says, nullus clericus nisi causidicus. The clergy seem to have been the principal practisers of the law, and were the persons who mostly filled the bench of justice. (a) William of Mahnesljiiry. The clergy supplying the lawyers, they wnuUl natu- rally have recourse to the law with which they were best acquainted, the civil law, uul the canon law, which, as our author elsewhere observes, was founded thereupon. In otlier words, they would have recourse to the Roman law, modified, in matters ecclesiastical, by the canon law, the Roman church and its law being established and recognised by the state. Hence the recognition of that law in the Laws of the Con- queror, and in the Leffes Henrici Primi, which formed the basis of the great treatises of Glanville and of Bracton, the foundations of our common law. Thus, therefore, probability, documentary evidence and the positive facts of history, combine to show that the origin of our law is to be traced back to the Roman law, partly through the traditions and institutions established in this country during the period of the Roman occupation, and partly by reason of the restitution or revival of Roman law, through the medium of the earliest professors of law, the clergy. 1 Textus Roff. 2 Dug. Orig. p. 21. CHAPTER V. HENRY III, Magna Charta — Tenures — Alienation — Mortmain — Communia Flacita non sequantur Curiam nostrum — Justices of Assize — Amercements — Nullus liber homo, d-c. — Prcecipe in Capite — Sheriff's Criminal Judicature — The Writ de Odio et Atia — Charta de Foresta — The Judicature of the Forest — PunisJi- onents — Charters con^rmed — Statutum Hihernice — Statute of Merton — Of Co7nnions — Of Special Bastardy — Ranks of Persons — Of Villenage — Of Free Services — Of Serjeant// — Scutagiuni — Homage and Fealty— ^Of Ward- ship and Marriage — Of Gifts of Land — by whom — to whom — Of Simple Gifts — Of Conditional Gifts — Of Estates by the Courtesy — Of Reversions — Gifts ad Ternmium — Livery — Rights — Testaments — Ecclesiastical Jurisdiction therein— Of Descent — De Partu Supposito — Of Partition — Dower. Having travelled through the early periods of our law, through the profound darkness of the Saxon times, and the obscure mist in which the Norman constitutions are involved (a), we approach the contines of known and established law. In the reign of Henry III, begins the order of statutes on which legal opinions may be founded with certainty. Whatever statutes were passed before this reign, and whatever remembrance we may have of them in annals and histories of the time, they are considered as little more than the remains of antiquity, that illustrate indeed the inquiries of the curious, but add nothing to the body of legal learning. Magna Charta, and the statutes of Merton and Marlbridge, passed in this reign, lie within the pale of the English law as now understood ; and furnish topics for argument, and grounds for judicial decision. From this time the history of our law becomes more authentic and certain. The constitutions now made produce determined effects ; we can trace in what manner they were afterwards altered and modified ; can generally fix the era of such alterations ; and can always rest secure in the probability of our deductions, while we behold the consequences of them in the present state of our law. If the statutes furnish authentic documents on which we may (a) It is impossilile not to observe that this darkness would have been lightened and this mist dispersed, had the aiitiior been more acquainted with the sources of information open to him, especially the contents of the Saxon laws and the Mirror of Justice, and with the comi)ilation called the Laws of Henry I. The satisfaction he expresses at havini^ reached the realm of statute law and regular legal treatises, which would enable him to state what the law was at this and any subsequent period of his history, betrays the idea in his mind that thus to state the law at successive stages is all that is involved in legal history. It is conceived, however, that it is desirable, as much as possil)le, to show the connexion between these different stages and the causes which luive led to the changes to be observed. And this object it has been endeavoured, however imperfectly, to aid, in the notes. CHAP, v.] MAGNA ClIAKTA. 201 rely with confidence, the grounds and ])iinciples of the law are investigated and discussed by an author ol tliis reign, whose work may be considered as the basis of all legal k-arning; the treatise ot" Bracton will enable us to si)eak decidedly and fully upon every title in the law, whether civil or criminal. The sketch we have just given from Glanville will now be filled up, and its deficiencies su])plied; many of the obscure hints, the doubts, and ambiguities with which that author abounds, will be elucidated ; and the wlidle of our law exj)laincd with consistency, and upon undeniable authority. These are the materials from wliich tlie juridical his- tory of this king's reign is to be collected. For tlie matter which they furnish, it ma}' nc»t be raising the expectations of the reader too high, to promise him a full gratification of his thirst for legal antiquities, and the knowledge of judicial proceedings in all their branches. It is rather to be feared, that everyone may not entirely assent to the reasons which induced us to enter so minutely into the detail of things; it is thought, however, that it would be less jiardonable to give a scanty relation, where the sort of' information which is most likely to engage the curiosity of a lawyer depends very often upon circumstances and jiassages apparently trifling. The reign of this king, and the remainder of this History, will be divided, conformably with the nature of the materials from which it is formed, into the alterations made by statute, and those made by usage and the decisions of courts. These two sources of varia- tion will be pursued separately, and the amendments made by either stated distinctly, and by themselves. We shall first consider the statutes, and then the decisions of courts. In the present reign we begin with Magna Chaiia, 9 Hen. III., that being the earliest statute we have on I'ecord. Henry III. in the first year of his reign, on the 12th of November 121 G, being then only nine years old, by the advice of Gualo, the })ope's legate, and of the earl of Pembroke, in the grand council of the realm, renewed the Great Charter wdiich had been granted by his father, together with such alterations and amendments as the circumstances of the times had made necessary. i In the September or November following, a new Magna Charta was sealed by the pope's legate and the earl of Pembioke, with several additional improvements ; at which time the clauses relating to the Forest were first thrown into a separate charter, making the Cliarta de Forestd.'^ When the king was declared of age, it was thought that so im- portant an act of his infancy as this should be confirmed ; accord- ingly, in the ninth year of his reign he confirmed the act of the pope's legate and the earl of Pembroke ; and granted Maana Charta and Charta de Forestd in the form in which they had sealed it, and as we now have tliem.^ Thus was the text of Magna Charta and Charta de Forestti, after J 2 Bla. Tracts, ii. Inlr. 42. 2 Jhid. p. 52, CO. - Ibid. p. 09. 262 HENRY III. [c'lIAP. y. many alterations, finally settled ; nor has there in succeeding times been any amendment made therein. The solicitude of later ages was to obtain frequent confirmations, and a strict observance of these grand pillars of our constitution ; by occasional interpretations to explain any difficulties which might appear in the construction of them ; and to enlarge the benefits they were designed to confer. AVhat were the benefits, liberties, and advantages secured to the people by these famous charters (a), and what is the form and style in which they are conceived, it is now our business to inquire. (a) This, which is one of the most interestins- questions in our legal historv, cannot be understood without some reference to contemporai-y historj'. There can be no doubt, it appears on the face of the charters, and is a notorious historical fact, that the barons were the main promoters of the charter ; and d jmcji-i it might be expected that they would be directed, primarilj' and principally, at their protection from the exactions and oppressions of the sovereign under the feudal system ; and there can be no doubt that those oppressions and exactions had been enormous, and that some of the most revolting features of the feudal system, especially with reference to the custody of female wards, had been grossly abused by the sovereign, and more parti- cularly by John. There is a passage in tlie History of Sir J. Mackintosh in which he hints that this sovereign had so abused the facilities afforded by these wardships, and contemporary history' quite bears out the suggestion. Naturally enough, therefore, the barons would direct their eflbrts mainly to the restraint of the arl)itrary power of the crown with reference to the incidents of the feudal system, which, it will be observed, only applied to those who held by military tenure, and not, therefore, directly to the great body of the people ; those who held of the militarj* tenants by socage or villenage — that is, by plough-service, or the dwellers in towns and cities, who, if they held of the crown at all, held by burgage tenure, and could only be subject to pecuniary exactions. On the other hand, it is to be borne in mind that the incidents of the feudal system applied as between the barons and their military tenants, not less than between the sovereign and the barons ; and contemporary his- tory shows that all the oppressions and exactions which the sovereign practised upon them, they, with a hundredfold greater cruelty and rapacity, practised upon others. This is equally manifest whether we turn to the contemporary chronicles, or take the account given by an acute modern historian, such as Sir J. Mackintosh. The latter indeed quotes from the chronicles some passages which present a terrible picture of the oppressions and cruelties practised by the barons and their knights upon the people all over the country. And there was this terrible difference between their oppressions and those of the king, that they were ever3"where, whereas his tyranny was necessarily somewhat limited by the localities in which he happened to reside. In every county, however, there v/ere a host of these feudal barons and knights, each with a fortress or castle, in which was a dungeon, and where the most abominable cruel- ties were perpetrated, without any possibility of aid from the law, except in the form of armed force and a regular siege of the castle. Hence, in some instances, indeed, as in one very remarkable case in 1224, when one Falcon de Breaute actuallj- seized upon the king's justices, and imprisoned them in his castle, Henry III. had to lay siege to his castle for two months with a strong force in order to take it, and thus vindicate the law and rescue his judges. This single incident, which is narrated in all the chronicles under the year 1224, and occurred, be it observed, in the year when the charter was for the third time ratified by Henrj- TIL, will do much to illus- trate the character of the age and the real nature of the charter, especially, for in- stance, as to the remarkable stipulation put into the mouth of the sovereign in the cardinal clause — the celebrated "nullits libe?- homo" clause — which is so often quoted as the palladium of our liberties, "nee svpcr eum ihinnis," i.e., we Avill not come upon him with an armed force; "nisi per legem, terrce," i.e., by the sheriff or his officers, who would doubtless have been hanged by such gentlemen as Falcon de Breaute over their castle walls, if they had dared to attempt to interfere with them. Bead by the light of contemporary iiistory, this clause, which is so loudly vaunted as the palladium of liberty, did but give impunity to tyranny. For in that age, when the civil power was so weak as to be powerless against the military barons and knights each secure in his castle — to say that they should only be touched by the ordinary CHAP, v.] MAGNA CHARTA. 2G3 The copy of Magna Charta in our statute-book is taken from the course of law was to say that they slioiild enjoy impunity. A reference to the chronicles between the years 1216 and 1221 will siiow that in every part of tiie country the baruns were practising the most terrible oppressions, although it is equally true that the king, on his part, was practising whenever he could, the most terrible cruelties upon them, and that in point of cruelty he perhaps surpassed them, thoiigii not in mpacity. In sucii a state of things, of course they would naturally be very anxious to protect themselves, although, a.s regarded the great hotly of the people, they were the oppressors. And the i)oint of greatest interest in the charter is how far there were any provisions introduced for the protection of the people. The people, be it observed, were out of the scope of the feudal system, in its strict and l)roi)er sense, which was purely military. They held, whether as freeholders or as villeins, by plough -service, or such otlier rustic service, or they held in burgage. They, therefore, were not subject to those incidents of the feudal system which afforded so many pretexts for oppression ; and the aggressions upon them were of a MJiolly different and more lawless character, which may be gathered pretty clearly from the clironiclcs and the Mirror ; violent seizures of their property, under colour of distresses, or seizures of their persons to extort ransoms, by imprisonment in the numerous castles, of which there were many hundreds — upwards of a thousand— in different parts of England, each governed by a warden or "constable," that term not signifying, as it does now, a peace-officer, but a very different sort of character, the keeper of some strong fortress, with a deep dungeon, the scene of dreadful cruel- ties and extortions. Then the rivers, which then were swarming with fish (not having been befouled and polluted by towns), were too often monopolised by the local tyrants by means of "weirs" or fishing dams. And merchants were subject to ruthless extortions, under the name of tolls, in going through the lands of these feudal tyrants to get to the towns where they carried on trade. Thus on evci^' side the people were sulject to oppressions, and robberies, and cruelties ; and the practical way to test and appreciate the charters is to bear all this in mind, and see how far its different provisions tended to protect the people from these op- pressions, which resolves itself into a twofold question : first, how far they were pro- hibited ; and, next, how far they were to be prevented. The mere declaration that they were prohibited came to little in that age. Such declarations had been made in favour of the laws and liberties of the people by every sovereign since the Conquest, and as uniformly disregarded and set at nought. The great point was as to the prac- tical means of preventing these things, which it is manifest could only be done by securing the supremacy of law, and this could only be done by improving and strength- ening the judicial constitution of the country, and enabling them to carry out the law. But here, again, was a great difficulty. Quis cusfndiet ij^sos custodes? AVho should keep the guardians themselves under control? The sheriffs and justices of the king were themselves generally knights or barons, who belonged to the very same class as the oppressors of the people, and who were as ready, for fees or salaries, to practise for the enrichment of the king the same exactions and oppressions which others of the same order practised for their own. Hence, though justices itiner- ant had been going their circuits since the reiirn of Henry I., their exactions and oppressions, in levying fines or " amercements,'" (which, there is reason to suspect, was the great reason of their appointment) were so intolerable, that it appears the people often dreaded their approach, regarding them as oppressors instead of protec- tors, and actually remonstrated against them being sent oftener than once in seven years. That the charter did not altogether give satisfaction to the great body of the people in the age in which it was granted, and that even where its terms were satisfactory they were not carried out, is manifest from a chapter in the Mirror, en- titled, "The Defects of the Great Charter," which will afford the best possible com- mentary upon it, and which commences thus : " Seeing how the law of the realm, founded upon forty points of the great charter of liberties, is damnahhj misused by the governors of the land, and by statutes afterwards made contrary to some of the points ; to show the defects or defaults in these points, I have put this chapter, first of the defects of the great charter." And then a variety of points are mentioned, on each of which the comments made will be inserted in the notes to the clause in wliich it arises. This, it is manifest, will be that contemporaneous exposition which is the best possible commentary on any ancient statute, whence the change, subse- quently made, from justices itinerant, who went yearly, to "justices in eyre," who went only septennially {vide ante). In such a state of society, it is manifest that, 2G4 HENRY III. [chap. V. roll of 25 Ed. I., and is only an hispeximus of the charter of the ninth of Henry III., so called from the letters patent prefixed in as Guizot points out, the great difficulty was in the guarantees or securities for liberty. As to the law, there was no doubt al)Out it at all. And the very necessity for repeatedly affirmiug it showed the real difficulty lay in its execution and enforce- ment. It is to this point, then, principally, as by far the one most practically im- portant, the readers of the charters must attend, in order to judge of their practical worth and value. Mere declarations of that law, no doubt, were in that age not without value; but it must be evident that the great point was, what guarantees or safeguards should be provided. Two points, then, have to be kept in mind in examining the charter : first, what provisions it contained to protect the people not only against the king, but against the barons and other powerful persons ; and next, what provisions it contained for practically carrying out these protective enactments. As to the first point, it is remarkable that, as already observed in the chief clause, the celebrated "nullus liber homo" clause certainly applies to all freemen, though it contains no practical guarantee, as the commentator in the Mirror observes, but rather takes one away, or tries to do so, by making the sovereign undertake not to come upon any freeman, except in due course of law, ivhich, as the great oppressors of the people were too powerful for the ordinary course of law, would secure them from any efTective measures of redress, unless, indeed, they actually proceeded to levy war. But then it does not apply to villeins, a large and important class, com- prising still the great body of the people, who, as the Mirror points out, were not slaves, nor to be regarded or treated as such, or as if they had no personal rights, so that they could be beaten or imprisoned at leisure ; yet the charter contains not a word in their favour, and hence, as the Mirror says, in a passage at the end, written not long after the final confirmation of the charter by Edward I., " It is an abuse to hold villeins for slaves, and this abuse causeth great destruction of poor people, and is a great ofl'ence" (c. v. s. 2) ; but there is nothing against it in the Mirror. And although, in the clause about amercements, all villeins are included, as well as all freemen, and it is said tliat their amercements must be, saving their "wains" or waggons, that was as much for their lord's benefit as their own, and indeed more so, since they could only use their waggons upon their lord's lands, having no property of their own. As regards the great body of the freemen, the common freeholders, no doubt they appear to share in most of the principal clauses in the charter in which they could be included — those relating to personal liberty and rights of pro- perty, &c. But the bulk of the charter relates to feudal matters which concerned the barons and knights who held by military tenure, and the only guarantee con- tained in the first great charter consisted, in fact, as Guizot points out, in their own assumption of supreme powers ; for it was provided by John's charter that a select body of the most powerful barons might, if they deemed the charter to have been in- fringed, make war upon the king to compel its observance — i.e., its observance ac- cording to their ideas, which was, as Guizot says, the right of civil war; and accord- ingly it led to civil war, which lasted, more or less, for many years, and in the 2-esult it is remarkable that a charter was obtained in several respects less favourable to the people than the first, and especially in the omission of the important provision that scutage should only be levied by consent of a common council of the realm, which contained in it the germ of a representative assemblj-, the effeotual guarantee of popular liberty, at all events against the crown. And as the provision for a guarantee of the charter by the barons was omitted, there was no additional guar- antee or security afforded by the charter, as now finally settled ; and it consisted entirely of declarations of the law, no doubt, in that age, so far as they went, useful and valuable. As to this, indeed, one of our historians, Dr Henry, observes, that the charter was conceived entirely in the interest of the nobility, and that the only article in favour of the people — the one which applied to the barons the same enact- ments which they had applied to the king — was inserted at the instance of the king (Hist. Eng., v. 1). This, however, is not a fair representation, for though it may be that the charter was conceived and intended chiefly in the interest of the barons, it did contain provisions which embraced all freemen, and, moreover (what is of infi- nitely greater importance), it contained the great principles which, though perhaps intended for the benefit of a class, proved the fruitful germs of rights and immuni- ties for the whole body of the nation, and were growing and developing for ages. To trace this progress and development is the great object of the legal history of the CHAP, v.] MAGNA ClIAUTA. 2G5 the name of Edward I. Inspeximus Magnam Chartani doraini lienrici quondam regis Anglice patris nostri de lihcriatihus Anglioi subsequent periods. Xo one will regret the insertion of an admirable passage from Sir J. Mackintosh, in which that great liistorian sums up in a masterly manner the efleet of Joiin's charter: ''Many parts of the great charter were jiointcd against the aliuses of tlie i)o\ver of the king, as lord paramount, and have lost tiieir impijrtanee since the downfall of the system of feuds, which it was tlieir jiurpose to mitigate. JJut it contains a few maxims of just government a])j)licable to ail places and times, of wliich it is scarcely possiitle to overrate the importance of the first promulgation by the supreme authority of a powerful and renowned nation. Some clauses, tiiough limited in words ijy feudal relations, yet covered general principles of e(iuity, which were now slowly unfolded, by tlic example of the charter and their obvious applica- tion to the safety and well-being of the whole community. Aids or assistance in money were due from any vassal for tiie ransom of his lord, for the knighting of his eldest son, and for the marriage of his eldest daughter. But they were often ex- torted when no such reasons could be urged. Escuage or scutage was a pecuniary compensation for military service, but as tlie approach of war was an easy pretext, it was liable to become abused. Talliage, an impost assessed on cities and towns, and on freemen who owed no military service, according to an estimate of tiieir in- come, was in its nature very arbiti-ary. The l)arons, in their articles, required a par- liamentary assent to the talliages of London, and all other towns, as much as to the aids and scutages which fell upon themselves. By the charter itself, however, tal- liage was omitted, though the lil)erties of the town were generally asserted. But it contained the memorable provision : " No scutage or aid shall be raised in our king- dom (except in the above three cases) but by the consent of the general council " — a concession sufficient to declare a principle which could not long remain barren, that the consent of the community is essential to just taxation. ]5y tiie charter, as con- firmed in the next reign, even seutages and aids were reserved for further considera- tion. But the formidable principle had gone forth, though every species of impost without the consent of parliament was not renounced expressly until the confirmatio chartarum, in the 2.5th Edward I., fourscore years after the grant of the Great Charter. " To constitute the common council of the kingdom,'' says the charter, "we shall cause the prelates and greater barons to be summoned, and shall direct our slierifls to summon all who hold of us in chief." To the njiper house of parlia- ment this clause is still applicable. From the lower house it essentially difi'ers by excluding representation. It presents, however, the first outlines of a parliamentary constitution. The 39th article of the charter is that which forbids arbitrary im- I)risonment and punishment without lawful trial : ' Let no freeman be imprisoned, &c., otherwise than by the legal judgment of his peers, or by the law of the land.' In this article are clearly contained the liaheas corpus and the trial by jury, the most etrectual securities against oppression which the wisdom of man has hitherto been able to devise. 'We will sell, delay, or deny justice to no one.' Xo man can carry furtlier the great principle that justice is the great debt of the government to the people, which requires that law be rendered cheap, prompt, and equal. The provi- sion which directs that the supreme civil court shall be stationary instead of follow- ing the king's person, is a proof of that regard to the regularity, accessibility, inde- pendence, and dignity of public justice which characterises that venerable monument of English liberty. The language of the Great Charter is simple, brief, general without being abstract, and ex{)ressed in terms of authority, not of argument, yet commonly so reasonable as to carry with it the intrinsic evidence of its own fitness. It was understood by the simjdest of the unlettered age for whom it was intended. It was remembered by them, and, although they did not perceive the extensive conse- quences which might be derived from it, their feelings were, however unconsciously, elevated by its generality and grandeur. It was a peculiar advantage that the con- sequences of its principles were, if we may so speak, only discovered slowly and jraduall.y. It gave out on each occasion only so much of the spirit of liberty and reformation as the circumstances of succeeding generations retjuired, and as their character would safely bear. P'or almost five centuries it was appealed to as the decisive authority on behalf of the people, though commonly so far only as the necessities of each case demanded. To all mankind it set the first example of the progress of a great people for centuries in blending the tumultuary democracy and haughty nobility with a fluctuating and vaguely united monarchy, so as to form. 266 HENRY III. [chap. V. in hcec verba. Then follows Magna Charia nearly in tlie form of that granted by Henry III. (a) Magna Charta contains fifty-seven chapters, composing a rhapsody of ordinances for the settling or amendment of the law in divers particulars at that time anxiously contended for. The whole is strung together in a disorderly manner, with very little regard to the subject matter. If we were to judge, from the face of the instrument itself, of the chief design of the barons in obtaining this charter, we might be inclined to think that their great object was to ascertain the services and burthens arising from tenures ; for the first six chapters are wholly confined to that subject, and many others relate incidentally to the same point ; the consequence of which is, that many parts of this famous charter have become obsolete, and, to a modern reader, almost unintelligible. Other parts of it, however, are extremely worthy of notice, even at this day ; as they, at the time, contributed to confirm, if not establish, certain branches of our juridical constitution ; and, what is more important, to lay down certain general j^rinciples, which have had an extensive influence on our law in all its branches ever since ; as our civil liberty and private rights became thereby better defined, and were considered as settled on the firm basis of parliamentary recognition. To explain in what manner this was done, it will be proper to state at length the subject of Magna Charta ; which we shaU attempt in an order differing from that in which the text appears, but which will, perhaps, bring the contents of it into a clearer light than the original appears in. We shall first speak of such provisions as are of a more general or miscel- laneous nature ; then of those which relate to tenures and property ; after which will follow the regulations ordained for the administra- tion of justice. The address and general preamble to the charter are deserving notice, as they show the form in which these solemn acts were usually authenticated : it is addressed in the name of the king, " To all archbishops, bishops, abbots, priors, earls, barons, sheriffs, provosts, ofticers ; and to all bailiffs, and other our faithful subjects, who shall see this present charter, greeting. Know ye, that we, unto the honour of Almighty God, and for the salvation of the souls of our progenitors and successors kings of England, to the advancement of holy church, and amendment of our realm, of our from these discordant materials, the only form of free government which experi- ence Tvoiild show to be reconcilable with widely extended dominion " History of England, v. 1.) (a) Varying in some respects from the cbarter of John, as that did from the articles, but no doubt substantially the same. It is to be observed that the author's citations are all from the Inspeximvs charter of Edward I., which it is necessary to notice, be- cause the arrangement and numbering of the charters varies in every one of them ; so that reference to that of Edward I. will not applj' to any of those of Henry III. The author's are all to that of Edward I. CHAP, v.] MAGNA CIIATiTA, 2C7 mere nnd free will, ^ have given and granted 2 to all archbisliopR, bishops, abbots, ])riors, earls, barons, and to all freemen of Ibis onr realm, these liberties following, to be ke[)t in our kingdom of Eng- land for ever." Such is the manner in which the provisions of Marjna CJiarfa are introduced ; after which comes the first chapter, containing a general grant in the following terms : " First, we have granted to (»0(1, and by this our present chnrter have confirmed, for us and our lieirs for ever, that the church of England shall be free, and sliall have all her whole rights and liberties inviolable («). We have granted also and given to all the freemen of our realm, for us and our heirs for ever, these liberties under-written, to have and to hold, to them and their heirs, of us and our heirs for ever." "What tliese liberties were we shall now inquire. It was ordained that the city of London shall* have all the ancient liberties and customs which it had been used to enjoy ; and that all other cities and towns, and the barons of the cinque or other ports, should possess all their liberties and free customs.^ As many exactions had been made during the reigns of Richard and John for erecting bulwarks, fortresses, bridges, and banks, con- trary to law and right, it was declared tliat*^ no town or freemen should be distrained to make bridges or banks, but only those that were formerly liable to such duty in the reign of Henry II., a period which was often referred to, as an example for correction of enormities, and the due observance of the laws. For the same reason, none were to nppropriate to themselves a several right^ in the banks of rivei's, so as to exclude others from a passage there, or from fishing, except such as had that right in the reign of Henry 11. (6).c All weirs in the Thames and Medway, and all over England, (a) The Mirror, upon this point, says, " It was necessary to ordain a corporal punish- ment — namely, to the lay judges, the king's ministers, and others, who judge clerks for mortal crimes to corporal punishments, and do detain their goods after their pur- gation ; and to those secular judges who take upon them cognisance of causes of matrimony and testaments, or other special things ' (c. v. s. 2). And, accordingly, sub- sequent statutes were passed to restiain the lay judges from these latter matters. As to the other ])oint, the cognisance taken by secular judges of the offences of clerks, it is remarkable that it was the very point on which the controversy arose between Henry II. and the Archbishop h, Becket; and, according to the Mirror, it was an abuse which plainly shows that the Constitutions of Clarendon were not considered laws. (h) The comment of the Mirror upon this is, " The point which forbiddeth that rivers be defended is misused, for many rivers are now appropriated and put in de- fence whicli used to be common for lishing in the reign of king Henry I." (c. v. s. 2). Hence it is manifest that the clause was undeistood to be in pari materia with the next mentioned, and which, therefore, our author couples with it as to the weirs. Tlic intention evidently was to prevent any persons from ajipropriating to themselves a lislicry in any part of the rivers wliich was common property, and thereby commit- ting a purpresture, as it was called in ancient times, from pour-prcs, an enclosure. Thus Glanville, in treating of purprcsturcs, says that to erect any obstruction over public waters, across their regular course, was to be considered as such {riilc Glanville, lib. xiv.). Nor would it of course be less unlawful if in a public navigable river it ^ Spontanea ct hova voluntate nostra. ^ Dedimns ct concetsimus. 3 Mag. Chart., ch. 9. ■* Thid. ch. 15. s Vide Harg. Tracts, p. 7, " De dcfensione reparian,' &c. ^ Mag. Char. ch. IC. 268 HEXRY III. [chap. v. were to be destro3^ed, except such as were placed on the coast.^ One standard of weights and measures was established^ throughout the kingdom, A provision was made respecting merchant-strangers, which evinces how very early a regard was liad to the interests of trade. Before this, it should seem, that merchant-strangers, though in amity, used to be laid under certain prohibitions ;3 for it was now provided,* that all merchants, unless they were before publicly pro- hibited, should have safe and sure conduct in the seven following instances : 1st, to depart out of England ; 2dly, to come into Eng- land ; 3dly, to tarry here ; 4thly, to go through England, as well by land as by water ; 5thly, to buy and sell ; 6thly, without any manner of evil tolls ; 7thly, by the old and rightfurcustoms. But this was only while their sovereign was in amity with our nation ; for, in time "of war, merchant-strangers, being enemies, who were here at the beginning of the war, were to be attached, without harm of their body or goods, till it was made known to the king or his justiciar^ how our merchants were treated in the enemy's country, and they were to be dealt with accordingly. These are the provisions of the Great Charter that are not easily reducible to any of the following heads, to which we are now pro- ceeding. We shall first speak of the regulations relating to tenures. Tenur ^^ ^^^7 *^'^^"'' ^^ ^'"i^ou, or other person holding of the king in chief by knight service, died, and at the time of his death his heir was of full age, it was ordained, that he should have his inheritance upon paying the old relief ; that is, the heir of an earl was to pay for his earldom £100, the heir of a baron for his barony 100 marks, and the heir of a knight 100 shillings for every knight's fee ; and so in proportion (a). 6 Notwithstanding these reliefs of baronies and earldoms are called the old relief, we have before seen, that in the time of Glanville obstructed the navigation, although the purview of these clauses ajjpears to have been rather the fisheries. Weirs were large dams made across rivers, either for the taking of fish or the conveyance of water to a mill; and the peculiar kind mentioned in the charter by the term kej-dells, were dams having a loop or net in them, and furnished with wheels and engines for catching fish. They are now called kettles or kettle- nets, and are still in use on the sea-coast of Kent and Cornwall. The removal of them from the Thames and Medway is directed in several ancient charters beside the present, by John in the first Great Charter, and by Henry III. in his first charter. So they were afterwards prohibited by various statutes (Stow's SiirrcT/, h. i. c. viii.) Henry III. prohibited weirs in the Thames under the penalty of £10, an enormous sum in those days; and afterwards the penalty was increased to 100 marks, or £66, 13s. 4d., as much as the whole salary of a judge or chancellor in those days, and probably equal at least to £1000 in our own time — perhaps to £2000. (a) Here, again, how practical the commentator in the Mirror is : " This seemeth to be defective, for as the relief of an earldom was to decrease on him who held less ; so it seemeth that it was to increase as much, if an earl held more, so as he who held two earldoms, and who held an earldom and a barony, shall pay as an earldom and a barony ; and so of other fees, if they be not expressed in the charter, that the fine of one hundred pounds be not on an earldom, for no point increased ; and so of other cer- tainties." ^ Mag. Char. oh. 2.3. 2 /jj^_ ^-^ 25. 3 2 inst., 57. * Mag. Char. ch. 30. ^ Capitali justiciaro nostra. ^ Mag. Char. ch. 2. CHAP, v.] MAGNA CHARTA — TKNURES. 2G9 such reliefs were not fixed Ijy law, but depended on the ])leasiire of the ])i-iMce, and tlierefore must have been a jj^round of continual discontent; the knight's relief here [)rescribed is the same as it was in Glanville's time.i In cases where the heir was within age at the death of his ances- tor, it was provided, 2 that the lord should not have the ward of him nor of his land before he had taken homage of him. This was in confii'mation of the conimon law stated by Glanville,^ and was now enacted tor better security of heirs against their lords ; namely, that before the lord should have benefit of the wardshi[), he should be bound to two things : 1st, to warrant the land to the heir ; 2diy, to acquit him from service, and other duties to be done and paid to all other lords ; both which the lord was bound to do, if he had accepted homage of his tenant (a). It was moreover declared, in confirma- tion likewise of the common law, that when such a ward came of age, that is, to twenty-one years, he should have his inheritance without relief and without fine (/>). Notwithstanding such heir within age was made a knight, and so might be judged fit to do the service of a knight himself, it was provided, that though this might discharge his jierson from ward, yet his land should remain in the custody of his lord till he came of age. 4 The obligation to restore the inheritance to the heir, without destruction or waste, was ascertained more precisely, though in the spirit of the old common law.^ It was enjoined*^ that the keeper of the land (that is, the guardian of such an heir within age) should only take reasonable issues, and reasonable customs and services, without makiug destruction and waste of his men, his villains, or his goods. Where a committee of the custody of the king's ward, whether he was the sheriff, as was then usual, or any other person, was guilty of waste or destruction, he was to make recompense ; and the land was to be committed to two discreet men of that fee, who were to account for the issues. Likewise, («) Here the Mirror observes, " The point is defective (though it be that it is groumled upon hwv, to bind the loids of fees to wan'cants by taking of homages, whether they took them of the right heir or not), because it is not expressed who .should be guardian of the fees in time of vacancy, and have the issues in the meantime, in ca.ses where the right heirs fly from their lords, and cannot or will not do them homage." {b) Upon this the Mirror observes, " The point is defective, for as much as no dif- ference is expressed between the heirs male and the heirs female ; for a woman hatli her age when she is fully of fourteen years, and the seven years besides were not ordained first but for males, who, before the age of twenty-one, were not sufficient to bear arms for the defence of the realm. And note that every guardian is chargeable to three things — (1) that he maintain the infant sufficiently; (2) that he maint;iin his rights and inheritance without waste; (•'5) that he answer and give satisfaction of the trespasses done by the infant." The defects of the point of disparagement, it i.s added, appeareth among the .statutes of Merton, in which there is a provision con- nected with the subject. And the default of freebench and widows, in the same manner, on which point it is sufficiently expressed that no woman is dowiible if she have not been solemnly espoused at the door of the church or monastery and there endowed. The Mirror elsewhere says, that every one might endow his wife, ad ustiuiD, ecdesicv, without the consent of the heirs. And so it is in Glanville. J Vide ante, 127. ^ Mag. Char. oh. .1 "' Vide avte, 129. « Mag. Uhar. ch. 3. » Vide ante, 114, 115. « Mag. Char. ch. 4. 270 HENRY III. [chap. V. where the king gave or sold the custody, and waste was done, the custody was to be forfeited, and to be committed to two persons of that fee, as before mentioned. It was also directed, that those who had the custody of the hind of such an heir ^ should, out of the issues and profits thereof, keep up the houses, parks, warrens, ponds, mills, and other things appertaining to the land, and should deliver to the heir, when he came of full age, all his land, stored with ploughs and other implements, at least in as good condition as he received it in. It was provided, that all the above-mentioned regulations should be observed in the custody of archbishoprics, bishoprics, abbeys, priories, churches, and dignities vacant that be- longed to the king ; with this exception, that the custody of them was never to be sold (a). As to abbeys not of the king's founda- tion, it was declared ^ that the patrons of them, if they had the king's charters of advovvson, or had an ancient tenure or possession, were to have the custody of them during their vacancy. In addition to these provisions, it was moreover declared, as it had been before held at the common law, that heirs should be married without disparagement.^ Several abuses of purveyance, as well as of tenures, were removed or corrected. No constable of a castle or bailiff^ was to take corn or cattle of any one who was not an inhabitant of the town where the castle was, but was to pay for the same ; and even if the owner was of the same town, it was to be paid for in forty days. No con- (a) This deserves notice. The terms of the charter are, that the xoardsMjJs shall not be sold, which meant far more than that the mere custody of the sees should not be sold. It is to be observed that the king had the power of terminating the vacancy of a see at any moment, by allowing the free elections to take place, which w.-is ex- pressly stipulated for in the first Great Charter — that of John — and which was implied and recognised in the present (though the express stipulation was omitted) by the general confirmation of all the liberties of the church. The vacancy, therefore, was, after the brief time necessary for a canonical election, simply an act of wrong on the part of the king, and it was done not only for the sake of getting the profits of the temporalities, but of coercing payment of a sum of money for the liberty to come to an election ; or from the bishop elect, in order to obtain possession of his temporalities. The contemporary chronicles and the records show that this was so, and that Henry II. held as many as six or seven bishoprics vacant at a time, although he had solemnly en '.aged to observe the charter of Henry I., which declared that he would not sell or farm the bishoprics, nor take money to allow the entry of successors ; and this he defined as the "freedom of the clerics." "Quia regnum oppressum erat injustis exactionibus, ego sanctam Dei ecclesiam liberam faciam, ita quod nee vendam nee ad firmam ponam, nee, mortuo archiepiscopo, vel episcopo, vel abbate, aliquid accipiam de domino ecclesiae vel hominibus ejus donee successor in earn ingrediatur" (Charter of Hen. I. c. i.) It was this which the present clause was intended to prevent. The mere occupation of the custody of the sees was virtually an usurpation, for they were properlj' in the custody of the deans and chapters in the case of a bishop, or of the archbishop of the province, which af)pears from a passage in Bracton, where he speaks of the archbishop as having the custody of the see of Rochester, and the king as having the right of custody of the archbishopric in case the archbishop should die {Bracton, fol. 400). The mere stipulation that the wardships of vacant sees should not be sold, of itself implies that they had been sold, and shows the real motive for the anxiety to possess the custody of the vacant sees, and for keeping them vacant, in order to have the custody. 1 Mag. Char. ch. 5. 2 /;,ij_ ^.h. 3.1 3 Ibid. ch. 6. Vide ante, 116. « Ibid. ch. 19. CHAP, v.] MAGNA CHARTA— rUKVEYANCi:. ' 271 stable of a castle was to distrain a knight to give money for keeping castle-guard, if he would do it in person, or cause it to be per- formed by some other who was able, and he could show a reason- able excuse for his own omission ; if a person liable to castle-guard was in the king's service, he was, for the time, to be free from castle-guard. 1 No sheriff or baiUff of the king was to take any horses or carts for the king's use but at the old limited price — i.e., says the statute, for a carriage and two horses, lOd. per day ; for three horses, I4d. per day : the demesne cart, however, or such as was for the proper and necessary use of any ecclesiastical person, or kniglit, or any lord, about his demesne lands, was to remain exempt, as had been by the ancient law («). Again, neither tlie king nor his l)ailiffs or officers were to take the wood of any person for the Icing's castles, or other necessaries to be done, but by the licence of the owner. 2 These limitations upon services of tenure and upon purveyance, were great benefits to the subject, and so far protected liim against these arbitrary claims. Certain declarations were made as to the nature of tenure, in some instances. The king's prerogative, in cases of ward, was declared in the following manner : — If any held of the king in fee- farm,^ or by socage, or in burgage, and held lands of another by knight's service, the king was not, by reason of such fee-farm, soc- age, or burgage-tenure, to have the custody of the heir, nor of the land holdcn of the fee of another ; nor was he to have the custody of such fee-farm, socage, or burgage, except kniglit's service was due out of the said fee-farm ; nor was the king, by occasion of any petit serjeanty, by a service to pay a knife, an arrow, or the like, to have the custody of the heir, or of any land he held of any other person by knight-service ;* all which seem to be only more explicit declarations of what the common law was thought to be before.^ It was deemed proper to guard against such conclusions as might be founded on the above, or on any other prerogative, in case of baronies escheating to the crown ; it was therefore declared, that if any man held of an escheat, as, for instance, of the lionour (rt) Upon this the comment in the Mirror is, '" That which is forbidden to constables to take is forbidden to all men, as there is no difference in taking from another against his will, whether it be horses, •victuals, merchandise, carriages, or other manner of goods" (c. V. s. 2). The term purveyance is derived from the Fi-ench, poun-oir, to pro- vide, and its legal meaning was providing for the king's household, by his officers, who exercised a yirerogative of pre-emption — of buying provisions at a certain rate, to the preference of all others, and even without the owner's consent. It embraced also the power of conveying the hoi'ses and carriages of the subject to execute the king's busi- ness on the public roads in the conveyance of timber, stores, baggage, &c., upon pay- ment to the owner of a fixed rate. The officers here called constables are the castellans, or keepers of castles; who, in those days, were plunderers, who preyed upon the people. Lord Cuke, in commenting on the clause, says, that the constable of a castle had no right to take purveyance at all, though it was a castle for the defence of the realm, as purveyance was only for the royal residence. 1 Mag. Ch. ch. 20. 2lbid,ch.21. ^ That is, an inheritance with a rent reserved in fee, equal to, or at least a fourth of that for which the same land had been let to farm. * Mag. Char. ch. 27. = Vide ante, 115. 272 HENur III. [chap. v. (for so it was in such case called) of Wallingford, Nottingham, or any other escheat, being- in the king's hands and being a barony, and died, his heir should give no other relief to the king than he did to the baron when it was in his hands ; nor should he do any other service to the king than he should have done to the baron. The king was to hold the honour or barony as the baron held it — that is, of such estate, and in such manner and form, as the baron held it ; and he was not, by occasion of such barony or escheat, to have any escheat but of lands holden of such barony ; nor any wardship of any other lands than what were holden by knight's service of such barony, unless he who held of the barony held also of the king by knight's service in cajnte ;'^ from which it appears, that he who held of the king must hold of the person of the king and not of any honour, barony, manor, or seigniory.^ These provisions about tenures were followed by one which was designed for the preservation of tenures in their pristine vigour and importance. We have seen^ what alteration had gradually taken place in the original strictness with which alienation of land had been restrained ; so that, as the law now stood, where the tenure was of a common person, the tenant might in many cases make a feoffment of part thereof, either to hold of himself or of the chief lord. A feoffment of the latter kind seemed no way prejudi- cial to the lord, who still saw the land in possession of a person who was his homager : but when the tenure was reserved to the feoffor, the homage, as far as regarded that portion of the land, l^assed from the lord to the feoffor. These subinfeudations, as they, in a degree, stripped the mesne lord of his ability to perform his services, were found very prejudicial to the objects of the feudal institution; and therefore the following regulation was made:^ — namely, that for the future no freeman should give or sell any more of his land than so as what remained might be sufficient to answer the services he owed to the lord of the fee. In what manner this prohibition affected tenants in capite, has been somewhat doubted. Some have held that the law never allowed tenants in ccq^ite to alien without a licence from the king, and paying a fine : some, that after this act, land so aliened with- out license was forfeited to the king. Others again held, that the land, in such case, was not forfeited, but was seized in the name of a distress, and a fine was thereupon paid for the trespass ; of which latter opinion is Lord Coke. This question remained undeter- mined for the space of one hundred years, when it was settled by statute 1 Edward III. c. 12, which declares that the king should not hold such land as forfeit, but that a reasonable fine should be paid in the chancery. But in the case of common persons who aliened in violation of this prohibition, the law was different ; for it is the common 1 Mag. Char. ch. 31. 2 2 Inst., 64. 3 Vide ante, 43, 104, 105. •• ]\Iag. Char. ch. 23. CHAP, v.] MAGNA CHARTA — MORTMAIN'. 273 opinion, that the act was interpreted in this manner : when a tenant aliened part of his land contrary to this act, the feoffor him- «elf, durinleas were determined follow the king ? Because it was a court in nature attached to his person, which would be true of the court of the marshal of the household, the origin of the king's bench (alluded to in the Mirror in the passage cited in the previous note to the present clause) or the exchequer. The reasons have been already offered for believing that the exchequer was the original court, one reason being that, with rapacious sovereigns, the revenue was the matter they would first look to, and another and still stronger is the simple fact, that before Magna Charta common pleas were heard in the exchequer. — Vide Memoranda in Scaccario, at end of Y.-B. Edw. II., fol. 7. CHAP, v.] MAGNA CHARTA— JUSTICES OF ASSIZE. 279 king's court, which sat at the Tower, and removed with his per- son), grew into more consideration ; and in after times, as it became the sole and proper jurisdiction for communia ])lacita, was thence denominated tlie common ijleas. In what manner the other two courts recovered a sort of cognizance in C(jninion suits between parties, by means of different fictions, will be seen hereafter. It was endeavoured to render the proceeding Ijy assize still more expeditious, by ordaining justices to go a circuit once justices of every year to take assizes, instead of waiting till the assize, justices itinerant came; which latter were perhaps not very regular, or, at least, not wished by the great barons to be very regular in tlieir circuit, as they exercised a jurisdiction of a magnitude and extent that controlled the franchises of lords who had inferior courts. The statute! directs, that assizes of novel disseisin and of mort- auncestor shall not be taken but in their shires ; whereas we have seen, that writs of assize and mortnuncestor were returnable in Glanville's time, coram me vel justitUs meis,^ in the curia regis, or court before the king; but this was now altered, and they were for the future to be taken in the following manner. The king, or in his absence out of the realm, the chief justiciar, was to send justices into every county once a year; and these, together with the knights of the county, were to take the assizes there.3 Such matters as the justices could not determine on the spot, were to be finished in some other part of the circuit; and such as, on account of their difficulty, they could not determine at all, were to be adjourned l)efore the justices of the bench, and there decided (a). This is said to be the first appointment of justices of assize ; in consequence of which these writs were ever after made returnable coram justitiariis nostris ad assisas, ciim in partes illas venerint, dx. Assizes de (a) This expression, says Lord Coke, is to be taken largely and beneficially : for they may not only make adjournment before the same justices on their circuit, but also to Westminster or Sergeants' Inn, or to any place out of the circuit (2 Inst.). This course affords a curious instance of the way in which valuable enactments were extended by construction. And in Lord Coke's time, as any one who has studied his Reports will be aware, it was the constant practice of the judges in court to reserve cases till they came to town, reserving the judgment. Indeed, the practice appears in some degree to have been kept up to the last century, as Leach's Crown Cases Reserved will show. But it appears to have been considered then, not as a legal reservation, but only after judgment, and for the purpose of a recommendation to the crown, in case a point should be resolved for the prisoner, sentence being already passed. This rendered necessary the act for Reservation of Crown Cases (11 and 12 Vict), which thus, after the lapse of centuries, only carried out Magna Charta. 1 Ch. 12. ^ Vide ante, 178-190. 3 ]^y the charter of John, the knights associated with the justices were to be four, chosen by the county ; and the .assizes were to be taken on the day, and at the place of the county court. This delegation of four by tlie county remin!ied exception to it, and justifies n)easures of war on the part of the crown against the rebels. For the terms of the article are, that a man shall not be destroyed, save by the law of the land, the ordinary law of the land, which sup- poses and implies that it can be put in force ; for, if not, the article would work an absurdity, and legalise anarchy. This was well understood at the time when the Charter was granted. The year after the charter of Henry IIL was granted, a knight with an armed force seized the king's judges and imprisoned them in his castle, where he bade defiance to the ordinary power of the law. The king levied an anned force, laid siege to the castle, and, when he had taken it, hanged those who were in it, and had defended it against him. No one in that age appears to have considered that this was illegal, as coming within the real spirit and meaning of this clause in ISIagna Charta. For it would have been idle to attempt to apply the ordinary forms of law against a man who had fortified himself against and bade defiance to its power, and could only be subdued by actual war. (See the contemporary chronicles). (b) The author here has this note : — Lord Coke conceives ibimiis to signify the process of the court, coram rege, and mittemus that of any court which derives its authority from a writ sent to it. But these words have a technical sense in the civil law, vphich fully and more simply explains their meaning here. TuE bona alicujus dicantur, qui in reruni posst^^siDvcm Bract, fol. 281. "^ Ch. 17. 2 Inst. 32. CHAr. v.] MAGNA CIIARTA — CRIMINAL JUDICATURE. 289 Other felonies was entirely taken away. But this alteration could not have been made by force of this statute alone ; it must be re- membered, that, in the time of (jrhiuville, theft was not among the placita corona' (a), but was tiied by the sheriff. In the time of Bracton, we lind it was reckoned among the placila corowe ; and this change of its nature was necessary, before the i)resent clause of Magna CJuirla could have the effect of removing it from the jurisdiction of the sheriff, as a plea of the crown. Whether this new denomination took ])lace before or after the i)assing of 3fagna Chdrt'.i, or in what period between the times of Glanville and Bracton, it is not easy or necessary to determine. This provision said, "it is an abuse that tlie justices drive a true man to be tried by his country when he preferreth to defend liimself against the apjjrover by battle." Whence it appears that trial by jury was not yet tlioroughly understoiul, as we have it, as a trial by evidence, but merely from personal knowledge ; so that, if the jurors did not happen to know anything of the c;ise, they were in great perplexity. And the course taken when they were in doubt was, it is evident, to " examine " them and see if they could be brought to agree. This opened a door for influence on the part of the judge, and hence one of the abuses complained of. In another place it is said that in doubtfid cases we ought to save rather than to condemn ; but a case is put of a judge who in such a case condemned the man. It will be observed, it is said to be an abuse that a man should be judged to death by suitors; now these were the suitors at the county court, where the sheriff sat as criminal judge, and that illustrates the meaning of the above clause in the Charter, and the mischief it was intended to meet. From other parts of the Mirror it is apparent that there were grievous mischiefs through ignorance of those wdio tried criminal cases. Thu.=!, in the chapter on murder, it is said, "ye are to distinguish from other man.'^layers, as of jurors, justices, witnesses," &c. " Judges judge men falsely to death wittingly, and sometimes out of ignorance ; in the first case they are murderers, and are to be hanged by judgment ; and in the second place, ye are to distinguish, for one manner of ignorance excusetb, and another kind that doth not excuse, and note that ignorance itself is no offence. The judge doth not offend so nnich that he doth not know the law, but in foolishly undertaking upon him to judge foolishly or falsely. And that which is said of justices ist to be intended also of jurors, and of witnesses in ca.ses notorious " (c. ii. s. 16). It is to be observed that the sheriffs would come under the general term justices, and in leed, in the time before the Charter, the sheriff often was one of the justices of the king. With respect to the word " constables," it must not be supposed that the ordinary officers of the peace are intended, but the constables of castles, of which there were, in the time of Henry, upwards of a thousand. The whole country was covered with these fortresses, which, as described by the chronicles, w'ere too often " dens of thieves," the owners and their officers being generally plunderers of the people. The castles were always on manors, and Guizot points out how, in the Middle Ages, the "villas" had changed into castles. The lord of manors had criminal and civil jurisdiction within their manors, and hence the constables held trials of pleas of the crown, that is, of criminal charges, within their manors, as the sheriffs did within the counties. And so of the stewards or bailiffs in manors, not castles. These officers were all the more dangerous, because as their fortresses were very secure places, and 80 convenient for prisons, they often had the keeping of prisoners charged with crimes in the counties. Hence they possessed powers very liable to be abused, and which were abused to purposes of horrible oppression. Hence, long after the Charter, and when, after the justices of the peace were established, these functionaries got themselves put into the commission of the peace, the abuses they conmiitted were thus described in a statute (5 Henry IV. c. 10), by which it was recited that con.st%ble8 of castles by c(dour of their commissions take people, to wdiom they bear ill will, and imprison them within their castles, till they have made fine and ransom with the constables for their deliverance. It may be imagined how desirable it was to deprive this class of functionaries of the dangerous power of tiying their prisoners ; and hence the necessity for the present enactment, one of the most important to the people of any to be found in the Charter. (a) This is a mistake. It was a plea of the crown, though so tried. T 290 HENRY III. [chap. V. has been construed to apply only to hearing and determining ; and therefore it was held, that the sheriff's power to take indictments of felonies and misdemeanours, as well as the coroner's to take appeals, still remained unimpeached ; and in truth both were exercised for many years after, till a particular statute ^ was made to abolisli the last remains of the criminal jurisdiction belonging to these ancient common-law judges. It was declared, that a woman should not bring any appeal of death, except of the death of her husband, in the following words :~ '■ No one shall be taken or imprisoned on account of the appeal of a w^oman brought for the death of a man, except for the death of her husband ; " which is one, among many other articles of this statute, that is only a confirmation of the common law. 3 The writ de odio et atid was rendered more attainable than it The writ (7e had hitherto been. It was ordained that this writ, odio et atid. {^i future, should issue gratis, and should never be denied^ (a). This is the first mention of this writ by name, though it has been alluded to in a former part of this history.5 This writ was one of the great securities of personal liberty in those days. It was a rule, that a person committed to custody on a charge of liomicide, should not be bailed by any other authority than that of the king's writ ; but to relieve a person from the misfortune of lying in prison till the coming of the justices in eyre, this writ used to be directed to the sheriff", commanding him to make inquisition, by the oaths of lawful men, whether the party in prison was charged through malice, titriim rettatus sit odio et atid ; and if it was found that he was accused odio et atid, and that he was not guilty, or that he did the fact se defendendo, or per infortunium, yet the sheriff, by this writ, had no authority to bail him ; but the party w^as then to sue a writ of tradas in hcdlium, directed to the sheriff"; whereby he was commanded, that, if the prisoner found twelve good and lawful men of the county who would be mainpernors for him, (a) Glanville says, that persons accused of murder were not discharged upon pledges (or bail), unless by the kini^'s particular prerogative (lib. xiv. c. 2), which is supposed to allude to this writ. The comment of the Mirroi- upon this clause is, that the pi-ovision that it be granted freely, ought to extend to all remedial writs, find that the writ ought to extend, not only to felonies of murder, but to all felonies, and not only in appeals, but in indictments (c. v. s. 2); and elsewhere it is said to be an abuse that the writ takes place only in cases of murder ; but it is also said that it is an abuse that it lieth for indictees — i.e., after indictment found; and, it is added, that it is an abuse that appellees or indictees of mortal crime are got out of prison by bail ; and again, it is said to be an abuse to let to bail a man indicted of a mortal offence by pledges {Ibid. 17). The effect of all this appears to be, that the remedy, by judicial inquiry, ought to be available in any case, before indictment found, where the diarge was found groundless on such inquiry ; but that, without it, not in any ; nor after indictment found ; and thut is, in effect, what the law really is. ^lEdw. IV., c.2. 2Ch. 34. •* Lord Coke, in his Commentary on this chapter, has laid it down that a woman liefore this statute might have an apjjcal of the death of any of her ancestors ; but this opinion seems to have no foundation, and what has been laid before the reader in another place, shows the law to have been quite otherwise. Vide ante, 199, 200. 2 I'lst- 6c>. * Ch. 26. 5 Vide ante, 198. CHAP, v.] MAGNA CHARTA — TAXATION. 291 then he should deliver him in huil to those twelve. The writ, or inquisition de odio et atid, had a clause in it, nisi indictaius vel appellatus fuerit coram justiUariis ultimo itinerantihus ; so that the inquisition was not in such case to be taken. ^ We see how important it was, that this writ should be attainable with as little exi)ense and trouble as possible, to avoid the o^jpression of malicious prosecutors. As to the forfeiture and escheat of lands for felony, it was de- clared, that the kinj^ would not hold them for more tlian a year and a day, and then they should go to the lords of the fee ;2 which was nothing more than the language of the law before.3 It was declared, that escuage should be taken^ as it was wont in the reign of Henry II. This is the last ]Hovision of this famous charter ; and is followed by some general declarations ai.d renunci- ations dictated by the solemnity of the occasion. The liberties and free customs belonging to all persons, spiritual or temporal, are saved ; and the king declares, that " all the customs and liberties aforesaid, which we have granted to be holden within this our realm, as much as appertaineth to us and our heirs, we shall observe ; and all men of this our realm, as well spiritual as tem])oral, as much as in them is, shall observe the same against all ])ersons in like wise." For this grant of their liberties, the barons, bishops, knights, freeholders, and other subjects, granted a subsidy ; and then, says the king, " we have granted to them, for us and our heirs, that neither we nor our heirs shall attempt to do anything whereby the liberties contained in this charter may be infringed and broken. And if anything should be done by any one contrary thereto, it shall be held of no tbrce or effect" («). To these solemn and repeated declarations respecting the sanctity of this charter of liberties, is added Itiis tesfibus, containing a list of the greatest names in the kingdom : for as in these times no (a) It is very remarkable that upon this clause there is no commentary in the Mirror, which supports the impression that the writer belonged to the bodj' of the people, and therefore attached mure importance to those provisions which ajipear to relate to them than to those which afiVcted the barons and knights. The history, however, of this chiuse is extremely interesting, on account of the important Vjearing of the subject upon the rise of our representative institutions. It has already been Been, in the comments on the charter of Henry II., that " scutage" was an incident of military tenure, and a kind of composition for non-attendance in war. This clause simply provides that it should be assessed at a reasonable amount, as under the charter of Henry II. But the clause in the charter of John contained the import- ant condition, that it should only be imposed by the common council of the realm. This, however, was left out of the present charter ; but in the chai ter of Edward I. it was again inserted, and this was followed by various .statutes, which declared that the king should take no talliages, scut.-iges, or aids, but by the consent of the com- mon council of the realm, which, being for this purpose, made representative — in effect created a Parliament. Scutage thus became virtually merged in subsidies, and the last scutage levied was in the reign of Edward II. Thus, as Blackstone observes, the levying of scutage by the consent of the coimcil of the realm became the ground- work of all the fixed taxation of the kingdom — first for subsidies, and then for the land-tax, its modern substitute. And the development of the great prmciple just asserted as to scutage led to the constitution of our parliament. ' Bract. 122, b. 123, a.b. » Ch. 22. » Vide ante, 120. * Ch 37. 292 HENRY iir. [chap. V, grant of franchises, privileges, lands, or inheritances passed from the king but by the advice of his council, expressed under Iciis ieslibus, this was thereby rendered an act of the king, attended with every formality that could possibly render it binding. In this consideration of it, it is properly charta, or a charter ; though in that form it received likewise the authority of parliament. To the end of the charter, as it stands in the statute-book, is subjoined the confirmation of it before mentioned to have been made in the 25th year of Edward I. The Charta de Foresta is likewise taken from the roll of 25 Charta de Fo- Edward I. and has a confirmation of tliat date prefixed resta. to it, similar to that prefixed to Magna Charta. This charter, though of infinite importance at the time it was made, contains in it nothing interesting to a modern lawyer, any further than as it gives some specimen of the nature of the institution of Forest Law, and the burthens thereby brought on the subject. In this light, the Charter of the Forest is a curious remain of ancient legislation. It contains sixteen chaj^ters. The first chapter of this charter directed that all forests which had been afforested by Henry II. should be viewed by good and lawful men ; and if it was proved that he had any woods, except the demesne, turned into forest, to the prejudice of the owner's wood, it was to be forthwith disafforested ; but the royal woods that had been made forest by that king, were still to remain, with a saving of the common of herbage, and other things which any one was before accustomed to have.i This was the provision in relation to the f(jrests made by Henry II. As to those made by the kings Richard and John, they, unless they were in the king's own de- mesnes, were to be forthwith disafforested. 2 The charter directed, that all archbishops, bishops, abbots, priors, earls, barons, knights, and free tenants, having woods in forests, should have them as they enjoyed them at the first coronation of Henry II., and should be quit of all purprestures, wastes, and assarts, made therein before the second year of Henry III. 3 Thus far were limits fixed to the extent of forests ; and after these provisions a clause is added, by which all offences therein were pardoned. In point of regulation it was ordained, that regarders, or rangers, should go through the forest to make their regard or range, as was the usage before the first coronation of Henry II.* The inquisition, or view for the having or expeditation of dogs, was to be had when the range was made, that is, from three years to three years ; and then it was to be done by the view and testimony of lawful men, and not otherwise. A person whose dog was found not lawed, was to pay three shillings. No ox was to be taken for laiuing, as had been before customary ; but the old law in this point of expedita- tion was to be observed, namely, tliat three claws of the fore-foot fchould be cut off by the skin : and, after all, this expeditation was » Ch. 1 ^ Ihid. 3 8 ma, 4. i jud. 5. CnAP. v.] THE FOREST CHARTERS. 293 to bo performed only in fiucli places where it had been cnstonaary before the first coronation of Henry II. i It was ordained that no forester, or bedel, should make scotal, or gather gerbe, oats, or any corn^ whatever, nor any lambs, or pigs ; nor make any gathering at all, but upon the view and oath of twelve rangers, when they were making their range. Such a number of foresters was to be assigned, as should be thought necessary for keeping the forest. ^ It was permitted to every fi'eeman to agist his own wood, and to take his pannage within the kings forest ; and for that purpose he might freely drive his swine through the king's demesne woods ; and if they should lie one night in the forest, it should be no ])retence for exacting, on that account, anything from the owner.^ Besides the above use of their own woods, freemen were permitted to make in their woods, land, or water within the forest, mills, s{)rings, pools, marlpits, dikes, or arable grounds, so as they did not enclose such arable ground, nor cause a nuisance to any of their neighbours : 5 they miglit also have eyries of hawks, sparrow-hawks, falcons, eagles, and herons, as likewise the honey found in their own woods.^ Thus was a degree of relaxation given to the rigorous ordinances of William the Conqueror, who had appropriated the lands of others to the purpose of making them forest ; the owners thereof were now admitted into a sort of {Partial enjoyment of their own })roperty. It was permitted that any archbishop, bisho}), earl, or baron, coming to the king, at his command, and passing through the forest, might take and kill one or two of the king's deer, by view of the forester if he was present ; if not, then he might do it upon the blowing of a horn, that it might not hjok like a theft. The same might be done when they returned. 7 No forester, except such as was a forester in fee, paying a farm for his bailiwick, was to take any chiminage, as it was called, or toll for passing through the forest ; but a forester in fee, as aforesaid, might take one penny every half-year for a cart, and a halfpenny for a horse bearing a burthen ; and that only of such as came through by licence to buy bushes, timber, bark, and coal, to sell again. Those who carried brush, bark, and coal upon their backs were to pay no chiminage, though it was for sale, except they took it within the king's demesnes. 8 Part of this charter consisted of matters relating to the judicature of the forest. It was ordained, that persons dwelling The judicature out of the forest should not be obliged to appear before of the forest, the justices of the forest, upon the common or general summons; but only when they were impleaded there, or were ])lcdges for others who were attached for the forest.^ Sivainmofes (which were the courts next below those of the justices of the forest) were to be held only three times in the year ; that is, the first at fifteen days before 3Iichaelmas, when the agistors came together to take agistment in Ch. 6. a Bladum. » Oh. 7. * Ihid. 9. » Ibid. 12. Jbid. 13. 7 ma, 11. 8 iijid. 14. » Ibid. 2, 294 HENRY III. [chap. V. the demesne woods ; the second was to be about the feast of St Martin, when the agistors were to receive pannage : and to these two swainmotes were to come the foresters, verderors, and agistors, and no others. The third swainmote was to be held fifteen days before St John Baptist ; and this was pro foenatione hestiarum ; to this were to come the verderors, and foresters, and no others; and the attendance of such persons might be compelled by distress. It was moreover directed, that every forty days throughout the year, the foresters and verderors should meet to see the attachments of the forest, tarn de viridi qudm de venatione, as well for vert as venison, by the presentment of the same foresters. Swainmotes were to be kept in those counties only where they had used to be held.^ Further, no constable, castellan, or other, was to hold plea of the forest, whether of vert or venison (which was a prohibition similar to, and founded on a like policy with one in 3Iagna Charta about theft) ; but every forester in fee was to attach pleas of the forest, as well for vert as venison, and present them to the verderors of provinces ; and after they had been en- rolled and sealed with the seal of the verderors, they were to be presented to the chief forester, or, as he was afterwards called, the chief justice of the forest, when he came into those parts to hold the pleas of the forest, and were to be determined before him.2 The punishments for breach of the forest law were greatly mitigated. It was ordained, that no man should thenceforth lose either life or limb ^ for hunting deer; but if a man was convicted of taking venison, he was to make a grievous fine ; and if he had nothing to pay, he was to be imprisoned a year and a day, and then discharged upon pledges ; which if he could not find, he was to abjure the realm.* Such were the tender mercies of the forest laws ! Besides such qualifications of this rigorous system, it was ordained that those who, between the time of Henry II. and this king's coionation, had been outlawed for the forest only, should be in the king's peace, without any hindrance or danger, so as they found good pledges that they would not again trespass within the forest.^ These were the regulations made by the Charter of the Forest ; which concludes with a saving clause in favour of the liberties and free customs claimed by any one, as well within the forest as with- out, in warrens and other places, which they enjoyed before that time. To the whole is subjoined a like confirmation as that to diagna Charta, in the 25th year of Edward I. Many copies of the Great Charter and Charter of the Forest were put under the great seal, and sent to the archbishops, bishops, and other dignified ecclesiastics, to be safely kept ; one of which remained in Lambeth Palace till a very late period.^ It is said, 1 Ch. 8. _ 2 ji{^_ i(5_ 3 Pro venatione. * Ch. 10. ^ jud. 15, ^ It is mentioned by Bishop Burnet to have been among the papers of Archbishop Laud. CHAP, v.] DESCENT OF ESTATES. 295 however, that Henry, when he came of age, cancelled, in a solemn manner, both tliose cluirters at a <^reat council held at Oxford ; and that he did tliis hy the advice of Hubert de Burf^li, chief justiciary, who of all the temporal lords, was tlie first witness to both tlie charters. Notwithstanding this, we find in the 38th year of tliis reign, a.d. 1254, a solemn assembly was lield in the great hall at Westminster, in the presence of the king, when the arclibisbop of Canterbury and the other bisho[)S, apparelled in their pontificals, with tapers burning, denounced a sentence of excom- charters con- munication against the l)reakers of tlie liberties of the tinned, church and of the realm, and particularly those contained in the Great Charter and Charter of the Forest ; and not only against those who broke them, but also against those who made statutes contrary thereto, or who should observe them when made, or pre- sume to pass any judgment against them ; all which persons were to be considered as ipso facio exconniiunicatcd ; and if any igno- rantly offended therein, and, being admonished, did not reform within fifteen days, and make satisfaction to the oixlinaiy, he was to be involved in that sentence.i We shall see, in the succeeding reigns, how often these two charters were solemnly recognised and confirmed both by the king and parliament. The first public act which presents itself in the statute-book after the two charters, is the Slaintum Hihernice de statutum Hi- cohceredibns, 14 Henry III., which, from a considera- lemue. tion of the matter and manner of it, has been pronounced not to be a statute.2 In the form of it, it appears to be an instruction given by the king to his justices in Ireland, directing them how to pro- ceed in a certain point, where they entertained a doubt. It seems, the justices itinerant in that country had a doubt, when land de- scended to sisters, whether the younger sisters ought to hold of the eldest, and do homage to her for their several portions, or of the chief lord, and do homage to him ; and certain knights had been sent over to know what the practice was in England in such a case. The following is stated as the usage of England at that time, agree- ing with what is laid down both by Glanville and Bracton.^ If any one holding in c-ipile died, leaving daughters co-heiresses, the king had always received homage of all the daughters, and every one of them held in capite of the king; and accoi'dingly, if tliey were within age, the king had ward and marriage of every one. And again, if the deceased was tenant to any other lord, and the sisters were within age, the lord was to have the ward and marriage of every one ; but with this difference, that the eldest only was to do homage for herself and her sisters ; and wlien the younger sisters came of age, they were to do their service to the lord of the fee by the hands of their eldest sister ; the eldest, however, was not on that account to exact of the younger, homage, ward, or any other 1 Vide Pickerivy's Statutes. - Old. Ahrid'j. Tit. Homage, vide vol. ii., OH. 3 Vide ante, 89. 296 HENRY III. [chap. V. mark of subjection ; for they were all equal in consideration of law, and deemed as one heir only to the inheritance ; and should the eldest have homage of her sisters, and demand wardship, the inheritance would be in a manner divided, so that the eldest sister Avould be siimil et semel seignioress, and tenant of the inheritance, — that is, heiress of her own part and seignioress to her sisters, which could not well consist together, the law allowing no other distinction to the eldest sister but the chief mansion. Besides, if the eldest sister should receive homage of the younger, she would be seignioress to them all, and should have the ward of them and their heirs; Avhicli was always guarded against by the policy of the law, that never entrusted the person or estate of a minor to tlie custody of a near relation ; which is the very reason given by Bracton^ why the younger sisters should not be in ward to the eldest. ^ The other statutes made in this reign are the provisioJies or statutum de Merton^ 20 Hen. III., and the statute de anno hissextili, 21 Hen. III., after which there appears none till the 51st year of this king. The statute of Merton contains eleven chapters, which are arranged statute of Mer- witli as little Order as those of Magna Charta. The toil- several alterations or confirmations of the law thereby made were as follow. We have just seen what provision had been made on the subject of ward and marriage by Magna Charta. To secure lords in this valuable casualty, it was now further ordained, that wlien heirs were forcibly led away, or detained by their parents or others, in order to marry them, every layman Mdio should so marry an heir, should restore to the lord who was a loser thereby the value of the marriage ; that his body should be taken and im- prisoned till he had made such amends ; and further, till he had satisfied the king for the trespass. This provision related to heirs witliin the age of fourteen ; as to those of fourteen or above, and under full age, if such an heir married of his own accord without his lord's licence, to defraud him of his marriage, and his lord offered him reasonable and convenient marriage without disparage- ment ; it was ordained that the lord should hold the land beyond the term of his age of twenty-one years, till he had received the double value of the marriage, according to the estimation of lawful men, or according to the value of any marriage that might have been bond fide ofi'ered, and proved of a certain value in the kings court. Thus far the interest of lords was secured. The following pro- vision was to protect infants against an abuse of this authority in their lords. If any lord married his Avard to a villein or burgess where she would be disparaged, the ward being within the age of fourteen, and so not able to consent, then, upon the complaint of 1 Bracton, 88. 2 The introduction of the English law into Ireland, and the progress it made there, may very j^roperly become an object of consideration in another place. CHAP, v.] STATUTE OF MEIITON — OF COMMONS. 297 the friends, the h)r(l was to lose the wardslii]) till llie heir came of age; and the proht thereof was to he converted to tlie use of" the heir, under the direction of her friends. But if tlie lieir was four- teen years oKl and ahove, so as to he l)y kiw of capacity to consent to the marriage, then no penalty was to ensue.i Again, if an lieir, of whatever age, would not consent to marry at the request of his lord, he was not to he compelled ; but when he came of age, and before he received his laud, he was to ])ay his lord as much as any would liave given for the marriage, and that whether he would marry or not; for as the marriage of an heir within ag(3 was a law- ful profit to the lord, lie was not to be wholly deprived of it, but was to be recompensed in one Avay or other. 2 Some further provision was made res})ecting dower. It was pro- vided by Magna Chirta, that widows should give nothing for their dower ; in order still further to secure to them a ready assignment of dower, it was now ordained, that jicr.sons convicted of deforcing widows of their dower, should pay in damages the value of the dower, from the death of the husband up to the time of giving judgment for recovery thereof ; and they were moreover to be in mistricordid to the king.3 Because it had been doubted, whether, as a widow received her dower in the condition it was when her husband died, she should not leave it in like manner to the rever- sioner in the condition it was at her death ; to remove this doubt, it was ordained, in favour of widows, that they might bequeath the crop upon their lands held in dower, as well as that upon their other lands.4 Usury, which we have before seen -' was treated with little lenity by our old law, was now put under a particular restraint. It was ])rovided, that usury should not run against any person within age, from the death of his ancestor, whose heir he was, until he arrived at his full age ; a provision which was dictated, no doubt, by the consideration that the profits of the infant's lands went to his guardian during the wardship, and that he was thereby disabled from paying the annual interest. This new regulation Avas to be without any prejudice to the i)rincipal and the interest which liad accured in the lifetime of the ancestor.'' A provision made about commons of pasture was of great imi)ort- ance to lords of manors. When a lord, having great ^, , , c . 1 "ji • 1 • • p /?• T Or commons. extent of waste ground within his manor, mteoiied any one of parcels of arable land, it was usual for the feoffee to have common in such wastes, as incident to his feoffment ; and this was u])on very good reasons, for as the feoffee could not plough and manure his ground without beasts, and they could not be sustained without pasture, tlie tenant used to have this allowance of common for his beasts of the plough as appendant to his tenancy, and from thence arose common appendant. Right of common, therefore, was ' Ch. 6. ""Ibid. 1. » Ihid. 1. * Ihid. 2. « Ante, 86. « Ch. 5. 298 HENRY III. [chap, V. founded upon the general interest of agriculture, and the particular one of the lord, whose land was thereby cultivated and improved. We have seen^ that a remedy by assize had been devised to maintain tenants in possession of this right, but it seems this remedy had been pushed too far, and began to encroach upon the demesne and original right of the lord, who having suffered his tenants to range at large over his wastes, for wliich he had not yet found any use, could hardly appropriate any part thereof without the imputation of encroaching on his tenants, and being liable to an assize of dis- seisin of common of pasture. To prevent such usurpations upon the lord, and adjust the reasonable claims both of lord and tenant, the following regulation was made : — That when such feoffees brought an assize of novel disseisin for the common of pasture, and it was therein recognised before the justices that they had as much pasture as was sufficient for their freeliolds,^ and that they had free ingress and egress from their freehold to their pasture, then the person against whom the assize was brought should go quit for all the lands, wastes, woods, or pasture, which he had converted to his own use. But should it be alleged that they had not sufficient pasture nor sufficient ingress or egress, the truth thereof was to be inquired of by the assize ; and if it was found as alleged, then they were to recover their seisin by view of the jurors, and the disseisor was to be amerced as in other cases ^ (a). The administration of justice was aided by a law concerning repeated disseisins, or, as they were afterwards called, re-disseisins. It was ordained, that when any person recovered seisin of his fi'ee- hold, before the justices in eyre, by assize of novel disseisin, or by confession of the disseisors, and seisin had been delivered by the sheriff ; if the same disseisors again disseised the same tenant of the same freehold, and were convicted thereof, they should forthwith be committed to prison till they were discharged by the king upon payment of a fine. The way of bringing such contemners of the law to punishment is thus directed by the statute. When com- plaint was made at the king's court, the parties injured were to have the king's writ directed to the sheiiff, in which a relation was to be made de disseisind facta super disseisiiiam, of a disseisin upon a disseisin ; and the sheriff was to be thereby commanded, that he, taking with him the keepers of the pleas of the crown* and otlier lawful knights, should go to the place in question, and there, in their presence, by the first jurors and other neighbours (a) The comment of the Mirror upon this is : — " The point of improvement of wastes is culpable, as being too general ; for it ought to distiuKuisli of commons ; for in some places the commoners are enfeofied in such a manner, that the whole common is only in the tenants ; so that the lords have nothing but the soil ; and in such case the statute is i>rejudicial to the commoners, and rep)ugnant to the Great Charter, which willeth that none be cast out of his freehold without lawful judg- ment' ' {Mh'ror, c. v. s. 2). But it ouly applied where the commoners had sufiicieut. ' A nte, c. 4. ^ Ad tcnementa sua. ^ Chap. 4. * Vide ante, where these are supposed to be the coroners of the county. CHAP, v.] STATUTE OF MERTON — BASTARDY. 200 and lawful men, make diligent inquisition of the matter ; anct if the party was convicted, lie was to be dealt witli as before mentioned, if not, the plaintiff was to be amerced. The sherifF was not to entertain such a plaint without the king's special command, namely, by writ. Wiiat is here said of lands recovered in assize of novel disseisin, extended to those recovered by assize of mortauncestor, or in any proceeding ^9e?\yM>T(tom.i An alteration was made in the limitation of time for bringing certain writs. In a wiit of right, as the law had been for some years, a descent might be conveyed d tempore Ilenriei rerjis senioris; but it was now ordained that there shouhl be no mention of so dis- tant a time, but only a tempore Henrici regis avi nostri Writs of mortmmcestor, de 7iativis, and de ingressu (a wrix which had lately sprung np, and of Avhich more will be said hereafter) were not to exceed idtiiimm redituni domini regis Johcmnis patris nostri in AiujUdin, king John's last return from Ireland into England ; nor writs of novel disseisin, primam trcotsfretationem domini regis Henrici, qui nunc est, in Vosconiam.'^ Before another chapter of this statute is mentioned, it may be convenient to recollect that there were two kinds of suits ; suit real, as it was afterwards called, and suit service. Suit real was, in re- spect of residence, due to a leet or tourn ; suit service was, by reason of tenure of land, due to the county, hundred, wapentake, or manor, whcreunto a court baron was incident. Every one who held by suit service was required to ap])ear in person, because the suitors were judges in those courts; and if he did not, he would be amerced, which was a heavy grievance; for it might happen that he had lands within divers of those seigniories, and the courts might all be kept in one day ; therefore, as he could attend personally only at one place, it was provided by this act, that every freeman who owed suit to the county, trithing,^ hundred, wapentake,^ or to the court of his lord, might freely make his attorney to do suit for him.^ This permission did not enable him to do the same at the leet or tourn, because he could not be within two leets or two tourns.*^ It is recorded in the statute of Merton, that the question about the legitimacy of children born before wedlock was of special still agitated between the clergy and common lawyers ; bastardy. the former maintaining their legitimacy, according to the constitu- tion of Pope Alexander ; the latter alleging this to be contrary to the common law ; as hath been mentioned before. ^ The bishops » Ch. ;?. ^ Ch. 8. Henry I. began his reign, a.d. 1100 ; Henry II. A.D. 1154 ; King John went to Ireland in the twelfth j-ear of his reign, and returned the same year ; between that and the 2()th Henry HI. were about twenty-five years. Henry III. went into Ciascony for the first time in the fifth year of liis reign ; so that there were about fifteen years between that and the statute of Merton (2 Inst. 94, 9;i). Writs of mortaxincestor before this act were post primam coronationem Henrici II. which was 20th October li54. Those of novel disseisin werejoos^ ultimam transfretationem Regis in Noiinanniam, which was in 1184, the thirtieth year of his reign. Vide ante, 189. ^ A district containing three hundreds. * Another name for a hundred. 5 Ch. 10. « 2 Inst. yy. 7 Vide ante, c. 3. 300 HENRY iir. [chap. v. now urged in council, that when the king's writ of bastardy was directed to them, to inquire whether a person born before wedlock was entitled to the inheritance, they neither could nor would give any answer thereto, because the question was put in a special way, and not in the form required by the church, which was general, whether bastard or not ; and therefore, to make an end of tlie con- trovei-sy and the difiiculty at once, they prayed the nobles to con- sent that all such as were born before matrimony should, consist- ently with the law of the church, be deemed legitimate, and be entitled to succeed to the inheritance, equally with those born within wedlock. 1 But the statute says, omnes comites et harones una voce responderunt, quod nolimt leges Anglice mutari, quw hucusque Tisitafce sunf'^ et approbateeJ This point of difference between the canon law and the law of the land did not rest here. In the same year, a solemn agreement was made between the king, bishops, and barons in council assembled, and by this the practice was settled, as will be shown when we come to speak more particularly on the subject of bastardy. The nobles, who resisted the inclination of the ecclesiastics with such firmness, had no scruple to propose an innovation which had no object but to accommodate these potent landholders, at the expense of the liberty of the subject; but in this they were opposed by the king, who refused his consent : the proposal was, that they might imprison in a prison of their own all persons that were found trespassing in their parks and vivaries.^ In the next year, there follows in the statute-book a public in- strument which is entitled, the statute de Anno BissextiU, 21 Hen. III.; but which is, in truth, nothing more than a sort of a writ, or direction, to the justices of the bench, instructing them how the extraordinary day in the leap-year was to be reckoned, in cases where persons had a day to appear at the distance of a year, as on the essoin de mcdo lecti, and the like. It was thereby directed, that the additional day should, together with that which went before, be reckoned only as one, and so, of course, within the jjreceding year. After this, there are no statutes (except the confirmation of the charters, 38 Hen. III., which has been mentioned already) till the fifty-first year of this king. During this interval of thirty j^ears, great progress was made towards bringing the law to that state of consistency and learning to which it arrived in this reign (a) ; there (a) Thus we find the point of the law of descent stated by Bracton, as cited by Pateshall, justice : — " Ut de itinere Martin de Pateshall in comitatu Hertford, anno regni Henrici Quarti, in fine rotuli" (fol. 13). So an important decit^ion as to imbecility of mind, that a person j^aralysed may be of sound mind : — " Et notan- duni quod si paralyticus itineret de loco in locum et discretionem habet ab eo praesti- matur quod omnia rite gesserit, et de aliis non est ita intelligendum, quia quamvis itinerare nou possit, tamen bonam memoriam liabere poterunt. Et de hac materia ^ This piece of canonical jurisprudence is actually adopted in the law of Scotland They consider the subsequent marriage as having been entered into when the child was begotten ; and therefore it is confined to the case of such women, whom the father, at that v>eriod, might have married. Ers/c. Prin., b. 1. tit. 7, sect. 37. 2 Cb. 9. ^ Ch. 11. CHAP, v.] PROGRESS OF TDE LAW. ?A)l is also tlic strongest proofs that the treatise of Bracton was written jilenins invenia de termino anno regni Henrici decimo quinto in comitatu Berk, de Roberto de IJurnley " (fol. 15). So an important decision as to donations, tliat they niUKt be free, and not in any way tbe result of coercion : — " Gratuita debet donatio et nun coacta, nee per nietuni vel vi extorta ut si quiscartam etdouatioiiem cognoverit requisitus excipiat tamen quod valere non debeat, eo t saved to him ; but the statute maketh no mention of slaves, because thej- have nothing of their own to lose." Uere villeins are carefully distinguished from slaves. ^ J Bract. 5 b. » Vide Schmidt Gcschicbtc, &c., vol. i. ^06. » Bract. 6. 304 HENRY III. [chap. V. oflficers might be had •} and after such claim had been made, the servus, though he was not taken till after a year had elapsed, might be detained ; but if no such claim had been made, then, at the end of a year, the servus would be privileged, and considered as free. So strictly was claim required to be made, that if the lord, after the lapse of three or four days only, without making any claim, had taken him anywhere extra villenagium,^ beyond the limits of his villenage, he would have been liable to an action for imprison- ment. It seems that villeins in the king's demesnes were of different kinds. There were those who had been such before the Conquest, and who, in consequence of the polity then established, were per- mitted to hold their land in villenage,^ by villein and uncertain services, and who were to do everything which their lords com- manded them. But in the disorder of that revolution, many free- men were dispossessed of their lands by the lords to whom they were allotted, and were afterwards permitted to hold them in vil- lenage, with the burthen of doing some villein offices, which how- ever were certain and specified. These persons were, according to Bracton, sometimes called glebce adscriptitii, because, so long as they did the appointed services, they had the privilege not to be removed from the land ; and were indeed freemen : for though they did villein services, yet it was not in their own personal right, but on account of their tenement, which was held in villenasre, though, says Bracton, a sort of privileged villenage.* " There was," says the same authority, " another holding in the king's demesne manors, which was by the same villein customs and services as the former, and yet was not villenage; nor were the tenants servi; nor did they derive their title from the Conquest, as the former did, but by covenant with their lords ; so that some of them had charters, and some not; and these, if ejected, might recover seisin by assize, which none of the former could. Besides these, there were also tenures by socage, and knight- service, in the king's demesnes." These latter, says Bracton, were ex novo feoff amento'^ and post Con- qucstum ; by which he seems to intimate his opinion as to the origin of the two principal tenures — those in socage and by knight- service. ^ A villein might also become free by manumission ; which was a solemn and express act of declaring him free. There were other acts of the lord which were construed to amount to a declaration of a villein's liberty, because they put him into a condition incom- patible with a state of servitude. Thus, if a lord was to receive homage of his villein, or should, without any express manumission, 1 Bract. 6, b. ^ Extra viUcnaffiuvi, that is, " out of his state of villenage," or beyond the lord's villein-territory. 3 Vide ante, p. 29. * Bract. 7. * But see Madox Excheq. , vol. i. 578, of old feoffment and new feoffment. « Bract. 7 b. CHAP. V. I BHACTON:— OF FllEE SERVICES. 305 j^ive land to his villein, Jiahendum ct tenendum lihere to liim and his heirs, thou^^h no homage was done, such gift was considered as an intimation that tiie donee should Ijcconie atreeman. Neverthe- less, if a gilt was made to \io\(\ jmi' Hheruin seruifiutu, it was other- wise ; tiiere being, according to Bracton, a dillerence between hold- ing libei'c and per liberum servUmm ; for, as a tenure in villenage would not make a freeman a villein, so a holding by free service would not make a villein free, unless it was preceded by homage.^ Bracton speaks of two orders of villeins : namely, those who lield in pure vil(ena(/e, and those who held in villchi ^^ .„ / X T i^i f 4^ • Of villenage. soeage (a). In the lormer, tlie service was uncer- tain and indeterminate ; so that the villein, according to his expres- sion, did not know in the evening what was to be done in the morning, but was to do everything that Avas commanded him : in the latter, the service was certain ; and yet tlie holding was not liberum tenement uiii,ov freehold. Neitlier of these could alien their lands, as freeholders could ; and if they did, it might be recovered at law:^ but the way in which a villein sockman was to make a transfer of his estate, was this: he was first to make a surrender of it to the lord, or, if he was not present himself, to his steward,^ and from his hands the conveyance was to be made to the purchaser ; and this Avas considered as the gift of the lord, in whom, and not in the villein sockman, the freehold resided.^ Bracton does not say whether those who held in pure villenage had even the power of transferring their lands in this limited way; and it should seem, they had not yet obtained such privilege. We are enabled to speak more particularly of tenures than we did in the reign of Henry 11. ; they had now become more defined, were better understood, and treated with much more refinement. Tenure depended on the services reserved at the time of the feoffment {b) ; and therefore, to understand the (a) This has ah-eady been pointed out more than once. Here, again, it will Le observed how closely the Mirror follows Bracton, and distingxiishes slaves from villeins. The Mirror word for word corre.siponds with Bracton, so that the author must have studied the great treatise. Speaking of slaves the Mirror says: "They know not in the evening what service they shall do in the morning, nor is there any certainty of their service." But of villeins he says, "they are tillers of land," which is the de.scription of socage-service as given by Bracton and Littleton, that is, plough- ing the land, a service certain and defined in its nature. Yet, being at the will of the lord, and, although certain in its nature, not so as to its extent, it was not free socage, but servile socage, or, as Bracton calls it, villein socage. Tliis was the origin of our copyhold tenure, as socage was of i)ur freehold tenure. Pecuniary commutation, by way of price or fine, lay, probably, at the basis of the conversion of the tenures. (I)) It was not necessary that there should be any deed to create a freehold estate of inheritance, and the giving of such an estate conferred entire freedom. Thus the Mirror any a, "Villeins Vjecome freemen if their lords grant or give unto them any free estate of inheritance to descend unto their heirs, or if the lord take their homage for their land" (c.iii.s. 28); audit is observed, "'that by the first conqueror earls were enfeoffed of thrir earldoms, barons of their baronies, knights of knight's fees, Serjeants of ser- jeanties, villeins of villenages, burgesses of boroughs, whereof some received their lands without obligation of service, i.e., a frankalmoigne, some to hold by homage and by service, as for defence of the realm ; and some by villein customs, as to plough 1 Bracton, 24 b. ' Ibid. 2Q. ^ Servienti. 4 Bracton , 26. U 306 HENRY III. [chap. V. nature and variety of tenures, it will be necessary to consider more particularly the clause of i-eddenduin, by which the services were reserved in deeds of feoffment. When a donation was made by a private person, it was usual to express in the deed, with some pre- cision, whatsoever was to be rendered to the donor in compensation for the thing given. Thus a gift was made sometimes 'pro liorimgio ct servitio, for homage and service; sometimes for service only, without homage. If it was intended to create a knight's fee, the proper reservation would be ^3ro homagio et servitio; but in the creation of a socage-tenure, it would not be so proper ; as fealty only, and not homage, was due for socage-land : and indeed should homage have really been done, yet this would not entitle the chief lord to wardship and marriage , for ward and marriage did not so properly follow the homage, as the service, which in fact, and which alone, made a tenure, either military or socage. Thus it often hapiDened that homage was not required even in military tenures ; as where one made a gift to his eldest son and heir, or a brother to a younger brother, such gifts were usually made without reserving homage, lest the donor should be excluded from succeeding to the inheritance by the rule nemo potest esse dominus et hceres. For the same reason, gifts, when made to a younger son, used to be, pro servitio tanticm, tenendam de me totd vita med sihi et haredi bus sitis, et p)ost mortem meam de capitcdihus dominis pro servitio quod illam terram pertinet. When the service was reserved in this way, the elder son might be heir to the younger, because there was no homage to constitute a dominium : if the gift had been ten- endam de capitalibus dominis, it would have excluded him from the wardship also. In like manner, if a gift was made by the father to the eldest son, whether it was joro servitio ox pro homagio, if it was to hold of the chief lord of the fee, and he died in the life of the father, the younger brother would succeed, and the father be the lord's lands, to reap, cut, and carry his corn or hay in such manner of service without giving of any wages, whereof many tines were levied of such services, which make mention of them. And although it be that the people have no charters, deeds, nor muniments of their lands, nevertheless, if they were ejected, or put out of their possession wrongfully, by bringing an assize of novel disseisin, they might be restored to their estates as before, because they could aver that they knew the certainty of their services as those whose ancestors were astraces for a long time ; and there- fore Edward in his time caused inquiry to be made of all such who held and did to him such services as plou«;hing his land, &c. And afterwards many of these villeins were forced by wi-ongful distresses to do their lord service, to bring them into servitude again, for w-hich their remedy was by a writ of ne injuste vexes. Now it is most remarkable that in this passage (evidently written soon after the Conquest) among the tenures enumerated, common freehold is not mentioned. Tenure in knight- service is mentioned, and tenure in villenage ; and then it is described how, out of these last, freehold tenure arose, by the lords giving the villeins free estates of inheritance, on condition of plough-service, which in its nature was certain, and not deemed base, though servile. It is also jiointed out that not only did this require no deed, but not even express a formal gift ; it was enough if homage were taken for the land, as that implied freedom. Then came the socage freehold tenure, as it was called, of which Bracton, transcribed by our author, speaks ; in his time it having become established as a known freehold tenure, whereas in the time the above pas- sage in the Alimr is mentioned, it was just arising. CHAP, v.] BRACTON : OF SEEJKANTY. 307 excluded from the wardship ; if he was a minor, the ward and mar- riage would belong to the chief lord, and if of full age, the relief likewise.! The reservation was sometimes reddendo so much 'per annum at certain times, ov faciendo such and such services and customs, ^wo omni servitio, consuetudinc secniari, exact ione, et demnndd ; by which all secular demands that belonged to the lord in right of the tenement were remitted. It must be observed of services and cus- toms, that some belonged to the lord of the fee, and some to the king, corresponding with the distinction beforcmentioned between suit service and suit real.'^ Of the latter kind, says Bracton, were scctoi ad justitiam faciendani, as in writs of riglit ; ad jmcem, to sit in judgment on a thiei"; and pro a forciamcnto ctiria;. To the donor of the land belonged such services as were due in recompense of the thing given, as rents, whether in gold or silver, in monies numbered; as if it ran reddendo inde per anmim decern aureos, argentcos ; or whether it consisted in fruits and profits of the ground, reddendo inde per annum decern centos tritici, four quarters of barley, four barrels of oil, or the like. Sometimes the reserva- tion was made optionally ; as, reddendo inde pter anmnn so many gilt spurs, or sixpence, or a pound of pepper, or cumin, or wax, or a certain number of gloves ; in which cases it^ was at the option of the tenant which of them he would pay. Some services were to be performed to the lord of the fee, and consisted in doing some act at certain seasons: imless such services were specified, they would not be demandable ; as where it was said, ct faciendo inde sevtom ad curiam domini sui, et Jiaredinn morum, de quindend in quindenam, &c., or, faciendo inde so many ploughings or reapings, and the like ; all which belonged to the lord of the fee, and were due out of and in right of his farms and tenements, and therefore were not personal, but feudal or predial services. A person might infcoff another to hold hy serjeanty, which was of different kinds : some such services belonged to the lord ^. • Or sGriGtiiitv who infeoffed ; some to the king. Thus, for mstance, when a person was to hold by the service of riding with his lord,^ or of holding the lord's pleas, or serving his writs within a certain district, or feeding his dogs or hounds, keeping his birds, finding him in bows and arrows, or carrying them, and innumerable like services; all these were called serjeanties. Services being divided into such as were called forinsic and such as were denominated intrinsic, all the above-mentioned they considered in a j^articular manner as intrinsic, because they were of necessity to be expressed in the charter ; and they were likewise reserved to the lord of the fee, and had not any reference to the king's army or the defence of the realm: in such tenure no ward or marriage accrued to the lord, any more than in socage. These were usually called ^»c'/i7 ser~ ' Bract. 34 b. "" Vide ante, 265. ^ 3 u.-act. 35. * AVliich tenants, says Bracton, are usually called Rod Knvjhis. 308 HENRY III. [chap. V. jeanty, to distingiiisli them from siicli as related to the king only. A serjeanty of this latter kind was/ when a person was infeofied by the service of finding one or more men to go with the king upon any military expedition with some kind of accoutrement; and from such a serjeanty, whether held of the king or a private person, there w^ere due to the chief lord the ward and marriage of the heir. 2 It was before said, that the above services, which were specified in the deed, were called intrinsic. This term and its opposite were not wholly confined to express that services were or were not in the charter; for some other services, though expressly named in the charter of feoffment, were termed forinsic, because they belonged to the king, and not to the chief lord. These were performed with- out the tenant appearing in person, for he might satisfy the king, some way or other, for the service : they w^ere due as accident or necessity made them requisite, and were called by various names. They were not only termed generally forinsic, as they belonged to the king, but had various other names of a more specific import. They were sometimes called seiitagium, sometimes servitium domini regis; the meaning of which was this : they were called forinsic, because the service was done, foris abroad, that is, extra servitium due to the chief lord ; scutagium, because it related ctd scidum, and the military service ; servitium regis, because it belonged to the king, and not to the lord ; and a feoffment by either of these latter appellations w^as considered as the same thing : yet if a charter gave land_/ac{mc?o inde forinsecum servitum, d&c, the service, or the sub- stitute for service, was to be expressed ; as by the service of one knight's fee, or more ; by the scutage of a hundred shillings ; and the like.^ There w-ere other customs and dues which were neither intrinsic nor forinsic, but w^ere rather, says Bracton, concomitants of services regal or military, and of homage. These were relief, marriage, and wardship, which need not be expressed in the charter; because if homage and regal service preceded, it followed that these be- longed to the chief lord, whether it was a knight's service, or a ser- jeanty relating to the army. There were other customs and dues which, Bracton says, were not called services, nor the concomitants of services ; as reasonable aid to make the eldest son a knight, or marrying his eldest daughter ; which aids were de gratia, and not de Jure,'^ and were in consideration of the lord's necessities ; for they were only to be demanded of his freemen in cases of necessity. These aids, too, were considered as personal, and not predial ; for ^ It might be expected that Bracton should call this latter magna scrjeantia, to dis- tinguish it from tlie other kind ; but he does not. In another part of his book we are told by this author that serjeanty was divided into magna andparra., with respect to its value, and, as it should seem, not with any distinction between a service performed to the king, and to a common person. This value appears not to have been very accurately defined. He says that, according to some, it was a great serjeanty if valued at 100 shillings; and those, says he, might be called jMit Serjeant t/ tha.t were worth half a mark. (87 b.) Whatever difference of opinion there was about the names, there seems to have been none about the consequences of the respective services, namely, in what oases ward and marriage was demandable by the lord, and in what not. Bract. 25 b. 3 Ibid. 36 b. •* Vide ante, 127. CHAP, v.] BRACTON: — OF KNIGHT SERVICES. 309 they respected the person, and not tlie fee, as may be collected from tlie terms of the king's writ which used to issue to the sheriff, commanding him, quod jusfn et sine di.lathne habere faded tali ralionnhile auxilmni de milifihus Uherc tcnenfihus suis in hallivd Slid, enny, and rendering scutagc (that is, when de- manded for particular occasions, as before-mentioned), and by one or more of the scrjeanties above noticed. If the render was to be only in money, without any scutage or serjeanty ; or if two services were required optionally, as to give some certain tiling pro omni servilio, or a certain sum of money; such a holding was called socage: but though it was only for the payment of one farthing, if scutage and real service were added thereto, or if any serjeanty was reserved, it was considered as knight-service.- The creation of all these tenures depended on the pleasure of the feoffor ; for whatever might be the service he was bound to perform towards his feoffor, he might exact either more or less, upon making a feoff- ment to another. Thus a tenant by knight's service might infeoff another in socage, or make a grant in villenage. Again, he might require knight's service, though he held only in socage :"^ and in such case, as well as in others, the tenant was protected against the chief lord by the warranty of the mesne, who stood between them. The different kinds of tenure appear, from the above inquiry, to be these: some were by military service, since called knight's ser- vice, others by serjeanty ; for which homage was to be done to the chief lord, beciuise of the forinsic and regal service, and of that which related ad scutum, and the military calls for the defence of the country. Another was a holding in soccagio libero, in free socage, where the service to the chief lord consisted in money and nothing was due ad scutum et servitium regis: this was called socage from soccus, a plough ; because the tenants thereof were deputed, as it should seem, merely to be cultivators of the ground. In this tenure the ward and marriage belonged to the nearest re- lations ; and though homage should de facto be done for such land as it sometimes was, the chief lord was not on that account entitled to the ward and marriage, as those casualties did not always, though they usually did, follow homage. There was another kind of soc- age, called villein socage, where homage was never done, but only the oath of fealty was taken ; the lord being interested to see that his villein did not, by any surprise, become his homager.* We are next to consider the circumstances of tenure, the princi- pal of which were homage, fealty, and relief Much stress was 1 Bract. 3G b. » Ibid. 37 b. ^ Ibid. 3C. ♦ Ibid. 77 b. 310 HENKT III. fciIAP. V. laid on homage, to which was ascribed greater efficacy tlian to Homage and auj othcr part of this system, as it was the tie of feudal fealty. connexion between lord and tenant. Homage is there- fore defined by Bracton to be that legal bond by which a lord is held and bound to Avarrant, defend, and quiet his tenant in his seisin against all mankind, for a service performed by him, as ex- pressed in the deed of gift ; and, on the other hand, that obliga- tion by which a tenant was equally bound to preserve his faith towards his lord, and to do his proper service ; which connexion as has been before shown, is thus expressed byGlanville; tanfiim debet domi- nus tenenti, quantum tenens domino, prater solam reverentiamA Homage was to be done at the time of the gift being made, either before or after seisin : if seisin was not delivered, the hom- age, says Bracton, had no effect.^ Homage was to be done several times by the same tenant to the same lord, if for different freeholds. It was due for all lands, tenements, and rents ; and for everything else which was held by any of the tenures before-mentioned.-^ Homage was not due for a tenement that was held only for a term, (which included an estate for term of life,) but fealty only. ' The person who was to do homage, says Bracton, was to seek his lord wherever he could be found ; he was to approach him with rever- ence, and put both his hands between those of his lord : by which was meant to be signified on the part of the lord, protection, de- fence, and warranty ; on the part of the tenant, reverence and sub- jection ; and he was to pronounce in that j^osture these words: Devenio homo vester de tenemento quod de vobis teno, et tenere debeo, et Jidem vobis jportabo de vita et membris et ten'cno lionore, contra omnes gentes, salvd fide debitd domino rigi, et hoiredibus suis; which agrees in substance with the form in Glanville's time.* After this he was to take his oath of fealty, the form of which is not mentioned by Glanville, and is as follows : Hoc aiidis, domine N. quod FiDEM vobis portabo de vita et membris, corpore et catallis, et tei^reno honore: sic me Deus adjuvet, et hcec sancta Dei evangelia. The difference between homage and fealty was this ; that in the oath of fealty, which was the lesser obligation, the tenant engaged to bear his faith to his lord ; in the other, he in addition thereto said, Devenio vester homo, that is, he became his homager. Homage was not to be done in private, but in some public place, where everybody had access ; as in the county or hundred court, or in the court of the lord, in the presence of many persons, that the lord might have witnesses of the tenant being bound to him. Again, it was requisite that a diligent examination should be made at the time, whether the person doing homage was entitled to the land ; as whether he was right heir to the person last seised ; what was the kind and size of the freehold ; whether he held it in demesne, or in service ; or what part thereof one or the other ; ^ all which was to prevent either the lord or the tenant being deceived. The 1 Bract. 78 b. ^ j^^^^_ jg^ 3 ^^ -^^ 79 t^^ ^ y-^^ ^^^^^ j^23. 5 Bract. 80. CHAP, v.] bracton: — of homage and fealty. 311 effect of liomage was such, tliat this caution seemed highly neces- sary; for wiieu a person had done liomage to one who turned out not to be his true lord, yet he could not recede from the oljligation of homage, without the judgment of some court, so long as he held the land for which he did it. There were many ways in which the homage was dissolved : as, if either lord or tenant did anything to the disherison of the otlier ; in the former case, the lord was to lose his dominium; in the latter, the tenant was to lose his tenement. Again, should the lord die without heirs, the homage on his part was gone, but it revived in the person of the next superior lord, and still continued in the person of the tenant: the same, if tiie lord committed felony. In these cases, the superior lord could not waive the homage which was to commence between him and the inferior tenant ; for the tenant would then be deprived of his warranty. Besides, it might happen that by the feoffment the tenant was bound only to the service of a penny, while the superior lord was bound by the feoff- ment he had made to the mesne lord, to the warranty of a hundred librates of land ; and there is no doubt but, in such case, a lord would gladly renounce his claim of homage, if the law would per- mit him. Nor would it avail the lord to say that the tenant was not infeoffed by him, and that he claimed nothing in the homage ; for as there might be several superior lords, so there might be several tenants one below another ; and the chief lord of all held the lowest tenant bound to him by the ties of homage, because he was within his fee, though per medium; and when that medius, or mesne lord was taken away for any cause whatsoever, the con- nexion between the chief lord of all and the inferior tenant became inunediate; so that, one way or other, the inferior tenant was within the homage of the superior lord.^ To illustrate this by an instance: if 1 infeoff A. and A. infeoffs B. and B. infeoffs C. and so on ; then every tenant, from the first to the last, would be my tenants, and I their lord ; the only difference being, that the first would be im- mediate tenant, the others so per mediimi. We have been showing how the obligation of homage might cease in the person of the lord, and remain in the person of the tenant. In like manner might tlie homage cease in the ])erson of the tenant and continue in liiat of the lord: as where the tenant parted with the whole inheritance, and infeoffed another to hold of the chief lord, then the tenant was absolved from the homage; that is, the homage was wholly extinguished as to him, whether the lord consented or not, and commenced in the person of the alienee, who now was bound to the lord ; and should the feoffee re-in feoff the feoffor to hold of the same chief lord, the homage of the tenant would thereby be revived. The homage would cease also when the tenant died without heirs, or committed any felony ; in which cases the tenement escheated to the chief lord. The tie of homage 1 Bract, 80 b. ol'2 HENRY I IT. [chap. Y. and fealty was likewise dissolved, when the tenant disavowed the services by which he held, or denied that he held of the lord at all ; in which case the lord had two remedies : he might either waive the forfeiture of the tenement, and proceed for the recovery of the services ; or avail himself of the tenant's default, and demand the tenement by a writ of escheat, or ^ by a writ of right. Should the tenant do any atrocious injury to his lord, or side with his enemy, by giving advice or assistance against his lord (except it was with the king, or the superior lord of all, to whom he had done allegi- ance), or do anything to the disherison of, or put violent hands on, his lord ; all these were breaches of faith which dissolved the hom- age on the part of the tenant. It must be observed, that homage remained in force between lord and tenant as long as the heirs of both parties continued (which tenure was therefore, in after-times, called homage auncestrelT) ; but upon the failure of any of them, the homage ceased, and could be revived in the persons of others only by some new cause. A tenant might decline holding his tenement, and so dissolve the homage: he might, says Bracton, also surrender the tenement and homage to the lord iwoptei' capitales inimicitias, and so dissolve the homage, that he might be at full liberty to pro- secute an appeal against him. It seems that, in general, the lord could not attorn, as they called it, or transfer to another the homage and services of his tenant against his consent, particularly the homage ; for by so doing he might subject him to a person who was his declared and inveterate enemy. A slight enmity, however, was not an objection, where the law allowed, as it did in some cases, such an attornment even against the tenant's consent. The most usual way of attorn- ing the homage, was, on a fine in the king's court, where the hom- ager was to be summoned to show cause why the homage should not be done to the other person ; and if he could not show suffi- cient reason to the contrary, it would be attorned without his con- currence. 2 There were other instances, where homage might be attorned ; as when land was given in marriage ; when land was sold for redemption of the lord's person ; in both which cases it might be attorned, unless any particular reason could be shown to the contrary. This restraint upon the attornment of homage was founded on other reasons besides those before-mentioned ; as hom- age was the bond by which the tenant claimed the warranty and excamhium of his lord, it was right that the lord should not have the power of transferring this obligation to another, who might be indigent, and not able to answer the warranty. This restriction was wholly in favour of the tenant, for whose benefit, indeed, hom- age seemed princij^ally calculated ; and if it was just that a lord should not be at liberty to decline the homage of the tenant, it was equally so that he should not attorn it without his assent. Although the law imposed this restraint as to homage, yet service 1 Bract. 81. 2 md. 81 b. CIIAr. v.] BRACTON :— OF RELIEF. 313 mif^ht be attorned in all cases witliout requiring the assent of the tenant; and the person to whom it was attorned might (Ustrain for it, witliout the tenant being able to make any resistance thereto. ^ In such cases, some tliought, that should the distress be for the homage and service both, it ought to cease as to the homage, though it held good as to the service; distress being incident to service, and belonging of course to the person who was entitled to the service. Yet a tenant was not to be oppressed by an attorn- ment of service, any more than by an attornment of homage ; it was advisable therefore for the tenant, in order to seciu'C himself from any unreasonable demands of his new lord, to get from him a charter, granting that lie would not demand more services than Avere due, and charging himself with a warianty and excambium, in the same manner as the first lord was bound. If the lord refused to receive the homage, the tenant had several remedies. In the first place, the service, which the tenant Avas not bound to without homage, was lost to the lord ; and should hom- age be forced upon the lortl by a judgment of court, the arrears of service were still lost. If the homage was refused publicly by the lord, the tenant might attorn himself to the next superior lord; and if he refused, to the next ; and so on to tlie king, w^ho was the chief lord of all ; and if they all refused, the tenant was quit of all demands for service. But should any of them accept it, the immediate lord who had refused it could never recover the homage or service ; tliough he would, on account of his wilful refusal, be still bound to warranty, not- withstanding the person to whom tenant did homffge had the service." When a mesne lord had accepted the homage and fealty of his tenant, and received the service, but had ap])lied it to his own use without acquitting him from the demands of the superior, and this was proved in the presence of good and lawful men ; he might, in future, without any breach of law, satisfy the chief lord Avith his own hands, by doing his service to him ; and yet the mesne lord Avould not on that account be discharged from his warranty.^ The remedy against the mesne lord, in such cases, Avas by a writ de medio. After homage Avas performed, the next thing for the heir to do Avas to pay the relief ; so called, says Bracton, because p i- f thei'eby the tenement and inheritance Avhich Avas in the hands of the ancestor, e( qmv JACE^s/uit jicr (Jus dcccssum, rele- VATUR in manus hcercdis. The sums to be giA^en on these occasions were settled by Blagna Charta,'^ except in tenure by serjeanty, Avhicli AA'as still left to the discretion of the lord.5 A relief AA^as to be paid only in cases of succession, and never upon a change of tenant by buying or selling, or any other sort of purchase.^^ It Avas to be paid to the next immediate lord, and no other .• it Avas to be paid only once, and not upon the change of the lord ; for though homage might be done several times, relief was to be paid only once ; "> so I ' Bract. 82. -' Ibid. 82 b. » jn^i S4. ■* Vide ante, 235. « Diact. 84. 6 Vide ante, 125, 12G. ? Bract. 84 b. 314 IIEXRY III. [CIIAP. Y. that the doubts expressed by Glanville on this head no longer existed. 1 Another gift was to be made to a lord by the heir wlien he succeeded his ancestor, which was called a heriot. This was, however, in nothing like a relief; for it was given by all tenants, as well villain as free, and it rather came from the deceased than the heir : it was, says Bracton, when a man remembered his lord by the best beast, or second best beast he died possessed of, accord- ing to the custom of different places, and was rather de gratia than dejure; and, in fact, it related not at all to the inheritance,2 The subject of ward and marriage is treated by Glanville, and by Of wardship Bractou, principally in the same way, and sometimes in and marriage, ^j^q same words ; we shall therefore touch upon such parts only as are stated somewhat differently, or are discoursed upon more at large by Bracton. The age of female wards was contended by some to be at fifteen years complete, both in military and socage tenure ; for, as to the former, they said that she might have a husband who was able to perform the military service ; 3 and therefore she might, with pro- priety, be reckoned of age before she was twenty-one years of age. But this opinion is combated by Bracton, who says, that the same principle might make her of age at an earlier period ; and he there- fore lays it down, that there is no distinction between male and female wards in the respective tenures ; and that it was only in the latter that females, (as we have before shown of males,) were to be considered as of age at fifteen years ; at which time, says Bracton, a woman is able lo manage her domestic concerns ; * which is a similar description to that given by Glanville,^ and adopted by Bracton, of the qualification of an heir in burgage-tenure : and the latter author mentions fifteen as the proper age for the infancy of a tenant in socage to cease, because he was then able to attend to affairs of agriculture. It is laid down positively by Glanville, that if a person married his daughter and heiress without the assent of his lord, he should forfeit his inheritance ; and that a widow who married without her lord's assent, should in like manner forfeit her dower.6 These tvro points are recognised by Bracton as remnants of the old law, which had gone out of use. We have before seen wliat notice was taken of this cruel piece of law by 3Iagna Gharta ; and it was now laid down by Bracton, that in both cases the lord was only entitled to a penalty; the measure of which, however, he does not mention. 7 When an infant succeeded to inheritances that were held of 1 Vide ante, 125. _ ■ Bract. 86. 3 Bracton says, another reason was given in favour of this early liberation from pupil- lage : Fmmina magis doli capax est quam masculus, et maturiora sunt vola mulieris quam viri. * To this Bracton adds, that she might habere colne et KETE ; which is thus explained by Spelman : Colne Saxonicl est calculus ; Keye, clavis ; quasi eh spertaret hie locus, vtfonnina conr/vure atatis habei'etur, sicoiiiFVTVU et claves domesticas vnterct on-urc. Spelman, voce. Bract. 80 b, ^ Vide ante, 114. « Ibid. 116, 117. 7 Bract. 88. criAP, v.] bracton: — of wardship and marriage. 315 different lords, the custody of the lands belonged to the respective lords of whom they were held ; Lut the custody of tlie lieir's person, and the marriage, whicli was the great source of emolument to tlie lord, could belong to one only ; and there was some dilliculty in ascertaining who that person should be. It is laid down generally by Glanville, that this should be the chief lord of whom the heir held his first fee;i and that the king, by his prerogative, was entitled to certain preferences. The manner in which both these claims were adjusted is more fully explained by Brae ton. As an excei)tion to the prei'ogative, which gave to the king the custody of the heir and his lands of whomsoever they were held by knight-service, it is laid down, that if any held of the king 2)^r fcecll jirmam, or in socage, or in burgage, or by serjeanty, to pi.-rform the service of finding him knives, or darts, or the like, the king should not have custody either of the heir, or of. the lands he held of any one else ; nor if he held of the king as of an honor or escheat ; it being provided by 3Ia(jna Charlar that the tenure in such case should remain the same as it was when in the hands of the former possessor ; though, even in case of escheats, if the heir held under a new grant from the king, the king's prerogative to wardship would prevail. This prerogative of the king, therefore, prevailed in respect only of a tenant who held of him in capite by military tenure, or by serjeanty to attend the king's person ; and it ordy ex- tended to subject lands held by military tenure to the ward of the crown. In socage-tenure the wardship belonged to the next of kin, and not to the lord ; and therefore, in general, if an heir had inheritances held in socage of different lords, there could arise no question about priority of feoffment, to ascertain tlie right of wardship, as in mili- tary tenures ; though it is said by Bracton, that by special custom in some ])laccs, and amongst others in the bishopric of Winchester, the lord had the wardship in socage tenure, and in such cases, recourse must of necessity be had to priority to determine who was chief lord ; yet this preference was only against lords whose tenures lay within the reach of the custom, and not against other persons.^ The first fee, in many cases, which constituted a person chief lord, and gave him the priority, was the fee that was first delivered to the heir. Tlie lord \vas not to receive homage before he had delivered the inheritance to the heir : the wardship and man-iage could not be demanded from the infant heir, any more than relief, or any service could from the heir of full age, before homage ; the delivery, therefore, of the inheritance was the first step towards acquiring a right to the wardsliip and marringe, and the receiving of homage completed the claim. It follows from hence, that as long as the homage of the ancestor had continuance, no delivery was to be made of the inheritance, and that homage continued during the ancestor's life, unless he had made any transfer of the 1 Vide ante, 115, « Hid. 238, ^ ^ruct. 87 b. < Ibid. 88. 316 HENEY III. [CIIAP. Y. land which broke the homage. Every transfer had not that effect. Thus, if a person holding by miUtary service and homage, granted the land to his son and heir for life, to hold either of himself or of the chief lord, the homage still continued between the father and the chief lord ; but it would have been broken, if the father had parted with the whole inheritance. The ceasing of the homage and the delivery of the inheritance will be better understood by considering the following cases. Sup- pose ^. having an inheritance, married B. having one also; both held of the same lord. They have a son. A. dies, leaving his wife B. alive : the inheritance of A . might be delivered to the heir by the lord, who would, in consequence, be entitled to homage, ward, and marriage. But if B. the wife had died, leaving A. alive, it would be otherwise ; because the homage done by ^. in the name of his wife still continued ; for it could not be dissolved during his life, as he was entitled to hold the land per legem Anglice : the heir of A. therefore continued in the power of the father, during whose life he owed no homage to the lord ; as two homages could not be done for the same land. And so it was, wherever the heir was descended both from the husband and wife ; but it was otherwise, wdiere there was a second marriage, and he was descended only from one. As for instance, if the wife only had an inheritance, and the husband died first, leaving an heir, the inheritance could not be delivered during the life of the wife ; and of course the lord would not have wardship and marriage : so if she married one or more husbands, there was still to be no delivery ; and, of course, no ward or marriage, as long as she or any of her husbands lived : the same, if the wife died, leaving any husband alive : but as soon as the surviving husband died, then the inheritance might be de- livered to the heir of the deceased wife by her first husband, and ward and marriage would follow. Thus, as the preference depended upon the delivery of the inherit- ance, and that upon the death of the person in seisin, it might happen that the death of the husband and wife might fall so near as to leave a difficulty in determining which died first. In such case they used to recur, as in Grlanville's time, to the first feoffment, and disregard the priority of delivery ; and so they did, when the inheritance on the part of the father and that on the part of the mother were held of different lords, and were united in the person of one heir.i The guardian in socage had the marriage of the heir and all other casualties and profits of wardship the same as the guardian in military tenure ; and what is very remarkable, the right of the guardian in socage was so much considered, that the law allowed the appm^ent next of kin to take, notwithstanding he was a bastard and illegitimate.^ This made a guardianship in socage as great an object as that in military tenure ; and the struggle for the 1 Bract. 89 b. « Ibid. 88. CHAP, v.] BUACTOX : OF GIFTS OF LAND. oI7 marriaf:jc of the heir did not lie only between the different lords of whom he held in military temire, but, if he also held any socage lands, there miglit be a contest between the lord in military tenure, and tlie person who was entitled to be guardian in socage. When, therefore, land in military tenure descended from the father, and land in socage from the mother, or vice verm, and they both centered in the same heir, the marriage of the heir was decided, says liracton, by priority, in the manner before-mentioned.^ But it" lands in socage and in military tenure descended from the same ancestor ; then, notwithstanding tlie socage might be of the ])rior feoffment, yet the privilege of" miHtary tenure j)ievailed, and the lord of tho.se lands wuuld exclude the next of kin, and liavc the ward and marriage.'^ Thus was the person of the infant heir made a property of, either by his guardian in chivalry or in socage : the disposal of the heir in marriage might be sold to the best purchaser, like the fruits and profits of his lands. We shall soon see,-^ that the legislature made some provision against this oppression, in the case of guardians in socage ; but the others were rather secured in their rights by another provision of thisVeign, which made void all conveyances of tlie inheritance to the heir in the life of the ancestor ; a ])ractice by Avhich tenants in chivaliy endeavoured to avoid the claim of ward and marriage.'^ Having considered the terms and conditions on which landed property might be held, the next object Avhich natur- of gifts of ally presents itself is, the manner of acquiring a title ^'-^^^ ■ to property : and this was of three kinds ; by gift, by succession, and by ivill. We shall consider these three in their order, beginning with the first.^ A gift of land might be considered in various ways ; either as, what is called by Bracton, libera cf pura donatio, or that which Avas sub condHione ; and, in another respect, such as was absolufa et larga, or that which was stricta et coarctata to certain particular heirs, with an exclusion of others. These will be treated of more minutely hereafter, when we have first inquired what persons were capable of m;dcing gifts of land, and what not. J The person who was regularly and })roperly entitled to make a gift of his land, was he Avho was seised in fee ; but yet some others who had an inferior interest, could, to a ^ ^^ '"°^ ' certain degree, make a gift ; as any one who had a freehold, though only for life ; and even such as had no freehold ; as one who had a term for years, or the wardship of land : and indeed those who had no lawful title ; as one who was in seisin by intrusion or by disseisin, might, says Bracton, convey a freehold, though it was not a com- plete and indefeasible one. A gift made by a minor, or a madman, would be good, if confirmed, after the one was of age, and the other had become of sane memory.^ Those who could not make a gift, \ Bract. 88 b. -' //,/(/. 91. ' Stat. Mailb. Vide pud, Stat. Marlb. 5 Bract, 10 b. « Hid. 11 b. 318 HENRY III. I CHAP y, were such as liad not a general and free disposal of their property : such was the condition of minors, who were suh tuteld vel curd ; yet these coukl accept a gift with consent of their tutor, as the law allowed them to meliorate their condition, though not to lessen it by making a gift, even with consent of their tutor : the same of a person deaf and dumb ; a person taken prisoner by an enemy, while in the enemy's custody ; or a leper removed from the converse of mankind. Others were incapacitated sub modo. Thus archbishops, bishops, abbots and priors, could not make gifts without the assent of the chapter ; nor the chapter without the assent of the king, or other patron, whoever he might be ; the concurrence of all whose interest was concerned being absolutely requisite. Eectors of churches, as they possessed nothing but in the name of their churches, could make no alienation thereof but by consent of the bishop or patron ; i nor even make any change therein for the better.- Bracton lays it down, that a bastard could not give his land unless he had heirs of his body, or he had made lawful assigns thereof, conformably with the terms of the donation. This restric- tion on the alienation of a bastard seems to have been imposed in favour of the lord, who, as the law now stood, (though it was other- wise in Glanville's time), would, on failure of heirs, succeed by escheat. For a similar reason no one charged with felony could alien his land with effect, though the gift would hold till he was convicted, and if he was acquitted would be valid. All gifts between a husband and wife were void ; 3 nor could a husband give his land to another, to be conveyed by the donee to his wife in his life-time, or after his death, as that would be a fraud upon the letter of the law. Thus far of the persons who might make a gift of land ; next of those to lohorii a gift may be made. A gift, as has been before said, might be made to a minor ; and in such a case, a tutor, or curator, used to be appointed to accept and take care of such gift ; but the law did not allow the feoffor to appoint such tutor ; ^ for that, says Bracton, would seem like a con- tinuance of the seisin, instead of making a feoffment of it. A gift might be made to a Jew, unless the original charter had a clause which forbid such an alienation ; it being very common in those days to add to the clause of assignment cxccptis viris religiosis, et Jiidceis : it seems that Jews were not by law incapacitated from taking gifts of land, except in these particular cases.5 If a gift was made by a man to his wife and his children, or her children begotten of another husband, the gift, though void as to the wife, would hold as to the others. 1 So Bracton reads. Quere, if ib should not be and ? 2 Bract. 12. 3 Vide ante, 91-111. ■4 Bract. 12 b. It is to be regretted tliat Bracton has not informed us by whom he was to be appointed. These tenus of Tutor and Curator are borrowed from the civil law, and the appoint- ment of them to protect pi-ojierty given to an infant is adopted from the same source. (Inst., lib. i., tit. xiii., et sequent.) * Bract. 13. CHAP, v.] BRACTON :— OF GIFTS OF LAND. 319 It has before been said, that a person might give what he liad in fee for life, or for years; to which may be added, that he liad tliis power, whether he was seised to himself solely or in common with another. He might also give that wliich he had in expectancy after the death of his ancestor who held it in fee. He might give what lie had granted before to another for a terra of years, with a saving to the farmer of his term ; because these two possessions could veiy well consist with each other, so as one should have the freehold and the otlier the term. It has before been shown that these gifts might he of greater or less extent and duration ; they might be in fee for life, in fee-farm for term of life or for term of years. Where a gift was for life, whatever the circumstances might be, the donee had immediately libcrum tencmentum, or, as it has since been called, a freeliold in- terest, so as to have an assize if lie was ejected ; and such a donee nn'glit, as has before been said, make an imperfect donation in fee or for life ; so great consideration did the law bestow on a freehold of any sort.i To ascertain that gifts were actually made by the parties whose names were to the deed of gift, and that they were in a capacity to manage their affairs, a writ was framed requiring the sherifi" to make inquisition whether the donor was compos sni; wliich writ was either to be executed before tlie sheriff and guardians of the pleas of the crown, or before the justices at Westminster.^ There was another writ to inquire if it was the donor's seal, or was really affixed to the charter by him ; and if, upon inquiry, any one was charged with a fraud respecting the gift, he was sunmioned to answer for it.3 All gifts should be free, and without compulsion : and therefore, should it be proved that any coercion was used with the donor, the gift was revoked ; but if the donor dissembled the force, and did not complain of it till some length of time, he would not be permitted afterwards to invalidate the gift by such a suggestion. If it was in time of war, he was to make a declaration thereof as soon as peace was restored ; if in time of peace, then, says Bracton, as soon as he had esca})ed from the duress, he was to raise a hue and cry after the parties ; and in either of these cases, he would be consid- ered by the law as having done all in his power.'^ Having premised these observations concerning the capacity of persons to become donors and donees, the next subject of simple is the donation itself It has been said that donations s^^^- were, some of them, simple and pure ; that is, where no condition or modification was annexed. The following is a pure and simple gift of land, and, as it was the common form of gilts or feolfments at this time, is very well Avorthy of notice: — Do tali tantain terram in villa, tali, pro homagio et scrvitio suo, hahcndam et tencndam eidem tali et hteredihus suis de me, et hceredilus meis tantnui, ad 1 Bract. 13 b. - Ibid. 14 b. ^ Ibkl. 15. * Ibid. 10 b. 320 HENRY III. [chap. v. tales termin'os, pro omni servitio, et consuetudine seculari, et de- mandd; et ego et hceredes iiiei tuarrantizabimus, acquietabimus, et de/endemus in perpetuum prcedictum talem, et hceredes suos, versus omnes gentes 'per prcedictum servltium, &c. A gift like this, tali et ha'redihus suis, was to be understood in the large sense of the term hceres, and as comprehending all heirs both near and remote, i Another way of enlarging this clause was, tali et hceredihus suis, vel cui ten-am illam dare vel assignare voluerit, with a clause of warranty co-extensive with such a donation. In such case, if the donee assigned and died without heirs, the donor was bound to warrant the assignee, which could not be without such an express engagement in the deed of gift, so that the express mention of assignees seemed necessary to give a complete power of alienation. As a gift might be made largely, so it might, as before stated, be coarctata, and confined to particular heirs, as, tenendam sibi, et hceredihus suis quos de carne sta et uxore sibi desponsata pro- CREATOS HABUERIT ; or, tcdi et uxori suce, or cum tcdi filid med, d'c, tenendam sihi et hceredihus suis de came talis uxor is, or ^lice exeuntihus, (tc. In these cases the inheritance descended to the particular heirs there specified, to the exclusion of all others. If a person so infeoffed should infeofi" any other, the heirs would be bound to warranty ; for though some had endeavoured to maintain that they took together with their ancestor, yet Bracton denies it, and says, they only took by descent. And should the person so infeoffed have no such heirs, or they should fail, the land would revert to the donor by a tacit condition, without any mention thereof in the gift. The construction of law upon the estate and interest of such donees was, that, in the first of the above cases, should there be no heir, the land given would be a freehold in the donee, but not a fee; in the second, it would be a freehold till heirs were born, and then it would become a fee ; and when they failed, it would again become only a freehold. Thus, we see, it was at the pleasure of the donor, at the creation of the gift, to modify it as he pleased, however con- trary to the general disposition the law would make thereof ; in which instances the maxim, that conventio vincit legem, was the principle which governed ; and this was not only in prescribing what heirs should inherit, but also in the service to be performed, which, as has been seen before, was in the breast of the feoffor to order as he liked, so as he warranted his tenant against the chief lords.2 We have hitherto spoken of the heirs that were pointed out by Of conditional the will of the douor to succeed to the inheritance. We gifts. shall next take notice of the conditions and modifica- tions under which the inheritance was to be enjoyed ; and these imported sometimes a burthen, sometimes a benefit, to the donee, and were of different kinds. Thus a gift might be, tenendum sihi 1 Bract. 17. ' Ibid. 17 b. ClIAr. v.] OF CONDITIONAL GIFTS. 321 et hceredibus suis, si hcsredes hahuerit de corpore suo lyrocreaion ; where, if the donee had heirs of liis hody, tliou<:;li tliey afterwards failed, yet he had satisfied the condition, and all his heirs, without distinction, became entitled to inherit ; but if no such heir had been born, the land given would have been only a freehold, and would return to the donor, to the exclusion of the heirs general, because the condition had not been fulfilled. If a gift was viro et 2ixori, et hceredibus uxor is ; or, vira et uxori, et luercdihus viri ; or, viro et nxori et Jueredibus commimibus, si tales eMiterint, vel si NON extiterint, tunc ejus hceredibus qui cdium supervixerit ; these were all sub modu. Others were sub inodo, and also adjectd condi- tione; as. Do tali tantam terrctm, ut det mihi tantum; or, ut mihi inveniat necessaria. These gifts, though not wholly gratuitous, yet, Bracton says, were simplex et jjura; and if livery Avas given thei'eon, they could not be revoked, though the condition was not j)erformed, unless there had been an expiess covenant entitling the donor to enter for breach of the condition.i The limitation of estates went much further than what has yet been stated. A person would make a gift to his eldest son A. ten- endum sibi et hceredibus suis de corpore suo procreatis ; and if he had no such heirs, or they should fail, then to his second son B. to whom he directed it to revert, to have and to hold to him in the same manner; and upon like failure to 6'., his third son, in the like way, and so on ; and if the said A. B. and C. all died without such heirs, the land to revert to the donor and his heirs ; which last was unnecessary, as the law would, of course, give the reverter to him. Other gifts were as large as the former was confined ; as tenendum tibi et hceredibus tuis, vel cui dare, vel assignare in vita, vel in morte legare volucris. A regard to the will of the donor induced them to support such gifts ; for Bracton lays it down, that if the legatee got the seisin, and an assize was brought against him by the heir, he might plead the form of the gift, and it would be a bar,2 so that the restraint upon gifts of land by will, which seemed one of the strictest points in the law of lauded property, might be dispensed with by tlie special form of the original gift. Innumerable were the conditions upon which gifts might be made. Some of these were conditions precedent, and some subse- quent, to the vesting of the estate given : some of them were sup- ported by law, and some not : and various were the reasons given why they should not be su]iported. A few instances of this kind will serve; as. Bo tibi talcm terram, si Titius voluerit ; si new is venerit ex Asia; si Titius veneriJ ex Jeruscdem; si mihi decern aurcos dederis ; si ccelum digito tetigeris, and the like;3 some of which were accom])anied with an express condition of reverter on failure in performing the terms on which the gift was made, and some not. The course of descent was entirely under the control of the donor 1 Bract. 18 a.b. 2 /j,,-^;. ig b. 3 ji^ij, 19. X 322 HENRY III. [chap. V. ill making the gift. A gift was sometimes made to a person for a term of years, and after that term to revert to tlie donor, with an agreement that if the donor died within the terra, the land should remain to the donee for life, or in fee, as it might happen. Thus a freehold and fee might be raised by a condition, and in the same manner might be changed into a terra ; for when a gift was made for life, it might be added as a condition, that, should the tenant die within a certain time,i his heirs, tenants, assigns, or executors should retain the land for a certain term after his death. When land was given to a creditor in vadium, it was sometimes agreed, that if the money was not paid at an appointed day, he should hold it to him and his heirs. Gifts were often made for a term of years, yet so as to be restored to the donor if he ever returned into the kingdom ; but if he died in his voyage, or did not return, to remain to the termor in fee ; upon the performance of which condition the term ceased, and the fee commenced- In all gifts in maritagium, or to a bastard, there was an express or tacit condition of reverter. If land was given to a bastard in marriage with a woman, it was always either to them et lioiredihus eorum commtmibus, or, hwredibus ipsius uxoris tantum. In the former case, there was, by a tacit condition in the gift, a reverter to the donor, upon failure of common heirs ; in the latter, if she had heirs by the bastard, the land v/ent to them ; if she had none, it descended to other heirs of the wife, whether born of another husband or collateral. Suppose land was given to a bastard solely, without his wife, ei et hwredibus suis, or, ei et assignatis suis ; in the former case, upon failure of heirs, whether homage had been done or not, the land, contrary to the usage in Glanville's time,3 escheated for want of heirs ; in the latter, if he had made an aliena- tion, it was good, though there was a failure of heirs."^ If a bastard had a brother, that brother could not take from him by descent. Land was sometimes given before the espousals by some relation of the wife to the husband with his wife, or to both of them ; as, tali viro et uxori sua;, et eorum hceredibus, or alicui midieri ad se maritandum, or siraply without any mention of marriage; but if there was mention of marriage, then the land so given was called maritagium. A maritagium used to be given either before, or at the time of, or after, the matrimonial contract. Maritagium was, as has been said before,^ of two kinds, it vvas/ree, or not free; the particulars of which distinction were now more minutely set forth than in the time of Glanville. Liberum maritagiiim was, where the donor was willing that the land should be quit and free from all secular service ^ belonging to the lord of the fee, so as to perform no service down to the third heir inclusive, and the fourth degree. The degrees were com})uted in this way : the donee made the first, his heir the second, his heir the third, and the heir of the second 1 Bract. 19 b. 2 m^, 20. » Vide ante, 119. " Bract. 20 b. Vide ante, 290. 5 yide ante, 121. « Bract. 21. CHAP, v.] OF ESTATES BY COUUTESY, 323 heir the fourtli. The heirs wore computed thus : tlie 8on or daughter of the donee was the first, the son or daugliter of them the second, and their son or daughter the third, which third heir was to do homage and perform tlie service. As there was a reverter to the donor, on failure of heirs, there was to be no liomage in these gifts; but sliouhl those in the right line fail, the land would go to the remoter heirs, if the form of the gift allowed it l Tliese gifts were made in dilfiMent ways. If huid was given tali fiUce me(e adse maritanchan, without mention of heirs, this conveyed only a freehold and not a fee ; and therefore, after the death of the wife, it reverted to the donor ; nor had the husband any claim upon it per legem Anglke.'^ If it was ad se maritandum, el tenendam sibi el Jueredibus sicis, generally ; then, though she had no heirs of her body, the remoter would be called in, and the husl)and would possess it per legem A nglloi. If it was confined to particular heirs, it reverted on failure of such heirs. Thus, if it was to the common heirs of the husband and wife, and they had a daughter, and the husband died, and the widow married again and bad a son, the daughter wouhl be preferred to the son ; thougli it would be other- wise had the gift been to the wife only, and the heirs of her body.3 The right of a husband to retain the land of his deceased wife jyer legem Angliw, is defined by Glanville and Bracton Estates by in the same manner, except that the former * states it courtesy, as if confined to estates given with the woman in maritagium ; if so, this claim had now extended itself, for Bracton says, the husband should have the land if he married a woman habentem hcereditatem, vel maritagium^ vel aliquam terram ex causa dona- tiotiis, having any inheritance, whether a maritagium or other gift of hmd.5 He agrees likewise with Glanville, that the second husband was equally entitled with the first. It seems, one Stephanus de Segrave, whose name we find among the justices itinerant in this reign, had written a treatise, in which he had combated this opinion, as founded on a misconception of the mean- ing and design of this sort of estate. He thought there was an injustice in giving an estate per legem Anglice to the second husband, more especially when there were children alive of the first marriage. The crying of the child, which was a necessary circumstance towards establishing a title to this estate, was to be proved per sectam sujficie7item , conflicting of persons who heard with their own ears the cry, and not by those who had it by hearsay. The cry was only an evidence of the child being born alive ; but this evidence was more regarded than any testimony of midw'ives or nurses, who might be induced, by various motives, to give false testimony; and no proof of the child being born alive, and christened as such, would be received in lieu thereof. So rigid 1 P.nict. 21 b. a juj^ 22 b. 3 III. ibid. * Vide ante, 122, * Bract. 437 b. 324 HENRY III. [chap. V. were the lawyers of those days in exacting this only proof of life, that where the child was born deaf and dumb, they pronounced, tamcn clamorem emittere debet, sive masculas sive fcemina ; which expectation had been thrown by the lawyers of those days into a singular monkish verse.i If the child was a monster, and instead of a clamor uttered a rugitus, as Bracton expresses it, it Avould not satisfy the requisite of the law much less would a birth that was supposititious.^' The tenant j:)er legem Anglke was to have all incidents that hap- pened, whether in services, wards, reliefs, or the like, during his life ; but if any land, or inheritance, fell in after the death of the wife, such accession went to the heir, if of age ; if not, to the chief lord who had custody of him ; as likewise did the wards and the like ; it being a rule, that the husband should retain nothing that did not accrue in the lifetime of the wife. Among other impediments to the husband claiming this estate, Bracton reckons that of having macJmiatus in mortem uxoris ; and this, he says, would be a good plea to bar him of his right. If no heir was born of the marriage, and the husband held possession by force, after the death of the wife, the next heir might have the fol- lowing writ, which is recorded to have been framed for one Ran- iilphvs de Dadescomh by W. de Balegh, a name often found among the justices of this period. Rex vicecomiti scdutem. Ostendit nobis A quod cum B. et G. uxor egus tenuissent tantam te^^ram, dtc, utjus, et hcereditatem ipsius C. quae, nuper ohiit sine licerede de cor- pore suo procreato (ut dicitur) , unde terra ilia descendere dehuit ad proidictum A. sicut ad pi'^'opinquiorem hceredem ipsius C. quia 'prcedicta G. sine licerede de corpore suo procreato decessit ; idem B. post mortem proedictoe G. uxoris suae contra legem et consuetudi- nem regni nostri cum vi sua se tenet in eddem, ita quod prcedictus A. in pnedictam terram, ut in jus et hcereditatem suam, ingressum habere non potest. Et ideo tibi jyrcecijyimus, quod si prcedictus A . fecerit te, (&c., tunc summoneas, dec, prcedictum B. quod sit coram justitiariis, &c., ostensurus qua^-e deforceat eideni A. p)rceclicta'm terram, et habeas ibi, dx.,^ which seems to be the most simple form of a writ of entry ; a species of writs which had lately grown into vogue, and of which more will be said in the proj^er place. Having said thus much of estates which reverted to the donor upon a condition expressed or implied, it may be requisite to consider the effect and consequence of such a reverter or rever- Of reversions. . rni • -r. j • i i sion. The reversioner, says Bracton, was considered neither J) ro hcerede nor loco hceredis ; nor was he bound to warrant anything done by the donee, except the appointment of dower ; and this only where the donation was pure, without any condition or modification whatever. Land reverted not only for a failure of ' The verse is as follows : JVam diciiiit e vel a ouotquot nascuntur ah Eva. ' Bract. 438. '^ Ibid. 438 b. CHAr. v.] OF KEVERSIONS. 325 heirs or assigns ; but in case of felony committed by tlie tenant, which threw a perpetual inipcdinicnt in the way of descent ; in whicli instance, it niiglit hapi)en that tlie donor had made a reser- vation of the services to himself, which made him lord, and then he took it as an escheat. In such case, he was deemed in loco hcerecUs, and was accordingly bound to warrant whatever was com- pleted by tlie donee before the felony ; as any gift or demise for a term, provided the act was complete ; for if it was not, as, from the nature of the thing, was the case in dower, it would not avail after a conviction for felony : nor was the donor, though he came in loco hwredis, bound to warrant it.^ We have hitherto been speaking of estates given to a man and his heirs ; but land was sometimes given ad teiininum Gifts ad termi- or ad tempus, for a term ; as for a^ term of life, or «"'«• years ; that is, the life of the grantor, or grantee : or for a time ; as where a gift was " till provision M-as made for the donee." In gifts of this kind it was important whether there was only mention that the donor should make provision, without saying anything of his heirs, or both the donor and his heirs were included ; and whether it was to be for the donee only, or the donee and his heirs. If the donor's heirs were not included, and no provision was made in the life of the donor or donee, the land remained in fee to the donee ; but if provision was made in their lives, the land reverted to the donor by the form of the gift. If the heirs of the donor only were included, and not those of the donee, and neither the donor nor his heirs provided for the donee in his life, the land remained to the donee and his heirs in fee, although the heir of the donor or the donor himself was ready to provide for the heirs of the donee, after the donee's death. But if, on the other hand, the heirs of the donee and those of the donor were mentioned, and the donor provided for the donee, or his heirs, the land reverted to the donor ; and should the donor have made no provision in his life- time, it was not sufficient that his heirs were ready to do it, because the form of the gift required it to be otherwise. If there was no mention of heirs at all, then should the donor make no provision for the donee during their joint lives, the law was, that the land should remain in fee to the donee. If land was given for the life of the donee, and not of the donor, nor in fee, then it was con- sidered as a freehold in the donee : if the reverse, then the law con- sidered it as the freehold of the donor, and not of the donee, because it might, if the donor died first, be revoked in the life of the donee, and revert to the heirs of the donor. Again, if a gift was made for the life of the donor to the donee and his heirs, then, should the donee die first, his heirs would hold it for the life of the donor, and they could recover in an assize of mortauncestor, stating that I Bract. 13. - This was called a hoMing adfirmam, and the persons so holding were called /r ma ru'. Fermo, in the Italian, signifies a bargain, or contract. 326 HENRY III. [chap. V. their ancestor died seised as of fee:^ and if the donor died first, then, for the reason above given, it became the freehold of the donor and not of the donee. If there was no mention of heirs of the donee, yet the land needed not immediately, in such case, revert of course to the donor ; for the donee might, if he pleased, make a testament of it, as of any chattel ; and such a will, accord- ing to Bracton, was good in law. If a gift was made by a man for him and his heirs without naming the heirs of the donee, and without saying expressly it should be for life, yet the land became i\\e freehold of the donee as long as he lived. But should a gift be made ad ierminum anno- rimi, for a term of years, however long, even though it exceeded the usual length of man's life, yet the donee did not by such a gift obtain a freehold; because a term of years was a certain and deter- minate period, and the term of life uncertain ; the uncertainty of the determination of the estate being what Bracton seems to con- sider as absolutely necessary to constitute a freehold interest, A term of years was treated as an interest that did not at all impede any further disposition of the land so held ; for the person who let it, might within the term make a gift of the land to another, or to the same person in fee. If it was to the farmer, one sort of pos- session would thus be changed into another ; if to another, the possession of the farmer would still remain unimpaired ; for a term and a feoffment of the same land might consist very Avell together. In such case, there would be different and distinct rights. To the feoffee would belong the property of the fee and the freehold ; the farmer could claim nothing but the usufruct — that is, to enjoy the use and produce freely during his term, without any obstruction from the feoffee. Land, says Bracton, might be given at the ivill of the giver, and so on as long as he pleased, de termino in terminurn, and de anno in annum; under which lease the person taking had no freehold; the owner of the proprietas could at any time reclaim it, as being nothing in law but a precarious possession («).2 Another sort of gifts was to cathedral, conventual, and parochial churches, and religious men. These were said to be in liberam eleemosynam. They were sometimes in liberam et perpetuam elee- (a) This is mere verbal quibbling on the part of Bracton, evidently with a view to the controversies of the age as to the control of the crown over bishoprics. No such distinction is drawn in Glanville, who states broadly that the bishojis held their baronies in fraukalmoigne (lib. vii. c. 1). So the Mirror says that when lands were originally allotted, some received their lands without any obligation of service, as frankalmoigne (c. 2, s. 28). So Littleton, writing temj}. Henry VI., says that where a man gave lands to an abbot, &c., to hold to them and their successors (whether he said in pure and perpetual alms, or in " free alms," or in frankalmoigne), the land would be held in frankalmoigne, evidently meaning that the essence of it was a gift to the ecclesiastical person and his successors, which is common sense. It is not> likely that men would ever draw such senseless distinctions as Bracton here affects to draw. Littleton says distinctly that tenants in frankalmoigne owe no service to their lords. And that was the law laid down by GlanvUIe. 1 Bract. 26 b. - Ibid. 27 b. CHAP, v.] OF LIVERY OF SEISIN. 327 mosynam; in which cases, the donee was not excused from the burthen of serv^ice : but if tlie gift was wliat they termed in liberam purarn^ et perpduam eleemo-sijuum, then he was ; and the donor antl his lieirs were bound to warrant the donee against all claims of the chief lord.i Tlie next su])ject is the consideration the law had of the several before-mentioned gifts; all which were imperfect, till possession or seisin was given to the donee. Tlie ^''^'^' degrees of possession made a subject of very minute distinction and refinement at this time, and is discoursed on by Bracton- at length. It is sufficient to say, that the complctest possession which could be had, was, when the Jus, and sci.siw, the title to the land, and the seisin of it, went together ; for the donee had then Juris et seisince conjunctio ; the highest of all titles.-^ But this could not be obtained without a formal fraditio, or livery ; for land was not transferred by liomage, nor by executing charters or instruments, however publicly tliey might be transacted, but by the donor giving full and complete seisin thereof to the donee, either in person or by attorney. This was by publicly reading the charter (and if livery was made by attorney, by reading the letters of attorney) in pres- ence of the neighbours, who were called together for that particu- lar purpose ; upon which the donor retired from the possession, both corpore et animo, without any intention of returning to it as lord ; and the donee was put into the vacant possession, animo et corpore, with a resolution of retaining possession; in short, one party ceased, and the other began to possess it : for the donor never ceased to possess till the donee was f idly in seisin ; it being a rule of law, that the seisin could not remain vacant for the minutest space of time. This is the account given of livery by Bracton, who adds this definition of it : de re eorporali de persona in personam de manu p>roprid vel aliend (that is, of an attorney) in alterins manum gratuita translatio. And if livery was thus made by the true owner of the land, the donee had immediately the freehold by reason of the, juris et seisince conjunctio.'^ There were some cases where livery was not necessary, and any ex])ression of the owner's will, that the property should be changed, had the same effect as liveiy. Thus, where land Avas let for a term of life, or years, and afterwards the donor sold or gave it wholly to the donee, it became the property of the donee immediately : the same where a person was in possession by disseisin or intrusion ;^ the law allowing, in these cases, a fiction to supply the fact of the land having really passed out of one hand into the other. When a livery was made, it had the effect of conveying to the person to whom it was made, everything the maker of it had : whether he had a mere right and jjroperty of the fee, a freehold, or usufruct, it all belonged to the donee. But for this purpose, it was 1 Br.act. 27 b. 2 Ibid. 38 b. ' Ibid. 39 b. * Id. ibid. 5 Ibid. 40 b. 328 HEXKY III. [chap, v. not sufficient that the donee came into the occupation of part of the land ; for if any person belonging to the donor remained on another part, he thereby retained the whole, notwithstanding the livery: and it was absolutely necessary towards completing the livery, that the donor and every one belonging to him should leave the land. If the person making livery had only the usufruct, yet he thereby gave to his feoffee a freehold, as far as concerned him- self, and all others who had no right, though not as against the true owner. If he had nothing, nothing he could give ; yet if a person w^as only in possession, let that be as inferior as might be, it is clearly laid down by Bracton, that he could give a precarious fee and freehold by livery.^ As livery might be made either by the donor in person or his attorney, so it might be accepted either by the donee or by his attorney.'- Land might be transferred not only by a legal title, and livery thereon, but without title or livery at all, namely, ^3er usucop- iionem (a) ; that is, by continual and peaceable possession for a length of time ; yet what length of time was necessary to give such a right, was not defined by the law, but was left to the discretion of the justices.3 Thus all intruders, disseisors, farmers holding over their term, persons continuing in possession contrary to a covenant or the original form of the gift, if they were suffered to remain in that condition without any interruption for a length of time, gained a right and freehold. Though this was the law amongst subjects, in order to avoid dormant and litigious claims, yet in the case of the king it was otherwise ; the maxim of nuUnm tempus occurif regi having already obtained in his favour.^ We have hitherto been speaking of corpoi^eal things. It fol- lows, that something should be said of incorporeal, ° ' and the methods of transferring them. These were called jura and seruitutes, or rights : and being things neithef visible nor tangible, could not pass by livery : they therefore passed by agreement of the parties contracting,^ and by a view of the corporeal thing to which they belonged ; thus, by a fiction of law, they became what was called ^^^fls^-possessed ; and he who was so in possession by fiction of law, had a qiiasi-use till he lost the pos- session by violence or by non-user ; for as possession of a corporeal thing could be lost by non-user, so could a qncm-])OssesHion of an (a) This head of law, and the very term used to describe it, per usucaptionem, are borrowed from the Roman hiw ; and, it may here be observed, that by far the greater portion of Bracton's treatise, so far as it relates to private civil rights, is taken from that source, and is, as Sir William Jones said, borrowed from Justinian. The phrase used by Bracton is. " louga iiacifica, et continua possessio (p. 52), quia sicut temjius est modus inducendte, et tollendse obligationis, ita erit modus acquirendas possessiones longa enim possessio (sicut jus), parit jus possidendi, et toilet actionem vero domino, jietenti quandoque omnem quia omnes actiones in mundo infra certa tempora habent limitationem" (p. 531. ^ It is worthy of remark, that this piece of old law was reconsidered, and after long discussion confirmed, 500 years after Bracton wrote, in a famous case in the King's Bench. Vid" Burr. Rep. 60. a Bract. 41 b. ' Ibid. 51 b. < Ibid. 52 and 103. ^ m^, 93 b. CHAP, v.] OF TESTAMENTS AND INTESTACY. 329 incorporeal thin^^. But when there was an actual user of an incor- poreal thiuii^, the ])osses8ion was retained by the user, and became real, instead of fictitious : and when a person had thus made use of Ids riijht, he mis^ht transfer the right and tlie use to another, whicli before user lie couhl not. If a j)erson, however, who had an incorporeal right to liim and his heirs, died witliout any user thereof, the title would descend to his heirs. These rights were generally considered as, and were called cq^purtcnanccs to some corj^orcal thing, as to a farm or tenement ; and were commons, rights of advowson, and tlie like.' An advow- mn and conmion were sometimes not appurtenant to anything, but subsisted as inde])endent rights.- Of a nature similar to these were other incorporeal things, which were given by the king only, as liberties and f i-anchises ; such as jurisdiction and judicature, treasure-trove, waifs, tolls, exemption from tolls, and numberless other royalties, which were granted by charter from the king to the subject.^ Besides the gifts above mentioned, which, being transactions between man and man, were to take effect immediately, there was another sort, which was to take effect after the donor's death : such a gift was called donatio mortis causa. A gift of this kind was generally made by a person in sickness, or going upon a voyage, and had in it a tacit condition, that it should be revocable upon the recovery or return of the giver. Should a gift not be accom- panied with this condition, it was a donatio inter vivos ; and there- fore, if made between husband and wife, was void. A donatio mortis causa was confirmed by the death of the giver. The principal gift of this kind was by testament ; and this did not take place till after the death of the giver. -^ The „ whole law of testaments stated by Glanville, is delivered by Bi-acton as law, and sometimes in the very words of that author ; it will therefore be unnecessary to do more than notice such parts as are more explicitly treated by Bracton, together with such additions as he has made to Glanville's account.^ He says, that, generally, a wife could not make a will without the consent of her husband ; yet that it had been usual (as was intimated l)y Glan- ville)*^ for the wife to make a will of the rat ionab His pars which would come to her if she survived her husband, and particularly of such things as were given her for the dress and oi-nament of her person, as her clothes and jewels, all wdiicli might most properly be called her own. Glanville says, that the administration of intestates' effects be- longed to the nearest of kin ; but Bracton says, that in such case, ad ecctsiam et ad amicos 2)(">'tinehit cxccutio honorum. The law ujton the subject of testaments is thus laid down by our author. Tlie expenses of the funeral were to be allowed out of the effects, and the widow was entitled to receive all necessaries thereout till 'Bract. 54. -'//;/(/. 54 1.. » //-W. 55 b. ^ /6ii^. GO. ' Vide ante, 80. « Ibid. 111. 330 HENRY III. [chap. V. her quarantine was expired, unless her dower was assigned before. If the deceased left no movables, the heir was to be burthened with all the debts, 1 as far as the inheritance went, and no further. There were particular customs which directed a disposition of the effects somewhat differing from the general law : this was in some cities, boroughs, and towns. Among these, the city of London had a custom, that when a certain dower was appointed, whether in money or other chattels, or in houses, which were considered as chattels, the widow could demand nothing, beyond that, out of the effects, unless by the sjjecial favour of the husband, who might leave her more: and again, the children could not demand, by pretence of any custom, moi'e than Avas left them by testator, if he made a will. Bracton says, that a man could not make a will of a right of action, nor of debts not judicially ascertained, but that actions for such things belonged to the heir : yet, when these were once reduced into judgments, they became part of the bona testator is, and be- longed to the executors, under the direction of the ecclesiastical court 2 (a). Whatever doubt there might have been whether the ecclesiastical Ecclesiastical ^0^*'^ entertained suits for the recovery of legacies in jurisdiction the time of king John,^ it is beyond a question, that in therein. -(^i^g beginning of Henry III. that branch of jurisdiction was firmly settled. 4 It is probable, that legacies were a subject mixti forty in the same manner as tithes long were, before they became entirely confined to the spiritual court ; but it appears that the temporal courts in this king's reign so far gave up their claim, as not to prohibit the ecclesiastical judges. This article of jurisdic- tion might be thought not a very unlikely consequence to follow from the power of granting probates; but it is conjectured by a canonist of great authority, ^ that it took its rise out of those laws in the code which made the bishop protector over legacies given (a) A far more natural and probable explanation is, that the jurisdiction as to jiro- bate of testament came to the ecclesiastical courts, simi^ly for this reason, that in the age in which it arose, few jjersons could read or write except ecclesiastics ; and the jurisdiction in cases of intestacy came to be joined with it, for reasons equally obvious, that it was very much mixed up with the former; that it often involved a question of testament (for, of course, if a testament was invalid, the case was one of intestacj-), and also because the division of the effects and the appropriation among the next of kin in due order and proportion, were matters rather beyond the laity in an age when they were ignorant and unlettered. This view is supported by the fact that in many manors the jurisdiction was by custom vested in the lords, no doubt in some cases because they were ecclesiastics, but in others, there can be as little doubt, because they were lettered laymen. The notion that the jurisdiction arose from the canon laws, which vested in the bishops the distribution of bequests left for pious uses, took its rise in an age when jirejudices against everything ecclesiastical often suggested inferences not sui)ported by any authority ; and it will be found upon reflection nntenable, because there it does not account for the fact that the jurisdiction was often in lay lords ; and it overlooks the fact that the bishops held only canonical jurisdiction over the portion left for pious uses, which could not be available until all debts were satisfied (this being a just principle of canonical, not less than common law), 1 Bract. 60 b. - Ibid. 61. = Vide ante, 72. * 2 Hen. HI. Tit. Pro. 13. « Lindewoode, CHAP. V.J ECCLESIASTICAL JURISDICTION AS TO AVILLS. 331 in pios icsus. It is consistent enough with tlic usual practice of churchmen in particular, and conformable with the inclination of 8o that tlie jurisdiction, according to the canonH, could not arine until the estate already was in a great degree aduiinistered ; and further, this view in queation does not account for the fact tliat the jurisdiction was often in laymen. It ia suri)rieing that our author should here appear to rejin-sent all this as a mere novelty or innova- tion, since in chapter iii. he had already fully (juoted Glanville, who showed that it was the law in his time, viz., that it was well understood that a man could bequeath nothing to anybody until his debts were paid ; and that, even after satisfying debts, the " reasonable " part was still due to the wife and children, or next of kin ; and that the administration was in the next of kin, except as to what was left to pious uses. He says distinctly that this was so in the case of a man leaving a will, but appointing no executor, which is a case of intestacy ; and, he say.s, the law gave a remedy to the next of kin against any person holding the effects of the deceased. " If he should not nominate any person for the purpose, the nearest of kin and relatives of the deceased may take upon thcmselve.s the charge, and this so efiectually, that should they find the heir or anj' person detaining the effects of the deceased, they should have the king's writ, and that justly and without delay the reasonable division should be made " {GlanriJk', lib. vii. c. 6-8). Nor can there be any doubt that it was so in any other case of intestacy : that is, that if the bishop or any ecclesiastic should be so unwise as to meddle with the goods before the debts were satisfied, and altso the " reasonable division " in favour of the relatives, they might recover from him the effects, and make the distribution. It is clear, therefore, that the bishops could have no concern except with the portion left to pious uses, and that nothing could be applied to such uses until the debts and the relatives were satisfied. On the other hand, it is also equally clear that the law had always been, after satis- fying the debts and "reasonable share" of relatives, the residue was understood to be for pious uses. For, in the laws of Henry I., it was laid down clearly that the first charge upon the effects of the deceased were his debts : " Si quis debitor nioriens testamenta aliqua fecerit, quicunque in heriditatem successerit, omne debitum ejus juste rcstituat et omne factum idoueare studeat " (Lc(jes Jlenrici Frimi, c. 75); while, at the same time, it was laid down that the residue of the goods of an intestate, after a proper distribution and satisfaction of debts, were for the benefit of his soul, " Si ipse preventus pecuniam suam non dederit, uxor sua, liberi ant parentis, aut legitimi homines ejus earn pro anima ejus dividant, sicut eis melius usum fuerit " (Ibid. c. i., Charter ot Henry 1.) Thus the law in effect was stated by Glanville (lemp. Hen. II.), for he says that so far as a man was indebted, he could not leave anything ; but if he were not involved in debt and died intestate — then after satisfying claims of creditors and relatives — the residue would be received for himself (lib. vii. c. 5), which of course meant, in that age, for his soul, since that was the only way in which goods could be for the benefit of a dead man. But he expressly states that if the deceased was overburdened with debts, he could not, beyond the pay- ment of his debts, make any disposition of his effects ; but should it happen that anything remained, then it was distributed and applied as above stated. He says nothing about ecclesiastical jurisdiction in ciises of intestacy, obviously because it was only incident to testament, and because ecclesiastics had only to grant adminis- tration, save as to the portion in pious uses. According to this law, the distribution would take place under the joint guardianship of next of kin, and of the church, or by the next of kin under the care of the church ; and so the charter of John pro- vided that if any freeman shall die intestate, his goods shall be distributed by the next of kin, and by the view of the church (c. 27), which did not therefore alter, but only declared the law. That was left out in the subsequent charters, but the law remained as it had been before, and perhaps it was omitted iis unnecessary. It is manifest that the ecclesiastical courts had no power, except to adjudicate as to whether there was a testament, and, if not, then to grant administraticm, or appoint persons as next of kin to administer. It is plain they must have beeu next of kin, or the next of kin could (unless the distribution was duly carried out) recover the effects by law (vide supra) ; and the administrators being next of kin, would, it is certain, look after their own interests, and protect tbe assets for creditors or for themselves, it being clear law, according to Bracton, that whoever took the assets was liable to the debts, as far as the assets went, " Quatenus ad ipsum pervenerit, scilicet dehereditatedefuncti, et non ultra" (61 a, Flcta, lib. ii. c. 57, s. 10). It might, however, indeed happen, that goods left to the church by a person solvent, though indebted, and therefore 332 HENRY III. [chap. V. courts {cnnpliare jurisdictionem), to suppose that the ecclesiastical court might have gradually gained jurisdiction over all personal legacies under colour of such as were given in pios usus} This miglit have been the first step towards it ; but it is most probable, that there was a direct authority for this innovation derived from the canon law. For although the Decretals, where it is set forth as a general law, were not published by Gregory IX. till the 24th year of Henry III., the canon which warrants this point of judica- ture was much more ancient, and, without doubt, had travelled hither long before the collection of Gregory was made ; and the authoritative promulgation by that pope, might give new sanction to a usage which had obtained some time before. The granting administration of intestates' effects by the ordinary, though established on a more solid foundation, the express law of this country, by the charter of king John and confirmed by that of Henry III. 2 did not prevail universally. It seems that lords in some places, in maintenance of their former right, still exercised some jurisdicton in the disposition of intestates' goods, in opposition to the authority of the bishops. The power hereby intrusted to the bishops was abused in a very shameful manner ; for instead of liable to debts, might come into the hands of ecclesiastics, and it might be convenient that they should administer, and satisty the debts and the relatives; but they were bound to do so, and then administration was jointly with and under the eye of the next of kin. It might be that in some cases they were dilatory (as administrators usually are), but there could be no doubt of their legal liability to the next of kin. It is said in Fleta (c. 57, De Testamentis, s. 10), " Item si liber homo intestatus decesserit, et subito dominus suus nihil se intromittet de bonis suis, nisi toutum de hoc quod ad ipsum pertinuerit, scilicet, quod habeat suum Heriottum, sed ad eccle- siam et amicos pertinabit executio. [Sed quid ordiuarii hujusmodi dona nomine ecclesiaj occupautes, nullam vel saltone indebitam faciunt distributionem, ideo pro- visum fuit quod hujusmodi ordinarii de debitis defuncti satisfacerent, quatenus bona et facultates sufficerent], nullam enim psenam meretur, quamvis intestatus decedat ; postea verh deduci debent debita aliorum qure clara sunt et recognita, inter quae con- numerari poterunt servitia servientum et stipendia famulorum ; dum tarnen certa sint, si autem incerta sint, &c." {Sddcns Fleta). This passage is to be found word for word in Bracton (p. 16), except the words enclosed in brackets, which are introduced into Seidell's Fleta. It is to be noted that Bracton, while mentioning customs to leave something to the lord and the church, distinctly states that the heir is bound to pay the debts, and that no one is bound to give anything to the church : " Et quamvis non teneretur quis aliquid dare ecclesiaj suae, nomine sepulturaj tamen cum consue- tudo ilia laudabilis existat, dominus Papa non vult earn infringere, post quam vero quatn ecclesiam suam eta recognoverit, delude parentis et alias personas," &c. (Bracton, 61). Again he states that the representatives are bound to pay the debts, and then comes the above passage. But that ecclesiastics ever could, according to the canon law or any other law, appropriate the assets of the deceased, without first satisfying debts and legal liabilities, including just claims of relatives, is absurd. Neither had the law ever been altered in any way up to this time, nor was it altered after this time, however it may have been on some points aided and enforced, as, for instance, by giving creditors legal remedies against the next of kin administrators. At common law the administrators or next of kin had ample legal remedy against the ecclesiastics, or any one withholding the assets ; but the law gave no remedy against the administrators or next of kin, so that, as regarded them, it was only a matter of conscience to be enforced in tlie ecclesiastical courts. Hence the necessity for alteration of the law in that respect, as against administrators. 1 3 Seld. 1675. - This clause, as before observed, was left out of the Itispeximus, 25 Ed. I., and so is not in the common printed charters. CHAP, v.] OF DESCENT, 333 taking order for a due distribution of such goods, wlien they had once got possession of them, they committed the administration of them to their own use, or tlie use of their cliurclies. and so defrauded those, to vvliom, by right of succession, they belonged ; and tliis they did with the pretence of law and conscience on their side, affecting that this disposition of them in pios usus very fully satis- fied the requisition of law (a). This practice grew to such a height, as to occasion a constitution in this king's reign, enjoining that they should not disj)ose of them otherwise than according to the Great Charter, that is, to the next of kin(/>); notwithstanding which, the practice still continued, and the right of succession was, by de- grees, in a manner altered. It was even staled by the canons, as the law of the land,i that a third part of intestates' effects should be distributed for the benefit of the church and the poor-(c) ; wliich was in effect the whole that pro))erly belonged to the intestate, after the partes rationabiles of the wife and children. These (a) It will bo oli.s rved that for all this there is no authority, unless it be that it is borrowed from SeUUni, who is not a contemporary authority, and whose writings are so prejudiced a^^ainst all things ecclesiastical that he cannot be relied upon, save so far as ho cites contemporary authority, of which in this matter he cites none that supports this absurd representation. It is utterly at variance with what the author had alre.ady quoted from Glanville — viz., that the law gave the heirs or next of kin a very good and sufficient remedy against any one withholding the effects of the de- ceased, and also laid down very clearly, quite in accordance with canon law. that the debts must first be satisfied. It is a fundamental principle of capon law, as the author, if he had been in the least acquainted with it, would have known. He, indeed, refers to Lyndwood as his authority on canon law {vide ante), but merely gives his own account of it, instead of resorting to the canon law itself ; and in the next passage, when he cites the Decretals, he entirely misrepresents their effect. (h) It appears from the next reference that the author quoted from Selden ; but if he had quoted the terms of the Decretal, it would have appeared that this meant after the satisfaction of just debts. It was only after that the distribution could com- mence, as the author must have known from Glanville, whom he had himself cited upon that point (c. 3). He must have forgotten this, to fancy that the canon law could ever have hud down anything so monstrous as that the next of kin and the church could divide all the effects before sati-sfying the debts of the deceased. The canonists were too good lawyers for that, and what they laid down was in exact accordance with the law of the land — viz., that vipon the distribution, which could only commence after satisfaction of debts, the third part belonged to the decea.sed — that is, was to be applied to pious uses for the benefit of his soul. This was according to the ideas of the age, and the law was naturally in accordance with thetn. It may be added that it is the third book of the Decretals which treats of testaments and in- testacy, and in which the ecclesiastical law is stated to the efl'ect that the debts must first be satisfied. (c) The author does not quote this constitution, nor give any reference to it, nor state whether it was an ecclesiastical or a lay constitution, nor when it was enacted, nor what are its terms ; and so far as he states it, there is nothing to show that it w;x.s aimed at the chinrh, nor is there any reason to suppose that it was, seeing that, as already shown from Glanville, the next of kin had already ample remedy against any one withholding the effects, unless, indeed, it was the crown ; and all the charters after the time of John contained a clause to protect the assets of deceased tenants of the croxcn from the exactions of the king's officers, who seized the effects on the plea of indebtedness to the crown ; and this clause therefore provided that, after satisfy- ing the debts to the crown, the residue — or, if there were no debts to the crown — then the whole should be distributed among the next of kin — that is, of course, according to the law, leaving a share for the deceased. ' Decretal, Ub. v. tit. 3, c. 42. 3 Scld. 168L 334 HENRY III. [chap. V. abuses of ecclesiastical judges o^ave occasion to two statutes, made in the reign of Edward I. and Edward Til. The last mode of acquiring property was hy succession. The law of descent in the time of Glanville continued, with some small variation. We have seen that in Glanville's time the eldest son was the sole heir, in knight-service, and in most instances in socage ;i but it was now laid down by Bracton, generally, that, in both cases, jus clescendit ad primogenitum." It was also now held, that all descendants in infinitum from any per- son who would have been heir, if living, were to inherit jure reprcesentationis. Thus the eldest son dying in the lifetime of his father, and leaving issue, that issue was to be preferred, in in- heriting to the grandfather, before any younger brother of the father ; which settled the doubt that had occasioned so much de- bate in the time of Henry II. ^ The rule of descent was, that the nearest heir should succeed ; iwopinqmor excludit p)ropinquum, jy^'opinqims remotum, remotus remotiorem. Sometimes the right of blood constituted a particular sort of propinquity, to the prejudice of the male heir, who, in other instances, is so much favoured in our law ; as in the following case: A man had a son and daughter by one wife, and after her death married another, and had a son and daughter by her ; the son of the second marriage made a purchase of land, and died without children: in this case, says Bracton, the sister by the second wife would take, in exclusion of the other brother and sister. Some were of opinion, that this piece of law was entirely confined to cases of purchased lands, but that it was otherwise in cases of inheritance ; for there respect was always to be had to the common ancestor from whom the inheritance descended ; and the right should never come to a woman so long as there was a male, or one descended from a male, whether from the same father and mother, or not.4 Bracton, however, seems to think, that this rule of descent w^as to be observed in inheritances, as well as in purchased lands ; because every one, as he came into seisin, made a stip)es and a first degree: 5 and so it was settled in the next reign, when this opinion of Bracton was adopted in the maxim, seisina facit stipitem. The impediment thrown in tiie way of descent by the rule, nemo potest esse hceres et dominus, still continued, though it was avoided by many devices ; the most common of which was that of infeoflfing to hold of the chief lord, and not of the feoflfer ; for this avoided the necessity of doing homage to the elder brother.^ The law had provided a preventive against imposing supposititious Departu sup- children, to exclude those who were next entitled to the posito. inheritance. If a woman, either in the life of her hus- band, or after his death, had pretended to be pregnant when it was thought she was not, in order to disinherit the heir ; the heir might 1 Vide ante, 78. - Bract. 64 b. " Vide ante, 79. * Bract. G5. 5 lOid. 65 b. 6 Ibid. 63 a.b. GHAP. v.] OF DESCENT PARTITION — DOWER. 33-3 have a writ commanding the shorifF to cause tlie woman to come before him, and before the guardians of tlie ])leas of tlie crown, or before such person as tlie king sliould authorise to judge therein, and cause her to be inspected by lawful and discreet women, in order to inquire of the truth ;^ and she was put in a sort of free custody diu-ing her pregnancy, that the imposture, if any, might not escape detection. This was the way in wliich a woman was dealt with, when she falsely pretended to be pregnant. If the hus- band and wife agreed together in educating a supposititious child as their own, the right heir might have a writ quod Itubcas corpora of the husliand and wife before the justices, where the truth would be examined. Another person who had a temptation to play this tiick upon the next heir, was the chief lord, who, when he had an lieir in ward, and it died, would sometimes set up another, in order to continue the custody of the land ; in which case, there was a writ and proceeding similar to the formcr.- When an inheritance descended to more than one heir, and they could come to no agreement among themselves concern- ing the division of it, a proceeding might be instituted ^'^ to compel a partiiio7i. A writ was for this ])urpose directed to four or five persons, who were appointed justices for the occasion, and were to extend and appreciate the land by the oaths of good and lawful persons chosen by the parties, who were called exfen- sores ; and this extent was to be returned under their seals, before the king or his justices: when partition was made in the king's court, in pursuance of such extent, there issued a seisinam habere facias, for each of the parceners to have possession.-^ It remains only to say a few words on the claim of dower, and then we shall have finished this part of our subject, namely, the title of private rights. Dower is defined by Bracton not in the words, but upon the ideas of Glanville.* Dower, says lie, must be the third jMrt of all the lands and tenements luhich a man had in his demesne, and, in fee, of ivhich he could endow his icife on the day of tlie espousals;'^ so that, according to Bracton. the claim of dower was still limited to the freehold of which the husband was seised at the time of the espousals, notwithstanding the provision of Magna Charta, which seemed to extend it to all the land that belonged to the husband during the coverture.^ The regular assignment of dower had been secured to widows by the chapter of Blagna CJi arta jn^t alluded to, and it was rendered more effectual by a provision in the statute of Merton 7 More will be said of dt)wer when we come to the remedies which the law had furnished for recovery of it. Thus far concerning the law of private rights, as it stood in the time of Henry III. I r.ract. C',1, 70 a.b. 2 Ibid. 70 b, 71. = Ibid. 71 b. to 77 b. ♦ Vide a lit,; 72. » Bract. 92. « Vide ante, 242. 7 Jbid. 2G1. CHAPTER VI. HENRY III. Oj Actions— Of Courts— Writs— Of Disseisin— Assize of Novel Disseisin — Form of the Writ — Proceeding thereon — Of the Verdict — Exceptions to the Assize —Assisa veritur in Juratam — Quare ejecit infra Terminum— Assize of Common — Of Nuisance — Assisa Ultimce Prcesentationis — Exceptions there- to — Of Quare Impedit — Quare non Permittat— Assisa Mortis Antecessoris — Vouching of Warrantor — Where this Writ would lie — Writ de Consan- (jitinitate — Quod Permittat — Assisa Ctru7n — Of Convictio?is — a7id Certifi- cates— Of diferent Trials— Dower imde Nihil — Writ of Right of Dower — Of Waste — ()/ Writs of Entry — Different Kinds thereof. The whole course of judicial proceeding, since the time of Glan- ville, had become a business of much learning and refinement ; the writ, the process, the pleading, the trial, every part of an action was treated as a subject of intricate discussion. While these changes were made in the old remedies, new ones were invented, as more peculiarly adapted to certain cases than those before in use. Of all these we shall treat in their order. Actions are divided by Bracton into such as were in rem, or in personam, or mixt; that is real, p>ersonal, or mixO Of actions. pgrsonal actions were for redress in matters ex con- tractu, and ex maleficio, as the civilians termed it ; and also in such as they called quasi ex contractu, and quasi ex maleficio. It follows, that of personal actions arising ex malejicio, some were civil, and some criminal. Real actions are for the recovery of some certain thing ; as a fVirm, or land : they were always brought against the person then in possession of the thing, and were for the recovery of it in specie, and not for an equivalent in damages. 2 When an action was brought for any movable, some thought that it should be considered as a real action, as well as personal, because the per- son possessed of it was to make restitution of the thing in question; but says Bracton, this was, in truth, only personal ; for the defend- ant was not obliged specifically to restore the thing demanded, but was only bound to the alternative of restoring the thing, or its price ; and therefore, in such an action, the price of the thing ought always to be defined. A mixt action was so called, because it was tam in personam, qudm in rem, having a mixt cause on which it was founded; as the proceeding de partitione among parceners, and de proparie sororum; that for settling of bounds between neighbours and baronies per rationabiles divisas, or per perambu- 1 Bract 101 b. ^ Ibid. 102. '- CIIAr. VI.] OF ACTIONS. 337 lathncs; in which each party seems to have been plaintiff and de- fendant, t]iou<^h he alone was properly plaintiff who commenced the suit. Ileal actions were divided into such as were to recover possession, and such as were to recover the jjrojjcrf// (u) ; a distinction which will be very strictly observed in all we have to say on these actions, and was rigidly adhered to in ai)plying them ; it being a rule, that though a person who had failed in any proceeding for the posses- sion, might resort to the next superior remedy, yet he could never descend. He might have an assise of novel desseisin ; and if he failed in that, he might have a writ of entry (a new writ, of which wo shall soon say more), and lastly a writ of right: but having begun with a writ of right, he could not avail himself of the other remedies. 1 Some actions were permitted by law to be brought at any dis- tance of time ; but, in general, actions were limited to be brought within a certain period, on account of the defect of proof which w^ould happen in a course of yenrs.^ Suits which were to recov'cr such things as belonged to the king's ci-own, might be brought at any distance of time ; on which privilege of the king was founded this rule, that nullum iemjms currit contra rcgem, or nullum tempus occurrit regi : and it should seem from Bracton's manner of expressing himself, that, inasmuch as the suits of private jtarties were limited, because, beyond a certain period, they could hardly be able to bring proofs ; the king, in concurrence with the privilege of instituting his suits without any limitation of time, should, in questions of antiquity, be entitled to throw the onus pirohandi on the defendant (i); and on his failing, should recover without bring- ing any proof at all. 3 Before we enter upon the proceeding and conduct of actions then (a) The distinction drawn iu the Mirror between these two kinds of jurisdiction is iu the object, i.e., whether it be punishment or compensation (c. iii. s. 17). If punish- able corporally, as by compulsion, by imprisonment (as opposed to its substitution for fine), or hy bodily infliction, then the matter was regarded as criminal ; but otherwise, if it was in its nature the subject of reasonable satisfaction (c. ii., s. 24). And again, If any one seek revenge, he ought to bring his action by appeal for felony ; if he seeketh only reparation iu damages, then it behoveth him to bring his action by writ (c. ii. s. 3). (b) In the Mirror, however, which often follows Bracton very closely, the same doc- trine is laid down, " As to the alienations and occupations of franchises, appendants to ttie crown, a man shall not prescribe for them, for of such dignities none c;in help himself by a plea of long prescription ; but such avowries of long continuance are accounted rather prescriptions of wrong, seeing that nullum tempus occurrit rcgif but therein the king is like an infant, who can lose nothing, although for the personal wrong the party may excuse it by showing that he enjoyed the privilege by succession or assignment; but this is counter-pleadable by alleging that the ancestor could not grant it," &c. (c. iii. s. 2t)). It is to be observed that there is mention in the MirYor of limitation of criminal suits since the last " eyre," a circuit of assize of "oyer and terminer," which used at one time to be once in seven years, though the )>eriod varied. There was also the limitation of an assize of novel tlisseisiu. In the Mirror it id said to be an abuse to allow an action after the last eyre. ' Bract. 104. ' Ibid. 102 b. ^ ji;j ]03. T 338 HENRY in. [chap. vt. in use, it may be convenient to premise a short view of the courts in which civil and criminal justice was administered : and first of criminal suits (a). Criminal suits, where a corporal pain was to be inflicted, used to be determined in curia domini rer/is, in the king's court ; which general expression is explained in 13racton by saying, that if the offence concerned the king's person, as the crime of lese majesty, it was determined coram ipso rege, by which was meant the great superior court, of which so much has been already said : if it concerned a private person, it was coram J ustifiariis ad hoc specicditer assignatis ; that is, we may suppose, either the justices in eyre or of jail-delivery {h). These were all equally the king's courts ; and as the lives and limbs of his subjects were in the king's hands, either for protection or pun- ishment, it was proper they should be subject to his decision only, unless in the few instances where persons enjoyed the franchise of holding a criminal court ; as the franchises of Toll and Tern, of Infangtlief and OutfangtlwfX The courts for the determination of civil suits were as follow: — Keal actions might be commenced in the lord's court of whom the demandant claimed to hold his land, from whence they might be transferred, upon failure of justice, to the sheriff's court, and from thence to the superior one ; ^ but if such a suit was not removed for some cause or other, it might be determined in the court baron. In the county court were held pleas upon writs of justicies, as de servitiis et consuetudinibus, of debt, and an infinitude of other (rt) The corporal ptmisliments in those times were cruel, and in some cases horrible, though there was a gradual process of amelioration already beginning. The law of William the Conqueror allowing mutilation has been already alluded to. But even in the Mirror it is mentioned that cut-purses used to be punished by the cutting off of their hands (c. ii. s. 13) ; and although it seems Richard I. rather mitigated this, it was only mitigated to cutting off the ear (Ibid. s. 21). Perjury was punished by cuttincj out the toiKj'ue {Ibid. s. 13). Some offenders were flogged or beaten. As to capital sentences, some offenders were hanged, others boiled or burnt ; others, as in treason, hanged and cut down alive, and then disembowelled and cut to pieces. And it seemed scarcely credible that some of these horrors continued almost to our own time, and that even in our own time men were hanged for forging five-pound notes or stealing sheep. So ingrained in barbarism was our criminal code, owing to the savage spirit of the Saxon, the Norman, and the Dane. (6) This does not appear altogether a correct rendering of the text of Bracton, which our author is merely following. What Bracton seems to mean is that actions are necessarily, in fact, and in a certain sense, limited, because in course of time the proofs fail, " Sunt qusedam quae aliquando fiant perpetua3, et durare solent sine tem- pore preefinitioue, hodie vero fere omnes sujira certa tempera limitantur, pro defectu probationum, et sic sunt temporales, secundum quarundam actionem diversitates." And then he points out that this cannot apply to the pleas as to liberties and fran- chises of the crown, nor affect the maxim nullum tempus occurrit regi, because as to these the onus of proof is on the defendant, "Cum probare non habeat necesse, etsine probatione obtinebit, si implacitatus warrentum non habuerit, nee specialem Hber- tatem, quia se ex longo tempore, non defendet " {Bracton, lib. iii. f . 103). Bracton, however, as to the rights of the crown, can hardly be relied upon ; and when in the reign of Edward I. it was attempted to apply this doctrine, and to oust men of their franchises, by quo warranto, on the principle thus stated, such an outcry arose that the king had to desist. 1 Bract. 10-1 b. ^ Ad magnam curiam. Bract. 105. CHAP. VI.] OF COURTS. 339 causes, among which were, suits de vctito namio, and pleas dc nativis, uuless it became an issue, whetlier free or not, and then the inquiry stood over till the coming of the king's justices; the question of a man's liberty being thought of too high consideration to be intrusted to an inferior jurisdiction. tSucli civil actions, whether personal or real, which were deter- minable in the king's court, were heard before justices of different kinds. The different courts which were called the king's are thus described by Uracton : Curiarum ]i(d)ct umuii proprkuii, nical aulaiu rcgidjii, c/ Jusfifiarios capitidcs^ qui projrrias cnusas regis tcnninant, et ulioru)/i omnium, 2ier qucj-claia, vcl per privilcgiam sice libcrla- tem ; the latter part of which descri[)tion he explains by instancing one who had a grant not to be impleaded anywhere but coram ipso domino rcgc ; though it might be doubted whetlier j^c qucrehim is thereby e.Kplained, and whether that ex[)ression does not mean a distinct metliod of proceeding by complaint, similar to what we see at this day in the modern King's l>ench, and of which we shall have occasion to say more hereafter. Thus far of the aida regis. Our author proceeds, and says, habet etiam curiam, et justitiarios in banco residentes, qui cognoscunt de omnibus placitis, de quibus authoritatem habent cognoscendi ; et sine loarranto jurisdictionerii nan habent, nee coercionem ; in which he seems to describe the bench as having no authority but by the Avrits returnable there. He goes on to mention the justices itinerant through the counties; sometimes ad omnia placita; sometimes ad quccda)a specialia ; as to take assizes of novel disseisin, of mortauncestor, and ad gaolas deliberandas, to deliver one or more particular jails (a). As causes were sometimes removed from the court baron to the county, so, as appears from Bracton, and as was hinted above, were they removed before the justices itinerant, and from thence into the bench, or coram regeJ The.se are all the courts spoken of by Bracton ; and therefore it must be concluded that the Court of Exchequer was still considered as identically the same Avith the aula regis; and that the proprias causas regis particularly meant the government of the revenue, which is perfectly consistent wdth the account before (a) In the Mirror it is said, " The king appoints justices in divers manners, some- times certain, as in commission of less assizes ; sometime.^ in commissions generally, as of commissions of justices in eyre, and of the chief justices of pleas before the king, and of justices of the bench, to whom jurisdiction is given to hear and deter- mine tines, the grand assizes, the transaction of pleas and the rights of the king " (c. iii. s. 3). These courts are the King's Bench and the Common Pleas. "Besides these, the barons of the Exchequer have jurisdiction over receivers and the king's bailiffs, and alienations of lands and rights belonging to the crown. Sometimes the juris- diction is given to the justices of the bench by removing the pleas out of the counties before them, and sometimes to record pleivs holdeu in mean courts without writs be- fore the justices. To the office of chief justices, i.e., the judges of the chief court, the King's Bench, it belongeth to redress the tortious judgments, and the errors or wrongs of other justices, and by writs to cause to come befiire them the proceedings and records. ALso to hear and determine all plaints of personal wrongs within twelve miles of the kind's household." • Bract. 105 b. 340 HExiiT III. [chap. VI. given^ of this great court in its first origin, and before the Lencli had any existence. Besides this express account of courts, there are scattered up and down Bructon's work several passages which give us intima- tion of tlie nature of these courts, the principal of which are the returns of Avrits. A comparison of such expressions, as they occur in the course of this chapter, will throw a new light on the judica- ture of the time. The subject of writs seems to have been studied with great dili- "Writs gence ; w^rits had been devised for a greater variety of occasions than in Glanville's time, and they were discussed with more precision and system. Bracton divides writs into different kinds, in this way. He says there were some which were formata super certis casibus, de cursu, et de communi consilio lotius rcgni concessa et ajjprobata ; and these could not be changed without the consent of the same power that framed them. There were others which he calls magistrcdia, and which w^ere varied according to the variety of cases and complaints. These magis- Iralia hrevia, it should seem from Bracton's account of them, w^ere distinguished from, and put in contrast with, the hrevia formata, as being changeable without the permission of the legislature. ^ Those which gave origin and commencement to a suit 3 Avere called hrevia originalia, and were called, some of them aperfa, ov 2Mtenfia, and some clausa ; such as arose out of these were caWed judicial ia : these were varied according to the pleadings between the parties, and the particular purpose which they were to answer. . In discoursing on the nature of civil actions, we shall begin with those that were called real. In order to understand the design of the various real remedies which the law furnished, it will be neces- sary to attend to the manner in which they considered the occupa- tion of land and its appurtenances, under the circumstances of a more or less complete enjoyment. Of land, a man might have either what they called possession, or what they called jus, or proprietas. Possession was of various sorts, and divided by very nice distinctions. One was said to be qucedam mida pedum positio, which they called intrusion : and this contained in it, says Ei-acton, minimum possessionis, and nihil juris, being somewhat of the nature of a desseisin : in both it was a mida possessio till it received a vestimentum by length of time. Another was a precarious and clandestine possession, attended with violence, which acquired no vestimentum by length of time ; and this, says the same authority, had parum ptossessionis and nihil juris. A possession for term of years, as it gave nothing but the usufruct, was considered in a degree higher, as having aliquid possessionis, but nihil juris (a). The next was for life, as dower, or (a) This, it is conceived, by itself might lead to mistake, as it hardly conveys the meaning of Bracton, as the contex will clearly show. The words of Bracton are, 1 Vide ante, 48, 49, &c. ^ jj^act. 413 b. 3 jij^^ 414 t^ CHAP. VI.] OF AVRITS. ,341 the like; and this hein,^ a step hi^^lier, was said to be multinn 2)0SScsHioiiis,\)\\i i^V'iW nihil jurlfi. The next decree was, where a person liad the freehokl and fee to him and iiis heirs; and then lie was said to have phis possess ionis, et multum juris : and he who had the freehokl, fee, and property, united in himself, had jiluri- iiium posscssionis and plarinium juris, which was called droit droit, and contained the highest degree of pr(»|)erty and possession ; exce})t that, even then, some other person might havey<^s- inajus, or greater right. ^ We shall speak of the remedies a|)]»licable to these several kinds of possession in the order suggested by the above distinctions, beginning with the writ of intrusion. Intrusion was, when a per- son, not having the least spark of right, came into a vacant pos- session ; as, after the death of an ancestor, before the heir or the lord entered. The person entitled to the reversion, in such case, might have a writ, which had been invented since the time of Glanville, and resulted from some of the artificial notions which we have just stated concerning possession. The form of this writ varied according to the circumstances under which the person bringing it claimed ; whether he was the lord or the heir ; whether he claimed upon the death of an ancestor, of a tenant in dower, or per hyeiii AiKjliee, or for life. The following was a more general form of it: — Bex vicecomiti salutem. Pone per vadium et salvos plegios A. quod sit coram, &c., ad respondendum, or, ostensurus quare intrusit se in terram, &c., quam B. qui mqjer obiit, tenuit de codem C. ad vitam suam tantilm, et quce, post mortem ejusdem B. ad eundem C. revert i dehuit, id idem C. dicil : et habeas, d'c. Possession created a sort of right ; it was advisable, therefore, " Est et alia, que aliquid possessiouis liabet, et nihil juris, sicut ilia que conceditur ad tertuinum aunoruin, ubi uihil exigi poterit uisi ususfructus." This, of course, is all that a lessee can take, the fruits and profits ; and it is all that an owner in fee can take, the difference being in the jus proprictatis, the absolute right of property ; and this even a tenant for life had not, for the next sentence is, " Est etiam qnaedam (pite multum habet possessiouis et niVti^/Mris; sicut ilia quam quis habet ad vitam tantuiu." So that tenant for years only could be said to have nothing of right, in the same sense in which it might be said of a freeholder, unless he had estate of in- heritance. Yet the latter could have assize to recover his laud ; and so the Mirror says of a tenant for j'ears. And it is conceived that the contrary notion, if it ever jirevailed in those days, and was not a supposition of later times, was an entire error. In the Mirror, under the title of " Novel Disseisin," it is said, " The right of pro- pcrtij is not determinable by this assize, as is the known possession, or of that which (titor/cther .Harotirelh oi a, possessor 1/ rii^ht ;" and it is added, "Ejection of a term of years falleth into this assize, which sinnetinies cometh by lease" (c. ii. s. 25). And elsewhere it is said, " It is abuse to think that one cannot recover a term for years" (c. v. s. 1). There were long terms in those times. Thus it is .said, " It is abuse that leases of farms are not longer than forty years" (Ibid.) ; and it is too absurd to imagine that interests of this duration and nature were without protection. The whole of our legal tradition as to the remedies for recovery of terms of years and the interests of lessees is false and erroneous, and has arisen from theorising, in place of an attentive study of the contemporary records of legal history. At some period, the action of ejectment was instituted, and assizes were confined to freeholds ; and then a farther error was fallen into of supposing that the term was not recoverable. > Bract. 159 b., IGO. 342 HENRY in. [chap. vi. for the licir to eject the intruder witliin a year, or at the end of that time, liave recourse to tliis writ ; for it is laid down by Bracton, that no one could be put to answer for an intrusion of longer stand- ing. Eespecting this time of limitation, Bracton seems not very precise, for he afterwards says, at farthest, not at the distance of ten or twelve years, as was determined in this reign ; i but the claimant w-as then driven to his writ of entry, grounded upon the intrusion ; ^ a writ lately invented, of which more will be said in its proper place. The next thing to be considered is, that wrongful possession ,.„^.,. which was obtained by disseisin, and the method of redress the law directed to be pursued (a). Disseisin was now considered in a very large sense, and much beyond the idea to which it was first applied. It was not only when the owner, or his agent, or family, who were in seisin in his name, were ejected from the freehold unjustly and violently, without judgment of law ; but also, when a house had been left without any one therein, and the owner, his agent, or family, returning from his business, was denied admittance by one who had taken possession, it was a disseisin ; if a man was obstructed in a free use of his freehold, that was a disseisin ; for though he might remain in pos- session, the full extent of that possession was not enjoyed. If any one dug, or put sheep, or otherwise intruded, upon land, under claim of an easement (for if it was without a claim of right, it was only a trespass) ; or, if a person made improper use of an easement he had a right to : this was a disseisin (?>). Again, if a person was in seisin for life, or for years, or as guardian, or otherwise, and infeoffed another, in prejudice of the right owner; if a person distrained for (a) The author is here still following Bracton, and it is remarkable how entireh- the Mirror followed him upon this, as upon so many other subjects. "Disseisin is a jiersonal trespass, or a wrongful putting one out of possession ; wrong is here taken for deforcement or disturbance, as for ejection. Deforcement, as if another entereth into another's tenement when the rightful owner is at the market or elsewhere, and at his return cannot enter therein, but is kept out, and hindered so to do. Disturbance is if one disturb me wrongfully to use my seisin, which I have peaceably had ; and the same may be done in various ways, as when one driveth awaj' a distres.s, so that I cannot distrain in the tenement liable to my distress, whereof I have had seisin be- fore. 2. Another is where one doth replevy his distress wrongfully. 3. As if one distrain me so outrageously that I cannot manure, ^ilough, or sow my land duly " (Mirror, c. iii. s. 2). (h) A distinction which, as has been jDointed out, was derived from the civil and canon laws (vide ante, p. xv.), and is to be found in the Mirror of Justice. "Note that all property is in two kinds — either in right of possession or in right of property, and therefore there were distinct remedies for either, and the remedy by assize of novel disseisin was for the knoim possession — that is to say, if a man were forcibly turned out of possession, even although he had no rigJd to it, he could have restitution by this assize, and the disseisee was put to his writ of right, which was the remedy for recovery of the right of property." " If I take fnnn you forcibly anything of which you have peaccahle possession, I do wrong to the king ; when I use force when I ought to use jnd!/mc7it — i.e, resort to a court of law for redress (c. ii. s. 25). It is verj' re- markable that it is distinctly stated in the Mirror that the remedy lay for a term or lease for years. ' IG Hen. III. ^ Bract. 160, IGl a. CHAP. VI.J OF DISSEISIN. 343 services not due, or where they were due, exceeded the bounds of a reasonable distress, these were disseisins. In sliort, if one chiimed to partake witli the riglit owner, or raised an unjust contention against liini, it was a disseisin of the freeliokl.i The above were disseisins without violence ; others were said to be violent ; but, in order to understand what tlie law considered as a violent disseisin, we must see what the nature of vis was. Vis was of two kinds, according to Ih'acton : thus, there was vis simplex and vis arinata. It is not difficult to conceive what was said to be vis armuta: it was not only the coming with weapons of any sort, or finding them at the place Avhere they were used ; but if a person came with arms, and made no use of them, the terror of them might be thought so to have operated as to make the disseisin seem to have been mm armis. Vis simplex is defined by Bracton to be (fiotiens quis, quod sihi videri pm(at, non 2^cr judivcm repjoseil ; that is, wherever a person took the law into his own hands. This distinction of vis cum aniiis and vis sine armis, was important, as the penalty upon disseisors was proportioned thereto.^ Whatever was the way in which the disseisin was committed, the law not only allowed, but required the disseisee, inconlinentcr, flacjranle disscisind et maleficio, to expel the wrong-doer. What was meant by incontinentcr, Bracton thinks was pointed out by the term of fifteen days allowed to a tenant summoned in a writ of right. If the owner was present at the time of the disseisin, he was to eject the disseisor that very day, if possible, or on the morrow, or the third or fourth day ; and beyond that time, provided he had uninterruptedly continued his endeavours, by calling in the assist- ance of his friends, and resuming the attack. If he was absent when the disseisin was committed, then a dis- tinction was to be made according to the distance ; a reasonable time was allowed for his getting information of the fact, and for his arrival ; and if he pursued his attack upon the disseisor within the stated time after such arrival, the law considered it as done inconi'inenter. As, for instance, if he was out of the kingdom in what was called simptlex peree/rinatio to St Jago, or in the king's service in Gascony, he had forty days, and two floods and one ebb, which latter indulgence was for the delay occasioned by the sea ; and then he had the fifteen days after he returned, and also the four days above mentioned, to resume the attack. If he was in a simplex peregrinatio to the Holy Land, he had a year allowed him, together with the fifteen and four days ; but if he was in what they called a general passage to the Holy Land, the time was three years, together with the fifteen and four days. Such was the time allowed by the law iov a man to redress the injury he had suffered, but if he permitted a longer period than that to elapse, he gave up this right, and lost both his natural and civil possession, as they called it, which were thenceforward in the ' JJract. ICl b. 162, » Ibid. 162. 344 HENRY III. [chap. VI. disseisee, who could not afterwards be ejected but by judgment of law.i As to the power of redress by the act of the party injured, and the situation in which recourse must be had to the assize, the law may be shortly stated in this manner. For instance, I eject you from your freehold, you may have an assize. Again, I eject you, and you me, incontinently, flagrante disseisind ; I cannot have an assize, because I only suffer what I had before done myself. Again, I eject you, and you eject me, incontinently, and I, again, incon- tinently eject you ; still you may have an assize, and so in infinitum; for the true possessor may, by law, eject, incontinently, the wrong- doer, and an assize shall not be brought against liim for it ; but sliould the true possessor be negligent, after the disseisin, in pursu- ing the injury, he lost, as was before said, both his civil and natural possession, and had no redress but by the assize ^ (a). If the disseisor transferred the land on the day of the disseisin, or the day after, the donee might be ejected, incontinently, by the true owner, the same as the principal disseisor ; in like manner also, the assize might be brought against both ; against the first ad^Kenam, and against the second ad pccnam and ad restitutionem. If a long interval had passed between the disseisin and the transfer, the second would not have been liable adjjcenam, but only to make restitution.3 Again, if the first wrong-doer was disseised by another, the true owner might either incontinently eject the last disseisor, or bring an assize against him ; and if he deferred doing it, the first disseisor might do either. In all these cases of recovering (a) Here, again, it is observable how closely the Mirror follows Bracton : " It is said wrongful to put a difference from rightful, which is no offence — as, if you take from me that which is mine, I may take it from you again ; and I do not offend, for I am warranted to do so by the law of nat\ire. But I cannot do so afterwards ; for if I take from jou forcibly anything whereof you have had the jDeaceable possession, I do disseise you, and I do wrong to the king when I disseise him of his right, or use force when I ought to use judgment — i.e., resort to law (c. xxiii. s. 27). It is remarkable that, so lately as the reign of Henry V.I., lands and houses were forcibly taken pos- session of and held by force of arms, insomuch that men were actually killed in the defence, as will be seen from the Paston Letters (v. 2, 1. 281). In that reign, the statute of forcible entry passed, to prohibit such forcible seizure of pro- perty, and Lord Coke says that it only affirmed the common law. Elsewhere it is said, on disseisin : The jury are not to be examined upon the title of the posses- sion, but it is sufficient for the judge to know if the plaintiff were disseised of his land, whether it were rightful or wrongful, according to the plaint. For, though it were right, nevertheless it was tortious, because the tenant used force where he should have used judgment, and made himself a judge therein ; and judgment is to be given for the plaintiff, so as he shall recover seisin in another court." It is also said : It behoveth to inquire if the disseisors came with force and arms, although they hurt no one's body, all of them, nevertheless, are to be adjudged to corporal punishment; and if they cast him out of his dwelling-house, or out of his demesne, the felony is punishable at the king's suit or at the suit of the party, for no one is to be cast out of his house, where he dwelleth, and which he hath used as his own for a year, without judgment, though he hath no title thereto but by dis- seisin or intrusion ; and it sufficeth for force and arms, or by the showing of arms, for to hurt the adversaries ; and under the name of arms are contained bows, arrows, saws, lances, spears, staves, swords, and targets of iron (c. iii. s. 29). 1 Bract. 163. 2 m^, 1G4. ' Ihid. CIIAr. YI.] ASSIZE OF NOVEL DISSEISIN. 345 possession by force, the sheriff, thouf^h not Imund to interfere ex ojicio, niij^^lit assist at the re({nest of tlie disseisee ; yet he was to take care h(jw he acted, as he would be suljject to an assize, in like manner as the person whom he meant to asxist ; he mij^ht lake a \KiYt in these matters, either as a luivate friend or oflicially as sheriti", to keep the king's peace. ^ When the party disseised had neglected to avail himsejf of the antht^rity the law gave him to recover possession while Assize of novel the injury was fi-esh (a), he was tlien to recur to the •lisseisin. recognition of assize ; that compendious way for recovering posses- sion, which became now more piactised than ever. Everybody who was a tenant of a freehold nomine suo proprio, might have this remedy by assize ; those therefore who were in l)Ossession, nomine alieno, as a guardian, an agent, the family of a man, or his servant, a Jirmarius or fructuary (not being a ftcdi Jirmarius), an usurer or guest, one who lield from day to day or from year to year, or an usufructuary who held for a term of year.s, none of these could bring an assize, but that remedy was left to him who was the dominus proprietatis, out of whose fee all those interests issued. It is laid down gravely by Bracton, that should a man be ejected from his shi|), qtiasi de libero tenemenlo, he was no more entitled to an assize than if he had been dragged from his horse or carriage, though he niakes a question concerning an eject- ment from a wooden house ; to Avhicli he answers, that if it stood on his own land, whether adhering to the soil or not, an assize would lie ; but if on the land of another, and there had been any prohibition or injunction against the building or removal, the per- son on whose land it was built might have an assize ; if there liad been none, and it had been removed without any contest, he could not have an assize. ^ An assize lay not only against the disseisor, but against all his aiders and abettors, whether present or not; not only against those who did the fact, but against those in whose name it was done, or Avho, after it was done, concurred in or approved it ; as by this avowal and ratification they seem to make themselves parties. ^ It only lay against those who wel-e in some of the above ways parties to the fact and therefore not agjiinst an heir, or successor to the disseisor, who, though liable to make restitution, w^re not to undergo a penalty for the disseisin.* Nevertheless, where any of the parties died, or the assize had not been brought with such diligence as the (a) Here, again, the author follows Bracton, as the Mirror had followed him : '" It is called " novel " to put a difference from those which are ancient, for anciently kings used to go over the shires to hear, inquire, and determine oflfeuces, and to redress the wrongs there, and that afterwards, by reason of the multitude of offences ; and, that kings could not do all hy themselves, they sent their justices in eyre, who have not jiower to decide and determine a personal oO'ence, but for a thing brought and not determined in the last eyre. And if the disseisin was before the eyre, then it Wii^s ancient; but if it were done since the last eyre, then it was a "novel" disseisin (c. iii. s. 25). 1 Bract. 164. » Ibid. 1G7, IGS. ^ ma. 171. « Hid. ITi 346 HENKY III. [chap. VI. law required, and the matter was not, by commencement of some proceeding, become litigious, as the lawyers called it ; in such cases recourse was to be had, not to a writ of right as formerly, but to a remedy which had been lately invented, called a writ de ingressu, or writ of entry, which has been so often alluded to, and of which more will be said liereafter.i The form of the writ of novel disseisin differed from that in Form of the Grlanvillc's time in nothing but in the return ; the writ. limitation Avas still, notwithstanding the statute, post ultimum rediium doiidni regis de Britamiid in AngUam ;^ but the return was nsq; ad lyrimam assismii cum justitiarii nostri ad partes ills venerint; according to the appointment of justices of assize as directed to be made by Magna Gharia. It seems, that upon this writ pledges of prosecution were to be taken by the sheriff only in case they had not been found in the king's court or a pro- mise given, which used in some instances to be accepted instead of pledges. The pledges were to be two at least, and such as were sufficient to pay the miser icorcUa to the king, if the complainant should retract or not prosecute his suit. If a husband and wife were complainants, two pledges were enough ; and it was the practice to be contented with two, when there were more com- plainants than one, though it was thought safer that each should find two. Notwithstanding the clause commanding the sheriff qudd faciat tenementum reseisiri de catallis was still continued, this part of the writ, says Bracton, was never executed, but these were left to be estimated in the damages by the recognitors.^ The other directions of the writ were to be executed as follow : — In pursuance of qitdd tenementum faciat esse in p)ace, dc., the sheriff was to see that the disseisor did not convey the land to any one, and that the disseisee made no entry thereon ; and if an entry was made by any one, under any pretext whatever, he was to restore it to the true owner, so to remain till the next assize. As to send- ing the recognitors ad videndum tenementum, he was to cause a view to be had, not by one or two, but by the whole if possible, or at least by seven ; for an assize could not, says Bracton, be taken by less than seven, though it might for particular reasons be taken by more than twelve. The reason of a view was, that there might be a certainty about the matter in question, both for the guide of the jurors in swearing and the judge in giving judgment. The jurors were to see what the freehold was, whether it was land or rent, whether it was con- secrated to the church or not, whether it was held solely or in com- mon. They were to see that the complainant did not put more in view than he had claimed in his writ, for then he would be amerced, though he might, if he pleased, put less. They were to see in what vill, in what locus, in what part of the locus, and within what bounds, the freehold lay. If it was a rent, they were to see the land out of J Bract. 175, 176. * Vide ante, 2G4. 3 Bract. 179. CHAP. Vr.] ASSIZE of novel DISSEISIN'. 347 which it issued (nn assize bein;^ tlic remedy for rents in some cases where a distress failed), the like of common ])a.sture. Tliey were to view not only the laud where the common lay, but also that to which it was appurtenant;^ and thus, in all cases, the jurors were to liave a view of the thing in question for their better information.^ It was the complainant's duty to attend and point out all the above circumstances to the jurors ; and if he could not, and appeared totally i«,niorant of the matter, the writ of assize was lost, and the assize aulit in povmhidafioncm, as they called it; that is, becamo, by consent of the parties, a perambulation to make a <;eneral inquiry concerning the locality, the metes and bounds of the land.'^ It was a rule, that could the complainant point out the lociis, but not the precise part thereof, it was sufficient if he was proved by the oaths of the recognitors to have seisin anywhere in the Jocu.s alleged. If eitlier of the parties failed to appear at the day appointed before the justices, his pledges were in miser icordin ; rroceeding if neither of them a]ipeared, the assize was void, and thereon, all, both principals and pledges, were in misericonUd. If the disseisor appeared and confessed the disseisin, as in so doing he acknowledged an injury which was against the peace, he was to be conunitted to gaol. If the disseisor was absent, and the complainant present, together with the recognitois, thougli no one was present for the disseisor, the assize was still to proceed ^x/- def(d(um; it being a rule, that the assize should on no account be delayed ; in such case, however, the complainant was always examined as to the ground of his demand. "^ The complainant might, at the time of appearance, make a retraxit oi his C(»m}ilaint: for which his pledges, as was before said, would be amerced, unless he obtained the license of the court for so doing.^ When both parties appeared in court, the writ was to be read, and the matter of complaint inquired into. Bracton blames some judges who, immediately after hearing the writ read, would pro- ceed to ask the party complained of, what he could say against tlie assize ; he thought it hasty and premature to put a person to answer before the matter of the com])laint was properly examined and established ; for it was not yet known whether the proceeding was to be by an assize or by a jury (the distinction between which will be seen presently), whether the fact was a trespass or a disseisin ; he thought, therefore, that, as in a question concerning the pro- prietas, the demandant was to show by what right he claimed : in like manner, in this suit, it was not sufHcient barely to propound a complaint, but to show the jus querela', and how the complainant was entitled to make it. The justices, therefore, for their own information, and to instruct the jurors, were to interrogate as to the particulars of the com- plainant's case ; of what freehold he was disseised, whether land or rent, whether for life or in fee, whether by descent or purchase ; of J Bract. ISO. ' Ibid. * Ibid. * Ibid. 182, 1S3. ' Ibid. 182 b. 348 HENRY III. [CIIAP. YI. a rent, whether it issued out of a chamber or a freehold, whether for life or in fee ; of the boundaries and size of the freehold, whether there was any ejectment from the freehold, whether it was by day or niglit, with arms or without, with robbery or Avithout ; and in- numerable other circumstances which might constitute tlie merits of the case.i When these inquiries had been made, then, and not till then, was the tenant to be asked if he could say anything why the assize ought to remain. The matter of such objection might be found in the interrogatories put to the complainant. If the tenant coidd show no cause why the assize should remain, but at once denied he had committed any disseisin, he simply put himself upon the assize, and the assize proceeded, as they called it, in modum assizce, that is, upon the simple question of disseisin; and if the jurors were present, or seven of them at least, against whom there was no cause of exception, they proceeded to take the assize ; if they were not present, the assize was deferred to another day, when they were to appear, and the assize was to proceed. If the jurors appeared at the next day, then the exceptions to them were to be stated. These were of various kinds. Bracton says, that was a good exception to a juror which would be a good one to a witness. One rendered infamous by having been convicted of perjury could not be a juror, according to the rule expressed in the English of those days, " He ne es othes icorthc tliat es enes gylty of otli hrolce7i" Any enmity against a party, any friendship with him, was a good exception (a). Being a servant, familiarity, consan- guinity, affinity, unless the connexion was equally with both parties; being of the same table or family ; under the power of a party, so as to be benefited or hurt ; owing suit or service ; being counsel^ or advocate ; all these, and many others, were good causes of exception to jurors. When the parties had at length agreed upon Of t le verdict. ^ j^^.^^.^ ^Yxqj could uot aftcrwards reject him ; and when the number was complete, the assize proceeded, the first juror having taken the following oath : — " Hear this, ye justices, that I will speak the truth of this assize, and of the tenement of which I have had a view by the king's writ " (altering these words Avhere the subject was a rent, a common, and the hke), " and in nothing will omit to («) A juror could be challenged because he held land of the other party ( Year-Book. 7 Edward IV. 5; 3 Hennj VI. 39) ; so of a "gossip" or godfather i,/bid., 10 Henri/ VI. 24; 49 Assize) ; so for any direct relationship to one of the parties (I Edward jV. 63) ; so if he was favourable to the other party (10 Henri/ VI. 10 ; 7 Henry VI. '25 ; 20 Henry VI. 40). In order to avoid the evils thus avoided in the king's court by challenges, causes were removed into that court from the local court, the court baron, or the court of the hundred ; for it might be that ail the tenants of a manor or a hundred were tenants of the other party (22 Edward IV. 3) ; and then, in the king's court, the jury could be ordered to come from another vill, or hutidred, the king's court having power to summon jurors from any part of the county ( Tear-Bool; 31 Henry VI. 39). And so if the case interested a corporation in the vill or the Imndred itself, the jury would come from the next hundred (31 Assize, 19; 15 Edward IV. 18). ' Bract. 184. CHAP. VI.] disseisin: trial, 349 speak tlic ti'ulli. So help me God, and tliese lioly gospels." After this, the other jurors, iu order, I'epeated tlie followin;;' words: — ■ "That oath which the ibreman here liath taken, ^ I will keep on my part, so lielj) me God, and tliese holy oos])els."- After tlie oath was taken in the foregoing manner, the protliono- tary, for the information of the jurors, was to rehearse the effect of the writ, in the following way: — "You sliall say, upon the o.-itli wliich you have taken, Avhether N. unjustly, and without a judg- ment, disseised B. of his freehold in sucli a vill, after the last return of the king, &c., or not" (a). In this situation of things the jtistices were to say nothing towards instructing the jurors, because nothing had been said by way of exception against the assize ; but the jurors were to retire into some secret place, and there to converse with one (rt) It is to be observed that notliiiig is said about evidence, the reason being, tliat even in the time of Bracton (from whom all this is taktn) the jurors were still C(jn- .sidered as witnesses, and the course of procedure had not yet gone so far as to allow of evidence oeing adduced. The jurors, therefore, were left to decide upon their own knowledge, antl of course great difficulties arose, for none of them, or only enme of them, might know anything at all at)out the matter ; and though, as they came frracton, a heavy redemption : he did not, however, lo.se life or lind), as the robbery was not i)rosecuted criminally. The disseisor, if he was the ])rincipal in the fact, Avas also to give to the sheriff, on account of his disseisin, an ox and five shillings ; but those who were only in aid, force, or council, did not, in general, ])ay this nudct to the sheriff, though in some counties they did. The disseisor was also to render damages, to be estimated by the oath of the jurors, and further, if need were, or the jurors had been excessive, to be taxed by the justices. But the justices were not to estimate the damages at a larger sum than the jurors had, un- less it was a very clear case that the jurors had taxed them much lower than was reasonable or [)roper. i This liberty of increasing the ilamages was allowed to the judges, in order that disseisins might never escape the proper j)unishraent of the law ; for, in those times of disorder and oppres- sion, there were many great men who would commit disseisins for the mere purpose of making the most of the fruits and profits during the time they could keep their unlawful possession ; and when they had raised great sums thereby, they could generally escape with a small misericordia, through the ill-placed lenity of jurors; who, when they, by their verdict took from a disseisor the land, were unwilling to load him besides with heavy damages. For these reasons, it was ex])ected that the justices should examine very carefully into the change that had been made on the land since the disseisin, either through the wilfulness or neglect of the disseisor, or any otherwise ; all which he was to be compelled to make good, notwithstanding much of the damage might have hap- pened by death of cattle and other accidents, which it was out of his i)ower to govern ; nor was any allowance to be made to a wrong-doer for improvements.2 This was the manner of proceeding, when nothing was said against the assize, nor any exception taken why it Exceptions to ought to remain, as it was called ; but if the tenant t^^ assise, did not choose to put himself upon the assize, he might except, or j)lead such matter as would cause it to remain, that is, defer it for the present, or perhaps entirely destroy it. These exceptions were, which the jjlaintiff hath sustained in his recovery, and in all things, and how much he is damaged in distress of his goods and in his honour ; and, the damages being assessed, it is to be awarded that the plaintiff recover his seisin, such as it is, according to the view of the recognitors, and the damages, and the disseisors are punishable according to their offences (c. iLi. s. 25). 1 Bract. 185 b., 187. * Hid. 187. 3j2 hexuy III. [chap. vr. to the writ, to the person of tlie complainant or tenant, and to the assize. Some exceptions to the writ deferred the assize, but did not destroy it ; some exceptions to the person of the complainant entirely destroyed tiie assize ; some exceptions WTre peremptory as to one person, and deferred the judgment, but were not peremptory as to another ; as where the complainant was not entitled to the action, but some one else. The order of stating exceptions was this : if the writ was not good, there could be no further proceed- ing ; but if that was good, then they resorted to the person of the complainant, to see whether he was entitled to the complaint ; then to the person of the tenant, to see if he was the person against whom the complaint should be made ; and last of all to the assize, to try si teneus injuste et sine judicio disseisiverit ipsum querenterii de libro tenemento suo in such a vill, after such a period of time.^ Thus, after the jurisdiction of the court was established, the tenant was to take his exceptions to the writ. Exceptions to the writ were many ; if there was anything faulty therein, a spurious seal, a rasure in a suspicious part, as where the names of the per- sons, or places, or things were written (for a rasure in the legal part was not so important as in these points of fact) ; if the date was at all changed ; if the complainant had a former writ of mort- auncestor, of entry, or of right, and so had not observed the order of writs. Again, any error destroyed a writ, though he did not destroy the assize. It was error, if the writ was against one who was possessed nomine alieno, as a firmarius. The assize could not proceed if there was an error in the name, as Henricus for Wilhelmus; and so in the cognomen, as Huhertus Roherti for Huhertus Wcdteri ; so in the name of a vill whence a person took his description, as London for Winchester ; even if the error was in a syllable, as Henrij de Broclietoii for Henry de Bracton ; nay, even in a letter, as de Bracthon, for de Bracton: again, in a name of dignity, as Henry de Bracton prcecentor, when he was decanus ; so of a tiling, as vineam for ecclesiam.^ Then followed exceptions to the person of the complainant ; one of which was villenage, and its consequences, excommunication ; that he had not a freehold ; that he should distrain instead of bringing this writ, and many others. The tenant might next except to his own person ; as for instance, that the action should have been against his ancestor or predecessor, and not against him. 3 And last of all, having gone through exceptions to the writ and to the person, he might except to the assize, upon the circum- stances of the case, by disputing how far the operative words of the writ were justified in fact ; how far he injuste et sine judicio — dis- seisivit eum — de libero tenemento suo — in tali villa ; every term of which charge was open to a variety of remarks and objections. * All these exceptions, whether they were peremptory or dilatory, 1 Bract. 187 b. ^ Fbid. 188, 189. 3 Ihid. from 190 to 204. ■* Ihid. from 204 to 212 b. ciiAr, yl] assizes : tkial. 353 were equally out of tlie assize (which was merely to try the disseisin), and collateral to it ; and therefore could not he determined hy the recoo^nitors of assize. We have seen, that in Glanville's time' such incidental matters were in general tiied Ijy duel, there heing very few issues which are said hy that author to have heen usually tried by recognition; of which one was, infra cdatem vel non; another was, whether seised ut de vadio, or ut de foido, and some others ; as that of villenage, which was to be tried by tlie relations, and if they could not agree, hy the vicinage ; the gift of a fee, after a grant of tlie advowson,^ and others that may be seen in that reign ; but, in general, points in debate that did not make the direct question of seisin, were tried by the duel. Since that time, the good sense of mankind, concurring with the statute made by Henry II. concerning trials by recognitors, had so for prevailed over the habits of their ancestors, that suitors used commonly, when a fact was in litigation between them in a cause, to consent that the truth thereof .shoidd be inquired of hij a jurata, ovjurt/, in })reference to a trial by duel ; and they accordingly used to prd/j the court that it might be so ; with which prayer courts had been so long used to comply, that a jury had become the regular mode of trying a fact in dispute in a judicial proceeding. Thus there had gradually arisen a new sort of trial by recognitors or jurors, denominated a jurafa ; which was a tribunal chosen by consent of the parties themselves, and, on that account, differing somewhat in its consti- tution, design, and effect, from the assisa. To mention only one mark of their difference, and leave the rest to be observed as occasion presents them : the jurors in a jurata were not liable to conviction for perjury, nor to the infamous judg- ment as the jurors in the assisa were; the reason for Avhich, ac- cording to Bracton, was, because the jurata was a trial which the parties had themselves prayed to have, and therefore they had no reason to com})lain of its determination ; while the assize (to follow his idea) was a specific remedy in a special case, to which, and which only, the parties were by the law confined for obtaining redress ; and if the ends of justice were disappointed by those recognitors who were designed by the constitution to further it, they deserved a very severe animadversion. But, with submission, the reason of the conviction being allowed in one ease, and not in the other, was not, it would seem, owing to any particular difference in these two trials, as practised in the time of Henry III., but because the consti- tution of Henry II. («) had provided that punishment for recognitors (o) There was no such " constitution," nor does Glanville saj- there was. Glanyille calls it, indeed, an institution, and, for the sake of flattery, calls it a roy.al institution; but there can ie no manner of doubt that it was simply an ordinance or regulation of the chief justiciary : just as, in the time of the Conqueror, we find the king s justi- ciary ordering twelve men to be sworn to try a real action. That was an assize, for an assize was only trial by jury in a real action (i.e., an action to recover real pro- perty), and the tiuth is, the institution had gro>vn up by degrees, and had only been 1 Bract. 14G. * Glanv. lib. 13, c. 20. Z 354 HENRY III. [chap. YI. in the particular assizes only, which were then invented. The devolving- of questions upon recognitors to be tried by the consent of parties, was a practice that originated afterwards, and therefore was not within that provision : notliing can be a stronger mark of this trial not owing its existence to that famous law of Henry 11. than the appellation ofjurata. The difference between assisa and jurcda was a very common piece of learning in this reign. This distinction was always ob- served, and was never more nicely attended to, than when it hap- pened, as it sometimes did, for an assisa to be called upon to discharge the office of ajurafa; and, instead of deciding the direct point in the action, to inquire of some collateral matter. For when any issue arose upon a fact in a writ of novel disseisin, mortaun- cestor, and the like actions, which fact the parties agreed should be inquired of by ajicrata; nothing was more natural, nor indeed more commodious, than, instead of summoning other recognitors, as in Glanville's time,^ («) that the assisa summoned in that action should be the jurors to whom they might refer the inquiry. This Assisa rertitur was generally the case ; and then the lawyers said, injuratam. cadit tts'sisa, et vertituv in Juratam ; the assize was turned into a j ury, and the point in dispute was determined by the recognitors, not in modum assises, but in modum juratce. Thus, then, the exceptions mention«d above would in this reign, as they were out of the assize, be determined, not in modnm assisce, but in modum juratce : as it were, says Bracton, by consent of the parties ; where one alleged one thing, and the other the contrary, and each prayed that the truth of what he said might be inquired of. And in this case, says he, there is no conviction ; for if the other party would controvert the saying of the jurors, the law gave him full liberty to say that t\\Q proof ivas false ; the verdict of the jurors in this case being only a iwoof of the exce])tion ; every one being to prove the truth of his exception, and the person who re- plied to it being also bound to prove his replication, in which recourse was had to the jurors, merely for want of other proof. This will be made clearer by giving an instance. Suppose the complainant stated his case by saying, that he married a wife regulated by Glanville, who, all through, speaks of the recognitors as "jurors" — that is, sworn triers on their own knowledge. And the distinction on which our author dilates in the text between a jury and an assize is futile, for they were different names for the same thing, the assize being a jury to try the right to seisin, the trial by jury being applicable to any issue. (a) No trace of any such distinction can be found in Glanville, who, all through, speaks of "recognitors" as "jurors," and of the assize as a trial by jury. The assize was, as already shown, simply trial by jury in a real action, which had grown up since the Conquest, and was regulated by Glanville and elaboi-ated by Bracton. And tlie formalities and subtleties in whicli Bracton indulges are simply illustrations of the tendency of men whose minds are cramped by a special study to overload it with senseless niceties and verbal distinctions. It is only to be regretted that our author should have wasted so much space upon them. 1 Glanv. lib. 13, c. 20. CHAP. VI.] ASSIZE : TRIAL. 3o5 having an inheritance, and after licr death he was ia seisin till such a one unjustly disseised hiin, and so was in seisin per legem Anglia', for he and his wife had children hetween them. If the tenant did not, in answer to this, deny the disseisin, and put himself on the assize, to try whether he disseised him or not, he mif^lit deny some of the circumstances which the com[)lainant had stated as makin;^ his title: he might except that they had no child ; or if they had, that it died in the womb; or if it was born, that it was a monster, and not a child ; or if it was a child and born alive, that it was not heard to cry between four walls: when the complainant to such a plea replied the contrary, the truth of the allegation was then to be inquired of by the assize in modum Jurake. In the foi'mer case, of the general issue disseisivit vel non, tlie jurors, if they swDre falsely, would be liable to conviction ; in the latter they would not.i The instances in which an assize might be turned into a jury were as numerous as the exceptions that might be taken to the comi)laint. We shall content ourselves with adding one more ex- ample to those already given ; and this being a very particular one, deserves our notice. An assize was sometimes turned into a jury, })roptcr transgressionem^ on account of a trespass : as where a person made use of another's land against the owner's will; or where he used,, as his own, the land of a person holding in common with him ; these might be disseisins and trespasses both ; for every disseisin was a trespass, though not every trespass a disseisin. If then the entry upon the stranger's land was without any claim of right, it was not a disseisin, but a trespass. But as it was uncer- tain quo animo this was done ; the complainant used generally, in such case, to bring an assize as for a disseisin, and then the jutlge was to examine whether it was done with a claim of right : so that, if it should turn out that he made the entry through a probable error and ignorance, and under such mistake cut down trees, or the like, and did not do it in the name of seisin, he was cleared of the imputation of a disseisin, and it was considered rather as a tres- pass ; for which, if he acknowledged the fact, he was to make amends ; if he denied it, the assize was turned into a jury to in- quire of the trespass.^ An assize was sometimes turned into a jury propter transgrcs- sionem district ionis, on account of a trespass committed in dis- training; for a distress sometimes amounted to a disseisin, some- times was only a trespass : and was accordingly determined, in the former case in modum assisce, in the latter in modum juraicn. Wlien an assize, therefore, was brought upon an injury suffered by a distress, if it could not be maintained as an assize to determine the disseisin, it might be maintained as a jury to determine the trespass. 3 From what is here said, and the little mention there is in Bracton Bract. 215 b. 21C. ' Ibid. 21C b. « Jbid. 217. 356 HENEY III. [chap. VI. al)oiit any original specific proceeding in case of trespass, it should seem, that though there might be a writ of trespass, it was rarely brought for entries upon land ; but the usual way of considering such matters was in an assize, where the complainant was sure of inflicting some penalty on the wrong-doer, either as a disseisor or a trespasser. It should seem that the writ of trespass was a late invention, not wholly approved by Bracton; for it is said in another part of this author's work, that the writ quare vi et minis a person entered land, would be bad, because it would be making a question of the mode of the trespass, when it should be for the trespass simply. To return to the assize of novel disseisin: This assize, according to Bracton, had three considerations: it was personal, propter factum ; penal, propter wjuriam: and thirdly, it was for restitution of the thing taken. As far as its object was penal (and jJoena suos tenere debet autores), it did not lie for the heir of the disseisee, nor against the heir of the disseisor, if he died in the life of the dis- seisee ; for the penalty was extinguished with the person, and the heir was not to be punished for the offence of his ancestor : nor, in like manner, would an action lie for the heir of the disseisee ; for as between him and the disseisor there was no obligation quoad poenam, though there was quoad restitutionem ; but his remedy was b}^ a writ de ingressu, since called a ^vrit of entry. As to this writ of entry, and when it lay in the nature of an assize of novel desseisin, for an heir to recover possession, it was to be seen whether the ancestor had been ])roper]y diligent in procuring and prosecuting his suit so as to have got a view, and the jurors sworn ; for then, by so doing, the assize of novel disseisin, in case of his death, was said to be perpetuated ; tliat is, the right of action for the disseisin, so far as concerned the restitution, continued to the heir of the disseisee against the dis- seisor and his heirs. Some were of opinion, that, in this case, the action would hold quoad, poenarii likewise against the disseisor ; and though the assize was not prosecuted so far as the view, and elect- ing the jurors, yet if as much diligence as possible had been used, though no action was commenced, the writ of entry was neverthe- less continued to the heir of the disseisee quoad restUidionem.'^ The form of the writ of entry, when brought after an assize, was as follows : Prcecipe A. quod juste, etc., reddat B. iantum terrw cum 'pertinentiis in villa, &c., in quam von habet ingressum nisi per C. patrem ipsius A. cujus ha:res ipse est, qui prcedictum B. inde injusth et sine judicio disseisivit, et postquam, d'C, et unde assisa novce disseisince summonita fuit coram justitiariis nostris ad primam, &c., et visus terrm capitus, et remansit assisa capienda, eo qu6d pra'dicius C. obiit ante captionem illius assiscc (or, antequam justitiarii nostri in partes illas venerint). Et nisi fecerit, &c. These writs of entry, grounded upon a disseisin, varied according to the circumstances which had happened since the disseisin. One J Bract. 218 b. CHAP. VI.] Assizi: : ti:ial. 357 was, ^/^' quam inr/ressum non luibet nisi per C. filium et hrrredem D. qui terram illam ei dittiisit 'postqv/im idem I), injiiath etsiiie jadicio disseisiverit ipstiin B., itc. Anotlier was, in quant non habet inr/res- SU171, nisi per talem, qui injiist^ et sine jadicio disseisivit taleni postquam idem talis disseisiverat querentem} In this writ the heir of the disseisor miglit have almost all the answei's and defences wliich the disseisor himself, if he had lived, niig-lit have had against the assize of novel disseisin ; inasnnich as this writ was in the natnre of an assize of novel disseisin in all re- spects tiiat regarded restitution, thougli not quoad pwnojn ; and all such matters would he determined hy a jury. Bracton says ex- pressly, that no corporal pain was to he inflicted by this action, on account of the disseisin of the ancestor ; nor damages ; nor was the customary ox to be givTn to the sheriff ; 2 but only tha misericordia was to be paid for the unjust detention.-'^ This writ of entry grounded upon a disseisin, like other writs of entry, was an invention since the time of Glanville, and was the result of that refinement which had pervaded all parts of the law relating to seisin and property. The earliest mention of these writs is in the third year of this king ; when they are spoken of as in common use, and therefore it is probable that they were intro- duced not long after Glanville's time.-* We shall have occiision to treat more particularly of these new writs in their proper place. The writ which next presents itself is another remedy concerning possession, which also had been contrived since Glanville's time (a), and has since been called the writ of Quare cjecii infra terminiim. Such were the notions concerning land, that while one person had a freehold in a tenement, another might, says Quare eja-it in- Bracton, have at the same time the usufruct, the /'"« tcrminum. (a) This particular form of remedy may have been framed since this, but, as already has been seen, there was a remedy before, for it is laid down distinctly in the Mirror that, as the assize of novel disseisin was a possessory remedy, it lay equally for a termor for years as for a freeholder. They were not so dull in those days as not to see that a term of forty years might be as good or better than an estate for term of life ; neither were they so foolish as to aflford no remedy for it. It is quite probable that some over-technical lawyer may have suggested a quibble upon the word " dis- seisin;" that, as a termor was not seised, so he could not be disseised — a futile point, for the term 'seisin' meant possession." However, there is reason to believe that some such technical difficulty had been raised, for the Mirror puts it as an "abuse to think that we cannot recover a term for years in manner of disseisin '' (c. V. s. 7). In the chapter on disseisin, it is laid down that disseisin included deforce- ment, or keeping out, as well as ejectment, or putting out, and that it was " to disseise or eject a tenant as if one eject me out of my tenement, whereof I have had peace- able possession by descent of inheritance, or other lawful title to the possession. And note, that right is of two kinds : of possession or of property ; and the right of 2>roperty is not determinable by this assize as is the known possession, or that which altogether savoureth of a possessory right. And ejection, if of a term of years, falleth into this assize, which sometimes cometh by lease" (c. iii. s. 20). Now in what did the writ of disseisin differ from the writ of quare ejecit terminum, except that, to satisfy some captious clerk, the word disseisin was omitted, and the words "quod demisit" and "quod deforccat" were substituted. 1 Bract. 219. '^ It seems that there was a custom for the sheriff to demand an ox for evei-y disseisin proved. 3 jjiact. 220. •• Ibid. 219. 35S HENP.Y rir. [chap. vr. use, and the habitation. "^ As we have been showing how a man was to be restored to his freehold if he was ejected, we shall now see what was to be done if a person was ejected before the expira- tion of his term in the usufruct, use, or habitation of a tenement which he held for term of years. Such persons, when ejected within their term, used sometimes to bring a tcrit of covenant; but as that only lay between the person taking and person letting (who alone were parties to and bound by the covenant), and the matter could not be determined, if at all, but with great difficulty, in that way ; provision was made, says Bracton, by the wisdom of the court and council- for a farmer against all persons whatsoever who ejected him, by the following writ : Frcecijje A. quod Juste et sine dilatione reddat B. tantum terrm cum ^Dertinentiis in mild, dc, quam idem A. qui dimisif, dtc, or thus: Si talis fecerit tesecuram, d:c., ostensurus quare deforceaf, &c., tantum terrce cum periinentiis in villa, &c., quod talis dimisit ipsi, cC'c, ad terminum qui nondum prceteriit, infra quern terminum pixedictus, &c., illud vendidit, &c., occasione cujus venditionis ipse, dec, postmodum, d:c., de prcedictd terra ejecit id dicit ; et habeas ihi, d'c, or, Si A. fecerit tesecurum &c., tunc summone B. quod sit coram, <&c., ad respondendum eidum A . quare injuste ejecit eum de ianto terrce, &c. , quam G. ei dimisit ad terminum qui nondum prceter lit infra quern termimtm, &c. If this writ lay against a stranger propter venditionem, much more ought it to lie against the person himself who demised the land, if he ejected his own farmer. In such case the writ was, quam C. de N. ei dimisit ad terminum qui nondum praderiit, infra quern terminum prcedictus C. de eddem firmd sua injuste ejecit, id elicit; et nisi fecerit, &c., and this was with little variation, the more common form in case of ejectment by a stranger. These writs were drawn in two ways, both of which we have noticed in the above instances ; the one oi a. prcEcipe ; the other two of a si te fecerit securum. The p7'cecipe was thought the best and most com- pendious proceeding, on account of the process of caption of the land into the king's hands, which lay upon that writ ; and the avoiding the tediousness and delay of attachments, which was the process upon the writ of si te fecerit securum, &c., though we shall see, in aftertimes, that the latter became the most common and best known of the two, being that which, from the words of it, was called a quare ejecit infra terminum.^ Thus have we gone through the remedies which the law had Assize of com- provided, where an injury was done to a man's seisin mon. of a freehold. It follows next in order to speak of in- juries done to a seisin of things appurtenant to a freehold, such as common of pasture, and the like. We have seen, that in Glan- ville's time there was an assize of common of pasture, by which the complainant might recover his seisin of a common, the same as ' These teims ususfructus, usus, and habitatio, are borrowed from tlie civil law, and there stand in as near a relation to each other as they are placed in here (I»st., lib. 2, tit. 4, 5). ^ De concilio Quria 'provisum. ^ Bract. 220. CIIAr. YI.] ASSIZE OF COMMON. 359 seisin of his land ; and that there was a writ directing an admea- surement of pasture to be made, wliere any one had surcliarged the land. The forms of these two writs were the same now as in his time.i The writ of admeasurement was executed by the sheriff, who was to go in person to the place where the common lay, and cause the hundredors and all who were interested in the admeasure- ment to meet ; and there, in presence of the parties to the writ, if they obeyed the summons to appear, and after hearing their allega- tions, he was to make inquiry, by the oaths of such neighl)(>urs by whom the truth could l)est be known, and by the inspection of charters and instruments, how the right was; and, according to that, he was to admeasure and allot the common.- This was the writ upon which admeasurements were usually made. But where a person overcharged his common beyond what his ancestors had ever claimed, the admeasurement used to be made by a writ, in- vented since Glanville's time, to the following effect: Si A. fccerit, dec, tunc, d'c, quod sit coram jusfifiariis ad jmmu^n assisam, ostensurus quare siiperonercd, d'c, alitcr qudm C. jKder ijysius B. cujus lucres ipse est, consucvit: upon which the justices were to proceed as the sheriff in the former instance did, and a summary inquisition was made concerning the matter in dispute.*^ Another writ had been introduced, called a writ de quojure. Where a person had recovered seisin of a common in assize, grounding his title upon usage and sufferance merely ; as this determined only the seisin, the chief lord might bring this writ to make the tenant show quo JURE cxigit communiam pasturcc , d'c.,desicuf tile nullam communiam habet, d:c., nee servitimn eifacit quare, dc, habere debeat, rf'c* The writ in Glanville to the sheriff', commanding him that prce- cipias It. quod, d'c, jjcrmiftat habere II. aisianienta. sua, dc.,^ was preserved, with some small diff"ercnce in the form. He was directed, that Justicics R. quod, d'c, perm if fat H. habere rcdionabile esto- verium, d:c., as the case might be, of wood, turbary, and the likc.^ As a nuisance, being an injury to a freehold, was considered in the nature of a disseisin, and like that might be re- ., . dressed by an assize ; so also, like that, it might, flaqranfc facto, be removed by the party injured without any cere- mony of application to the law : but after the party had laid by, he had, as in case of a disseisin, no redress but by writ.'' There is no mention in Glanville of any other writ of nuisance than the assize. We find now several writs to the sheriff" upon questions of nuisance. One of these was Questus est nobis talis, quod talis inpiste et sine judicio levavit qKcndam murinn (or whatever it might be) ad nocumentum liberi tenementi siii, dc, jjost reditum nostrum de Britannid in Angliam :^ ' Vide, ante, 100 ; Bract. 224 and 229. = Ibid. 229. » Ibid.22Q b. * Ihkl. 229 b. 230. ' Gliiuv. lib. 12, c. 14. Vide ante, 174. « Bnut. 2;u. 7 jfjui 2;n b. 8 We bavo before seen tbat by tbc Stat. Mert. writs of novel flisseisin were not to exceed ^ri»ia»i traufjntationem domini reyis qui nunc est in Vasconiain. Vide ante. 5 GO HENRY III. [C HAP. VI. Et ideo tihi prcecipimus, quod loquelam illam audias et postea eum indejnste dediici facias, ne amplius, dc. In the same manner writs might be formed, quare, &c., postravit injuste ad nocumenfum liber i tenementi ; quare, (&c., viain ohstruxit, (&c., quare divertit cursum aquce, dec., and so on, in numberless cases of injury and nuisance to a man's freehold, i These last writs authorised the sheriff to hear and determine the matter ; and so were to all in- tents and purposes writs of justicies, though that word was intro- duced only in the following: Justicies, (&c., quod, &c.,permittat H. habere quandam viani in terra sua, d;c. The writ of assize of nuisance did not differ in form from those in Glanville, except in the return now used in all assizes, coram justitiariis nostris ad proximam assisam." The proceedings upon this wi'it were the same as in an assize of novel disseisin of a freehold. So much were assizes of common and of nuisance considered in the same light as assizes freehold, that where either of the parties died after the injury done, and the writ was to be brought by or against the heir, we find a sort of writ of entry was formed, in the nature of those we before mentioned for recovery of lands : Prcecipe quod, (&c., reddat B. communiam pasfurce, &c. Precipe quod, &c., relevari faciat et reparari quoddam fossatum, dtc. Praecipe quod permittai tcdem relevare, &c. :^ adapted, in the words of them, to the nature of the case, without any mention of an entrj^, which in- deed would have been incoherent and absurd. A nuisance was so much in the nature of, and approached so near to, a disseisin, that sometimes it might be considered in either light ; and it was difficult to say which it properly was. Suppose a person caused water to overflow ; if it rose upon the complainant's own freehold, which it most probably would if he had land on both sides, this was thought rather a disseisin than a nuisance ; but if it rose only on the freehold of the wrong-doer, and from thence in- commoded that of the complainant, it was then only a nuisance, because the fact was all in the wrong-doer's land. But if part was in one, and part in the other, and the water run over both grounds ; then, for one part he might have an assize of novel disseisin of free- hold ; for the other, an assize of nuisance ; so that here would be two assizes on account of the same land ; in which case, of the two remedies, if one was to be chosen, Bracton advises the assize of nuisance, as the most likely to remove the whole mischief : for the assize of novel disseisin, as it was confined to the freehold, could not correct the nuisance which was upon the other's land ; while the assize of nuisance, by removing the cause, effected both.* A man might commit a disseisin and two nuisances, by doing one fact on his own ground. If he cut a ditch across a road which led to a pasture, he, at once, committed a disseisin of the common ; 204. Notwithstanding ■which, wo find Bracton states this writ with a different limita- tion. It is not easy to account for this want of agreement between our author and the statute. Vide ante, 325. i Bract. 233. ^ /^jVi. 253 b. ^ Ibid. 235 b., 236. ^ ma. 234 b. CHAP. VI.] ASSizr: of nuisanx'e. .3G1 caused also one nuisance by obstructing,' tlie wa}', and anotlier hy diverting the water from its proper clianiiel.^ Among other nuisances, a liberty or franchise might be a nuis- ance to another liberty or franchise ; as where the liberty of holding a market was granted, so as not to become a nuisance to a neigh- bouring one. Now, a market was said to be viciunm, or neighbour- ing, if it was six miles and a lialf,- and one-tliiid of the other half distant from another; which dislance was computed with a view to the following considerations : sujiposing a day's journey to be twenty miles, and the day Avas divided into three parts, the first part would suffice for the journey tliither; the second, for buying and selling ; and the third, for returning home in reasonable time before night. A market if raised Avithin this distance, was to be put down ; yet a market to be held two or three days nf/(r another, though within that distance, could not be said to be injurious ; and, accordingly, a market was not considered as a nuisance,^ unless it was held before or at the time of another. Before we take leave of assizes of novel disseisin, it will be ne- cessary to remark two or three particulars relating to them in general. If a disseisin ha])pened hijra summonifioncm Justitia riorum, there was no need of ajiplying to the curin regis for a writ ; but the itinerant justices would make one themselves, in this form : Talis de tali loco, et socii sui Jusiiiiarii itinerantes in tali comitafu tali salutem. Questus est nobis, and so on, as in other writs ; only, instead of the term of limitation, these words were inserted, by way of giving jurisdiction to the court, infra summonitionem itineris nosiri.^ We have seen what provision was made by the statute of ^Mcrton in case of re-disseisin. 5 If a per.son recovered seisin by judgment of the justices itinerant, and was put in seisin by the sheriff, and was afterwards disseised by the same disseisors ; they, being con- victed thereof, were to be taken and detained in gaol, till released by the king or otherwise ; and for the purpose of taking the of- fenders there issued the following writ to the sheriff: 3Ionstravit nobis talis, quod cilm ipse recuperdsset ; mentioning the assize, and so on; ijise talis, &c., iterum, dec, clisseisivit: et ideo tibi prce- cipimns, quod assump)tis tecum ciistochbus p)lacitorum coroncc nostrcc, et I'l tarn militibtis qudni aliis liberis et Icqalibus hominibus, &c., diliqentem facias inquisitionem, &c. (a) Et tunc ipsum capias, et in {(i) Uj)ou this the sheriff was judge, and the question was raised long after this whether he, being judge, his return of the jurors could be objected to, and it was held that it coulil not. " Suppose a re-disseisin directed to the sheriff, there he shall be judge and also minister; and in the writ he will inquire of those who were i>£ the jw^size, and othert-, and he also shall make j^rooess against them, and he is judge, and executes his own judgment; yet it is no challenge to his array that he is favourable, for he is judge, and it shidl be presumed that he is indifferent {Year-Book, 8 Henry ri.iol 21). > Bract. 234 b. Sex knew. Spclman says, that in Domesday, and our old writers, leitra signifies a mile. Spel. Voct Lcuca. - Bract. '2m. * Ibid. '1-Hi b. V ante. 362 HENRY III. [chap. VI. prisond nostra salvo cicstodi'as, donee aliud inde prcecepertrmis, et indc tali seisinam suam rehahere facias, <&c. And, in like manner, in all cases where seisin was recovered in court, whether by assize, recognition, jury, judgment, concord, or otherwise, and the re- coverer was turned out, a writ of monstravit to this effect might be had.i Next, as to the writ of execution to give seisin to the complain- ant. When an assize happened, as it sometimes did, to be taken out of the county, and the person who brought the assize complained in the county that he had not yet got his seisin, there issued a writ to the following effect to the sheriff: Scias quod A., &c., recovered by assize ; et ideo prcccipimus, quod per visum recognitorum ejusdem assisa, (tc., plenariam seisinam habere facias, d:c., the writ being still varied, according as the disseisin was confessed or otherwise. To every writ was added this clause : Ut etiam ^yro damtiis ei ad- judicatis infra quindenam facias ei decern solidos habere, ne inde clamorcm audiamus p)ro defectu, d;c. If seisin had been re- covered before the justices in the county, and the complainant was hindered from getting possession by the power of his adversary, he might have the following writ to the sheriff: Questus est nobis, &c., quod cilni in curia iiostrd recuperdsset seisinam, &c., idem, <&c., non p)ermittit eum uti seisind sua; or seisinam suam nondum habet, secundum quod ei fuit adjudicata. Et ideo tibi p)raxipimus, quod dilig enter inquiras qui fuerunt recognitores ejusdem assism, et per eorum visum, <&c. , plenariam seisinam ei habere facias, et ipsum in seisind sua mcmuteneas, et defendas ; or thus, non permittas, quod talis ei molestiam inferat, vel gravamen, quominils idem, cf'c, uti possit seisind sua, ne ampliis, dtc."^ We have hitherto spoken of such remedies as were furnished Assisa ultima: when a person was disseised of his freehold, or of some prcesentationis. easement and right appurtenant to his freehold, and arising out of that of a stranger. We are now to treat of appur- tenances and rights which arise in a man's own ground ; as of the seisin of a presentation ; and when a person was impeded in the use and enjoyment of liis own seisin thereof, or that of his ancestor. When a person presented to a vacant church, to which himself or his ancestors had before presented tempore pads (for every one must have a seisin of his own, or of his ancestor who last pre- sented), and was impeded or deforced by any one who contested the presentation ; this was to be determined by an assisa idtimce p)ra'sentationis, as we before mentioned in the reign of Henry II. ^ As this assize could only be brought by one who had had seisin himself, or whose ancestors, to whom the ad^owson had belonged, had had seisin, those who held by feoffment, and not by descent, could not maintain it, unless they had, in fact, made one presenta- tion : for they could not claim of the seisin of those whose heirs they were not, in an assize, any more than they could in a writ of 1 Bract. 230 b., 237. ^ md, 237. ' Vide ante, 185. CHAP. VI.] ASSIZK ULTlMiE PRiESENTATIONIS. 3G3 ri, or tlie writ of (hirrem 2^y'C-^C7it- ment, as it was afterwards more usually called, differed in one or two particulars from that in Glanville's time. The present began, SI talis tc feceril securum, dec, the former was a sim])le summons. The present was made returnable ; sometimes, according to Bracton, coram Jvs/ifiarus nostris ad 2>'>'0xi)iia)ii a.ssisaiu (notwithstanding the j)rovision of Magna Charta to the contrary ;2 sometimes apud Wenlmonastt'fium. The process on this writ was as follows : At the first day each party might essoin himself, if he pleased. If both made default, the suit failed, and the writ was lost. If the disturber only of the presentation was present, the judgment was, quud rccedat sine die. If the complainant only was j)resent, then it was first to be seen, whether the disturber had been summoned, or not: if ho had, and the summons was testilied by the proper summoners, then he was to be re-summoned ; but if he liad not been summoned, or the summons was not proved, or, upon appearing, he objected that he had not been sunnnoned, or the simimons was not a reasonable one, another day was given him ; and at that day, if the summons was proved, or not denied, there issued a writ of re-sunnnons, by which ho was summoned to hear the recognition that had been arraigned, with the addition of this clause, el ad ostcndcnduin quare nonfuil coram, lacita, no re-summons, nor the delay of fifteen days, were allowed, if the tenant was in the same county with the church in question 1 Bract. 237 b., 238. ^ Vide ante, 24."). 3 It docs not ap])ear from Bracton what rule governed in the application of one or the other of these writs ; much less can it be collected that the habeas corjxjra never issued but after the ixnire j'acius, as was the course in later times. 364 ilENEY III. [CIIAP. VI. at the time of tlie iter, but the assize was taken by default, the same as an assize of novel disseisin. ^ Again, a re-summons was not allowed as against a person within age, nor a minor, nor Avhere the tenant had been seen in court, and had contumaciously gone away. In short, in every assize but that of novel disseisin, there was at the first day either an essoin or a re-summons ; but at another day, there was no re-summons after an essoin, nor, on the contrary, an essoin after a re-summons, but the assize was immediately taken by default, as some said ; and Bracton was further of opinion that even the essoin de servitio regis, though it lay after an essoin and re-summons in every assize where they lay, would not hold in this assize ultimce prcesentationis, which, as well as an assize of novel disseisin, was excepted from this essoin for the sake of expedition and dispatch. We have been more particular in this account of the practice of re-summons, because it is applicable to all the re- maining assizes of which we shall have to treat. 2 If, after these summons, re-summons, and essoins, the deforceant did not come, would not answer, or contumaciously left the court, the assize, as we said before, was taken by default. If he appeared, and could say nothing why the assize should remain, it proceeded at once, the deforceant, in this assize, being allowed to call no war- rantor, because the assize w^as taken generally for him who had the right of presenting."^ When the complainant and deforceant appeared, and the latter was disposed to say something against the assize, then, says Bracton, it became the complainant to state his case (or profundare inten- tionem, as it was called), and show what title he had to the action ; after which the deforceant was to state his exceptions to the intentio of the complainant, and show why the assize should remain. The matter of the intention and exception was what constituted the merits of the title, and was collected from the effective words of the writ : Quis advocatus — tempore pads — prcesenfavit — idtimam personam — quce mortua est — ad ecclesiam talem — quce vacat, cwjus advocationem dicit ad se pey^tinere : that is, who was the real patron and owner of the advowson, and that he was not a guar- dian, or farmer, or tenant for years, who possessed nomine alieno, or for life, or by intrusion, or disseisin ; who, besides not being properly owners, had never, perhaps, presented, and therefore never had gained seisin of the presentation : — whether he obtained this right in times of quiet and peace, and not by usurpation and op- pression : whether the presentation was rendered complete by in- stitution: for since the Constitution of the Council of Laterau, ordaining that presentations should lapse to the bishop if the patron did not present in six months, had been adopted in our law, it oftener happened that presentations, not being in time, were dis- puted : — whether it was a parson that was presented ; for an assize did not lie of a vicarage or prebend, nor of a chapel : whether his Bract. 238. 2 Ibid. 239. ' Ibid. CHAP. VI.] ASSIZES : EXCEPTIONS TIIEKETO. 3C5 death was natural or civil, as by entrance into relif^ion, resignation, or, wliat was tlio same, niarriai,^e, or any otlier act which disabled him from holdini;- his churcli ; and whetlier it was vacanl. The question of vacant, or not, was to bo determined by tlie ordinary, who was the j)roper and lej^al judge thereof. i From the above-mentioned articles of the writ miglit be ex- tracted exceptions, both to destroy and defer the assize ; Exceptions but should the deforceant admit tliem all, lie miglit tiieieto. still except against the assize in various ways. lie might say, that the complainant who grounded his assize upon the seisin and presentation of" his ancestor, after that presentation mad(i a gift of the advowson, either by itself, or with the freehold to which it was appendant, to the deforceant himself, by a charter, which he there produced; and therefore, that though the ancestor might present, yet he could not for that reason present aftei'. To this the com- plainant might reply, that after the charter mentioned he presented iV., who was admitted, so that the chailer was void, and the gift null ; and this he could })rove by the assize taken in modumjuratic, unless the deforceant chose to make a tn'plicado, or rejoinder, and say, that though that charter might be void, and the gift null, by such second presentation of the donor, yet after such second presen- tation, he made another charter to him confirming the former, which had been invalidated by the second presentation : and this he might offer to prove by the assize and witness named in the charter, if the other party simi)ly denied the charter and confirmation, and did not choose to go on by a quadrupUcatlo, or sur-rejoinder, and say, that after all which was stated, he had since made another presentation. 2 The sense of all this pleading was, that the last exercise of right by presentation overbalanced every consideration arising from the right to make that presentation ; and so stood the law, conformabl}' with that deference which was universally shown our old jurispru- dence to seisin, or possession, whatever the right to that seisin and possession might be. It might be excepted that the complainant had aliened the land to which the advowson was appendant, cnm omnibus periincniiis, or that he had not in his hands any part of the freehold to which it was appendant, but had lost it all by judgment or by disseisin: for though he might have a right to the freehold and its appur- tenances, he was first to recover that before he could present.3 These and many other matters might be excepted against the assize. Nothing can better show the nature of this assize, how far it had eftect, and where it failed, than some cases determined in this reign. In one of these it was held, that when it could not be proved wjio made the last presentation, nor the next before, nor the next be- fore that, the plea should proceed upon the mere right and pro- perty, by that same writ of assize, without recurring to any writ 1 Bract, from 240 to 242. » Ibid. 242 b. ^ Ibid. 242 b., 243. 36(5 HENUY iir. [chap. iv. of right: a narratio, therefore, or count, was immediately to be made of the seisin of an ancestor, and of the right descending to the demandant, as if it had been, ah initio, a suit upon the right ; and the tenant might, as he chose, put himself upon the great assize, or defend himself by duel. Another case was this : Suppose a man had an advowson of a church, and being in seisin of the pre- sentation, gave it in marriage, and afterwards, before he made any presentation, the donee gave it again to another, and then the church for the first time became vacant ; upon which the donor, the first donee, and the second donee, all presented : in this case, the donor would, in an assize for the presentation, be preferred to the other two ; for the first donee had no true seisin, so as to transfer the advowson to another ; nor could the second donee receive what the first could not give him : and so it was determined in more cases than one, that where a person to whom an advowson was given conveyed it away before he had presented to it, the conveyance was null, because there was no remedy to give it effect. i As persons, in the foregoing instances, having presentations. Of quare im- could uot go upou any scisiu of their own or their an- pcdit. cestors ; and in all cases, as those who had by any law- ful means acquired a right of presentation, whether by gift or by judgment, for life or in perpetuity, would, if they had not presented before, have been unable to maintain their right in an assisa ulfimce Idrcesentationis, or a writ of right of advowson ; remedies had been devised some time in this reign by two writs, one called quare im- jjedit, the other quare non loermittit, for so Bracton calls it, though the words of the writ are quod per mittat. The difference between these two writs of quare impedit and quare non 2^e7'mittit is thus explained by Bracton : Impedire est ponere pedem in jus alienum, quod quis hahet in jure jii'ceseiitmidi. When a right, whatever it might be, was accompanied, not with a proper seisin, but a quasi seisina, in such case the remedy was by quare imp)€dit. But if the person presenting had not even this quasi seisina, but clearly none at all ; as where a right of presentation accrued by donation, or by reason of a tenement holden for life, as in dower, or per legem terrce; or to a farmer by reason of his farm ; to a creditor by reason of a pledge, where no seisin nor qicasi seisin was had ; there, as no one could be said, ponere pedem in jus, or in a quasi seisin (which the person in fact never had), a quare impedit would not hold, but re- course must be had to the quare non permittit, which purported that the person who had the property, or proprietas, did not permit him who was in possession to use his jus jjossessionis. The writ of quare impedit was as follows: Quia A. fecit nos securos de clamore, &c., pone per vadium, d-c., ad respondendum eidem A. quare impedit eundem A. prcesentare idoneam personam ad ecclesiam de M. cujus ecclesioi advocationem idem A. nuper in curia nostra coram justitiariis nostris apud Westmonasferium re- 1 Bract, 245 b., 246. CHAP. VI.] OF QUARE IMPEDIT. SG7 cuperavit versus eundem B. per judicium curice nostrce ; unde idem A. qiieritur quod praxlictus B. injusle tt contra coronam nostram, or in conlnapfum curiw nostra; eiim inde ijipedit : et Itahcas, c^'- "VMiere this S071S it would hold, and adding a few remarks upon the ^"t would Ue. instances where it was not allowed. The reason of confining this writ within certain degrees was an anxiety, lest by extending it further, questions de p7vprietate might be sometimes determined by an assize, which was a proceeding only designed for disputes about the possession. This writ would not lie between conjnnctas personas, as co-heirs, whether they were parceners, that is, capable of taking an inheritance descending from a common ancestor, or not capable ; for if they were co-heirs capable of taking, that is, if the inheritance was partible, as among daughters, or, by particular custom, among the sons, recourse was to be had to the writ de jyroparte ; and if, in such case, aij assize was brought, it would be lost by the exception of the mere right, as each of them was the hoires propinquior to his own share, compared with those in a remoter degree. And again, where they were co-heirs (who were by law considered quoad seisinam as justi et propinqui), though not parceners, or capable to take, as above supposed, but one of them, to whom the jus merum descended, was preferred to the others ; yet, even in this case, the assize would not lie, as it only would determine the possession and seisin, respecting which they were considered all equally justi et p)ropinqui ; but recourse was to be had to the writ of right, which determined both the seisin and the mere right. ^ As this writ would not lie between co-heirs that were legitimate, * Bract. 2C1 b. * Ihid. 256. ' Seisinam et mcnimjus. 372 HENRY III, [chap. VI. capable or not capable, so neither would it between legitimate and natural children : for if it was objected to a natural brother that he was a bastard, or a villein, though he should prove himself legiti- mate and free, he would not thereby prove himself hceres propin- quior, which must be done before the right could be decided ; and therefore, as that could not be in this assize, they must resort to the writ of right, i It had been said by Glanville, that this assize would not lie in burgage tenure,- on account of a particular law, the effect of which law we may guess at, when we learn from Bracton that the reason of this w^as because many boroughs had a particular custom, which enabled the burgesses to make wills of land ; and where that pre- vailed, it was to no purpose to inquire by this writ, whether the ancestor died seised. He says that the freemen of London 3 and burgesses of Oxford could make wills of their land, as of a chattel, whether they had such . land by purchase or descent. In some places, this custom was confined to land purchased. ^ We have seen that the assize of mortauncSstor was limited within A writ de con- Certain degrees, and lay only against certain persons, sangumitate. on the death of certain persons, beyond which recourse was to be had to a writ of right. To prevent this, in questions of seisin which could be proved de propria visu et auditu, there had lately been contrived, in aid of this assize, the writ de consanguini- tate, which was to determine questions of possession in such degrees and persons to wdiich the assize did not extend wdthin the time of limitation prescribed to the assize. This wi'it lay only of such things as the deceased died seised of in dominico siio, ut de foedo, and not those he died seised of ut de mero jure ; it being designed to go only upon the possession, to avoid the hazard of the duel, and of the great assize. As this writ came in the place of the assize, and had for its object the seisin of the ancestor, there was every reason why it should pursue the nature of its original, as nearly as possible. It therefore observed the time of limitation in the old writ, and was confined to the same persons to which that was. Thus, though this writ exceeded the degrees of the assize, as it extended to the grandfather, great-grandfather, and higher in the ascending line ; and in the descending, to the grandson, great- grandson, and lower; it, nevertheless, did not lie between such persons as the assize did not, as between co-heirs and the like ; according to the rule, inter quascunque personas locum Imhet assisa infra suos limites, inter easdem locum liahet consanguinitas ; and vice versd.^ And if the time exceeded the limitation in a writ of mortis antecessoris, the writ of consanguinity would not hold, as the demandant could not by possibility, at such a length of time, prove the seisin de visu et auditu p)roprio, but only alieno, that is, of the father of the witness, who saw it, and enjoined his son to witness ' Bract. 278 b. ' Vide ante, 182. 3 Barrows Londini. * liract. 272, 6 jud. 267. CHAP. VI.] WRIT DE CONSANGUINITATE. 373 it tliercaftcr, which sort of testimony could only be received in a writ of right.l Tliis was tlie origin and the nature of the writ de consangtiiniiafe, the form of which was as follows: — rrcecipe A. quad juste et sine dilaiionc redded B. terram, d'T., cum iiertincntlis in villa, rf'c, de qua C. con sanguineus (or it miglit he expressed sjiecially, as avus, or nepos) ipsius B. cujus hares ipse est, fuit seisitus in doiainico suo, ut defcedo, die quo obiit, tit dicit. Et nisi/ecerit, & B.fecerit ie secnrum, d'c, tunc, d'c. d'c. After the essoins, and both parties appeared in court, the demandant was to propound his intentio in this way: B. ^3e/i7 versus A. tantam terram cum pertinentiis in tali villa, utjus suum, et tmde talis consanguineus situs, cujus liceres ipse est, fuit seisitus in dominico suo, ut de foido, die quo ohiit; et de ipso tali dcscendit jus jwcedictce terra: cuidam tali Jilio et hairedi : and thus he was to deduce the descent, as in a writ of right, down to himself; and then add, et quod tale sit jus suum, et quod talis consanguincus ita fuit seisitus, offert, &c., he made an offer to prove: to which the tenant answered in this way: Et A. venit, et defendit jus suum, d:c., et dicit, quod nan debet ad hoc breve respondere, quod, dc.,^ which scrap of pleading may be noticed, as well for illustrating the action we are now upon, as to give the first instance that occurs of the formal parts of a record ; many such will present themselves before we have done with this reign. It must be remembered that Bracton says this action was an assize, and might, like others, be occasionally turned into a jury. All those exceptions might be made to it which lay in the assize of mortauncestor. It is stated as a question by Bracton, whether this writ could, by means of the narratio, or counting upon it, be turned into a writ of right, as a writ of entry might; as for instance, if the demandant in a writ de consanguinitate, in counting his descent, et unde talis consanguincus suus obiit seisitus in dominico suo, ut de fcedo, should tlieu add, et de jure ; this, Bracton says, would be going from the possession to the p)roprietas : for in saying, talis obiit seisitus in dominico suo, id de foedo, the jus possessionis only was brought in question ; and when he adds, de jure, he brings likewise in judgment the jus proprietcdis, which made i\\Q jus duplicaium, or droit droit:^ But as the writ de consanguinitate was, in its nature, only a possessory remedy, the demandant, by counting of the mere right, would go beyond the design of it ; and therefore the writ would be destroyed, and the party have no remedy left but the writ of right. Again, by the same reason, a writ of right could not, by the way of counting, be turned into a writ de consanguinitate, as a person who had once commenced a suit upon the right, with effect, could never go back to an action upon tlie possession only. But a writ of entry, as it was in jure jyroprietatis, might sometimes become a writ of right, on account ' Bract. 281, z Ibid. ' Vide ante, 320. 374 HENRY III. [chap. VT. of the entry being too ancient to be proved proprio visu et auditu : and again, a writ of right might become a writ of entry, when the entry could be proved 2^'>^oprio visu et auditu. But of this we shall have occasion to say more hereafter.! An assize of mortauncestor did not lie for a right of common, of ^ . , . the seisin of an ancestor ; in lieu of it, therefore, a Quod permittat. -a. c ^ 7 •-. - 1 i i £ i r> writ 01 qitod permittat had been formed : rixecipe, (&c., quod, etc., PERMITTAT taleiii habere commimiam pastures, dec, de qua talis p)ater, or avuncidus, or consanguineus, cujus hceres ipse est,fuit seisitus defoedo tanquam pertinente, &c. And in like man- ner for a successor : Praecipe, dec, quod., dec, permittat A. rectorem, talis ecclesice, &c These two writs were possessory, as well as the former ; and the mere right could not be discussed in them.^ They were likewise always determined by a jury, and not in the way of an assize. There w^as a writ which partook of the nature of an assize of mortis antecessoris and of novel disseisin, to summon a person ostendendum quo loarranto se teyieat in tantd terra, <&c., quam A. pater ipsius B. recuperavit versus eundem C, &c, et de qua fuit seisitus ut defcedo, die quo obvit, &c The like in case of a common.^ It was not the practice to allow damages to be recovered in an assize of mortauncestor, which Bracton laments as an encourage- ment to chief lords to commit waste and destruction on lands which they seized at the juncture of a tenant's death. We have before seen that a chief lord was more commonly an object of this assize than persons of any other description.'* The next and last remaining assize was the assisa idrum, to try , . ^ whether a fee was lay or ecclesiastic. 5 But before we Assisa utrum. , j.t'i>'<^''fidos jusiitiarios nostros, c&c, de Sacramento quod inde fecernnt. Et interim 'priedictmn tencmentum in mannm nostrum cape, d-c. Pracipimus etiam quod habeas, dc, corpus talis ad audiendum inde considerationem. curia', (kc. A certificate was sometimes heard in order the better to understand the record in assize, and after that it might be thought proper to resort to a conviction. If the twenty-four were doubtful or obscure in delivering their verdict, there might also, after all, be a certificate of their record.^ A conviction might be brought by the heir, if the ancestor died after the caption of the assize.-* We have before taken notice of the lenity shown to such jurors as wished to amend the false verdict they had once given. This had the effect of taking off some of the consequence of their perjury. To this it may be added, that the jurors, of right, might change their verdict before judgment was given ; but afterwards, the only remedy was to proceed against them in a conviction.^ As we have now done with assizes, and are proceeding to such actions as were triable by jury and otherwise, it may of different , be proper, before we enter upon this part of our subject, tvi-A\s. to say a few words on the different trials now in use : which, though apparently very similar, were so essentially distinguished as to make it necessary to attend to each of them with accuracy. It must be observed that there were assizes of which enough has already been said, J«7-ies; inquisitions, or inquests; ii\n\. purgations; as when a crime was imputed to any one, a purgation amounted to a proof of his innocence. Besides these, says Bracton, there was a defence or denial opposed to a presumption raised, which depended neither on a jury, nor an inquisition, nor a purgation, but it was > Bract. 292 b. - Und. ^ Ibid. 293 b, 294. * Jbiil. s Ibid. 296. 382 HENRY III. [chap. VI. when a person averred something, et inde producit sectam ; upon which there followed a defence contra sectam or a gtiosi-proof op- posed to tlie presumption raised by the secta. Such defence against a secta was called a defence per legem, and consisted sometimes of a greater number of persons and sometimes of less in different cases. We have before seen the regulation which had been made by Magna Charta upon this head.i What was the nature of this secta and of this defence or denial, with the instances in which they were both recurred to, will be seen more particularly in the sequel. ^ For the present, let it suffice to say, that in all cases of obligations, contracts, and stipulations, arising from the voluntary consent and engage- ments of men, as in covenants, promises, gifts, sales, and the like, where a secta was produced, which, upon examination, induced a presumption only, he against whom the complaint was made, might defend himself per legem ; that is, he might produce double the number of persons which had been in the secta to swear for him, for when they exceeded the secta in number, they induced a stronger 2:)resumption, and the stronger presumption always overbalanced the less. But if the complainant had a proof (for it must be observed, that the secta was only a presumjition, not a proof), as instruments and sealed charters, there could be no defence p)er legem opposed to such proofs. If, therefore, the instrument was denied, the credit of it was to be proved per p>atriam, et per testes ; it being a com- mon issue for a person to put himself sz^^^er patriam, et testes in carta 7iominatos.^ Again, a person was not allowed this defence per legem in cases of evident and notorious trespass. We shall now begin to speak of such actions as were triable in Dower unde One or other of these ways. The action of dower tmde nihil. nihil habet and the writ de recto of dower, were the two remedies still in use to recover dower, and seem to be considered by Bracton exactly in the same light in which they are placed by Glanville. The method of conducting them is more minutely described by Bracton, who also makes observations concerning them, which are well worthy of notice. The writ wide nihil was said to be brought in the king's court originally, and there only, because, should a question arise, whether the demandant was lawfully married, no one could write to the bishop to try the marriage but the king or his justices. The writ unde nihil was at this time made returnable, sometimes coram justitiariis nostris apud Westmonasterium ; sometimes coram justi- iiariis nostris ad primam assisam, cum in partes illas venerint^ If the party summoned did not come at the appointed day, nor essoin himself, the land was taken into the king's hands, as in defaults in a writ of right; and if he essoined himself at the first day, and another being appointed, he made default, then also his land was taken, so that, in both cases, whether the default was before appearance or Vide ante, 248. » Bract. 290 b. » Ilid. 315 b. « Ibid. 296 b. CHAP. VI.] ACTION OF DOWER. 383 after, the woman recovered lier dower 1)y default, citlier by the mcif/num cape or par vum capeA When the parties appeared in court, the widow was to propound her intentio, in i)erson or by attorney, to this effect : — Hoc vohis ostendit B. qwv fail iixor 6'., dV., reciting lier title to dower, in pursuance of the words of the writ, concluding it thus : — Et si hoc corpioscere voluerit, hoc gratum erit ei; et si non, hahet snj/icientem disrationationem ; or, what was the same, and indeed the more common form, et inde producit sectam sufficientern. When the demandant had thus exhibited her inienlio^ the tenant might de- mand a view, by saying, I'do visum; and after the essoins and delays attending that, lie might vouch to warranty, or answer in person, as he pleased.^ If the tenant had no exception to the writ, then he might, in the next place, call upon the demandant to produce her warrantor, as was the practice in Glanville's time ; it Ijeing a rule, that no one should answer a woman concerning her dower, unless she brought her wari-antor to show what right he had to the other two parts; and again, that no woman should answer without her warrantor. And therefore it should seem, says Bracton, that as the son of a felon could have no right in the two parts, the widow of such felon could not make out her claim to dower in the other third ; nor could she come upon the chief lord, who held it as an escheat piro dcfcctu ha'redis ; which was not the case where he took the escheat on ac- count of the last possessor being a bastard, and so not having any heirs, for then he came in, as to the purpose of dower, loco hccredis ; and the widow could claim her dower against him. The same might be said of an assignee of the fee, who being in loco hceredis, dower might be claimed against him.3 After this the tenant might vouch his warrantor ; and if he did so, and the warrantor did not appear to the writ of sum. ad icarrant. nor essoin himself, so much of his land was taken as was equivalent to the third part, by a cape ; and if he did appear after this distress (for it was no more), the widow recovered her seisin of that, and he had his remedy against the warrantor, whom he vouched.^ If no warrantor was vouched, and the tenant meant to answer to the action himself, he might advance, by way of exception to the action, such matter as would entirely defeat the claim of dower. One great exception to this action was, that the demandant and deceased were not legitimo matrimonio copidata, or ne vnque accouples in loycd mafrimome, as it was afterwards called. In this case, a writ issued to the bishop, commanding him to try such ques- tion, as a matter pro])erly belonging to his cognizance. Upon this, the bishop summoned the tenant to appear, and then proceeded to hear the witnesses produced by the widow and him ; and so making an inquisition in a summary way, he reported whether the marriage ' Ibid. The distinction between the magnum and parvum cape vnll be explainecl when we come to speak more particidarly of process. -' Bract. 297. ' lOid. 2'J7 b. * Ibid. 299 b., 300. 384 HENRY III. [chap. VI, was lawful or not. When it appeared to the king or his justices, by the bishop's letters, that the marriage was good, then there issued, at the instance of the demandant, a re-summons to the tenant.^ If he made default, his land was taken by a parvum cajje ; to which if he made no appearance, seisin of dower was adjudged to the demandant. If the tenant admitted that the demandant was espoused, but pleaded that she was not endowed ; or, that she was espoused and endowed, but not ad ostium eccleske ; such issues were to be tried in the king's court, and not in foro ecclesiastico ; for it would have been as improper to transmit these to the ecclesiastical judge to be tried, as the special issue, whether a person born before marriage was legitimate. In this case, therefore, a writ of inquiry went to the sheriff to make inquisition of the fact in pleno comitatu : ^ for though the marriage was, in such case, good, as far as concerned the legitimacy of the issue, it was not so as to give title to dower. ^ Suppose all the above circumstances were admitted, and the tenant said that the dower was given in a different manner than stated in the intentio of the demandant ; as that it was not given in any particular land by name, but only the third part generally ; how was this to be proved ? In the first place, it became the widow to prove her intentio, and what she had there averred, per audientes et videntes, who were present at the espousals, and who were ready to confirm by oath what she said. If these were examined, and they agreed in what they said, this proof was abided by, unless the tenant had some stronger evidence to prove the con- trary. Suppose the widow hcid no proof, nor sufficient secta, nor even an instrument to support what she had declared ; then judg- ment was to be for the tenant, though he had neither proof nor pre- sumption for him, because he was already in possession ; yet if the widow had a sufficient secta, and the tenant only his own voice, he was not to be heard, though he was ready to put himself super p)atriam, but the widow immediately recovered by force of the secta. Again, if the witnesses (that is, the secta) were produced on both sides, and those on one side declared their ignorance of the matter, while the others maintained the point for which they were produced ; judgment was given for that side, as the one where the truth of the matter lay. It was indispensably necessary, that the widow should produce a secta, or her demand would be totally void, and if the witnesses produced proved nothing, or acknowledged that they were not present at the espousals, or knew nothing of the dower or en- dowment, then the claim was lost for want of proof, and judgment was for the tenant quod quietus receded. If neither side had any proof, nor could raise a presumption by a secta, and both, in the words of Bracton, de veritate ponunt se SUPER PATRIAM, ^ro dcfcctu sectcB, vel alter ius prohationis, quam ad manum non liahuerint ; then there issued a writ of venire facias to 1 Bract. 302, 303. - Ibid. 303 b. ^ j^^^ 304, CHAP. VI.] WRIT OF RIGHT OF DOWER. 385 the sheriff in this form : ^ tarn ex ipsis, qudm ex aliis de loroximo vicinelo, cite, venire facias coram jusUtiariis, die, duodecimliheros, dc, ad recognoscendicm, dc, si pr (edict us A. die quo ipsarn B. des- ponsavit, dotavit earn nominatiin de tali manerio, cite., vel si dotavi earn de tertid parte omnium terraruui, d:c., ut idem D. dicit, quia tamproidicti B. qucmi j^rcedictus D. jwsuerunf se, dc? It may be here observed, that the issue, whether endowed ad ostium ecclesiee, was tried on a writ of inquiry before the sheriff in ptleno comitatu ; but the issue, whether special or general endowment, was to be tried l)cforc the justices at Westminster; as was also the issue, whetlier endowed ex assensu patris, or not.'^ Again, the issues, whether the husband was so sei.sed as to be al>le to endow,* and whether the widow had received any part of her dower,^ were tried on a writ of inquiry before the slieriff. The reason of these distinc- tions is not easily discovered ; and perhaps either of such writs were had at tlie election of the parties. The election of the parties seems to have directed not only in these cases, but also in the return of original writs, which, we have seen were sometimes coram Just i- tiariis at Westminster, and sometimes ad pr imam assisam, without any apparent reason for such a variety. They were sometimes made in the alternative, and were returnable at Westminster, nisi justitiarii prius venerint ad assisam, dc. In consequence of the statute of Merton,'^ widows were to recover damages ; and therefore, when they were to be put into possession, the writ of seisin had one of the following clauses inserted therein. After seisinam habere facias, they added, et similiter ei sine dilatione habere facias tot ma^'cas qua ei in eddem curia nostra adjudicatce sunt pro damnis suis, quce hahuit pro injustd detentione, quim jorce- dictus ei fecit de iiradictd terra, et dote sua; or in this way, et de ierris et cafcdlis pra'dicti B. fieri facias tot denarios, et illos sine dilatione haheri facias, etc. Thus far of the Avrit of dower unde nihil, &c., commonly called the tor it of dower. If a person did not recover by this writ of right writ all she was entitled to for dower, recourse was then of dower, to be had to the writ of right of dower ; which was a writ close, as they called it, because directed to the warrantor of the widow where the pica was to be heard ; where it remained till tliat court was proved de recto defecisse ; when it might be removed into the county court, and so to the superior court, as other writs of right. The intentio upon this writ was different in the two cases, of the widow having never been in seisin of the land in question, and of having been disseised by the tenant. The conclusion in the former case was et unde idem, (tc.,fuit seisitus, etc., ita quod me inde do- tare potuit. Et si hoc vellet cognosccre, dc, as before in the writ unde nihil. Et si noluerit, haheo sujficientem sectam. In the latter the conclusion was, talis me injuste et sine jitdicio disseisivit, et quod 1 Bract. 304. > Ihicl. 3 Ihid. 305 b. « Ibid. 309. 8 Ibid. 312. « Ch. 1. Vide ante, 26L 2b 386 HENRY III. [chap, VI. ita fui hide dotata, et seisita Jiabeo sufficientem disrationationem, videlicet, tcdem sectam, et talem. Thus this differed from the com- mon writ of ri.o-ht, which concluded by ofiferinp: to deraign the matter per corpus talis Jiominis. Indeed, it widely differed from that writ in both the above instances in which it was applied ; a writ of right of dower was for the recovery of a life estate ; and the latter form of it was grounded upon a disseisin in the very words of the writ of novel disseisin : and accordingly, in this action there was neither the great assize nor the duel, nor, consequently, the essoin de mcdo lecti; all which were only in the proper writ of right. When the intentio was thus stated, and the tenant did not choose to call a warrantor, he might except to the action in various ways, and conclude his exception by et inde producit sect{ji.m, if he had any ; and, if there was occasion, by ponit se super patriam ; in which last case the truth would be inquired of by the country. When recourse was thus had to the country, in a plea depending in the county-court, by the tenant putting himself on the inquest, and the demandant so likewise, Bracton says, some might doubt whether that court had power to proceed to take the inquest, with- out some special authority ; but he thinks the sheriff had that and every other authority by force of the words in the original writ, nisi. d:c., Jiocfecerit, tunc vicecomes hocfaciat, d'c, and as in other writs of right he might proceed to take the duel, and in writs of justicies to try by jury, so he might take the inquest in this writ.^ The reason of the above doubt does not seem easy to be accounted for. In Glanville there is no mention of admeasurement of dower, but where the land all lay in one county. It had now become the practice, where the land lay in several counties, for the admeasure- ment to proceed in the king's court ; and for all the lands to be ex- tended and valued, as well the two-thirds as the third claimed in dower, and for such extent and valuation to be transmitted to the justices. Where the land lay only in one county, the old writ was directed to the sheriff ; upon which there was the process of cape, in case of default ; and the complainant stated his intentio, with an inde jjroducit sectam; to which there were exceptions, and the matter was at length tried as in other actions.2 As a woman had not, what they called, the proprietas, but only the use and enjoyment of the land for her life, she was not to commit waste, destruction, or exile upon the free- hold ; and therefore, in taking such reasonable estover as was allowed her in the woods, for the purposes of building, firing, and enclosure, she was to be careful not to exceed such liberty : and if she did not listen to the remonstrance of the heir, or person who had right, there might issue a writ of quod non peinnittat to the sheriff ; being a sort of injunction, or prohibition, not to permit the widow quod faciat vastam de tenuis quas tenet in dote, d:c., ad exhceredationem 1 Bract. 313 b. '^ Ibid. 314, 315. CHAP. VI.] OF WASTE. 387 ipsus, &c. And if slio did not obey the injunction communicated to her by tlie slieriff, she was attached by a writ : Fone per vadium et .salvos jjlcgios, <£'e., quod .svV coram nohis vel juslitiariis nostris, cfcc, ontenaara qicare fecit vadium, cCv., cont ra prohibit ionem nostram, (ice. And if she did not apjicar at the day, tlie re<^ular process of attachment would issue, with a permission, if she pleased, to have one essoin de malo veniendi after the first attachment ; after which, and the a[)pearance of both parties, the complainant stated his intentio, the same as in otlier actions. Talis queritur, %d amicus talis, quod cilm talis mulier teneat in villa tt-c., tantain terram nomine dot is, tale fecit vasttim, et talent destructionem, d'c, hoscum et servos vendidit, fjardinum extirpavit, &c., ad exlueredationem talis liceredis ad valentiam tanti, et hide producit sectam, &c. This was the nature of the intentio. To this the widow might answer as follows : Et talis nmlier venit, et defendit vasturn, venditioneni, et exilium contra talem, et sectain suam : et quod nihil inde vendidit, nee cdiquid tale fecit ad, exlueredationem tcdis haredis, &c. She might acknowledge, quod domus vetustate corruerit, d'c, and si de hosco cepit aliquid, non cepit ibi nisi rationabile estoverium, <&;c., and then conclude, et quod nihil ampliiis cepit, nee alio mode, ponit se super p)at7'iam : for she could not defend herself per legem, says Bractou, because when an injury was done to any corporeal thing, which Avas manifest to the view of everybody, a ])erson was not permitted to deny it in that way, lest the oath of his sccta might go to prove the contrary of that which was evident to everybody's senses ; and therefore he recommends, that in this action there should always be a regular view ; and then the damage also might be ascertained with some exactness, i If a woman was convicted, by verdict, of making waste and de- struction in woods, the penalty to be inflicted on her was, that she should in future be so restrained as not to be permitted to take even her reasonable estover but by the view of the foresters of the heir : and in some cases, the court would appoint a forester ; for which purpose a writ had been framed, and is to be seen in Bracton.^ Waste might be committed, not only by a tenant in dowei', but by a tenant for lite, and by a guardian. If a tenant for life exceeded the measure prescribed to a reasonable estover, he went beyond what he was entitled to ; and so far encroached upon the proprietas ; and was, therefore, guilty of waste, unless the waste was too small to be worth an inquisition. Of what magnitude it ought to be, to become an object of judicial inquiry, depended, says Bracton, upon the custom of particular places.^ A guardian com- mitting waste was to lose the custody of the land,'* to make amends in damages, and be in ■misericordid irgis ; which was diflerent from the penalty on a tenant in dower. In case of waste by a guardian, they proceeded as before stated of waste committed by a 1 Bract. 315 b, 316. - Ibid. 3 Ibid. 316 b. * Fide ante, 236. 388 HENRY III. [chap. VI. tenant in dower ; by a writ of quod non permiUat ; and after that by attachment.! Of these terms, ivaste, destruction, and exile, the two first signified the same thing ; but exilium meant something of a more enormous nature ; as spoiling the capital messuage ; prostrating or selling houses ; prostrating and extirpating trees in an orchard, or avenue, or about any house : all these were considered, says Bracton, ad maximam deformitatem ; and as they either drove the inhabitants away, or had a tendency so to do, they were called exilium? If the heir aliened the two-thirds of the land, and attorned the service of the dowress ; and if he afterwards, on the death of the tenant in dower, intruded himself, or if any stranger did so, the vendee might have a writ of entry, grounded upon such intrusion.^ We shall now treat more fully of writs of entry, which have been Of writs of so often alluded to in the foregoing pages. As ques- entry. tious of posscssiou wcrc determined by assizes and recog- nitions, questions de proprietaie were decided, says Bracton, in writs of entry by a jury, upon the testimony and proof of those who could prove the case de visu suo proprio et auditu. This was, where any one claimed his own proper seisin, or that of his ancestor, which seisin he had demised to some one for a term of years, or for life, and which, of course, after that term, should revert to him ; in which case, he could not have an assize of novel disseisin to recover it, because he had not suffered a disseisin ; nor an assize of mortauncestor, because, if the term had been for life, the ancestor could not be said to have died seised in his demesne as of fee, while another had the freehold ; though indeed he might, if the term had only been for years. And this action lay not only against the person himself who had the term, but against all those who had an entry within the degrees and the time limited to this action. This action was allowed within the third degree of kindred, and within such time as could be testi- fied de proprio visu et auditu. It held not only in the above case, but where a person had his entry per alium, who was seised in right of some other, and so aliened ; as where a canon aliened without assent of the chapter, a wife without assent of her husband, a husband without assent of his wife, and the like ; it held also against those who gained their entry through the medium of a guardian, or bailiff only, who had no right to alien. The most general form of a writ of entry was that which sup- posed the person against whom it was brought, to have holden the land ad terminum qui prmteriit : upon which writ there might be a narratio, containing such special matter as constituted the merits of the case. The following was the form of this writ : Prcccipe A. quod juste et sine dilcdione reddat B. tantiim terroi cum pertinentiis in villa, &c., quod idem B. ei dimisit ad terminum qui pr^eteriit, ut dicit ; et nisi fecerit, et B. fecerit te securum de clamore suo » Bract. 317. ^ jua. 316 b. 3 Ibid. 317 b. CHAP. VI.] OF WRITS OF ENTRY. 389 prosequenclo, tunc sum. pet' hon. sum. jyrmf. A. quod sit coram justi- tim'iis nostris ad primam. assisam, ciim in partes illas venerint, ostensurus (juare non fecerit, d'c} The process upon this writ was tlie same as on a writ of right ; except that the tenant who might have the essoin de mulo veiiiendi, could not liave that de malo lecti, unless the writ of entry was turned into a writ of riglit by the narratio, or counting upon it, propter longissimum ingressum, on account of such a length of entry as couhl not be ])roved visa proprio et audi/u, but only by that of some one else. If it was reasonable that when this writ of entry became a writ of right, it should have all the consequences attend- ing that writ, whose nature it had assumed by the manner of counting ; so likewise, on the other hand, when a writ of right was turned into a writ of entry, as ha])pened not unfrcquently, it entirely ceased to be a writ of right in all respects, and lliere was no longer therein the essoin de malo lecti^ Before more is said concerning the change of a writ of entry into a writ of right, and of a writ of right into a writ of entry, the reader must recollect that the writ of entry has already been spoken of as an invention since the time of Glanville ; and was contrived, no doubt, to avoid the necessity of recurring to the duel and great assize, whose determination could never afterwards be re-considered. Thus this new writ was framed in the nature of that for which it was to be an occasional substitute ; and so great an affinity was still discernible between them, that we see, in these and many other instances they were convertible, that is, either of them might become the other to all intents and purposes. How that was effected, will be rendered clearer by a few instances. When it was attempted to convert a writ of right into a writ of entry by the counting, and the demandant said, that he was ready to prove it by a jury; yet it was in the election of the tenant whether he would put himself upon the jury to try the entry, be- cause he had three remedies : for he might either defend himself by the duel, or put himself upon tlie great assize to try the right, or upon a jury to try the entry. Thus, as it was at the option of the tenant to choose which of these he pleased, the writ of right wjia not changed into a writ of entry (notwithstanding the counting), till the tenant had chosen to put himself on a jury to try the entry ; as for instance, if a writ of right was brought containing the words necessary to include the jus merum ; and then there was added this clause : Et in quam non habet ingressum nisi per talem ante- cessorcm suum, qui terram ilium ei dirnisit ad cerhim. terminnm^ &c., though these were words perfectly proi)er to bring in question the entry, and though it was within the i\mQio\M'OVQ\i proprio visu et auditu; yet a writ of right would not, by so doing, become a writ of entry, but would continue as it was, unless the tenant volun- tarily put himself upon a jury to try the entry.^ i BractoD, 317 b., 318. * Ibid. 318. » Ibid. 318 b. 390 HENRY III. [chap. VI, A writ of entry was sometimes changed into a writ of right, not hy choice, as in the above-mentioned change, but through neces- sity ; either 'pro'pter longissimum ingressum, the great distance of time at which the entry was alleged, or "proTpter donum et f^offa- mentum. That was called longissimus ingressus, which could not be proved proprio visu et auditu, but was obliged to be proved by tradition ; as de visu et auditu patris, who enjoined his son to give testimony thereof : in which case, out of necessity, from the want of proof, the tenant was forced to put himself upon the great assize, or defend himself by duel. Thus, suppose an entry was laid so for back as the time of Henry II. or later, yet so as not to be within the limitation of a writ of mortauncestor ; as suppose thus : Et unde A . non hahet ingressum nisi per B. qui non nisi custodiam inde Imhuit, dtc. , and then was added, et unde prcedictus, d:c.,fuit seisitu in dominico suo, tit de foedo, et jure tempore talis regis capiendo inde exp)letia^ d'c, et de tali descenditjus, (tc., as in a writ of right ; in this case, the tenant was obliged to put him- self upon the great assize, or defend himself by duel, for want of other proof : but, would the distance of time allow it, he might, if he chose, have put himself upon a jury to try the entry.^ Thus far for the change propter longissimum ingressum, or the an- tiquity of the entry. The other, p)ropter donum et feoff amentum, was, where a feoffment was opposed to the entry, which might be stated in this manner by the tenant : Defendit talem ingressum, et dicit, quod habuit ingressum per antecessorem ilium {de cujus seisind idem Petrus petiit terram illam) qui de tey-rd ilia feoffavit eum tenendum pro Jiomagio et servitio suo, et quod tale fuit jus suum ^^er feoffa- mentum et non per talem ingressum, ponit se in magnam assisam; upon which the assize proceeded to try the issue, whether the tenant had more right to hold the land for the homage and service by reason of the feoffment, or the demandant to hold it in demesne.^ To return from this digression upon the reciprocal changes of writs of entry and writs of right ; and to go on with the manner of proceeding in a writ of entry. The process, as was before said, was the same as in the writ of right, and therefore need not be particularly noticed in this place. When both parties aj)peare(?, the demandant was to begin by stating his intentio. If he w only a tenant for life, he was to claim the land, ut jus meum pos- sessorium ; if in fee, ut lioireditatem; and then go on, in quam talis non liahet ingressum nisi per talem, &c. To this the tenani; might answer by denying the right of the demandant per talem, and say, that he had not an entry per talem mentioned in the writ, but per aJium talem ; and of that he might put himself upon an inquest. It appears from Bracton that this inquest might be taken before the sheriff, and the custodes placitorum coronce in plena comitatu ; and then there issued a writ of inquiry to the sheriff ; or it might be coram nobis, or coram justitiariis nostris apud West- 1 Bract. 318 b. '^ Ibid. Zl^. CHAr. VI.] OF WRITS OF ENTRY, 301 monasterium : and in that case, there was a writ of venire facias, as it is since called.^ Whether this matter was to be tried before the sheriff, or before the justices, dejjended jirobably upon the return of the original writ, whicli we have seen had sometimes the one, and sometimes tiie other return; or it might perhaps be at the option of tlie party to choose the sheriff; or the justices might reserve only such questions as were thouglit to be of great diffi- culty, to be tried at the bar of the court : but that in a commune placitum the jurors should be summoned to try such an issue coram nohis, seems very particular, and not easily to be accounted for.'-^ Wlien ?i proicipe was returnal)le before the justices assigned, the issue was, most i)rol)al)ly, tried before them also ; and probably it rested merely on tlie option of the demandant whether the origi- nal writ should have the one or the other return. It was not unusual to cause a jury which had been summoned before the justices assigtied, to be removed into the superior court at Westminster ; for which purpose there issued a special venire facias; and if the jurors made default, a habeas corpora recor/niforiim, whicli had some- times a clause directing the sheriff to fill up wliat vacancies had hap])ened among the jury by death or otherwise.^ We have above supposed that the issue went to a jury to be tried; but before this, it was necessary that both parties should take such steps to prove, or raise a presumption in sup]iort of their allegations, as was required in other actions determinable by jury. The intcniio was not in this, any more than in other actions, to be taken on the simplex loqucla,^ of the demandant: he must produce proof, if he could ; or, if he could not, he must raise a presumption by a secia, which was open for the other side to defend per legem. If the demandant had neither, the tenant had no need to answer the action at all, and the writ was lost ; unless, says Bracton, as some thought, he might, and ought de gratid Justifiariorum, to be assisted by a jury of the country («). But this was to be only upon some good cause being shown : either that the instruments on which he relied for proof of the matter were lost ; or that he had them not at hand, or could not get them without difficulty, to make use of on that occasion. In such cases, it seems, the court would direct the matter to be tried by a jury; and another day would accordingly be given to the parties.^ («) " If ' suitors ' of the manor or the hundred were tenants of one or other of the parties, it was recognised as a good cause for the removal of the case into the king's court, which could award the venue to be not of the county generally, but of some other vill or hundred, so as to exclude any from the particular place in question ; as it was, if the case came into the county court, the case might come before some of the suitors of that very hundred or manor whom it was desired to exclude (Ycar-Book, 3 Henry VI., 39). So, if the case interested a corporation, or some per- son who was lord of the hundred, or the hundred itself, the case would be removed into the king's court, and the jury be directed to come from another hundred, not from the county at large {Year-book, 15 Edward IV. c. 3 ; 22 Edward IV. 3 ; 31 Assize, 19. Trial ^jcr/m/s, 109). 1 Ihact. 319 a. b. - Vide ante, 244. JMagna Cliarta. ' Bract. 325 b. 326. ■* Vide ante, 248. * Bract. 820. 392 HENKY III. [chap. VI. If the parties did not go to issue in the above way, it was be- cause the tenant chose to except to the action. The exceptions he might make were many : he might sa}^, that some one else had more right than the demandant ; that another made the demise, and not tlie person named in the writ ; tliat the term was not ex- pired ; or, if it was expired as far as limited by one instrument, that it had been enlarged by another, which he then exliibited ; that the time exceeded the limitation in a writ of mortauncestor, and therefore the proof would be defective. These and numberless other exceptions might be taken.^ The tenant might vouch to warranty the person 2^cr quern he had his entry, and that warrantor might vouch another ; and so on, to the fourth degree, but not be- yond. The writ of entry lay properly only against a freeholder ; that is, one who had an estate for life, or in fee, or in fee-farm, and such only was considered as properly tenant. However, in truth, says Bracton, if this writ was brought against a farmer, it would not fail, for he might call his warrantor; and if he defended him, the farmer would retain his usufruct : if not, he might have his resort to the warrantor, as far as his usufructuary interest went ; and the warrantor over against his warrantor, as far as his freehold interest was concerned (a). Notwithstanding what Bracton here says con- cerning a farmer, he afterwards lays it down most positively, in conformity with what was said above, that a writ of entry would not lie against one who held for a term of years, because he did not hold the freehold in demesne, but only the usufruct ; and much less would it lie against a tenant from year to year.2 The writ of entry ad terminum qui prceteritt, which we have Different kinds hitherto been speaking of, lay for that jierson who had thereof. himsclf made the demise : when it was brought by the heir of the demisor, it was altered accordingly; as, m quod, dtc, non habet mgressum 7iisi per talem, cut talis p>ciier, or whoever the ancestor might be, ilhid dimisit ad terminum qui pixeteriit, &c.^ Thus were writs of entry varied according to the circumstances of the case upon which they were founded ; and some of them received appellations from the effective words in the writ. One was afterwards called a cui in vita ; which was brought by a widow when her husband had made a gift of her inheritance. This writ was in the following form: Praecipe, dec, quod, dtc, reddat tali, (a) The tenant might pray in aid a third party. Thufs, in a writ of entry, when the demandant alleged that the tenant only entered under one G., who had wrong- fully disseised the demandant ; and the third party, G., could come forward and show that he had the reversion in fee, and pray to be allowed to defend his right {Year-Boole, 3 Edward II. c. 64). It was a great principle of the common law, carried out by a statute of Edward I., not to allow the right to the inheritance to be debated and decided in the absence of the party entitled to it, if he chose to appear and defend it. After the lapse of centuries, the same great principle of procedure still prevails and a^jplies ; and thus the present practice to let in the landlord to defend an eject- ment, which Lord Mansfield in his time ti-aced to this ancient doctrine of the com- mon law ; so enduring is & principle founded on substantial sense and reason. i Bract. 320 b. ■ Ibid. 321. Vide ante, 302, 303. ^ Bract. 321. CHAP. YI.] OF TEE VARIOUS "WRITS OF ENTRY. 393 qucefuif uxor talis, &c.,quam, clarrmt essejiis et hcered.Uatem mam; et in quam jyixedichis talis non hahd ingrcssum nisi per prccd. quondam viriim smim, q^ii illud ci dimisif, cui irsA IN vita sua CONTRADICERE 71071 potuit, c^c} Tilt' usual unswcr to this action was, that the wife appeared on such a day personally in the king's court, and there, of her free will and consent, granted and con- firmed the gift made by the husband ; for i)roof of which the record thereof was to be inspected, where thei'c ought to be special mention made that the woman consented : upon such consent, says IJracton, a chirographum was made, which, together witli the record, was now vouched ; for it was a rule, that the record, without a chirographum would not bar the widow's action. In other words, this was a plea of a fine. If a gift by the husband was what they called vohmfar//, it was not valid without the above circunjslance of the woman's consent signified in court : but if the gift had been made, as they called it, i7i causa honestd et 7ieccssarid, as to a son, or with a daughter in marriage, then it was binding upon the wife without these solemnities. 2 Again, in case of a voluntary alienation of the wife's land by the husband, if she died before him, then the son who was her heir nu'ght have a writ of entry in the following words: Li quam 71071 hahet in(jrcssu))i 7iisi jwr talem viinuii ipsius talis, cujus ha'ves ipse est,q7ii illam ei ve7ididit i7i vita s-ud cui p7redicta talis in vita sua, contra- diccre 7ion potuit, dc.^ If a second husband aliened the wife's dower by her first husband, she might,' after his death, have a writ of entry, q^taiii cknnat esse ra.tio7iahile7n, d'c, et in quam p7~a^dictus talis 7ion hahet ing7'essum 7iisi per tale7n, her second husband, qui illud ei dimisit, cui ipsa i7i vita sua contradice7'e 71071 p)otu it, dc, and the heir of her first husband, in case she died before her second husband, might have a writ of entry applicable to the nature of liis claim, whether the second husband held himself in seisin, or the wife had aliened: In quq7n 7ion hahet i7icj7^essum nisi per tale7n, qui illud ei dimisit, et qui illud te7iuit in dotem talis uxoris, d-c, or, nisi p)C7' talem, q7uv fuit uxor talis, quce illud tenuit m dotem, d'cA The cases in which a writ of entry was the proper remedy, were very numerous. We shall enumerate some of them. If an abbot, prior, or bishop, demised without assent of the chapter, or the chapter without assent of those whose assent was required by law ; then there was a writ, 7io7i hahet ingressum, nisi per talem quo7i- dam ahhatem, d'c, qui illud ei dimisit sine assensu capituli,^ and the like. The writ here mentioned was called a writ of entry sine assc7hsu capituli. So if a wife demised without assent of her hus- band, non liahet i7igy^€ssum7iisi per p7'ced. talem muliere7n, quce illud ei dimisit si7ie assensii et vohmtate py^aidicti tcdis quondam viri sui, d-c. So if a bailiff demised without the consent of his lord If a I Bract. .">2I b. ' //8) . 1 Bract. 333. CHAP. VII.] REAL ACTIONS — SUMMONS. 401 What we have to say upon summons will be cliiofly confined to this latter kind. It appears from ]>racton, that if the ^ 1 1 1 r 11 '41 4 \ • 1 4. Summons. })arty could be found anywliere in the connly, lie mi,n-iit be siunnioned ; thouj^h if the sununoners CDuld not find him at his own house, they needed only show the sunnnons to some of his family, and not seek him further. If he had more houses than one in the county, the sunnnons was to be at that where he mostly lived, or had the most substance ; if he had no house nor demesne, it was to be at his fee. The summoners were to be at least two in number, who were to testify before the court that they liad executed the summons. A sunnnons ou,i;ht always to be served fifteen days before the day on wliich the party sununoned was to appear ; and if there were fewer days, the summons was illegal, unless in some particular cases where despatch was required ; as when a church was vacant ; when the parties were living in the county where the eyre was ; or in cases where merchants were concerned, who were entitled to what Bracton calls juslitia ^^cpoudrous. Again, on the other hand, sometimes a longer time was allowed for summoning; as on account of a journey ; and the time was lengthened according to the length of such journey. But the common and legal sum- mons, says Bracton, was fifteen days before the appearance.i A summons was illegal, if it was made only by one summoner ; or by false summoners, and not by the sheriff and his bailiffs. Again, if it was made when the tenant was beyond sea, or upon his journey, or even cum iter arrijjuerit, when he was just set out; or if he was not found within the county, the summons was not binding ; 2 for a man was not to accept a summons at all times and places, nor from everybody, but only from those who had a proper authority. When the tenant appeared, he might object any of the above irregularities as an exception against the summons. If he did not appear at the day of the summons, and the sheriff did not return the writ, recourse must be had to another writ, that being now out of date ; but if the sheriff" had returned the writ, then, on account of the tenant's default, if it was in a real action, his land was taken, as in Glanville's time ; but tlie writ on this occasion was now called inagnum cape ; and if, after the first caption, he tailed appearing at another day, he lost his seisin. There was another caption of the land by force of a writ that was called j^cirvum cape ; in all defaults after the first appearance the caption was made by parvum cape, which was the case in which Glanville says he could not replevy.^ Thus, whereas in Glanville's time the caption was not till the tenant had been summoned three times, it was now after the first summons that the macjnum cape issued. If a person was lawfully summoned, and did not appear, he would be punished as a defaulter, unless he could send a proper excuse or essoin. The law of essoins has already been mentioned ; 1 Bract. 333 b. 334. ^ Ibid. 33G b. 3 Yl^lg a,,^^^ 214. 2c 402 HENRY III. [chap. VII. but it is treated so minutely by Bracton, and was of such import- ance in the judicial proceedings of this period, that it deserves to be re-considered. One principal excuse for not appearing to a summons, was being . in servitio regis («), This, however,^ was not admitted as an excuse if the party had been first summoned, because he miglit have sent his attorney to appear for him ; nor even then would it avail, if he could conveniently come himself, or send. But this is laid clown as the strictness of law by Bracton, who admits that the king's pleasure should prevail, notwithstand- ing any of the above circumstances. The next essoins were what were called in Glanville's time, ex infirmitate veniendi, and ex in- jirmitaie'^ reseantism, which were now termed de malo veniendi, and de malo lecti. Besides these, there were several others that recurred less frequently; as a peregrination, or any restraint im- posed on a party ; or if he was detained by enemies, or fell among thieves; 3 or was stopped by floods, a broken bridge, or tempest; unless, indeed, it could be proved that he set out at an unseasonable time, or suffered those impediments through want of proper caution and care on his part. Being impleaded in the king's court, was a good reason for not attending in an inferior one ; or even, according to Bracton's opinion, being impleaded in the ecclesiastical court was a good excuse. A person having any of the before-mentioned excuses ought to send one to make it for him. The form of making the essoin was to say, " that his principal, as he was coming to the court (if it was the essoin de malo veniendi), was seized with an infirmity in the way from his house to the court, so as not to be able to come either 2^0 lucro or pro damno, and that he was ready to show this." It was not now the practice, as it had been ,4 for the essoniator to give any surety for proving the truth of this, but credit was given to his verbal declaration ; though it seems, that in the case of barons, and other great persons, who could better command a security, the law imposed on them the burthen of finding pledges. In common cases, therefore, the essoniator gave his faith, that he would pro- duce his princii)al at another day, to warrant the essoin, and prove it^ upon his oath. As in actions, so in casting essoins, a certain order was to be observed : thus, if a person was detained by some illness, he would cast the essoin de malo veniendi infra regnum, and this might be followed by that de malo lecti; after this, the party would not be (a) Here again the Mirror, in a chapter on the subject, follows Bracton, "Essoin is an excuse of a default by any hindrance in coming to the court, and lieth as well for the plaintiff as the defendant. The law of every essoin is that the cause of the hindrance is to be enrolled with the name of the essoiner, so that if the adverse party or his attorney or essoiner will traverse the cause, he is to be received so to do ; that if it be found false, then the essoin be turned to a default." Hence the various essoins or causes of excuse are stated very much the same as in Bracton (c. ii. s. 30). 1 Bract. 33G b. ^ yi^e ante, 115. ^ Bract. 337. < Vide ante, 115. ^ Bract. 337 b. CHAP. VII.] OF ESSOINS OR EXCUSES. 403 permitted to remove himself extra regnum, so as to cast tlie essoia de 2d(m mare. The essoia de tdtra mare was of various kinds, namely, de ullra mare Graxorum, and de ciira mare Gro coram. In the simple essoin de idfra mare, there was a delay of forty days at least, and one ebb and one flood. If there was mention of any remote place, accompanied with some cause of necessary absence, as a i)ere<;rination to St Ja<^o, or beinjij with the army in Germany or Spain, then a longer time was allowed, according as it should seem proper to the justices. The same discretion might be exer- cised by the justices, where the absence was in some distant ])art of the kingdom ; but they could never shorten the legal jjcriod of fifteen days. The essoin nllra mare Graeorntu, was usually in cases of peregrination to the Holy Land. And here they made a distinction between a simplex pereijrinatio and a generale passa- giuiii. In the former, the time allowed was, at least, a year and a day : i in the latter, the plea remained sine die. This latter privi- lege was granted in favt)ur of those who were cruce signati, and it seems to have been allowed in conscrpience of a i)ai)al decree which declared, that till the death or actual return of such persons, all their property should remain entire and untouched. It was held that a person might have the essoin de peregrinatione ad Terram Sanctam, and afterwards that de idfra mare : and then when he returned he might have that de malo veniendi, and after- w^irds that de malo lecti : but if he had had that de malo veniendi, he could not, as was before said, recur to that de idfra mare ; and if he had had that tZe idtra mare simplicittr, he couid not have that ad Terram Sanctam, the rule of essoins being approximare possimt regno, cilm fuerint implacitcdi elongare autem non. A person who was absent u[)on a simplex p)®rinatio, and stayed beyond the year and day, might have another forty days, and one flood and one ebb, by reason of the essoin de ultra mare simpliciter; and if he still stayed, he might have fifteen days at least, by an essoin de malo veniendi citra mare, and if a reasonable cause could be showed, the justices, as we have before seen, might allow more. After this, if he did not appear, he would be in default.'^ Indeed, when a person, by casting the essoin de malo veniendi, admitted himself to be on his road to tlie court, there would have been an absurd contradiction in allowing him to cast another, which ex- pressed that he was out of the kingdom. The essoin de servitio regis was likewise sometimes in regno and sometimes ultra mare, and this likewise was sometimes followed by that de malo veniendi, and afterwards by that de malo lecti.'^ The essoin de servitio regis, which was more peremptory than any of them, being without any limitation of time, was not allowed in certain pleas. Thus, it was not allowed in an assize ullimcc prasentationis, for fear of the lajise ; nor in dower, because of the consideration due to a widow who had only a life-estate ; nor, as 1 Bract. 378 b. 2 ma. 339. » Ibid. 338 b. 404 HENRY III. [chap. VII. some thonglit,^ in tlie assisa mortis antecessoris, in favour of the infant. It did not de jure lay for a person not immediately in the king's service, though it was allowed de gratia, as was before said ; nor for one constantly in the king's service, unless while he was actually employed in some expedition: it did not lay for the attorney, as a person so engaged should not he an attorney. Bracton repeatedly lays it down, that the king's warrant for this essoin should never be granted but on a reasonable cause ; though, on the other hand, he is as explicit in declaring that, whatever might be the cause, the justices should not quash it, but wait the king's determination thereon. The essoin de malo veniendi implied that the party was taken ill on the road, and therefore, if the essoniator, upon interrogation, said he left him ill at home, it would not be allowed, though a case might happen, where of necessity it must be received; as if the party had been essoined de malo lecti in some other action, and languor was adjudged, he must, under that return, confine himself to his house ; and therefore, when summoned in another action, and entitled to the essoin de malo veniendi, it must of necessity be received, though he was actually in his own house. The confine- ment which the adjudication of languor imposed on the party dis- pensed with the strictness otherwise observed in this and some other cases. 2 Having thus mentioned generally the nature and effect of these essoins, it next follows that we should inquire by whom and where they might be used. In the first place, no minor, when known to be such, could essoin himself ; nor could a person of full age be essoined against him, especially in an assize ; for a person of full age, if present, could say nothing to prevent the taking of the assize, though it should seem as if he might be essoined in a suit for land of which he was first enfeoffed himself. The reason given by Bracton why a minor should not be essoined is, because he could not swear nor warrant the essoin. No essoin lay for a disseisor, for though he did not come, his bailiff might ; nor for the bailiff. This rigid pi-actice seems to be in odium spoliatoris,^ who ought not to be indulged with a delay of fifteen days, though it lay for the demandant, who was the person spoiled. It did not lay for one committed corpus pro corpore in custody to answer, nor for any one where the sheriff was commanded quod, faciat eum venire, or quod habeat corpus ejus, if the process had gone through the whole solennitas attacliiamentorum ; but on the first day of attachment the party might have an essoin ; for it was a general rule, that de jure an essoin might follow every summons or attachmant where a plea depended ; on the contrary, it was a rule, uhi mdlum placitum, ihi nullum essonitim. An essoin did not lay for a person who had appointed an attorney, unless they had by accident both essoined themselves, nor for one who had already essoined liimself till he appeared, nor for one ap- 1 Bract. 339 b. * md. 340. ^ jj^i^^ CHAP. VII.] EXCUSES FOR NON-APPEARANCE. 405 pealed de forcid, nor in an appeal de pace, de plagis, or de roherid, notwithstandin;^ wliicli it is laid down by liracton, that if such persons did not appear, they would be excused by proper essoin. Sometimes there would be a dies datus consensu par^mm sine essonio, and in such case, neither would be permitted to essoin. If a person was seen in court beffjre the essoin was cast, tlie essoin wt)uld, nevertheless, be admitted. An essoin would not lie after a caption of land in manus regis for a default.^ If a writ was ai^ainst several who held in communi siniid et pro indiviso, each might have an essoin de malo veniendi tog(;ther on the same day, or one after another on diverse days,2 till each had had an essoin ; and none should have more than one essoin till all had ap[)eared together, so that those who were essoined first might have several appearances, and several days, till all appeared together ; but an essoin was not allowed at every a])pearance, on account of the infinite delay this would occasion. If the inheritance had been divided, and one Avas impleaded alone for his part, and he declined answering without his participes or parceners, and they were sum- moned, each had one essoin before appearance but not vicissini, till it was established that they were ixirticipes, and then they essoined vicissim, as before mentioned. If the tenants to the writ were not participes, but held by different rights, they could not essoin vicis- sini, because these were different pleas ; the same where they held pro diviso. But husband and wife might essoin sindd et vicissini, like participes, on account of the entirety of their rights ; and if one made default, it affected them both, which was not the case even with participes.^ When all the ])arceners had appeared together, and it happened that one or more of them afterwards essoined himself, or a day was given to the })arties, if present, they might recommence their essoins, as at the first day of summons. In like manner, if the writ contained more than one demandant, whether they were participes or husband and wife, they might essoin sinml et vicissini. If a demandant or tenant, not choosing to appear himself, ap- pointed an attorney, then the essoin was to be made in the person of the attorney and not in that of the principal, except, as will be seen hereafter, in the essoin de malo lectin Yet, if the attorney should die, the principal might essoin himself and his attorney de morte, as it was called, and he might remove his attorney and essoin himself; but it was only in these two cases that the party could cast an essoin after appointing an attorney.^ If one or more persons were vouched to warranty, before apjiear- ance both voucher and vouchee might have an essoin ; and if the vouchers were more than one, they might essoin simill et vicissini, as before mentioned ; so if the tenants were more than one.^ After the wager of duel, the champion as well as his principal might essoin sintiil et vicissini. 1 Bract. 341. - Simul d vicissim. ' Bract. .341 b. * Ibid. 342. 5 jbi^, 342 b. « Ibid 343. 406 HENRY III. [CIIAP, vir. The time for making the essoin was the first day, that is, on the return of the writ ; and it was not sufficient, says Bracton, if the essoin was made on the second, third, or fourth day ; yet, adds the same authority, the person summoned was to be expected till the fourth day, in case he should come or send a messenger to excuse his absence, if he had such inatter to allege as would constitute a good essoin ; and if he had, and caused himself to be essoined even on the second or third day, it seems, from Bracton, that the essoin would be allowed, and a day would be given him by his essoniator; yet, at that day, if the demandant pleased to proceed on the default, the court would allow him so to do ; and if the tenant could allege none of the excuses above mentioned for his delay, he would lose his seisin. The essoin was to be made in open court, before the justices ; neverthless, if by mistake it was made before another, it was allowed de grafid,like the essoin cast after the first day, as just mentioned; and the default would be saved, unless the demandant proceeded for judgment on the default, when such an essoin would be adjudged to be null and void. An essoin might be had upon every appearance and day given in court, whether on praying a view, vouching to warranty, or on a day given spe pads, as it was called, at the j)rayer of the parties, in order to compromise the matter in dispute, or for any other purpose.^ The essoin that occasioned most discussion in the practice of real , , ^. actions was that de malo Jecfi, which commonly followed immediately upon that de malo veniendi ; for where a person, having been detained on the road by sickness, and having cast the essoin de malo veniendi, had found himself obliged to re- turn home, the order of essoins, conformably with what was likely to be the real fact, led to the essoin de malo lecti. Upon this, it was usual for the court to direct a view, to see whether it was, as they called it, malum transiens, or whether it was languor: if the former, then he had another day, at the distance of fifteen days at least ; if the latter, he had the space of a year and a day. But the essoin de malo lecti did not in all cases follow that de malo veniendi. It did not follow it in a writ of entry, unless when the writ of entry was turned into a writ of right by the form of counting ; so on the other hand, when a writ of right was by the form of counting turned into a writ of entry, and the tenant put himself upon a jurata, the essoin de malo lecti would not be allowed ; the same, if in a writ of right the counting was of an inheritance descending from a common stock to co-heirs, for this could not be determined by the duel or great assize. For the same reason it was not allowed in a writ of right of dower ; it being laid down as a general rule by Bracton, tliat where the duel or great assize might follow, and as long as the duel or great assize might be had, there, and so long 1 Bract. 344. CHAP. VII.] EXCUSE FOR NON-APPEARANCE. 407 this essoin would lie, and that where and when either of those trials could not be had, it did not lie.^ This seems to be a better rule than to say that the essoin cZe malo lecti lay in all writs of precipe ; for thoui^h it did lay in writs of right as long as they retained their primary nature, yet, as this might be changed by the form of counting, it became a less certain rule than the other. However, by one or other of these rules it might easily be pronounced whether both the essoins de malo veni- endi and de malo lecti lay, and wliere only the former.^ The essoin de malo lecti would not lie, even in the actions before mentioned, for any of the following persons. Thus, it would not lie for a demandant, though he migiit have that de malo veniendi, but his pledges would be exacted if he made default in appearing ; nor for an attorney, though, if an attorney was longuidus, this was such an insurmountcible impediment, that it would, from necessity, be admitted as an excuse, but not till the fourth day. It would not lie for a warrantor till he had entered into the warranty; because then he might put himself on the duel or great assize. It would not lie before the just itiarii itinerantes, for a person residing in the same county, because he might appoint an attorney ; 3 nor, for the same reason, where the tenant lived in London. ^ ^ Nor would it lie where it was not preceded mediately or immediately by the essoin de malo veniendi, but an essoin de malo lecti, so cast, would be turned into that de malo veniendi, and would operate only as such.^ This essoin ought to be made on the third day inclusively before the day given by the essoniator in the essoin de malo veniendi, and it ought to be cast by two persons, who were called, not essoniators, but nnntii, messengers ; because they were sent to make an excuse, says Bracton, andnot to essoin ; for they received no day, nor did they swear to have a warrantor at a certain day to prove the essoin. This distinction between an essoniator and nuntius was very mate- rial, and was known in other instances than this of the essoin de malo lecti. An essoniator must come from the party ; a nuntius might come either from the party or of his own head, to inform the court of any impediment that prevented the party's attendance, and he would be heard so late as the fourth day, or later, down to the time of judgment on the default.*^ It Avas by a nuntius as well as by an essoniator, that many of the before-mentioned excuses for non-appearance used to be made. When, therefore, the nuntius had delivered the excuse, the de- mandant had a writ de faciendo videre,"' directed to the sheriff, to this effect :—Mitte quatuor legales milifes de comitatu tuo a pud villain, &c., ad videndum iitriim innrmitas, qua A. in curia nostrd coram justitiariis nostr is cipud W. essoniavif sede malo lecti versus N. de placito terrce, sit languor vel non. Et si sit languor, tunc 1 Bract. 344 b. ' IhUl. .340 b., 347. » I^'i^l- 349 b. * Ibid. 350. » Ibid. 6 ma. 345. ' Ibid. 351. 408 HENRY HI. [chap. VII. jponant ei diem a die vims sui in unum annum et unum diem apud Turrim Londini, quod tunc sit ihi responsurus, vel sufficieniem pro se mittat responsalem. Et si non sit languor, tunc ponat ei diem coram j ustitiar lis nostris apud W., d'c, quod tunc sit ihi responsurus, vel stifficienfem pro se mittat responsalem. Et die quatuor militi- hus illis quod sint coram iisdem justitiariis, &c., ad terminum prce- dictum, ad testificandum visum suum, et quem diem ei posuerunt ; et habeas ihi nomina militum, c&c.l This writ was to he faithfully and literally executed by the sheriff, and needs no other observation except in that passage where a day is given at the Tower. Bracton says, this was done because the constable was always present there to receive the appearance of parties, who perhaps had a day to appear, when no justices were sitting on the bench at Westminster. However, if it happened that the justices were sitting, the party was still to keep his day before the constable ; and the constable would give him a day, either before the justices of the bench, or, if the pleas were adjourned before the justices itinerant, then at the eyre.- If the four knights, or any of them, failed to appear to make certificate of their view, process of attachment issued against them ; for neither the view nor certificate thereof could be made by less than the four knights named ; and therefore, if one of them died, a new writ issued for the sheriff to substitute another.^ It was a rule, that after the essoin c?e wa/o Zec^i was received, the party should not surgei^e, as it was called, that is, not stir abroad, much less appear in court, without having licentia surgendi. This licence was to be obtained by sending some person to inform the justices that the party essoined had recovered his health. The strictness with which the person essoined was to observe the essoin as well before view as after judgment of languor was pronounced, is very singular. Bracton declares, that decinctus, et sine hraccis, et discalceatus se tenere dehet in lecto; yet he adds, alicuhi poterit indui vestim entis si voluerit : however, if he went out of his chamber, he was not to go out of his house, untler pain, if found abroad, of being arrested by the demandant, and of losing his land as a defaulter in breaking his essoin. Such arrest, indeed, ought properly to be made by the coroners or some officer of the king's court. When the officer came with sufficient testimony of other good and lawful men to prove that he had broken his essoin, the party might endeavour to prove the contrary ; he might say, quod ciim esset tali die apud talem locum et in lecto, sicut ille cui languor adjudicatus, et in pace domini regis, venit ihi ipse talis petens, et nequiter, et in felonia extraxit eum e domo sua, et a lecto suo, et in roherid ahstulit ei tantum, contra pacem domini regis ; et sic offerf, &c. Upon this, a proceeding would commence, as in an appeal, and the matter would be determined by the duel, or inquisition ; and according to the event of this trial, one of the parties would lose for ever ; the tenant, quia stulte surrexerit ; the demandant, because 1 Bract. 352 b. ^ m^^ 353. 3 /Ji^^. 354. CHAP. VII.] EXCUSES FOR NON-APPEARANCE. 409 he maliciouKly drew the party essoined from his house ; and as he meant to y j^arvum capeA The distinction when the one or other of these writs should be used, seems very extraordinary, as there is no difference in the forms given by Bracton ; nor does there seem to be any in the effect. Indeed, the latter is spoken of very sliglitly by that wi'iter: he barely says, if the party did not come on the first day of the sum- mons, on the 'parvum cape, he should be ex[)ected till the fourth ; and on the fourth, the seisin should be adjudged to the demandant ; and the tenant should have such recovery quale habere debebit; as if he might recover in the same manner, as had been before men- tioned in case of a magnum caper- The whole of the learning which we have just been delivering respecting the magnum cape seems to have been equally applicable to the parvum cape. We have been speaking of the process by caption, as the regular process in actions real : it was likewise used in some mixed actions ; which were both iii rem and in personam; where each party might be said to be actor and reus, though, in form of law, he alone was actor who brought the writ ; as where the inheritance was divisible, either ratione rei, or rationc p)ersonarum, and one particcps brought a writ against another pro rationabili parte : so where land was hi communi to persons who were not co-heirs, and one brought a writ for a division : so where a contest arose between neighbours for a boundary, and one brought a writ against the others pro rationabili- bus divisis. For if in either of these three actions, or in any similar to them, a default happened, the process was the same as in real actions. But where two actions were contained in one writ, one being in personam, the other in rem ; as where a person was sum- moned to show quo warranto he held such land, and then the writ went on and said, Qiiam dominus rex clamat esse eschaiam suam ; in this case, as there would arise an appearance of claim to two sorts of process, P>racton thought, contrary to the opinion of some others, he should have that which carried most compulsion, namely, the ' Bract. 371. ''^ I^id. 371 b. 416 HENRY III. [chap. VII. process real by caption. Sometimes these two matters used to be separated ; and then upon the writ which contained the quo loarranto, or quo jure, the process was attachment, and not caption of the land.^ It may be here remarked, that by this simple writ of quo Writ of (/«o warranio, ov quo jure, noWnwg covHd be recovered ; for jare. it was mci'dy to call upon the tenant to show by what title or warrant he held ; and if he held by none at all, yet this gave no title to the demandant ; but the demandant having made this discovery, must resort to another writ if he would recover the land.- This writ of qno ivarranto, or quo jure, by which a man might be called upon to show his title, enabled a litigious person to disturb the peace of any man's estate whenever he pleased. How far the party, so called upon, was required to disclose his title, does not appear. Bracton seems to speak as if it went no further than the title to possession, and the general point, whether by descent or purchase ; and he seems to consider it as an ungracious and unhandsome proceeding. From the instance given by Bracton, it may be collected that this writ of discovery lay only for the king.3 (a) After the essoins, and other delay, or at the first day of the summons, in the writ of right, if the parties both ap- The coun . pg^j.g^j^ the demandant was to propound his intentio^ as it was called by Bracton, or count, and show the form in which he meant to contest his claim. For this purpose, after the writ was read, the demandant or his advocate, in the presence of the justices on the bench, was to declare himself to this effect : Hoc ostendit vohis A. quod B. injuste ei deforceat iantum terrce cum jjertinentiis 'in tali villd, et ideo injuste quod quidam antecessor suus nomine C. fuit inde vestitus et seisitus in dominico suo, ut defcedo et injure, tempore Henrici regis avi domini regis ^or temrore regis Ricardi avunculi domini regis, or tempore johannis regis patris domini REGIS, or TEMPORE HENRICI recjis quinunc est^ capiendo inde expletia ad valentiam qiiinque solidorum, sicut in hladis, pratis, reditihus et aliis exitihus terrce ; et de prcedicto 0. descendit J2is terrm illius, or as some expressed it descendere debuit cuidam D. ut filio et hccredi, et de prcedicto D. cuidum E. utfUo et hccredi, et de prce- dicto E. isti A. qui nunc petit, ut fillo et hceredi. Et quod tale sit (a) Tliis is very remarkable. It was a proceeding in substance by way of discovery, or interrogatory, to ascertain the nature of the right on which the party relied, and that party in iwssessioi^. Bracton, however, says: "Sedtamen quamvis incivile sit cogi possessorem titulum suse possessionis dicere per breve quo jure tamen valet ad hoc ut patens scire possit utiura tenens teneat pro hserede vel pro possessore : et pro hoc' qua actione debet experiri, pro haerede autem possidet qui putat se hseredem esse: pro possessore vero qui nuUo jure rem hajreditariam vel totam hsereditatem aciens ad se non pertinere possidet" (lib. v. fol. 373). So that it went only to the neneral nature of the tenant's title, whether he relied on title or possession, and if title as heir or otherwise, it did not go into the particulars of his title. I Bract. 372. ^ Ihid. 372 b. ^ jn^j * Bracton here borrows a term from the canon law, as Glan^alle did the term petitio from the civil, to signify the count. CHAP VII.] WRIT OF lariHT. 417 jm suum, offerl disrationare per corpus talis I'lcrl liomlnus sui, vel alio modo, sicut curia consideraveril. Certain parts of the coicnt are wortliy observation, 'i'lius, we see, it was not sufficient barely to say, ])e(o tanlam ttrrain nt jus iiieum, but this claim was to be <;roun(led upon some su^'j.^estion that woukl (K'monstrate it, and show in what manner and \>y what degrees tliLi Jus ought to descend to the demaiidarit. Again, as the object of a writ of right was to recover as well the/«.v jjossessionis as the Jns pjrojirietatis, upon the seisin of a certain ancestor, it was not enough to say that such ancestor was seised m doiuinico s^uo, lit de libera tcnriiiodo, only, but that he was seised indontiriico siio, at defuido, which included in it the liber urn tenemerdiim, and whole jus possess ion is : nor was it enough to say that he was seised iit dominico sua, ut de Jvedo, without adding et Jure, which included in it i\\Q Jus proprietatis. Nor would the concurrence of these two rights, those of possession and propriety, called droit droit, suffice, unless the ancestor named held the land in dominico sua ; for if ' it was in servitio only, he would fail, the writ of right being for a re- covery in doininico ; for the demandant counted on the seisin of the ancestor ; and therefore the same seisin must be recovered which the ancestor had. Again, it w'as not sufficient that the an- cestor w'as seised in dominico suo, ut de foido et Jure, unless he added, that cxpletia cepit. For though a person may have a liberum tenementum und /ledum without the explefia in a possessory action, as was before show-n in the assize of novel disseisin and mortaun- cestor ; yet the seisin of the proprietas was required not to be so momentary, but that there should be time to take the expletia ; and therefore it was held, if there was no mention of expletja, the action would abate. Thus, if in fact no expiletia were taken, and the party had suffered the time of bringing an assize of novel dis- seisin or mortauncestor to pass, and brought his writ of right, he Avould have no recovery. Again, it was recpiired that a certain time should be mentioned, that is, the time of some king, as tempore talis regis ; for a writ of right, like other writs, had a time of limitation. Thus in the time of Glanville-^ it was not to exceed the time of Henry I., and now, by a late statute, it was not to exceed the time of Henry II., the present king's grandfather ; the reason given for which was, that beyond that })eriod no one could succeed in making a proof, what- soever right lie might have : for a demandant could not make proof, says Bracton, but de visu loroprio, or that of his father, who en- joined him to testify the fact, if any contest should arise upon it : and if Bracton wrote towards the close of this reign, the above period of limitation was perhaps as far as this sort of proof could well reach. When, therefore, a demandant mentioned the time of Henry I., he would fail, for want of proof. If his ancestor happened not to be seised in the time of the king 1 Bract, 372 b. Vulc ante, 204. 2 D 418 HENKY III. [chap. VII. mentioned in the writ, although he was seised in another king's Tender of the Tcign, jet the demandant might perhaps fail through demi-mark this ^rror, the same as if he had never been seised at all. But the issue to be tried by the great assize being, which of the parties had most right ; the king's time did not properly come within the consideration of tlie recognitors ; and the right between the parties might be decided with justice in favour of the demand- ant, although he had failed in the time of seisin mentioned in his count : when, therefore, the demandant had put himself on the great assize, and the tenant had suspicion that the ancestor was not really seised at the time mentioned in the count ; as perhaps he was not born, or was dead at the time ; he used to pray that the time of seisin might be inquired of by the recognitors : and to obtain the favour of this extraordinary inquiry, it was the practice for the tenant to give something, dare de suo, as Bracton calls it : this being, probably, a remnant of the old custom of putting justice to sale ; an abuse which was long permitted and made a gain of by our kings, and was at last provided against by a clause in the famous chapter of the Great Charter.^ To prevent the tenant taking advantage of an error in mentioning the time, the demand- ant was permitted to correct it, and speak of the time of another king; and this was allowed in any state of the cause till the tenant had answered, and put himself on the great assize, or defended himself by duel ; but not afterwards could the question of time be moved by the tenant.^ The seisin was required to be tempore 2)acis ; because, during wars, like those in the time of king John and the present king, many persons were violently disseised, and afterwards, in time of peace, were restored to their own property. When the count was thus founded, the demandant was to offer to prove it, as was before mentioned ; which offer was sometimes stated more fully : Offert disrationare 'per corpus talis liheri hominis sui, et talis nomine, qui hoc paratus est disrationare per corpus suinn, sicut ille qui hoc vidit, or de visit patris sui cui jjater suus cilm esset agens in extremis injunxit in fide qua filius patn tene- hatur, quod si inde loqui audiret (as before mentioned) quod inde testis esset; et hoc per corpus suum disrationare sicut iliud quod 1 Vide ante, 249. It is to be lamented that our author, who has openeil to the modern reader so many secrets of our old jurispi-udence, should be less explicit on a i^oint that has caixsed much difficulty amongst lawyers. The tender of the demi-mark, as it was afterwards called, is the practice here noticed ; but this is done so shortly as to throw no light upon it ; and, unhappily, the passage is so obscured by the use of a word, and that a technical one, in two senses, that it is difficult to make out any meaning at all. Having used the word mentio to express the naming of the time of the seisin in the writ, he afterwards uses it to signify the moving the question of seisin by the tenant : Dat aliquando tenens de suo ^wo habcnda mentione de tempore. Perhaps some reason might be given in those times, to show tliat the king might accept this tender of money for a judicial grace, without violating Magna Charta. This perhajis might be thought to stand on the same footing with the king's silver, whicli is still given jjro Ucentid con- cordandi. The truth is, that the charter only aimed at flagrant and enormous partiality when obtained by corruption, and not at such trifling payments as were made and accepted of course from every body, as a ;^moderate recompense to the officeris of the court for their labour and attendance. * Bract. 373. CHAr. VII.] WKIT OF PJGIIT PROCEDURE. 419 pater suits vidit et audivit. If any of tlic ahove circumstances were omitted, and the proceeding; had ,i;one too far to correct the error, the demandant would lose his chiim for him and liis heirs for ever. Another material part of the count was, the deducin*,^ the descent from the ancestor seised down to the demandant. Tliis was plain and easy, when the descent was in the ri;,dit line ; but when it was necessary to ,t;o over to the transverse, or colhiteral line, it became moie diilicuit : then, instead of deducing it from fatlier to son, a transition must be made in this way : Et quia idem talis ohiit sine hcvredede se, revertehatur jus terra' illius tali ut avunculo et lto:redi, Sc. And in this it was necessary to observe, that the stipes re- sorted to did not exceed the time of limitation before mentioned. If a son died in the lifetime of his father, it was the opinion of some that he need not be mentioned in the descent ; but Bracton does not assent to this, laying it down as a reason, that no right descended to an heir from an ancestor, unless by the death of sonie heir ; and he thought that such deceased heir should be noticed in this way : Quod de tali antecessore descendere debuitjus tali utjilio et hmredi, et de tali ei qui nunc petif^ id nqioti et ha:redi ; so that no chasm would be left in the descent : for if that was allowed, then a son might be attainted of felony in his ftither's life, and, being left out of the computation of descent, the grandchildren would succeed immediately ; which, as Bracton says, would be in- convenient, and against law. However, when the eldest son died in the life of his father, leaving no children, but leaving brothers, then it was not necessary to mention such eldest son in the com- putation of the descent, though the right ought to descend to him ; as well because the other brothei-s were as near in degree to the seisin of the father as the brother who died, as because, upon his death, the eldest of the surviving brotliers became next heir to the father ; on which account the attainder of such elder brother, in the lifetime of the father, would not affect the other brothers, who were not heirs to him during the f;xther's life. Where an abbot, prior, or other incorporated person, sued a writ of right, in right of his church, grounded upon the seisin of a predecessor, there was no need to count from one abbot to another, naming the intermediate ones ; because the corporation remained the same, notwith.standing the changes of the abbots.j^ _ They therefore only said, talis ahhas^jiredecessor suus,fuit seisitns, dc. If land Avas given to more than one jointly, the parties should all be named in'the computation of the descent, thus : Et unde A. B. C. B. fuerunt seisiti, &c., et ita quod tales mortuifueruntsine Jucrede de se, accreverunt eorum partes super stitihus, et ita quod jus terra) illius descendit hmredihus eorum qui fuerunt superstites, scilicet talibus ; et quia unus illorum, scilicet talis, ohiit sine harede de se descendit totuni jus tali, et de tali ilU qui nunc jjetit, d'C. If any one w\as omitted in the descent ; if it commenced with one 1 Bract. 374. ' Ibid. 374 b. Vide ante, 397. 420 HENRY III. [chap. VII. who never was in seisin ; if tliere was any error in the person, or the name of any one mentioned in the descent ; if any of those men- tioned in the descent was a villein ; in all these cases, the action wonkl abate, and the demandant lose his suit.i When the count was thus exhibited, it became the tenant to consider what defence he could make. The first point e ence. ^^ ^^ considered was, whether the court had jurisdic- tion of the cause ; next, whether the parties to the writ w^ere pro- per ; and then, whether the writ was liable to any exception. The next consideration was, whether the tenant held all the land demanded, or only part, and how much : to ascertain this, the tenant might pray a view. When this was over, then the tenant was to answer to the merits of the cause, either by himself or attorney, unless there was some loan-antor whom he should like to vouch. The nature of vouching to warranty, and the answers the tenant might make, we shall defer for the present, till we have inquired a little into the method of praying and making a vieio, and the cases in which it was allowed. ^ A view might be had either by the party or by the jurors. Of Of "ranting a the latter, Something has already been said in the assize view. of novel disseisin. A view might be had also some- times in inquisitions ; and not only where it was a question for the recovery of property, but also where it was entirely upon a fact, as in cases of trespass. What we have now to say, will be confined to a vieiv when prayed by the party, and granted for the purpose of enabling the court to pass a certain and precise judgment on the matter before them. In order to understand this, we shall first speak of cases where a vieiu was not allowed, then of those where it was, and, lastly, of the manner of making it. In a plea de proparte sororum, if the demand of the rationahlis pars was by a writ of nuper obiit, that is, by stating that the demand was of a certain portion of the inheritance, of wdiich their common ancestor lately died seised, the latter part of the allega- tion w^as construed to specify the parcel of land so accurately, as to supersede the necessity of a vieiu ; ^ but if land was demanded by a writ of right ut de 'proparte, then a view was allowed. For the same reason a vieiu was denied in dower, if brought for land of which the husband obiit nuper seisitus. If a manor was demanded without the pertinentia, no view was allowed, a manor being suffi- ciently defined by the name only : so if the demand was of the moiety of a manor undivided ; because the demandant being igno- rant which moiety belonged to the tenant, could not inform him of the particulars on taking the view. But if it was divided, and the p)ertinentia were claimed, there a view would be granted; and, in any case, if the manor was undivided, he might have a view of the whole. A view was denied to an intrudor, if the thing in which the intrusion was made was specified without the pertinentia; or 1 Bract. 375. ^ jua, 376. a Ihid. 376 b. CHAP, VII.] WRIT OF RIGHT : A VIEW. 421 if tliat was done, whicli was lield to supersede the need of a view, as l)cfore mentioned, especially it" the intrusion was so recent as witliin a year or less. If a woman demanded dower of a manor, of which she was specially endowed, with If the tenant had no good cause of exception, either dilatory or Vouching to peremptory, and had any one to vouch, it would be wammty. gafcr to voucli his Warrantor to defend for him. Tliis was to be done by the aid of the court, or not, according as the warrantor was, or was not, within the jDower of the tenant.^ A J Bract. 378 b. 2 jn^^ 379. s j^j^ 379 b. * Ibid. 330. ^ j^^i^ CHAP. VII.] WRIT OF RIGHT: WARRANTY. 423 clause of warranty was usually inserted iu e\X'ry charter, wlietlier made on the occasion of a donation, a sale, or exchange of any land or tenement ; sometimes a warranty arose by reason of homage, without any charter at all. As a warranty was usually made for the warrantor and his heirs, to the donee and his heirs, the mutual tie continued on the heirs in injlniluin on both sides; so it did on the assigns, and those who were in loco hcercdu/n, as the chief lord, who came into seisin by reason of esclieat.i A tenant for life, as well as one in fee, and even one who held for term of years, might either vouch or be vouched. A husband might vouch his wife ; and, in case of a gift made by lier to him before mai-riage, if he lost, she was bound in exccuidnuin : the same if the wife was im- pleaded of land given to her before marriage by the husband.'-^ If a minor was vouched, the tenant was expected, at the time of vouching, to show the deed containing the warranty. This was to take off the suspicion of its being meant for delay, the vouching of minors being often resorted to for no other purpose than that of delay. When the charter was shown, and the question was upon a service, it was inquired, whether the minor's i'atlier, or any of his ancestors, was seised of the service amio ct die quo fuit vivus et moriuHS : if he was, then the minor was immediately to enter into the warranty, but the plea between the demandant and him was to remain sine die till he was of age ; for he was not obliged to answer, either to the warranty or the plea, till he was of age. But if the tenant had been enfeoffed of the land in question during the mino- rity, the minor was to answer both to the warranty and the plea ; and in order to know this, an incjuisition would be made, whether it was an inheritance by descent or by purchase. What is said above of services applied also to homage."^ The obligation of warranty that arose from homage might, as was before said, be proved without a deed. If the Nature of vouchee called for one, the tenant need only say, " You warranty, are bound to warranty, because ego sum inde homo tuus, and you have received my homage for this land, and are in seisin of my service, and my father and his ancestors inde fuerunt homines an- tecessorum tuorum ;" of which he was to produce a sufficient secta, or some one who was ready, if necessary, to prove it ^jer corpus suum ; and if, upon the denial of the vouchee, this was afterwards proved before the justices, they would adjudge him to enter into the warranty. Althougli the tenant might at any time make the surrender of his tenement, yet the lord could not waive the liomage, because by such means he might, at the expense of a small service, deprive the tenant of the claim of warranty, which depended upon the doing of homage. If the warranty was grounded on a fine and C}rographum, it is made a doubt by Bracton, whether a minor should not be bound to answer, though his ancestor was not seised die et anno, as above mentioned. But of this more hereafter. • Bract. 330 b. a Ibid. 381. 3 ma. 381 b. 424 HENRY III. [chap VII, A warranty was sometimes conceived so as to bind not only the person of the feoffor, but also a certain tenement. Thus in the deed of gift he might say, that he and his heirs would warrant the gift ex tall tenemento quod tunc tenet, to whomsoever that tenement might afterwards come ; by virtue of which special warranty that tenement, in whatsoever hands, would be liable to go in excamhiiim of the land warranted. But the law was so favourable to warranty, that, without such express specification, land was held to be tacitly bound by a warranty ; and therefore, if a warrantor at the time of making his warranty i had sufficient to make good his warranty, the land he then had became bound by the warranty; and even if it Avent into the hands of the chief lord, or of the king, by escheat, Bracton holds' it to be liable to the warranty, quia res cum onere transit ad quemcunque. The king, in point of law, was liable to warrant, the same as a common person ; but he could not be vouched, because no summons could issue against him ; instead, therefore, of vouching, the tenant ought to say, in the style of a remonstrance, that sine rege respon- dere non 2)otest, ed quod hahet chartam suani de donatione, per quam, si aviitteret, rex ei teneretur ad excambium. It seems that such respect was paid to the king's charter, that an allegation thereof was held sufficient cause to delay the proceeding. To remedy this, it had been lately provided, that the king should never be named in this way, unless where he was bound ad excambium.^ In vouching, the tenant ought to name the warrantor with all possible precision. Thus, if he was son as well as heir, he should be called son and heir. If many claimed to be heirs, they should be vouched disjunctively, talis vel talis, whoever of them was heir. If the heir was m ventre, and the wife had prayed to be put into possession nomine ventris, as seems to have been usual, then the tenant was at liberty either to name the person who was apparent heir, or him in ventre, stating in all such cases the special ground of ambiguity. ■i If a person was vouched who was in the power of the tenant, as a wife, children, or others under his authority, the tenant was not to have the assistance of the court ; but if he did not produce the vouchee, he was to lose his land. If the vouchee was not in the realm, he was not within the reach of the king's writ, and therefore it would be in vain to pray the assistance of the court ; and if the tenant did not produce such warrantor, he would lose his land : but if the person vouched was in Ireland, the king's writ used to issue to the justices there.^ If the vouchee resided within the power of the king's writ, and he could not be produced without the court's assistance, then there issued a writ to this effect, addressed 1 Satin hahuit. 2 Bract. 382. ^ This provision is said by Bracton to be made coram ipso rege in dedicatione ahhatliice de Hayles in jwccsentid norem ejnscoporum, tt coram comite Richardo et aliis 2^lu,ribus romitibus. This, therefore, was an act of the legislature, and is one of those many acts of parliament which are now lost. The date of this provision is not mentioned. * Bract. 382. 5 Ibid. 395 b. CHAP. VII.] -WRIT OF PJGnT : WAKRANTY. 425 to the sheriff: Summoneas i^er honos summonitores A. quod sit coram justitiariis nostris, lix., tali die ad warrantizandum B. tan-^ turn terra' cum pertinentiis in tali villa quam E. in eddein curia corom iisdem justitiariis, &c., clamat ut jus suum versus praclic- tum B. et unde idem B. in ed'/eni curia nostrd coram iisdem jus- titiariis nostris vacant ipsum A. ad warrantizandum versus yra- dictum E., &c. Tlie w.rit of summons ad ivarrantizandum always made mention of the sort of i)le:i depcndiiif]^. If tlie wanantor was a minor, tliere was a writ of summons to tlie guardian to appear, and bring- with liim tlie heir. If an heir was vonclied in respect of his mother's hind, which was then in possession of his father as tenant per legem Aru/lia-, the warranty was not deferred, but a writ issued to him, expressed either to hear the judgment of the court on the warranty, or to warrant together with the lieii".^ At the relurn of the summons, the demandant, tenant, and war- rantor, might all essoin themselves. If the demandant made default, and the tenant appeared, the tenant had judgment to go quit ; if the tenant, then there was a capialur in manus domini regis, as in common cases. If the demandant and tenant^ both appeared, and the warrantor made default, then a writ of cajnas ad valeniiam issued to take as much land of the warrantor as was equal to the value of the land in (piestion. If the land of the war- rantor was in another comity, the sheriff of that county could not judge of the value of the land in question ; to ascertain this, there- fore", a writ first issued to the sheriff of the first county, command- ing him by the oaths of twelve men of the vicinage quod extendi /(iciaf, el appretiari, the land in question ; upon the return of which 'extent, they grounded a writ of cape ad valeniiam to the sheriff in the foreign county.- If a guardian made default, the capjc ad valeniiam issued against the lands of the minor : if either the tenant per legem Ancjliw or the heir made default, the cape ad valeniiam went against the maternal inheritance in the possession of the tenant p)er legem. If there was more than one warrantor, as in the case of parceners, the cape ad valeniiam issued against all rateably, though if some appeared, they did not suffer by the default of the others, Avho were proceeded against separately.^ The writ of cape ad vcdenliam contained in it likewise a suni- mons ; and if the warrantor after the caption did not appear to this summons neither the first, second, third, nor fourth day, and the demandant and tenant both appeared, the former against the latter, and the latter against the warrantor, then judgment was given that the demandant should recover ^ the land against the tcnant,_by default of the tenant, and the tenant an e.reamhium ad vahnltam out of the land of the warrantor. Upon this there issued a writ 1 Bract. 383 b. 2 Ibid. 384. . =» f'"''- ^5- , , , , •» mnipcrat terrain suam versus B. jnr dcfaUam B. ct B. in misencordid, ct habeat de terra ipaius C. in loco compctenti excambium ad vakntiam. 426 iiENr.Y III. [chap. vii. for the demandant, commanding the sheriff quod liahere facias seismam, and another for the tenant de excamhio against the war- rantor,! which latter was preceded by a writ of extent, if the land was in another county, as in the case of the cape ad vuleniium before mentioned. If the warrantor had appeared, and afterwards made default, then there issued a cape ad valentiam, which was a parum cape ; and if he- failed to appear to the summons therein contained, the demandant had judgment against the tenant by default, and the tenant ad valentiam against the warrantor, as in the former case : and so of the person or persons making default, if the warrantor was more than one person ; though if husband and wife were summoned, and one made default, it was the same as if botli had so done, whether before appearance or after. If the war- rantor afterwards appeared, but had no sufficient excuse to save his default in not appearing at the first, second, third, or fourth day, then, in like manner as in the former cases, the demandant had judgment against the tenant, and the tenant over against the war- tor for an excamhium ad valeniiam, upon which issued writs of habere facias seisinam for both parties.^ If the demandant and warrantor appeared and offered themselves, and the tenant was absent, then, if he had not entered into the warranty, he statim receded quietus de loarrantid, and a parvum cape would issue for the land in question, and if upon the return thereof the tenant did not appear or could not save his default he would lose his seisin. If the demandant made default, and the tenant and warrantor appeared and offered themselves, they both recedant quieti de brevi illo. When a person was vouched who had no land in fee that might be taken into the king's hands or by which he might be distrained, then a writ issued to the sheriff, •* quod liabeat corpus, to take the body. AVhen the demandant, tenant, aud warrantor all appeared in court, the warrantor either entered into the warranty or contended that he was not bound to warrant. If he voluntarily did the former, the original suit then proceeded between the demandant and war- rantor, and the tenant might leave the court till the plea between them was determined. The demandant was therefore to propound his count to the warrantor, in the same manner as he before had to the tenant, to which he was to answer, and defend the demandant's right by the duel or great assize, unless he could plead some ex- ception or had a warrantor, whom he in his turn might call to defend him, and thus they might go on, one warrantor vouching another till none was left to be vouched ; and if the last warrantor lost, either by default or by judgment, lie would be liable ad ex- cainbium, and so on from hand to hand to the tenant. If the warrantors were C. D. and E., and E. had nothing where- with an excambium could be made, and all the others had sufficient, Bracton thought it hard that the tenant should go without an ex- 1 Bract. 387 b. - Ihid. 386. ^ Ihld. 386 b. ■* Ibid. 387. CHAP VII.] WRIT OF RIGHT ; WARRANTY. 427 camhium ; and tlierefore, in liis opinion, it ap])earcd crjuitaljle that D. should, notwithstanding, recompense C. and wait lor better times, when A\ could do the same by him, so that the writ of seisin wouUl run : Et quia E. nihil haOet uncle excambium fucere possit ipsi D., ideo de terris ipsius D. in hallivd tud eidem C, excuiubiuui ad valeniiain pnedicke, ter7'ce, sine dihdione habere J'ucias, donee idem E., aliqicid habeat unde excambiuiii facere pjotenl, et illud idem ex- cambium nine dilaiione habere favia-s ^^/Ytf/Zr/o B., dc. The same was also done if any of the intermediate wairantors were unaljle to make an excambium. If the last warrantor could satisfy only in part, the remainder was to be supplied by the intermediate war- rantors, observing the order in whicii they were vouched. If a person had infeofted several at dill'erent times, and was vouched by them all, and lost, without having suliicient to make an excainbium to each, they were to be satisfied according to the priority of their feoffment. This is supposing that judgments were given in all the pleas in one day, for if they were at different times, those who had the first judgment should be preferred, and if they exhausted the i)roperty of" the wan-antor, those who came after, says Bracton, nuist wait for better times, for the warrantor, if he had nothing, was not therefore discharged ; but any thing which might afterwards come to him by descent from the ancestor by reason of whose warranty he was vouched, would be liable to be taken in excambium. Should the person vouched, instead of entering voluntarily into the warranty, contend that he was not liable to be called u};on, it lay with the tenant to make out the title by which he vouched. The grounds upon which warranty might be founded have already been considered in part; to those may be added the following: — One great ground of warranty was a common gift of land by the Avords do or dedi; for it is laid down by Bracton, that in all cliarters de siinjjliei donafione, the tenant was entitled to a warranty from the donor and liis heirs, unless some clause was inserted specially declaring that the donor or his heirs should not be bound to war- I'anty or to make an excambium. A charter of confirmation, if it con- tained the word do, as it usually did, do et conjirmo, in like manner bound to warranty, because it was in effect a simplex donatio, as well as a confirmation. 2 ]\Iany were the exceptions which might be stated by the person vouched to show he was not bound to warrant. In the first place, he might avail himself of any error in the writ of warranty, but he could not have a view. If the warranty was grounded upon ;i charter, he might show that the charter had such defects as to be of no validity in law, of Avhich more will be said hereafter. If no exception lay to the charter, he might except to the gift. Thus he 1 Bract. 388. - Sometimes there was a special charter, expressing that the donor, notwithstanding the homage, should not be bound to warranty, or to make excambium. 428 HENRY III. [chap. VII. might say, that the donee had not seisin in the life of the donor,' that the donor was never seised, that the tenant was not heir tu tlie feoffee, that he was not such an heir as is described in the original gift, that he was one of those persons who were expressly excepted in the warranty. A warranty was with reason held not to bind a person to defend the feoffee against the feoffee's own tenant, but only against strangers who might claim any right before the first feoffment. If a person had recovered an excamhium, where he had lost upon an act of his own, and had no lawful title to recover against his feoffer, as in the foregoing case, the feoffor had a special writ to obtain restitution of the land so wrongfully recovered. 2 Where a warranty was ex- tended to the heirs and assigns, the assigns had an option, whether they would vouch the feoffee or the first feoffor. 3 If the warrantor happened to die, the principal action was not abated, as it was by the death of either the demandant or tenant, but the warranty was suspended for a time, as in the case of a minor. We have before seen, that where the ancestor died seised in fee, the minor was bound to answer the warranty ; and Bracton lays it down positively/that if in support of the warranty the tenant produced a eyrographum or fine made by the warrantor to the tenant, the warrantor was obliged to answer, though a minor, although he need not answer if it was grounded on a common charter, on homage, or on service done. But yet, as to the de- mandant, he should have his privilege not to answer till he was of age, unless, indeed, where his ancestor did not die seised in fee.^ If the warrantor died at any time before judgment passed between him and the demandant, the plea did not abate, but the heir of the warrantor, whether a minor or not, was to be vouched ; and if the w^arrantor had lost by judgment, but had not made an excam- hium and died, the heir was to make the excamhium without any other writ being sued. 5 There were instances where a person might enter into a war- ranty though he was not vouched. This was not in defence of the tenant's right but of his own, as if a person was tenant for life or in dower of land which was to revert to the tenant in fee, and the tenant in fee perceived that such tenant permitted himself to be impleaded, and omitted to vouch the tenant in fee to defend : in such case, the reversioner, seeing the danger his title was in, might appear unvouched, and enter into the warranty to defend his own right. It was considered as the duty of every tenant for life, if im- pleaded for the land he held, to vouch his warrantor to defend.^ When the person vouched after contesting the point was adjudged to enter into the warranty, the demandant was to recommence the principal action against him, propounding his count as against the tenant, with the additions which the change of persons and cir- J Bract. 390. 2 Ibid. 391 b. 3 Jhid. 391. « Ibid. 3^2, 5 Ibid. 392 b. e j/jid^ 393 b. CHAP. VII.] AVRIT OF lUGIIT : WARKANTY. 429 cumstances required ; as, quod injiiste intrat in luarrantiam, quia Icrra de qua atjifur est jus suum, quia talis antecessor suus, n liabet pote.statem exequendi judicium, sicut in causis civilibus, uon enim possit degradare clericum magis quam ad ordiues promovere, et ideo propter ejus defectus habet ordinariis executionem judicii, licet aliter observatur quod in causa criminali ubi poena capitalis infligenda est, habet oidinarius ut ramque, videlicet cognitionem et judicii executionem " (■^»'«'''on, lib. v. c. ii. s. 5). Now, here it will be observed Bracton admits th.at the cleric could not be touched in life or limb until he was de- graded, and that the lay tribunals could not degrade him. The natural inference fri)m this would be that the lay tribunals should not try cases where they had no legal power to execute their sentences, especially as he admits that the ecclesiastical judges had power both to take cogni.sance of the case and to execute sentences, though not, indeed, to inflict any capital sentences. The passage, however, which our author refers to at the end of the above passage, in the text, is — " Super crimine judex ecclesiasticus non habebit jurisdictionem licet habere debeat judicii executionem," — which involves another inconsistency, that a judge should execute the sentence of a tribunal of a totally different forum, i)roceeding upon rules and principles antagonistic to bis own. " Pertinet igitur (ut videtur) ad judicem secularem cognitio, et ad judicem ecclesiasticam judicii executio, quia judex secularis degradare non potest." So the bishops were to execute the sentences of the laj^ courts. He elsewhere says, however, that clerks were to be delivered to their ordinaries before trial : " Cum vero clericus captus fuerit pro crimine, et decapitatur curia Christianitatis ab ordinario, ille statim ei deliberetur sine aliqua inquisitione facienda " {h 3, f. 123.) 1 Bract. 401 b, « Hid. 407. 2e 434 HENRY III. [chap. VII. When a suit was commenced in the spiritual court for a matter ., ., . which was properly cognisable at common law, the • party so wrongiully sued might, as we have ah-eady seen, have a writ of prohibition to restrain the judge and party from proceeding further ; the boundary, therefore, of these two jurisdictions is to be ascertained by a knowledge of the cases in which writs of prohibition were or were not allowed. This point was but slightly touched by Grlanville, who confines what he says entirely to one or two writs ;i but the subject of prohibitions is treated vei-y fully by Bracton (a). We find that a prohibition lay for a patron, not only where the rectors litigated a question concerning the whole tithes of the church, but also where the suit was for a part of them, as low as to the sixth part of the value of the advowson, but not lower ; any- (a) As already mentioned, the subject was one of great interest in that age, and it is not less interesting to those who desire to form a judgment on the events and controver- sies of those times. Bracton naturallj^, as a king's judge, treats the whole subject in a spirit strongly favourable to the jurisdiction of the king's courts, and he is betrayed into obvious inconsistency. Although he had laid down that the ecclesiastical courts had jurisdiction over things annexed to spiritualities, he lays down that they had not jui-isdiction over advowsons or presentations to chvirches, though they had as to tithes ; and though he admits their jurisdiction as to tithes, he says that if two rectors, under different patrons, contended about the tithes of their respective benefices, and the patron was not a party to the suit, yet as possibly the value of his patronage might be discussed, though he could not possibly be affected by a suit between these par- ties, the ecclesiastical court had no jurisdiction, vmlessthe tithes were under a certain proportion, in which, it is manifest, there could be no principle (lib. 403). And then Bracton comes to the great question of custody of vacant bishoprics, which had formed the subject of such controversy under Henry II. ; and he says that the king's courts could issue a prohibition as to things temporal, which pertained to the king by reason of his custody of vacant sees ; and he gives an instance of such a prohibi- tion to the dean and chapter of Rochester, " Est et aliud genus prohibitionis ratione rerum temporalium qua3 ad ipsum regem pertinere possunt ratione custodia archie- piscopatuum et episcopatuum vacantium et qua3 occasionem inducunt prohibendi sicut pro Sancto Edmundo archiepiscopo Cantuariensis et fit prohibition hac forma : Rex priori et conveutu RofFensis. Ex relatione quorundam nuper dedicimus quod cum venerabilis pater E. Cantuariensis archiepiscopus habeat custodiam episcopatus Roffensis nunc vacantis vos trahitis in curia Christianitatis eundem archiepiscopum authoritate literarium domini Papse super quibusdam exenniis quae prostanda, sicut de maueriis nostris, et eodem mode cousuetudo qui alii annis redditus reddi solent episcopo si viveret, eoque idem archiepiscopus ea sibi reddi postulat ratione custo- dise ejusdem episcopatus tempora) vacationis. Et quoniam si vos in causa ilia obbi- neatis manifestum esset nobis inde damnum incurrere si contingeret aliquando archiepiscopum Cantuariensis simul cum episcojiatu Roffensis vacare et utrum que in manu nostra existere, vobis prohibemus in placitum illud sequamini, quia hoc esset contra coronam et dignitatem nostrum et prejudicium, libertatis nostrse quam habemus de episcopalibus vacantibus in regno nostri" (fol. 404). According to this, in the first place, though the king no longer claimed what had in former reigns been relinquished, the custody of vacant bishoprics, which belonged to the archbishops, yet he claimed to intermeddle in the temporalities, on the ground of some possible future interest, in case the archbishopi-ic should become vacant — in which case the king would claim the custody of the temporalities. Then Bracton saj^s there is another prohibition where a clerk, presented by the king, was rejected by the bishops as in- sufficient ; and another has been instituted and is sued by the other in the ecclesiasti- cal courts, " Ubi quis clericus presentatus ad ecclesiam per dominum regem propter insufficientiam recusatus fuerit et alius idoneus constitutus si velit inquietare velit." And then he gives the form of prohibition. 1 Vide ante, 175. CHAr. VII.] PROHIBITIONS. 435 thing less than this being permitted to be determined finally by the spiritual jiidge.^ There are many wi'its of prohibition for tlie maintaining of the king's rights during the custody of the tempo- ralities ; tlie pope and his i)artisans endeavouring to encroach on these secular claims, either by refusing clerks who were presented, or by other marks of o^jposition.- There is a writ of prohibition to stop a suit instituted against a baililf of the king who had arrested a clerk for a felony or some other crime. If a suit was instituted in the ecclesiastical court to establish the legitimacy of children, with view to a claim to hold per kyein Amjlut, a prohibition lay, because that court could not judge of legitimacy quond ha'rcdilaiciit ct sHcccssioncui, unless a plea was depending in the king's court, and bastardy was objected ; and then the trial used to be remitted to the ecclesiastical judge, as has been already frequently mentioned. A prohibition also lay, if the ecclesiastical judge proceeded in an inquisition of bastardy, after the death of the plaintiff or defendant.^ In the following cases, it is laid down by Bracton, that a prohibi- tion would not lie to the spiritual court; in all s])iritual matters, or those annexed to the spiritualty, in matters matrimonial or testa- mentary, or where penance was to be enjoined. Thus, says Uracton, in a suit relating to any tenement per pontlfices Deo dedicaiuni, and so held sacred, as abbeys, priories, monasteries, and their ceme- teries ; or concerning things quasi sacra, because annexed to the spiritualty, as lands, common, estovers, and the like given to a cluu'ch, ill dok-m, as it was called, at the time of dedication ; if the church was spoiled of these, and a suit was brought in tlie spiritual court for restitution, no prohibition lay ; though this privilege was not allowed, if the lands were in libera et purd eleemosynd. In one place IBracton expresses himself as if a suit in the spiritual court, when for a liberty, a common, and the like, could be main- tained only on a ?'ecew^ spoliation;-^ though in another place he declares that recent spoliation should be tried by assize. 5 A prohibition would lie to the following suits: to a suit de eatallis clericorum violenter ahlatis, or for tithes ; or for the value of them, if they were sold ;6 or on an obligation of surety for the purchase of tithes : or a promise of money oh caiisam matrimonii, not so if the promise was of a tenement ; to a suit for a legacy, claiming it ut dehitum; or for the legacy of a debt due to the testator, and acknowledge and proved to be such in his lifetime, because it so became a part of the testator's goods, which a debt, that had neither been proved nor confessed in his lifetime, or voluntarily confessed since, was not. Such a debt could only be established by suit at common law ; till when it was no part of the goods, and so could not be bequeathed ; it being a rule, first, that actions should not be bequeathed ; secondly that tlie ecclesiastical judge should not have cognisance of them ; and thirdly, that exe- 1 Bract. 402 b. =* Ihld. 403, 404. ^ Ihid. 404 b., 405. * Ibid. 408. » Ibid. 40G. « Ibid. 407. 436 HENRY III. [chap. VII. cutors should have no action for a debt which not acknowledojed ^ (that is, grounded upon a recognisance or judgment) in the life of the testator. If goods were bequeathed and sued for, the same of houses and edifices in some cities and towns which the testator had purchased, these being made quasi catalla testatoris, by his own disposition, (though it was otherwise in London, where prohibition would lie) ; if a ususfructus of land, as a term for years, w^as be- queathed ; a ususfructus being only a chattel ; in all the foregoing cases, no prohibition would lie, in the time of Bracton, ;2 for as the spiritual court was in unquestionable possession of causes matri- monial and testamentary, the above-mentioned questions, as arising out of a testament or marriage, were thought naturally to belong to the same tribunal. Illud quod principale est traliit ad se quod est accessorium. It is laid down very positively by Bracton, that in a matter purely temporal litigated between two laymen, the jurisdiction of the cause coidd not be altered by any privilege whatsoever ; and he instances the privileges of those who were cruce signati, which he considers as an indulgence warranted by no law : he says, that no oath, no Jidei mierpositio,^ no voluntary renunciation of the parties could change the jurisdiction ; as the renunciation of the party could have no effect l3eyond himself, it could not restrain the king in prohibiting a foreign jurisdiction from encroaching on his crown and dignity. "^ The jurisdiction of a cause depended either upon the parties and the cause of action together, or on the cause of action singly. Thus, if a clerk sued a layman, or a layman a clerk, in the ecclesi- astical court, in a matter purely temporal, a prohibition lay : the same if a clerk sued a clerk.^ In these cases it appears that the cause of action was the principal ground of- jurisdiction: but the cause of action would change its nature from spiritual to tem- poral ; and so back again. Thus a lay chattel became spiritual, when tithed ; and when the tithe was sold, it became again lay. Houses and other lay fees in cities and boroughs, if bequeathed by will, were, as has been seen, construed to be of a spiritual nature ; but when the will was executed, they again became lay ; and so of many others.*^ There were two writs of prohibition, one to the judge, another to the party: the former ran thus — Frohihemus vohis ne p)i(^citum teneatis in curia christianitatis, dec; the latter — Prohihemus tihine sequaris placitum in curia christianitatis, &c. If the judge to whom the prohibition was directed thought it well founded, he would decree a supersedeas of tlie proceeding ; if he doubted, it was usual to considt with the king's justices ; to w^hich constdtaiion 1 Rerofimtuw. ^ Bract. 407 b. ^ This was a y)retcTice under which causes were d^a^v^^ into the spiritual coiirt, in the early times of our law, as has been sliown in the former part of this volume. Vide ante, 164, 10.5. * Bract. 408 b. i Ibid. Am. ^ J Lid. 412. CHAP. VII.] PROHIBITIONS. 437 the justices would make answer Ly a writ, sometimes in their own name, and sometimes in the kinj^'s, as thus: DUecto in Chri.sto tali. Inspeclis llkris ves/ris, quas nobis Irrrnsi/usisfis, et plcnius intelleciis {sine prcfjudicio melioms sententim) consultationi veslrca duximus respondendum, quod si res ita se hahet sicut in consul- TATiONE vestrd nobis exposuistis, videtur nobis quod in causd istd J)cne potest is proccdere, non obstante reqiu proIu'bitioncA If no sucli 2vrit of vonsuUation was sent, the prohibition remained in force. It was not uncommon for the ecclesiastical judge to Lafile a writ of prohibition by hurrying on the process against the party bring- ing the writ, and entangling him in a sentence of excommunica- tion. When a person had stood excommunicated for forty days, the Ijishop used to send a writ to the king intimating this, and l)raying the assistance of the secular arm ; inuocantes, quod minus valet ecclesia in hdc parte, dir/netur rerfia. suiiplere majestas ; the design of which was, that tlie party should be a])preliended. But, upon suggestion of the fraud, the party might ol>tain another writ directed to the sheriff de non capiendo, wliich likewise commanded the sherifi' to attach the clerical judge, that he might answer to the fraud. Any malicious application of the process of excommunica- tion might be coml)ated in the following manner. If a person was rightly excommunicated, and, having continued so for forty days, was imprisoned, and tendered surety for being forthcoming and answering to the suit, it ought, says Bracton, to be accepted; and accordingly a writ might be obtained, commanding the sheriff that if the ordinary maliciously refused a sufficient surety, the sheriff himself should take it, and order the prisoner to be set at large.2 If, instead of the above device, the judge and the party refused obedience to the writ, they might both be attached to attachment appear either coram rege, or his justices de banco, or surprohin- the justices itinerant, to answer for their contempt. ^^°"'- This writ of attachment differed somewhat from that used on the same occasion ',m Glanville's time : 3 instead of repeating the prohibition, as it did then, it now began like other writs of attach- ment: Si A. fecerit te securum de clamore suo 2J'>'osequendo, tunc pone per vadium et salvos plegios B. talem ordinarium, quod sit coram nobis, as the case might be, ostensurus quare tenuerit placi- tum in curia christianitatis de laico foido ipsius A. in tali villa contra p}rohibitionem nostram. Pone etiam per vadium et salvos plegios E. quod tunc sit ihi ostensurus qiuwe secutus est idem placi- tum in eddem curia christianitatis contra proliibitionem nostram; et Jiabeas ibi nomina plegiorum et hoc breve, d'C. If the judge and the party lived in different counties, then there were separate writs for each. The process was the same as in other personal attachments,-* of which we shall speak more particularly hereafter. 1 Bract. 405 b. 406. ' I''id. 408, 409. 3 Vide ante, 175, 176. ■• Bract. 409. 438 HENRY III. [chap. VII. Wlicn tliG parties on both sides appeared in court, the plaintiff stated his count or declaration, or, as Bracton calls it, intentio, in this way : Ego A. conqueror de B. quod me injuste vexavit, et gravavit trahendo vie in placitmn in curia christianitatis de laico fcedo meo, scilicet, &c., unde damnum ad valentiam, c&c; and to con- firm and support his declaration he should add, that he showed the writ of prohibition in full court, and that, notwithstanding this, they proceeded to examine witnesses, or to excommunication ; and then he should conclude by producing a secta, consisting of two at least, and as many more as he could procure. If the secta dis- agreed in their testimony, it was the same as if none had been pro- duced ; but as this was only a feilure of proof, and not of right, the defendant used, nevertheless, to be enjoined not to proceed in the ecclesiastical court. If the secta agreed, then the defendants were to answer, and this might be done several ways. They might l^lead that it was a case of spiritual cognisance where no prohibi- bition lay ; or they might confess it to be temporal, but might, for plea to the plaintiff and his secta, say, that they did not proceed after the prohibition; or that no prohibition was tendered to them; and then each defendant might wage his law cluodecimd manu. When law was waged, and pledges given de lege faciendd, a day was given to the parties for making their law ; at which day they might cast an essoin, and have another day by their essoiners ; at which day, if they did not come nor cast an essoin, judgment was passed against them, and they were obliged to pay damages to the l)laintiff. If they appeared, they were to produce their compurgators, who, like the secta, might consist of their friends and acquaintance. The compurgcdores not being required, any more than the secta- tores, to be equally impartial with recognitors, it was sufficient if they were of good report, and in general deserving of credit, and they needed not to be of the same rank or condition with the per- son producing them. The words in which the kno icas to he made were to pursue the form of the record ; if they varied therein, the defendant stood convict, and, if a layman was committed to jail as guilty of a misdemeanour against the royal dignity, in the same manner, says Bracton, as if he had committed a crime of Icesa majestas ; if a clerk, then, in consideration of his orders, he was, according to the same authority, treated more mildly ; though he does not mention the sort of penalty : the damages 'used to be taxed in both cases by the justices according to the nature of the case. Tiiis is the account given by Bracton of the manner of proceed- ing on a writ of prohibition ; and it may be presumed that the proceeding in other personal writs was exactly similar. When Bracton comes to the subject of personal actions, he breaks off abruptly without carrying the reader thi-ough the whole proceeding, as he has here through the proceeding on a prohibition. This CHAP. VII.] WRIT OF RIGHT. 430 defect must be supplied, if possible, by what is to be picked up in other ]iarts of his work, and particularly from tiie proceeding in prohibition whicli has just l)eeu related. Thus far of questions relating to tlie jurisdiction of s[)iritual and temporal causes. Many other exceptions might be ofjurisdic- made to the jurisdiction of the judge. First, it was to *'""• be seen whether he had a proper authority : and in order to ascer- tain this, it is directed by Bracton that the writ by whicli the justice was ajipointcd, after reading the original writ, should b(; read, unless the original writ made mention of his judicial authority. If the judge delegated his authority to another, the proceeding before such delegated person would be coram non judicc. Certain persons had peculiar privileges in judicial matters. Thus, the Hospitallers, Tcmphars, and many others had the privi- lege to be sued nowhere but coram iiiso rcge, vcl ccqyifalijUHfilidrio. The citizens of London were not to answer to any [)lea out of the city, except de tcnuris et contraciibus forinsccis. The barons of the cinque ports were to answer nowhere but ajmd SJiypicey} It is said by Bracton, ^ that if a judge was suspected of any par- tiality, favour, or malice, it ought to be a ground of exception ; but this he seems to give as an opinion of his own ; yet he lays it down as settled law, that the jurisdiction of a judge might be declined, upon a real cause stated ; as for consanguinity to the plaintiff, or being his friend, or companion, or counsel, or pleader to the plaintiff in the present or any other cause, or if he was an enemy to the defendant. All these are stated by Bracton as causes of exception to the judge exercising his jurisdiction to decide between the parties.'^ AVhen the jurisdiction of the court had been controverted and established, then was the original writ to be read again, and the tenant was to make such exceptions as the law allowed against the form of the writ. The requisites to constitute a legal and regular writ were many. It must be adapted to the cause of action. Thus, says Bracton, if a magnum breve de redo paiens Abatement of was brought, when it should be a pa)'vum breve *''« writ. clausam, the writ would abate though the action remained. Writs should be brought in their proper order. Thus, where a person had a cause of action that would entitle him to more writs than one, and he brought a writ of right, he could not, generally speak- ing, afterwards bring an inferior writ to recover the possession ; though there were instances where a demandant had gone so far as to i)ray a view in a writ of right, and afterwards was pern)itted to sustain an assize of novel disseisin. A writ failed if it was grounded on the mode and quality of a fact, when it ought to be grounded on the fact itself; as the principal, says Bracton, should always be determined before the accessary. Thus, as has been observed in 1 Bract. 411. • Tliis was a good exception in the canon law, under the name of Rcfatatio. Con: Jus. Canon, 270. ^ Br-ict. 411 b, 412. 440 HENRY III. [chap. VII. another place,^ a man disseised with violence should not bring a writ, quare vi et armis, because it only went to the quality of the disseisin, and not to the recovery of the tenement disseised.^ It was required that a writ should contain in it neither falsity nor error. It should, upon the face of it, appear free from all blemish. This seems to be required by Bracton more particularly in a writ patent ; and whether it was patent or close, it should have no rasure : yet a difference was made between rasures. Thus, if it was in stating a fact the writ failed, for names and facts should be stated with fidelity, and if such an error was made either by the chancellor, or by some clerk, or the sheriff, or the attorney, the person guilty would, according to Bracton, be in misericordid to the king for all his goods, and be liable to be punished as for forgery. If a false seaP was affixed, or even the true seal falsely applied, that is, to a false writ, this was considered as an offence of majesty ; and the offender, if a layman, was punished capitally ; if a clerk, he was degraded and rendered infamous.* A writ abated, if obtained upon suggestion of falsehood, or the suppression of truth. If the demandant or tenant died, the writ abated, and the action too ; but if they were more than one, as parceners having one right, then, though the writ abated, yet the action survived.^ If there was any error in the names of persons in the county or vill, the writ abated. If the tenant held less than the demandant claimed, tlie writ failed ; not so if he held more. If, pending one action, the demandant brought another writ for the same cause of action, the second writ abated. We have before said, that the Avrit abated if the demandant died: it was the same if, being a bishop, or an abbot, or the like, he was deposed ; but not if such bishop, abbot, or tlie like, were tenant in the action, for then the action would only be suspended till a successor was appointed, especially if the action was civil and not penal '.^ if it was both civil and penal, the action would hold both ad poenam and ad restitutionem, as long as he lived ; but if he died, whether before or after deposition, the penalty was extinguished with the person, yet an action would lie against the successor for restitution by another writ. A personal writ abated by the death of the tenant, whether such death was civil or natural, but the action survived. A civil death followed upon an entry into religion, and if this was procured fraudulently after the purchase of the writ, it seems it would not abate the writ. If the demandant in his declaration exceeded the limit of the writ, as on a writ of possession to count for the right, the writ abated. In short, almost all exceptions, says Bracton, which could be alleged might be properly ranked among pleas to the writ; because, if they went to the action, when the action was determined, the 1 Vide ante, 338, 331). ^ Bract. 413. ^ Tanquam falsarius. * Bract. 413 b. 5 ma. 414. 6 Ihid. 414 b. CHAP. VII.] WRIT OF RIGHT — PLEAS — BASTARDY, 441 writ was, of course, at an end: whether the action was abated, post- poned, or suspended, so was the writ. It was the opinion of some, that all pleas to the writ nnist be pro])Ounded, simul et soitel, in one day.i When the Avrit was abated by reason of any defect or error, and such defect or error was corrected, it was con- sidered as the same writ and the same action, thouj^h it was actu- ally another piece of parchment and another seal, and therefore neither the declaration or count, nor the attorney, needed be ehan2;cd.2 If the writ was open to no exception, then the defendant was to see ii' there was any aj^ainst the person of the plaintiff, pieastothe so as that he could nut at all, or at least not at that person, time, make his demand. Tlnis, it nu'^lit be urged, that the demandant was a servus, or a bastard, or sccculo morttms ; that he was mad, and non sance mentis ; or born deaf and dumb; or a leper; that he or some ancestor had been attainted of felony ; that he was a minor. If a person was appealed of felony, he could not brin^^ a civil suit till he had defended himself; nor could a defendant, under such circumstances, be bound to answer. It was a good plea to say, that the plaintiff was in confederacy with the king's enemies, or was in allegiance to the king of France, or to say that lie was exconnnunicated."^ It might be said, that the demandant had no right, but as parcener with another ; or in right of his wife, so as he could no more sue without her than she without him.'* Of some of these i)leas we shall now s})eak more particularly. The plea of bastardy was ])eremptoi'y, for, if proved, it excluded the demandant for ever from making any claim. It was always required that the special matters should be stated in the plea, otherwise there would be an obscurity and doubt whether the bastardy should be tried by the ecclesiastical court or not. Thus, having said nihil juris habes in terra ^ietitd quia hastardus es, it should go on, quia jxiter tuus nunquam desponsavit matreni tuam ; or thus, quia inter patreni tuam et matreui tuam contractum fuit matrimonium illegitimum ex quo prius contraxit cum quddam, quce vixit ti/mpore, quando contraxit cum matre tud ; in both which it appears, that inasmuch as the question arose upon the marriage, it must be tried by the ecclesiastical court. But if it was thus, quia natics fuisti per tantum tempus ante sponsalia vel matrimonium contractimi inter jKitrem tuuni et matrem tuam; then in such case, as the marriage was admitted on both sides, it is the opinion of Bracton, that the question, whether born before marriage or after,5 might very well be inquired in the king's court. We have before seen what scruiiles had been raised by the eccle- siastics upon this question of natiis ante matrimonium, and what a positive declaration was made by the king and barons in the statute 1 Bract. 41.5. a jiyid. 415 b. 3 Tlie leprosy of the mirul, as Dracton calls it, like that of the body, as it exchuled the unhappy object from the communion of men, so it precluded him from doing any law- ful act. ^ Lract. 415 b., 41G. ^ IbUl. 41G. 442 HENRY III. [chap. VIF. of Merton, passed in the twentieth year of this reign.i The matter was not suffered to rest there. We are told, that in the same year the king held a council, consisting of several bishops and lords, and that it was agreed by them all, that whenever the issue of natiis ante matrimonium arose in the king's courts, the plea should be transmitted to the ordinary ; and that an inquisi- tion being made by him in precise words, utrum talis natus sit ante matrimonium vel post, he should send his answer to the king's court in the same words precisely, without any cavil : 2 that in taking such inquisition, all appeal should cease, as in other inquisi- tions of bastardy transmitted to the ordinary, and particularly if there should be need of an appeal that it should not be made out of the kingdom. It was commanded that this should be the prac- tice in future. This regulation entirely precluded the ordinary from giving any judgment on the legitimacy, and confined him to the single inquiry of the fact, which he was required to certify in the very terms of the issue, leaving the king's judges to make their own conclusion upon it, which is precisely what Glanville lays down as the law upon this subject.^ But, before this provision of the council, a practice had obtained, as we have just said, of trying this special question of bastardy in the king's court. Thus, in the eleventh year of this king, in a writ of mortauncestor, the jurors found that the demandant was not the next heir, being born in adultery before marriage. It seems to have been considered as in the election of the king's judges, whether they would send such an inquisition to be made in the ecclesiastical court, or would try the question in their own.* It is not, however, improbable, that it depended upon the form of the issue which court should be resorted to, or finally relied on, for the trial of this question ; for if the demandant replied generally qudd legitvmus, without answering to the special matter, and this obscure issue was sent to the ecclesiastical court, that court would probably certify generally quod legitimus; but this would be such a failure in the ecclesiastical court as to induce the judges to cause an inquisition to be made in the king's court on the special matter : the same, if the reply had met the sjiecial matter, and the ecclesi- astical court had certified generally quod legitimus; though Brac- ton seems to think that such a general and obscure reply to the special cause of bastardy would pass for no reply at all, and that the demandant w^ould be barred for want of a replication ; and that, if he was a defendant, there would, in like manner, be judgment against him for want of a defence. There were some questions of bastardy that would not, under any pretence, be transmitted to the ecclesiastical judge ; as in case of a posthumous 5 or a supposititious child ; or where the father had been absent from the mother abroad, so as to leave no presumption ^ Vide ante, 266. ^ gi^^^ aliqud cavillatione. ^ Vide ante, 118. * Bract. 417. * Ibid. 417. I criAP. VII.] WRIT OF RIGHT — PLEAS — BASTARDY. 443 of legitimacy, wliich, liowevcr, depended upon the distance and the ])ro])ability of accoss.i The plea of bastardy would not lie between persons of the same blood, in a possessory .action (though it might between strangers), nor in a plea de consawjuinitalc, any more tlian in an assisa morlis antecc.ssoris, because a question of bastardy between such parties was always upon the mere right, if the inheritance descended from a common ancestor ; and so a rpies- tion of I'jght would l)c agitated in an action grounded only upon the j)osscssiou. It miglit be urged that such a ])lea was good, by the above rule, because a bastard was in trutli a mere stranger as to the true heir ; yet Bracton thought not, for it was at least doubtful whether he was not legitimate. When bastardy was pleaded, and the other party maintained his legitimacy, it seems there was no rule, whether the bastardy or the legitimacy should be proved, except this, that the i)arty who was extra seisinam should prove his plea, the person who was in seisin having no need, as 15racton says, to make out either one or the other ; and this was the governing rule, whether the plea came from the tenant or demandant : '^ so that in this issue the point to be proved was, sometimes the legitimacy, and sometimes the bastardy, according as the onus prohandi was imposed by the above rule. The wi'it to the ordinary in cases of bastardy differed very little from that used in the time of Glanville. It recited that -writ to the a suit was commenced, and that bastardy Avas ol)jected oi^iimiry to one of the parties : Et ideo vohis mandamus, quod, convocaiis coram vohis convocandis, rei veritafem inde diligentcr inquiratis, videlicet, atrilm A. &c. Et inquisitionem, quam inde jeceritis, scire faciatis nobis, veljustitiaj'iis nostris taHhns 2'>cr lit eras vestras jjatcntes. Teste, d'c, and so, mutatis mutandis, according to the special cause of bastardy. There was this diiference between the writ of natus ante matrimoniiim in the time of Glanville, and that now in use, that they no longer inserted these words, et quoniam. hujiismodi inquisitio 'pertinet ad forum ecclesiasticum : an altera- tion wliich probably had taken place since the statute of Merton, and the above-mentioned provision of the council on that subject. The same was observed if the ordinary was directed, as he some- times was, to inquire concerning the legitimacy of a posthumous child ; both these questions being triable as well at common law as in the spiritual court. But the above form of words was retained in all cases that were purely of ecclesiastical cognisance. When the writ was sent to the ordinary, the plea remained sine die in the king's court till the inquisition was returned. The ordinary Avas to proceed to make inquisition in the })resence of the parties, if they chose it,3 and when made, there lay no appeal. When the inquisition was returned, the plea and the other party were sum- moned. The effect of a legitimacy proved in this way, if confirmed by a judgment in the king's court, was, that the party became 1 Bract. 418. « Ibid. 418 b. 3 PAd. 419. 444 HENRY III. [chap. VII. legitimate against all the world, unless any fraud could be proved in the method of proving it, and in the inquisition. A fraudulent inquisition might be obtained in this way. A demandant might bring several writs for recovery of land, and procure one of the tenants to object bastardy, and to suffer an inquisition to pass in his favour, for want of contesting the proofs of legitimacy. Legitimacy, when regularly proved, was good against all the world, and the heir of such person was likewise entitled to the benefit of it. It was a rule that no person's legitimacy could be questioned after his death by plea pleaded, as he could not, says Bracton, make an answer to it ; but, notwithstanding, it might be incimred per 2^citriam whether such person was a bastard or not, in the same manner as the ques- tion whether a person held in free tenure or in villenage ; although it could not be inquired, after his death, concerning the personal condition of such person.-^ When profession, or entering into a religious life, was objected, this issue was always transmitted to the inquiry of the spiritual court.^ The plea of minority of the demandant was only a dilatory „ . exception that did not abate the writ, but suspended the action till he came of age, at which time the plea would be resummoned. There were some actions which a minor might bring, and some which he might not. A minor might demand his own seisin by assize of novel disseisin, and the seisin of his ancestor by assisa mortis antecessoris ; but when he had so recovered, he was not obliged to answer either for the possession or right, till he was of age : yet he could not demand land in free socage of his ancestor's seisin, in a writ of right, before he was fourteen years old, nor feudaui militare till he was completely twenty-one years old. On the other hand, a minor was bound to answer as well upon the right as upon the possession, if he had been enfeoffed of the land in question during his minority ; and would have all the privileges of essoins, vouching, and the like,- except that he could not appoint an attorney, and consequently he could not have the essoin de malo lecti. A minor was obliged to answer for a fact and injury of his own in a civil or criminal suit. Thus, he was liable to an assize of novel disseisin, and to a suit for dower. But where a grandmother had neglected for ten, twenty, or thirty years, during the life of her son, to demand dower, and brought a writ against the grandson, she was obliged to wait till he was of age, on account of the probability that she had agreed with her son and released the claim.^ A minor was obliged to answer in a matter that concerned the king. For such purpose, an inquisition might be made, whether his ancestor died seised id de f(jedo, without prejudicing the heir. A minor must answer to a fine, if pleaded ; but if he was vouched by virtue of a fine, he need not answer ; though he would be obliged to answer in ivarrantia cartcc. A minor must answer in 1 Bract. 420. ^ j^j^^ 422 b. ^ j^i^^ 421 ^ 422. CHAP. VII.] WRIT OF RIGHT — DILATORY TLEAS — MINORITY. 445 assisa mortis antcccssoris, and in every other })lea concerning any- thing of which his ancestor did not die seised in domhuco ut dc foedo, hut concerning nothing of which he died seised in dorninico nt de fmlo. If a minor lost hy assize in a writ of possession, ho might, when of age, recover in a writ of right. A minor nnist answer as well on the fact of another as on his own, so as to make restitution, though not quoad i^i nam ; as when a writ of entry was brought immediately after the death of the ancestor who had com- mitted disseisin. A singular instance, where the privilege of infancy was dispensed with, is mentioned by Bracton. A man bound him- self and his heirs to answer whether they were of age or not. This obligation was made in and by the advice of the court, and the heir was adjudged to answer, though a minor. In tiic case of inquisitions taken for the king, a minor might have a writ to the following effect, to save himself from being affected thereby: — Rex vie. salutem. Prct'cijnmiis tibi, quod nan implacites vel implacitari permittas A. qui est infra ct'tatem, id dicitur, de libera tenemento stio in villa, cC'c, donee idem A. sit a talis quod 2')0ssil et debeat secundum ler/em et consuctudineni Anr/lia; de tene- mento respondere} If a minor was vouched to warrnntry in the county, he might have the following writ to the sherifi": Praa'jn- mus tibi, quod nan permittas quod A. implacitet B. de tantce terra" cum j^ertinentiis in tali villa, unde idem A. trahit ad luarrantum C qui est infra adatem, et luarrantus ejus esse debet, 2d dicit, donee idem C. sit talis i^lena: cctatis quod possit et debeat secundum legem et consuetudinem Anglia: terram warrantizare. If there were more demandants than one, as parceners, and one was a minor, it would be a good plea against all ; the same, if par- ceners were tenants. So if a man seised in right of his wife was tenant to a writ, together with her, and she was within age, the plea against both would remain sine die till she was of age : not so if the husband was a minor, because, says Bracton, a woman might, by contriving such a marriage, defeat suits against her respecting her own lands. If the husband and wife were demandants, and she was a minor, and married before the writ purchased, the plea would remain quousque : if she married after, the writ abated, should the tenant so please, or the action was suspended till she was of age.' Such consideration was shown to the feeble condition of a minor, that his estate, whether in services or tenements, descended to him from his ancestor, who was p)eaceahly seised thereof anno et die quo virus, et mortuus fuit, was not to be called in question till he was of full age. So, on the other hand, if a minor demanded services that were not due to him, and the tenants alleged,^ quietunciam quo die et anno antecessor vims et Quorfuus Jhcy need not answer till he was of age. A minor was not obliged to answer to any charta till lie was of age, 4 This held not only in services or tenements, 1 Bract. 422. ^ J^jier se. If the inheritance had been divided, and each held pro ptarte, the other parceners need not be named ; yet, on the other hand, says Bracton, the tenant was not bound to answer without his parceners, and in prudence he ought not ; for if he did, and he lost the land, he could have no regressum against his par- ceners to obtain a contribution. The tenant, therefore, if he pleased, might have a writ to summon them : Surnmone, &c. quod sint coram jnsticiaims, dx. ad respondendum C. simul cum D. de tantd terra, d-c. quad idem G. in curia nostra clamat, Sc, et sine quibus prxdictus D. non vidt respondere eidem C. ciim pra:dicti, dtc, sint participes ipsius D. de teird pradictd, &c. Should they appear, they might answer together with the tenant ; but if they declined answering, the plea still proceeded ; and whether they appeared or not, the tenant, if he lost, would be entitled to contribution. If the inheritance was not divided, then all the parceners must be made parties ; but upon a plea that there were other parceners, the demandant might reply such matter as would disable them from claiming any right, and therefore as not being persons who need be named in the writ, the same as was before said in the case of a demandant. 2 If there was no plea to the person, either of the demandant or Pleas to the tenant, the next consideration was such as might arise action. upon the matter itself. The thing in demand ought to be stated with certainty; in which the count or declaration, or, as Bracton calls it, the intentio, or narraiio, should correspond with the writ.3 Perhaps the tenant in the action was not tenant of the land, or was tenant only of a part ; or perhaps he held it only in the name of another. Thus he might hold it in ward, in vadium, at will, or for term of years ; in either of which cases the writ should be brought not against him, but against the person in whose name he was seised ; and if this was pleaded, it would abate the writ.* In such case he might plead, generally, Nontenure. ^Qntenet, or that the freehold was not in him. If he put himself upon the country for the truth of such a plea, and it v/as found against him, he would lose the land in question, as a penalty for his false plea ; the same, if he said he did not hold, it 1 Bract. 429. ^ lUd. 430. ^ Ihid. 431. « Ibid. 431 b. CHAP. VII.] WRIT OF RIGHT — PLEAS. 449 but another did. But if he adniilted that lie held part, and said that another held the rest, and this was found again.st him, he did not lose the whole, nor a part, on account of his false plea, but the suit went on, and he was to answer for the whole. He might plead that he once held the land, l)ut Ihat he did not at the j)resent time.^ If this was owing to ati alienation before the pur chase of the w^it, no fraud could be objected ; nor indeed, if after the purchase, provided he was ignorant of the writ. In some cases the alienation might be even after the summons, without being fraudulent ; as if he went beyond sea, either before or after the purchase of the writ, not being prevented by the summons, and knowing nothing of it, and there made an alienation; l)ut if neither of the beforementioncd cases could be [)roved, and especially if the alienation was after the summons had been testified and j)roved, he was considered as the real possessor, and was to stand to the suit as tenant. 2 He might plead that he held only so many acres, whereas the demandant claimed so many; upon which an inquisition might be had by a writ to the sherilf, directing him to summon four, six, or more of lawful men of those who made the view, and by them to make inquiry whetlier the tenant held so many or .so many acres. Again, in a plea of non tenet, if the tenant had before confessed in the county court that he held the whole, a writ Avent to the sherift', commanding him to make a record of the plea in which such con- fession was made.2 If the demandant, after a plea of non tenet, made a retraxit, and commenced a suit against another, the tenant would not suffer any penalty for his false plea.* E.Kce])tion might be made to the name of the vill, any mistake in which would be an incurable error.5 Another part of the writ, or count, to which an exception might be made, was the claiming the land ut jus meum. To ,^ . . this the tenant might answer, that he iiad majusjus; and this issue would be tried by the great assize, or duel, as the tenant pleased. It has been before shown, that the best title, in the law, was where the jus 2MSscssivnis and jus proprlctatis were united, which was therefore called di-oit droit; and it was a maxim, that whoever had i\\Q jus j)roprietatis ought to have tlie possession. Possessio scquifur 2^>'02Jrietate7n but not vice versa. The pro- priefas might be separated from the possessio in this manner: Upon the "death of the ancestor, the proprietas immediately descended to the next heir, whether he was present or not ; but not being present, the possessio might be obtained by another, who put himself into seisin ; by virtue of which the J2is posscssionis w^ould descend to his heirs, through the negligence of him who had the proprietas. Thus, while the jus proprietatis descended on the elder brother, the younger brother might obtain seisin and die seised, transmitting to his heirs, together with i\\(} jus posscssionis, ' Bract. 432. ^ j^^ 432 b. ^ Ibid. AV>. * Ibid. 4i'3. •"* Ibid. 434, 2jb^ 450 HENRY III. [chap. VII. which he himself had, a sort of jus proprietatis ;'^ so that there would be two Jura proprietatis in different persons by different descents ; but one, as the descendants of the elder brother, would have MAJUS jus proprietatis, on account of the priority ; and those from the younger brother minus jus; yet the possessio of the latter would prevail till the former evicted them of the jus proprietatis. Another jilea which tlie tenant might plead was, that the demandant, or one of his ancestors, had released to the Release. tenant, or some of his ancestors from whom he derived the jus possessionis, and quit claimed for himself and his heirs by a fine made in the Idng's courts ;2 or that the demandant or some ancestor lost the land in que~stion, in judgment in an action depro- prietdfe, as by the great assize or duel, or a jury, on which he had put himself; and these pleas were to be proved by the record of the justices. If the demandant or any of his ancestors had been apprised Fine and non- of any litigation, or final concord made concerning claim. their right, and had not put in their claim, this silence might be pleaded against the demandant to a writ brought to establish such right. The manner of making a claim was simply by the words,^ appono clameum nieum ; or, what had the same effect, by commencing a suit ; a fact like this being a stronger proof than a mere claim that he did not mean to abandon his pre- tensions. This claim was to be made pending the plea, and the making of the ajrographum, or before judgment, provided he was in court at the time, or in the kingdom within the four seas ; and in such case ignorance was no excuse ; nor, says_ Bracton, as it should seem, would he afterwards be heard ; for if it was a fine, the time taken up by the pendency of the action afforded, at least, a month for putting in a claim ; for the summons ought to be served fifteen days at least, that being what was called reasonable summons ; and the cyrographum used not to be allowed at the return of the writ, but a day was given at fifteen days at least, when the cyrocjraplium was to be taken, during all which time there was suf&cient opportunity to make claim. Indeed a month was the period which Bracton says was limited for this purpose, secun- dum communem p)rovisionem regni, and therefore he calls it the legal time for making the cyrographum ; so that, if it was made beTore, it was fraudulent, and no claim need be made to invalidate it.4 The place to make claim was in the king's court, at the time of passing judgment, or before. However, there were certain causes of excuse, which would pro- tect a party from the consequence of having omitted to make his claim ; as, if at the time of the fine and making the cyrographum, the person who ought to make the claim was within age, or 7ion sancc mentis ; if he was an idiot, born deaf and dumb, or the like. But when such person came to age, or recovered his senses, it was 1 Bract. 434 b. 2 Ibid. 435. Ihid. 435 b. * Ibid. 436. CHAP. VII.] WRIT OF RIGHT — FINE AND NON-CLAIM. 451 the opinion of some that he ought to make that claim then, whicli he could not make before; and, according to some, if a minor did not do it witliin a year after he came of age, he would not be excused ; yet Bracton says tiiat he was excused though he made no claim within that time, and that a claim need not be made at all, and would have no avail after judgment jjassed, or the delivery of the cijrutjmplmm. A person who was in prison at the time of the suit, or detained by such a disorder as did not allow him either to come or send, would be excused ; as would also, for the same reason,^ a person who was restrained by force, even out of priscm. A married woman, even though she might send, would be excused, an sub j)olestafe vii'i ; so that all sorts of im[)Oteuce seemed suffi- cient excuse ; and u[)on this idea, a })erson who w^as iiUra mare at the time was excused ; and none of these, according to Bracton, need make any claim after those impediments were removed, if judgment was passed, or the curographum delivered. Another case in which a party was excused, though he made no claim, was where the fine, according to the words of Bracton, ipso jure sit nuUus, as it' it was made of a tenement in the ])Ossession of another person, perhaps of" the person himself to whom it was objected that he made no claim, or some ancestor, and not of him (or his ancestor) who pleaded the fine ;'- or if the fine was made by any collusion or fraud, or in any way so to the pi-ejudice of another as that it ought not injustice and equity to hold good. A person would likewise be excused if there was no cyrographum; or, if a desseisor made a feoffment and then a fine, such a fine might be revoked and made void ; so if, at the time of the suit, neither him- self nor his ancestors had any title to the tenement in question ; or if the ancestor who ought to have made the claim was not an ancestor through whom any right could descend to the i)erson against whom the fine was pleaded. Bracton says, that notwith- standing a fine and cyrograplium might seem prima facie to be revocable in many cases, because the person making it was only tenant for life, in dower, and the like, or because the land in ques- tion was held in villenage ; yet all persons were in law bound by this judgment, and therefore, if they made no claim, tliey would not be excused. In short, it is declared by Bracton, that no person should be excused if he was in the kingdom, infra quatuor tnaria, and had it in his power to come or send, so that even a person iti languore would not be excused, because he might send. 3 If a person was in servitio regis, so as he could neither come nor send, he was excused, although he made no claim. Thus stood the law upon the subject of claim to suspend the effect of a judgment or fine. From the manner in which Bracton speaks of a fine, it should seem as if this judicial concord was entered into after a proceeding was commenced on any writ whatsoever which was grounded on ' Ubi eadem ratio, ibi idem jus. ^ Bract. 403 b. Ibid. 437. 452 HENRY III. [chap. VII. the proprietas, and that it was not confined to a writ of covenant, p:rounded upon the breach of a supposed prior agreement and concord ; it seems particularly to have been made in a writ of right, and is all along mentioned in company with a judgment therein upon the great assize or duel. We have now dismissed the subject of real actions, through all Of personal their parts and kinds. It remains to add something actions. qu the nature of process in actions personal. These, like real actions, were commenced by summons ; but if a defend- ant omitted to appear upon a lawful summons, the contempt was treated in a different manner, for they proceeded by attachment, as appeared in Glanville's time {a)} Personal actions differed likewise in their process, according to circumstances: in some causes which from their nature would not bear delay, as where the subject was the fruits of the earth, or other things which were ])erishable ; the solennitas attackiamentorum, as it was called, was dispensed with.^ So again, where the lapse of a benefice was apprehended, or where the injury was very atrocious, or the plaintiff deserved a particular respect or privilege, as noble persons, or merchants who were continually leaving the kingdom. But in personal actions which did not require such special favour, if the defendant did not appear to the summons, and the plaintiff offered himself in court the first, second, third, and fourth day, he was not to be waited for any longer ; but, whether the summons was proved or not, so as it was (a) The Mirror says, in personal actions defaults used to be punLshed in this manner. " The defendants were distrained to the value of the demand, and afterwards they were to bear their judgments for their default, and for default after default judgment was given for tlie plaintiff. This usage was changed in the time of Henry I. ; that no freeman was to be distrained by his body for an action personal, so lung as he had lands, in which ease the judgment for default was in force, till the time of Henry III. ; i.e., that the plaintiff shoidd recover seisin of the land, to hold the land vmtil satisfaction was made. In actions where the defendants were not freeholders, they used to be punished in this manner : first, process was to be awarded to arrest their bodies; and those who were not found were outlawed" {Mirror, c. iii. s. 5). Elsewhere it is said personal actions bear their introduction by attachments of the body ; but not by summons and mixed actions ; first by summons, and afterwards by attachments. The difference was, that where the defendant had land, the seizure of that would be sufficient coerci(m to appear ; but where he had no land, then the person was to be seized. The passage in the Mirror, however, it is to be observed, was written after the time of Henry III. ; and the above allusion to an alteration in the law is no doubt to the statute of Malbridge, 51 Hen. III., after Bracton's time, allowing that accountants who had no lands might be attached by their bodies, i.e., arrested at common law. It should seem by the Mirror that defendants in personal actions could be distrained by their bodies until the time of Henry I., and then if they had no lands. But the usage must have altered in order to require the statute of Malbridge : so much did the law fluctuate in the earlier ages of our law. As regards summons, it has already been observed, the period allowed for appearance varied with the nature of the action, and was shorter in personal actions than real actions ; and Fleta says it was shorte.st in mercantile causes : " causae mercatorium " (lib. vi. c. vi.) It is to be observed that attachment might be of the person or of the goods ; and thus the Mirror speaks of a man being distrained by his body, i.e., arrested. In Glanville's time, it appears that in real actions the land was seized, and the parties might be attached by their bodies for contempt; but nothing is said as to personal actiima. ' Vide ante, 121. =* Bract. 439. CriAP. VII.] PROCESS IS PERSONAL ACTIONS. 453 not openly denied, he was to be attaclied by pledges. Upon wliicli the entry on the roll was thus: A. obtulil nc quarto dit versus B. de placlto : then the substance of the writ was added, and it went on, el B. non venit, el suinmouUus, d'c, Judicium, Altachielur quod sit coram, d-c. The writ of attachiuent was — Bone per vadium et salvos plcjjios B. quod sil coram, Jic, ad resjjondcuditm de placilo ; and liieu followed the substance of the writ as upon the roll. The following instances of such entries upon the roll are given by Bracton: De placilo quare non tenet ei conventionem inter eos faclam, or fine in inter eos factum de, ro eo, nee jyer ipsum manum, apponat in terris, tene- mentis, bladis, nee in aliis catallis. If he still made default, the next distringas, if it could be so called, was, quod capiat omnes terras et omnia catalla in manum domini regis, et capta in manum domini regis detineat, quousque dominus rex aliud inde prajceperit, et quod de exitibus respondeat domino regi : and beyond this there was no further process per terras et catalla ; they being both taken into the king's hands by the sheriff, who was to answer for the profits to the crown. What step was to be taken by the plaintiff who had suffered all these delays ? For it was hard that, after all, he should lose the effect of his suit. Bracton thinks that in this there was a differ- ence between actions upon a contract for a sum of mone}'', and for a trespass. In the former, he thought it would be right to adjudge to the plaintiff a seisin of the chattels to the amount of his demand, and to give him a day, and summon the defendant ; when, if he appeared, the chattels should be restored, upon his answering to the action : if he did not appear, he should not be heard upon the matter, but the plaintiff should become lawful owner thereof. But if it was an action of trespass ,2 then he thought, the justices should J Bract. 440. ^ Ibid. 440 b. CHAP. VII.] PROCESS IN PERSONAL ACTIONS. 455 estimate the damage sustained ; and the rents and chattels of the fugitive being vahied, a portion should be taken into the king's hands to the amount of the duuinge, as a ])enaltyon the defendant. Should the d('ft'nraxeptum fuit vicecomiti, quod attuchiaret eum, quod esset ad talent diem, et ipse vicecomes inde nihil fecit, nee breve quod ei inde venit, misit ; et ided pracejytum est vicecomiti, sicut alias, quod attacliiaret eum, quod sit ad, &c., et quod ipse vicecomes sit ihi auditurvs judicium suum de hoc quod prccdictum, &c., non attachiavit, nee breve quod ei inde venit, misit, sicut ei projceptum fuit. Upon this there issued an alias attachment : Praxipimus tibi, sicut alias tibi praceperi- mus, tf'c.i If the sheriff did nothing upon this writ, nor showed any sufficient excuse, he was amerced for his contempt, and was commanded a third time to attach the party : Fraicipim,us tibi, sicut Stepius prccceperimus, &c. Sometimes the sheriff sent an excuse for not executing the writ. He would sometimes return, that the writ came too late to be executed; that the party was not to be found in his bailiwick; that he was wandering from county to county, and had no certain residence ; that he had no lands or chattels by which he might be distrained ; and many other excuses might be feigned. Again, should the sheriff err in the sort of attachment ; as when he was to take pledges should he make a distress ; or, instead of taking the person, should he admit to bail ; in all such cases it was usual to make an entry of the retm-n, and to specify it in the writ that issued in consequence thereof : as, for instance, et B. non venit, et vicecomes mandavit, quod non attachiavit eum, quia recepit breve tarn tardl quod praxeptum domini regis exequi non potuit : and if it w\as proved that he received the writ in good time, or in the county court, and miglit have executed it, the record went on, Et testatum est, quod istud recepit satis tempestiv^ (or in comitatu ubi attachiandus pra:sens fuit), et ideo, praxipiatur qudd, d-c. Upon this a writ issued, commanding him to attach the party,2 and appear himself to answer for his default ; and if he failed in either, he was in misericordid. A sheriff was sometimes excusable for not executing process by reason of some liberty which he could not ' Bract. 441. ^ KjuI. 441 b. 456 HENRY III. [chap. VII. enter, because the lord thereof had the refornahrevium therein. In such case, tlie sheriff was to command the bailiff of the liberty to execute it ; and if he did not do it, the sheriff was excusable before the justices, by making a return, qaod prccceptum est ballivo. When the baililf thus failed in doing his duty, the sheriff was then com- manded not to omit doing it by reason of that liberty ; under wliich special warrant the sheriff had an authority that did not generally belong to him. The entry upon the record w^as, Et vicecornes man- davit, quod jirct'cepit hallivls libertatis,et ipsi nihil inde fecerunt, et ideo prccceptum fait vicecomiti, quod non omittat propter liber- TATEM quill, etc., and there issued a writ quod non omittas, con- taining an attachment, distringas, habeas corpus, or whatever the necessary process might be, by which also the bailiff of the liberty was summoned to show cause for his neglect. i If the sheriff was resisted in the execution of this writ by the bailiff or lord of the franchise, there issued another non omittas, with a clause authorising him to go, with some sufficient knights and free men of the county, and take the bodies of such as resisted them, and keep them in prison till the king's pleasure was known concei-uing tliem. The lord of the liberty was likewise attached to appear and answer for the offence ; and if he could not deny it, his liberty was seized into the king's hands for such an abuse of it. A sheriff might say that the person was a clerk, and claimed the privilege of a clerk not to find pledges, and that he had no lay fee by which he could be distrained. It seems from Bracton, that in such case they did not proceed directly against a clerk, particularly in trespasses ; but the course was to resort to the archbishop, bishop, or other in whose diocese the person to be attached resided, or had an ecclesiastical benefice, and require him, quod faciat, &c., clericum venire.'^ If the bishop neglected to obey this writ, he was summoned to answer for his default ; to which if he made no appear- ance, there ran against him all the solennitas attachiamentorum, as in other distresses, and he was immediately distrained by his barony : ^ and if neither the bishop appeared nor the clerk, then they proceeded by judgment of the court against the clerk, who was arrested and detained till he was demanded by the bishop. At any rate, it was expected, a bishop who held a barony of the crown should obey the king's writs ; and if a clerk did not appear, the bishoji might bring or send an excuse why he had not the clerk according to the requisition of the writ ; he might say that he had no benefice in his diocese by which he could be distrained ; or if he had a benefice, he might say that he was a student at Paris beyond the sea, that he did his utmost in sequestering him by his prebend and other benefices, and could do no more in the way of compulsion. This would be a complete justification for the bishop, and all process would cease till the clerk returned, and could be taken ; and then, if the bishop omitted, the sheriff might proceed as above mentioned.* 1 Bract. 442. 2 Ibid. 442 b. 3 Jbid. 443. * Ibid. 443 b. CHAP. VII.] PROCESS IN PERSONAL ACTIONS. 4.57 It was said before, that in some personal actions tlie solennitas attachiamentorum was not to be observed, and this was in several cases of ])rivile<^e ; as, in addition to those that have been already meiiti(jiied, where the plaiutifi' was a crusader or a merchant, whose affairs demanded despatcli ; where there was some uigent necessity ; as in assizes ot darrein presentment, (iwire iinjiedd, and non per- mittit, lest the plaintiil" shouhl incur tlie lapse of six months ; wliere the subject in contest was a perisliable article, as ripe fruit ; or, in an action of trespass, where the injury was atrocious, and against the king's peace ; where regard was to be had to the quality of the per- son injured, as the Idng, (pieen, or their children, brothers, sisters, or any oi their relations or Idn ; in any of the above cases, it was nsual, in\he first instance, to have a writ to the sheriff, quod J uiheat corpus, &c., ad respondendain. But this writ against the body, instead of the clause ad audiendum judicium de p^urihui. dejaltis (which would liave been absurd), had one, containing the cause wherefore tlic ft)i'mality of attachment was dispensed with ; as, Prcecipimus tibi, quod, oinni occasione et dilatione postposita, propter privi- legium niercatorum, quorum placitum instdutiam desiderat, habeas, &c., and so in other cases. But, notwithstanding this intention to avoid delays, the defendant might have an essoin de malo veniendi, before he appeared.! In capital cases, there was no attachment but that per corpus : and anyone, with or without a precept, might arrest such an offender. - In mixed actions, as those for dividing a common, de proparte sororum, of partition, and tlie like, the usual process was, distress real, and not distress personal. Thus far Bracton speaks of the commencement of mixed and personal actions; but, notwithstanding the full manner in which he has treated the whole proceedings in real actions, he leaves these without any further discussion. 3 The small ]iroportion that per- sonal projjerty bore to real, in these days, might be a reason why the remedies provided for the recovery of it, should have under- gone very little consideration {a). Consistently with the inferior light in which personal property was held, it is probable that the («) Thore is a whole chapter upon contracts (c. ii. s. 27), which are expounded very fully, whether as to their nature, .simple contract or deed, or their subject mat- ter, leases, bailments, and tlie like ; and it is said, " according to the nature of the actions, the forms of the remedial writs are adopted." Bat then, as the remedy would in most cases he far more convenient in the county court, the only remedial writ would be " justicies," to the sheriff to empower them to hear the case in that court: In the vast majority of cases, this would be the most convenient course; and hence little is said about the procedure in such actions in books which professedly treat of proceedings in the king's superior courts, which were, for the most part, confined to suits relating to real property. The Mirror shows that there were personal actions, with procedure as well adapted to them as those in real actions; and in the Mirror they are treated of as fully. The reason why the author had not found so much about them in Glanville or in Bracton was, that those authors — both of them judges in the king's superior courts — confined themselves to proceedings before those courts, and their proceedings were almost entirely in real actions. Because (as has been ' Bract. 444, * Ibid. 444 b. ' Vide ante, 459. 458 HENRY III. [chap, VU. nature of personal actions had not been much refined upon. We shall see, in the following part of this history, how they gradually grew into notice, and at length became equally important with real actions. It is to be lamented that our author passes over with the same silence the redress to be obt lined by a writ of error; the practice of which must be collected from authorities of a later period. seen), originally, the primary jurisdiction in all actions was in the county courts, whose jurisdiction was not limited, as that of the courts baron was, to sums under forty shillings, but extended to any amount ; — because there were no other courts of primary and ordinary jurisdiction. And thougli a practice had arisen of requiring the king's writ of justicies to the sheriff, to give the county court jurisdiction in cases above that amount ; yet it is probable that, for many reasons, the cases which concerned mere personal rights of action continued to go into that court, and were not removed thence, so often as causes which concerned the inheritance. Moreover, some actions, as in debt, in which wager of law — a usage arising out of the old Saxon system of compurgators — was allowed, and which actually, in law, survived to our own times (although, of course, obsolete ages ago) — was one which, if it were to be resorted to, would be far more conveniently resorted to in the county court, where all the compurgators would be well known, than in the curia regis. Added to this, the nature of personal actions generally required a greater degree of speed in the pro- ceedings than real actions, in which speed was not of great importance, and which required deliberate judgment. That personal actions were not only numerous, but far more numerous than real, will be manifest upon a little consideration, and is apparent fi'om many passages in the Mirror. The matters and transactions out of which they arose were of daily and hourly occurrence ; whereas suits to recover real estates must, from their nature, be far fewer in number than cases of trespass, for instance, for trespass or distress, would occur every day ; while actions to recover land would be in comparison few. The Mirror mentions many classes of personal actions, and treats of them so fully as to show that they were common. For instance, there is a whole chapter upon wrongful distresses, which were very frequent in those times, and of which the Mirror says, " An action granted upon personal trespass, occLirreth to people wrongfully distrained ; and it is said that if the distress is carried away (out of the county), the cognizance belongs to the king's court, which could grant replevin ; but to hasten the remedy, sheriffs and hundredors had power to take sureties, and deliver the distresses, and hear and determine the plaints of the wrong- ful distress." And it is obvious that these were, for many reasons, cases fit for the local courts. And so, for various reasons, of the greater proportion of personal actions. The Mirror mentions various classes of such actions in different passages. Thus, in one place, it speaks of actions of account, and of leading away distresses (c. iv. s. 5) ; and in another place, of actions where c)ne denies his gift, his bailments, his deed, or other kind of contract (c. iii. s. 23) ; and in another place, of obligations and covenants (c, ii. s. 32), and trespasses, and taking of goods (c. i. s. 24). CHAPTER VIII. HENRY III. 77(6 Eyre — The Jurif—Capitula Ttincris—Of Lme-Majesty — Who to j^idge thercof^Of Homicide— The Office of the Coroners— Imprisonment and Bail — Of Outlawry— at the Kiwfs Suit— Reversal of Outlawry— Of Murdrum. — Presentment of Englishery — Abjuration — Ordeal goes out of Use — The Duel — Appeal of Homicide — Exeepdions thereto — Proceeding per Fanmm Patri(e— Of other Appeals— Of Theft— Of Provors—Of Vetitum Nandum— Dies Communes in Banco— Statute of Marlbridge— Distresses— Writ of Entry in the Post — Legatinc and Provincial Constitutions — The King and Government — Statutes — Bracton — Miscellaneous Facts. What has been said of our criminal law in the reign of Henry II. was confined to such i)leiis as related to the king's crown and dignity. We sliidl now be enabled to treat more fully of this sub- ject in all its parts. As criminal justice was most commonly administered in the country before the justices itinerant,! it may be proper to give some account of the course of proceeding there ; after which we may go on to the consideration of crimes, as to their nature and punishment ; with the method of pursuing and prosecuting offenders, from the time of the fact committed to their condemnation in court {a). Previous to the coming of the justices itinerant, there issued a general summons, as was before shown "^ for all persons ^^^ to attend at a certain place and time ; which time was to be at least fifteen days from the proclamation of the summons. (a) The author here follows Bracton, who speaks only of justices itinerant ; and he appears to have regarded the justices itinerant and the justices in eyre as the same ; but the former were at first appointed to go their circuits yearly, or twice a-year ; whereas the latter, there is reason to believe, went once in seven yeans. It appears that, towards the latter part of the reign, the justices itinerant were rc- .strained from going oftener than once in seven years {Lord Litdeton ; If en. If., vol. ii. p. 208) ; and in the histories of the contemporary chroniclers, it is stated that the people actually remonstrated against their coming oftener. The explanation of this is, that their commissions were not merely for the administration of justice, but also embraced the collection of various branches of the royal revenues— fines and amercements, talliages and forfeitures ; and they often pressed their exactions so that they were dreaded as oppressors rather than hailed as protectors. The Jiirrnr, under the head of "Justices in Eyre" (not m.entioning justices intinerant), says that it was ordained that kings or their justices .should go circuit every seven years through all the shires, to hear and determine all pleas, receive the rolls of sheriffs, bailiffs, &c., and see if any had erred, either in the law or to the damage of the king, and those things which they found not determined, they should determine them ; and that in the eyre they should inquire of all offences which belonged to the king's suit sand jurisdiction — i.e., involved fines or amercements at his suit. And they were to inquire of all manner of pleas and presentments after the last eyre taken and received —the first to inquire, hear, and determine the articles presented in the last eyre ' Vide ante, vol. i. 201. 2 Ibid. 403. 460 HENRY III. [chap. VIII. When the justices came, the first step to be taken was to read the torits or commission under wliich they derived their authority. After this, if the justices pleased, one of them, being, as Bracton says, major et discretior, was openly to propound the occasion of their coming", to enlai"ge upon the utility of tlie institution of itinera, and the benefits that followed from keeping peace and good order; he was particulai'ly to notice the violation of justice committed by murderers, robbers, and burglars ; and inform the whole assembly that the king commanded all his liege subjects by their faith, and as they would preserve their own propei'ty, to give every advice and assistance towards repressing such and the like offences. After this, says Bracton, the justices were to withdraw into some private place ; and call to them four, or six, or more of the majores comitatus, who were called ^ busones comitatus ; being persons on whom the rest depended, and by whom they Avere governed. With these the justices were to converse, and show how provision was made by tlie king and his council for all persons, as well knights as others, being fifteen years of age, to make oath that they would not harbour any outlaws, murderers, robbers, or burglars, nor col- lude with those who did ; and, if they knew of any, tliat they would cause them to be attached, and report it to the sheriff and his bailiffs ; that they would follow every hue and cry with their family and men ; that they would arrest all suspected persons, without waiting for the mandate of the justices or sheriff, and make report to the justices or sheriff of what they had done. These jjrincipal persons of the county were to swear to observe all this ; and moreover, that if a person came into a town to buy victuals which were suspected to be for the maintenance of male- factors who were harboured in the country, they would arrest the party, and deliver him to the justices or sheriff ; that they themselves would not receive any stranger into their houses by night ; or, if they did, that they would not permit him to go before it was broad day, and then not without the testimony of three or four neighbours.^ After this conference with the principal people of the county, which were not ended, and afterwards to determine matters since then (c. iv. s. 21) ; and it is elsewhere said to be an abuse that a man should have an action personal from a longer time than since the last eyre (c. v. s. 7) ; and it appears, also, that crimes were not inquired into if committed before the last ej-re. Thus, then, it seems clear, that justices ' in eyre ' (a phrase probably derived from the old word eyrer, to go, from the Latin ire, and akin to the Latin word, iter, used in Bracton), meant justices who went once in seven years to hear and determine pleas of the crown, and all other matters which justices itinerant wouM hear. Britton also, who wrote after the end of this reign, has a heading, " De Eyres :" — " Quant a nos venes al eyres de nos justices.' 1 The anomalous appellation of busones is to be met with nowhere but in this passage of Bracton. Sir Hem-y Spelman says, he had seen a JVIS. that was written barones comitatas ; if so, it possibly means the barones majores, or lords within the county. The distinction between barones majores and rninnres had become more important in the days of Bracton than it had been before ; for it is supposed that the latter were, about that time, excluded from the legislature, wi-its of summons being directed only to the former. Vide Spelman and Du Cange voce busones. 2 Bract. 115 b. 116. CHAP. VIII.] JUSTICES IN EYRE. 461 tlio jnsticos, we may suppose, returned into the open court, to attend to the rest of the husiness. Tlie next step was the calling over the Serjeants and hail ills of hundreds, each of whom waste swear to choose (>ut of his hundred four knights, who \vere to come immediately hefore the justices, and make o;itli that they would elect twelve other knights; or, if knights could not he had, twelve lihcros et legales homines, who were no appellors, nor ^^^ .^^^ appealed, nor suspected of breach of the y)eace, or the death of a man, or other offences, and such as were well qualified to despatch tiic king's business on th;it occasion. Tiie names of these twelve weie immediately to be inserted in a schedule, which was to be delivered to the justices. As the twelve of each hun- dred appeared, one of them took the following oath : " Hear this, ye justices, that 1 will speak the truth of that which you shall conmiand rae on the part of our lord the king; nor will I, for any thing, omit so to do, according to my ability ; so help me God, and these holy gosj)cls;" after which every one was to swear separately for himsoir/'The oath which John here has taken, I will keep on mypnrt; so helj) me God, and these holy gospels." When they had all sworn in the above manner, the cajjihila itineris cnpitvia were read to them in order ; and when those were gone »''""•'«• through, the justices informed them, that they were to answer in their verdict, "separately and distinctly, upon every article thereof, and were to have their answer there at a certain day. Besides this, they were to be told, privately, that if any knew of any suspected persons in his hundred, he should instantly take them if they could be found ; if not, their names were to be conveyed to the justices, in a schedule, privately, that they might not have notice to escape ; upon which the sheriff would be commanded to take them, and bring them before the justices. These articles of inquiry, called the capitula itineris, were not always the same, but differed as times or places required. We have' before given some specimens of the ccqntnla in the preceding reigns;! ^|,(. following are the articles of inquiry mentioned in Bracton. The first was of the old pleas of the crown begun before the former justices, but not determined; then of the new pleas of the crown that had arisen since (for such as had happened before the former iter, and had not been prosecuted, could not now be inquired of ; and, should any one be charged with an old crime, he might plead such matter in discharge of himself) -^ of the perjury of jurors at a former iter ; of those in misericordid regis, but who had not been yet amerced ; of the king's wards ; his vacant churches; his estreats ; his serjeanties, and purprcstures on his land ; of meas- ures and weights; of sheriffs and other bailiffs who held pleas of the crown ; of usurers deceased, and their chattels ; of the chattels of Jews killed ; of counterfeiters of the coin ; of burglars, fugitives, outlaws ; of those who had not made suit after offenders ; of new ' ride ar.te, vol. i. 202. 4G2 HENRY IIL [chap. VIII. pretendod customs ; of rewards for releasing distresses ; of those who held plea of provors without lawful authority; of escape of thieves ; of wreck ; of offenders in parks ; de rapinis and prisis ; of those who, having no liberty, obstructed the entrance of bailiffs on their land ; of bailiffs and sheriffs giving favour, or holding plea de vetito namio without the king's writ, or fomenting suits, or tak- ing bribes ; of hundreds lett to farm, and their value ; of sheriffs and bailiffs discharging on pledges persons excused of the death of a man, for money, or imprisoning those indicted of larceny, who were by law repleviable, or raising amercements, or making unlaw- ful distresses ; of such who did not joroduce those they had been pledged for before the justices; of warrens made without lawful authority ; of treasure trove ; of felons hanged, and the value of their lauds and goods. These seem to have been the principal and most usual articles to be inquired of by the jurors at this time.^ Having thus shown the manner in which business w^as begun in the eyre, we shall for the present take leave of it, and consider the nature of crimes, and the course of bringing criminals to justice. This will carry us to the inferior courts of the sheriff and coroners, and at length bring us back to the eyre, where these matters were finally determined. The crime which first claims our regard is that of Icese-majesty; Of laise- which contained in it several species of offence. One majesty. of them has been before described from Glanville ; ^ and was, when a person attempted anything against the king's life, or to raise sedition against him, or in the army, though what was designed was not brought to effect ; and all those who gave aid, counsel, or consent thereto, were equally involved in the guilt. A charge of this kind might be brought by any one, even by an infant ; but the party accused, in such case, was to be attached till the infant came of age. The accuser, however, must himself be no offender ; for if he was an acknowledged thief, or outlawed, or con- victed, or, says Bracton, to be convicted of any sort of felony, he was not admitted to accuse another; nor were accomplices in the guilt ever admitted to bring a charge of l£ese-majesty. The law required an accusation of this crime to be made with all expedition. A person, who knew another to be guilty was to go instantly, says Bracton, to the king himself, if he could ; or send, if he could not go ; or to Home familiar is of the king, and relate the whole matter. This was to be done instantly ; for, according to the same authority, he was not to stay two nights nor two days in one place, nor to attend the most urgent business of his own ; he was hardly per- mitted, says he, to turn his head behind him ; and the dissembling the charge for a time by silence, made him a sort of accomplice, and betrayer of the king ; and afterwards, should he prefer his accusation, he could not by law be heard, unless he could show some very good reason for his delay. ^ 1 Bract. 116, 116 b., 117, 117 b, ^ Vide ante, vol. i. 195. ^ 3^;^^^. 118 b. CHAP. VIII.] JUSTICES IN EYRE — CRIMINAL TRIALS. 4C3 If this charfije was made upon public fame, the loss of life and the forfeilure of his inheritance followed, as in case of an appeal ; though in Glanville's time it seemed to have been otherwise, i If the ])r()secution was hy an apjiellor, he was to state the charge, with the time, liour, and place ; and conclude, ct hoc ecjo,juxfaco7isidcra- tioncin curia', diyyalionare pa/mtuH sum. \j\)on this the duel was awarded, if tlie ai)pellce simply denied the fact ; hut he might, if he i)leased, make certain answers, which must he determined Itcfore the duel could be awarded. He might object any of the points before-mentioned, as requisite to qualify a })erson to make the charge; to all which the appellor might reply, and the appeal might be decided on such collateral inquiry.2 It is made a question by Bracton, who was to sit in judgment upon and decide such points of law. It could not be M'ho to judge the king, says our author, for then he would be both thereof. })rosecutor and judge; nor his justices, for they represented him. Bracton therefore thinks that the curia et pares, that is, the jus- tices together with the pares, were to be judges in all cases of life and linib, and disherison of lieir. There could be no doubt, espe- cially since Miujna Charta, whether tlie pares regni were to be tried by Oieir peers ; Bracton therefore must here be understood as .sj)cak- ing of commoners, to whom the sectatores of the county and other courts were ^ares, and judges in such courts. But these, we liave seen, were never p)(^^'>'^^ curicc in the king's courts. And indeed the manner in which he gives this opinion is an evident mark of a different usage having subsisted, and that it was not jirecisely agreed in what instances to recur to this ancient common-law method. This idea of Bracton might be executed by associating certain persons of the county in the commission with the justices (as we have seen was required to be done in the commission of assize),^ who would be thus at once constitued pcu-es curice. The remainder of this passage in our author, as it contains the opinion then enter- tained upon this point and the award of the duel, deserves notice. There was to be a distinction according to the fact on which the appeal was grounded, whether it was felony or trespass ; for every trespass, says he, is not felony, though every felony contain in it a trespass. If it was a felony, then the words of the appeal were to be weighed, and the matter examined into ; as whether the appellee would wage the duel, or plead some of the points above mentioned to bar the a})peal ; and if the duel had been waged without such examination, it might be devadiatum, or retracted. If it turned out to be rather a trespass than a felony, the duel was barred ; and then it was to be inquired of what degree the trespass was. If it was levis, and the judgment would be only for a slight pecuniary penalty, the justices might judge of it without i\\e jxires; but if it was gravis, and very near to that which would have produced a dis- herison, and actually required a redemi)tiou to be paid, there the J Vide ante, vol. i. 197. ^ Bract. 119. ' Vide ante, vol. i. 24G. 4G4 HENRY III. [chap. VIII. P'lres were to be associated to the justices, lest the king, by himself or his justices, without the pares, should be both actor and At a time when offences of Igese-majesty were so undefined, and accusations of that crime were largje and general, it was almost always necessary to examine the matter before it went to the deci- sion of the duel, to see whether it was a felony or a trespass only (as either of those might be an offence of leese-majesty), and whether that or some other was the proper mode of trial. The associating certain jjares curiw, as a check upon the justices, was a refinement which, however, does not seem to have been the established and universal practice ; for the opinion is advanced by Bracton with a sort of apprehension that every one did not agree with him : sine prajudicio melioris sententiccj^ We see that laise-majesty was not the description of any specific offence, which was attended with a punishment peculiar to itself ; except that when it was also a felony, the forfeiture went to the king, and not to the lord. Another species of hiese-majesty, and that which, as it produced death, may be reckoned among the higher species, was the crimen falsi; at least that sort of falsification that aftected the king's crown ; as falsifying the king's seal in signing charters or writs ; or making charters or writs, and putting forged seals thereto. An- other offence which was a sort of crimen fahi^ and which affected the king's crown, and was followed by death, was the making of false money, or clipping that which was good. This is the first mention of coining being treated as a crime of Icese-majesty.'^ The fraudulent concealment of treasure trove is considered by Bracton, as it had been by Glanville,* to be a high presumption against theking's crown anddignity: thiswas to be inquired of by the country. Treasure which was found in the earth without an owner, belonged to the king, as being nidlius in bonis. So was dereliction, or ivreck of the sea, which being thrown overboard was abandoned by the owner ; though ivreck more properly meant what was cast on shore after the destruction of a ship, where there appeared no marks by which the owner might be known, as a dog, or the like. There is no mention that an infringement of this royalty was deemed a crime of hBse-majesty, though that of treasure-trove was. To violate any of the laws enacted cmd sworn to^ for the public benefit of the realm, was considered as a higli presumption against the crown and dignity of the king; in which case there was a corporal punish- ment inflicted on the transgressor, as the pillory, or tumbrell, with a consequent infamy, and sometimes a pecuniary penalty and ab- juration from the town where the offender lived, according to the nature of the offence, and, probably our author means, according to the particular directions of the act which had been violated:^ though it may be observed, that it does not appear to have been 1 Bract. 1 19. ^ IMd. 119 b. ^ Ibid. 119 h. * Vide ante, vol. i. 198. ^ Leges stalulce, etjuratce. ^ Eract. 120. CHAP. VIII.] CRIMINAL LAW — HOMICIDE. 4G5 usual in those times, nor long after to affix in the body of an act, these or any otlier sjjecific punislimont to the breach of it. The crime of liomicidc pnitly concerned the kinj?, whose peace was infrin.i^ed, and ])artly, as Bracton exjircsses it, the i,o,nicjje person Avho was killed. Homicide mij^'lit be committed from four causes; it might be ex Just i/ id, necessitate casu, or volun- tate. The first was when any one was killed by sentence of a court, and in the forms of law ; wliich was so far from an offence, as to be higldy justifial)le ; though it became an offence, if the due order and course of tlie law was not observed. Homicide by necessity was, when it was inevitably necessary to kill the party, in order to defend one's person and property; for if the necessity was not inevitaljle, the fact was accompanied with the guilt of homicide. Accidental homicide, or per infortunium, was, when a stone was thrown at a bird, or some other animal, and a person passing by unexpectedly was struck and killed by it ; or when a tree, which was cutting down, fell upon some- body. But here a distinction was made between a lawful and an un- lawful act ; as, if the stone was thrown towards a place where people were accustomed to frequent, or not ; if a person when cutting dpwn the tree, called out, and gave notice, in proper and reasonable time, for any one to escape. So if an act was, in the common course of things, lawful and proper ; as if a master did not exceed the usual bounds in correcting his scholar, whatever was the event, no homicide could be imputed. If the act was unlawful, or, being lawful, was done without due caution, it would be imputed as a crime. Voluntary homicide was, where any one, of certain knowledge, and by a premedi- tated assault, in anger, or hatred, or for gain, killed any one, nequiter et in felonid, against the king's peace. This crime was sometimes committed in the presence of others, sometimes without any one see- ing it, and then it was called murdrum, as in Glanville's time.^ It was held at this time, that if, after the fatus was formed and animated, any one struck a woman and so caused an abortion, or even if anything was given to procure an abortion, it was homi- cide. If a quarrel ensued between several persons, and one was killed, though the person who struck the blow was not known, yet they who held him while he struck, those who came with a bad intention, and even those who only came to counsel and assist, were all guilty of homicide; nor was he deemed entirely guiltless who could have rescued the deceased from death, and neglected so to do.2 It was held, that an infant and a madman should be ex- cused from the pain of homicide. 3 In the two following cases the law is thus laid down by Bracton. If a man killed a thief by night, the party killing would not^ be liable to any punishment, provided he could not have saved him- self without so doing. If a person killed one who was a hamsoken, as they then called it, that is, a housebreaker, and the killer was standing on his defence, he was not to be prosecuted.* 1 Vide ante, vol. i. 198. ' Bract. 120 b. 121. » Ibid. 136 b. * Ibid. 144 b. 2q 466 HENRY III. [chap. VIII. As a person committed felony in killing another, so might he commit felony in killing himself ; and this was called ftlordd de seipso. Thus if a person charged with a crime, as one taken for homicide, or in manifest theft, or outlawed, or, in short, appre- hended for any crime, and through fear of its consequences, killed himself; such a person was considered as corrupted in blood, for it was taken as amounting, in effect, to a conviction. But those who laid violent hands on themselves, when under no charge for any offence, were not to forfeit their goods nor inheritance like the former, because, as there was no precedent felony, there could not be a constructive conviction ; though, says Bracton (in contradic- tion, as it should seem, to what went before), if a person tcedio vitcv, vel impatientid doloris, killed himself, however his inheritance might be saved, he yet forfeited his movables. Again, if a man in the endeavour to do some hurt to another, killed himself, the felonious design he meditated against another would be punished in himself, and his inheritance was by law forfeited. Should a madman or an infant commit any felony de seipso, they were ex- empted from all sorts of forfeiture, unless, indeed, a madman did the fact in some lucid interval. i Having said thus much of the crime of homicide, we shall make The office of the a little digression to examine the method directed by coroners. the law to be pursued on the death of a man, in order to bring the offender^ to justice. The principal agents in this were the coroners, who were properly so called, from the part they took in the prosecution of those offences which concerned the coro?iam regis. It was the duty of the coroners, as soon as they were called upon by the king's bailiff', or some good men of the country, to go to the body of the deceased in all cases, whether the death was occasioned by a wound, by drowning, by suffocation, by accident, or by whatsoever cause, if it was a sudden death ; and as they went thither, they were to command the four, five, or six next towns to appear before them, and upon their oath make in- quisition concerning the death. They were to inquire how the death happened, who were present, who were principals, who were any ways assisting or consenting thereto. Those who were in this manner found guilty, were immediately, if present, to be delivered to the sheriff, and committed to prison ; and all those who were found in the house with the deceased, though not guilty, were to be attached till the coming of the justices, and their names enrolled in the coroners' rolls. If the body was found in a field,^ the finder, in like manner, was to be attached. They were to inquire whether the deceased was known, where he lodged the last night, and the host and all his family were then likewise to be attached. If any one fled on account of the death, and was suspected of being guilty, the coroners were to go to his house and inquire what chattels, corn, and land he had, and cause it all to be appraised, and de- 1 Bract. 150. CHAP. VIII.] OF THE OFFICE OF CORONERS. 4C7 livered to the township', whicli was to answer for the value thereof before the justices. After all this, and not before, the body nn'f^ht be buried ; and if it was buried without such inquisition and view of the coroners, the whole township was to ])C in niisericordid. If a person was drowned, the boat out of which he fell was to be aj)- praised ; and, in all cases, the tiling" which was the aiusa ruorlis was to be valued, and forfeited as a dcodand to the king. Even if the inquisition did not find it to be felony, but sudden or accidental deatli, yet the finder, with all who were in his company, were to be attached till the coming- of the justices.i It was tlie business of the coroners to nuike like inquisition con- cerning treasure trove. If any one was charged with being the finder, or if a presumption was raised by ex[)ensive living, or other- wise, such person was to be attached by four or six pledges, and more, if they could be had. Again, in case of raptus virginum, if it was followed up with those circumstances of instant prosecu- tion that are mentioned before from Glanville,^ the coroners, to whom the com[)laint was made, were to attach the offender by four or six pledges, or, if there were no very strong marks of pre- sumptive guilt, only by two.^ The coroners had a like office in appeals de pace ct piari'is. They were in the first place to inspect the wound, and if it was mortal, and the ap})ellee could be found, he was to be taken and detained till the party recovered ; and if he died, to be thrown into prison : but in the former case, the appellee might be attached by four, or six, or more pledges, according to the degree of the wound ; and if it was a mayhem, certainly by more, that the security might be good ; if he was a stranger, or could find no security, the gaol, says Bracton, was to be his pledge. The size of the wound, its length and depth, were to be measured, and that, together with the part of the body, and the arms it was made with, the coroner was to see described on a roll, with the attestation of the sheriff, if the inquisi- tion was taken in his presence, or in the county.* Thus the coroners were the first spring in criminal prosecutions that were brought by appeal. To return to the prosecution for homicide. If persons were committed to prison for the death of a man, they could imprisonmeut be delivered only in one of these three ways: they iiiuibaii. might be discharged on pledges by the king's command ; they might be delivered by judgment of acipiittal ; or, if they were clerks, they might be claimed by the ecclesiastical power. The way in which the king might deliver them was by the proceeding on the writ de odlo et afid, which was mentioned in the observations upon Magna ChartaP This was a writ commanding the sheriff per probos et legates, d'c., inquiras, tcfrilm A., dc., rcciaius, vel ap)pellatus sit, d'c, odio et atid, vel co quod inde cidpabilis sit, cC'c. » Bract. 121 b. 122. - Vide ante, vol. i. 200. ' Bract. 122. * Ibid. 122 b. ^ Vide ante, vol. i. 252. 468 HENKY III. [chap. VIII. Upon the return of guilty, he was not to be discharged on bail ; but if it was returned that he was imprisoned odio et atid, he was bailed till the coming of the justices. This was effected by another writ to the sheriff; Frcecipimus, &c., si A., Sc, hiveneint tibi 12 2yrohos et Jer/ales homines de com qui manucapiant habendi eum ad primam assisam, d'C, tunc eum tradas in ballum illis 12 jxrobis, dec. If the bailiff of a liberty would not admit a person to bail according to the sheriff's direction, there issued a writ to the sheriff commanding him, 7ion ohstante lihertate, to enter and make de- liverance himself. 1 If a clerk imprisoned was demanded by the ordinary, he was to be instantly delivered, without any inquisition being taken ; he was not, however, to be let loose upon the country, but to be kept in safe custody, either in the prison of the bishop, or, if the ordin- ary pleased, in that of the king, till he had purged himself from the offence with which ho was charged, or had failed in malnng his purgation, and had been accordingly degraded. Sometimes the ordinary would not put a clerk to purge himself, unless a fresh charge was brought in the ecclesiastical court ; in such case, a writ might be had to require him to proceed therein. These were two of the ways in which a person imprisoned for homicide might be delivered ; the third was by judgment of acquittal, which needs no ex])lanation. In all other cases, the law was, that persons might be discharged on bail ; and even in these cases the sheriff had such a discretion allowed him, that the liberty of persons charged with crimes depended wholly upon him. He was to judge from the nature of the fact, the person's circum- stances, character, and the like ; and accordingly, as he thought fit, was to commit to prison, or admit to bail. This became peculiarly hard from a piece of law then prevailing, namely, that breach of prison, however small the offence for which the party was committed, and though he was innocent, should be punished capitally ; and this is one instance in which the law gave an entire indemnity to any of the accomplices who would discover the de- sign.'^ In the above cases, we have supposed the offenders were all forthcoming ; but when they absented themselves immediately after the fact, the process was to raise Indesium, or hue and cry, and a seda or suit was made after them from town to town till they were taken, otherwise the township, where the fact happened, would be in miser icor did. This hue and cry and suit was made in a differ- ent way, according to the custom of different places.^ The suit was to be carried further than the search from town to town, for tlie offender was to be prockximed in the county ; a method which had been adopted in mercy to the absent fugitive, who, it should seem, by the old law was considered as an outlaw upon his flight merely, without being proclaimed with this formality in the county 1 Bract. 122 b. 123 a.b. 2 Jhid. 124. ^ ma. CHAP. VIII.] OF OUTLAWRY. 4G0 court.i Tlie law now was, tliat sentence should not be pronounced apjainst tlie party till suit was made in this manner in qj ^^^^j^^j^y the county court, and he had had this warning; to ap- pear and puige himself. The time f;iven for this was the space of five months ; that is, he was to appear at the filth county court, to answer for the offence with wliich he was char(i;ed ; and if he did not, then he was adjudged an outlaw, and suffered all the conse- quences of such a sentence. If he aj)peared before that period, he saved the forfeiture of his land, but still forfeited his goods.on account of his flight, notwithstanding he might be innocent of the crime. But the criminal could not be prosecuted to outlawry in this way, unless a person stood forth to make the suit, who could speak de visu et auditu that the party had fled ; and who would call upon him to return in the king's peace, or require that he might, at the proper time, be outlawed ; and then he was to state the crime, as if tlie party was present, and the ap})eal was going to be heard; and he was to add, that should he appear, he would repeat the charge lie had made. Thus not only snif, but the appeal was actually to be made, before the fugitive could be outlawcd.'- It should here be recollected, that a siut and dj)peal, when for homi- cide, could not be prosecuted by every one, but only by one who was of the blood of the deceased ; and that the nearest was pre- ferred to the more remote. Yet some strangers Avere admitted to make suit ; as one wlio was bound by homage to the deceased ; or if he was of the iiwnupastm, or family of the deceased person, or could say that he had received at the time of the killing any wound, or restraint, or the like. A minor might make suit, and appeal ; but a woman, as we have before seen from Glauville and 3Iagna Charla,^ could not have an appeal except de morte viri inter brachia sua mter/ecti, as Bracton expresses it. It should be observed, that suit could not be made l)y attorney, if the party was able himself to prosecute.* If a sheriff proceeded to demand any one, without a person appearing to make suit, or without the coua- mand of the justices (who, we shall presently see, could make suit for the king in case of any intermission by the appellor), he was i/i misericord id. Kespecting the persons who might be outlawed, every nuile who was twelve years old might be outlawed, because a person of that age ought to be in some decenna, or, which answered the same purpose, in some manupastus ; but those of inferior age, as they were not sid) lege, could not properly be ever said to be oiUlaived, or put out of the law : the same of a woman, who, as she also was never in laughe— that is, in frankpledge, or in a decenna, could not be outlawed'; but if she fled upon connnission of any felony, she might be loayviafa, as they called it— that is, be estecnied as one deserted and forlorn, which condition corresponded with that of outlawry. ' Bract. 125. - Ibid. 124. » Vide ante, vol. i. 251. * Bract. 12-i. 470 HENRY III. I CHAP. VIII. The time necessary to complete the outlawry was this: the offender was to he demanded at four counties, from county to county, till he was outlawed ; hut at the first county there was only to he what they termed si)n2)Icx vocatio ; and that was not computed towards the time as one of the four counties ; so that in truth five were to pass hefore the outlawry was had ; the outlawry therefore was to he at the fourth of those after the simplex vocatio. At the fifth, or, as they called it, the fourth county, no essoin or excuse could he received, nor Avas it sufficient that any one would engage to produce him at the next county ; for this would he protracting the time of outlawry ad injinitum. But at any of the preceding counties, an engagement to produce the fugitive would he admitted till the fifth county ; and the fugitive had till the fifth county to render himself to prison, or defend himself and purge his innocence; hut after that time the outlawry stood in the Avay, and he could not return till that was removed hy the mercy of the king. If there was any delay in making the suit, as if hue and cry had not heen raised, if the party had not heen pursued from town to town, nor to the sheriff, nor to the coroner, nor at the first county ; yet if a person chose to commence the suit afterwards, he might, as there was no one who had any right to object such deficiency in the proceeding. Again, if the suit had been begun in time, but a county court was sufiered to pass without continuing it, the suit might, nevertheless, be resumed, so as the lapsed county was not reckoned towards the time of computing the outlawry ; and so of any greater omission, which, if rectified, was always done with a view rather to favour the appellee than to oppress him. If upon any of the like failures of suit it was not again resumed, the county had no power to proceed to outlawry, but they were to wait for the coming of the justices, whose office it was, among other things, to At the king's givc direction to the sheriff to proceed to outlawry, ex ■ suit- jparte regis, in default of the appellor. Thus could the justices command the sheriff to proceed to outlawry, where there was any slackness in the party who had commenced the suit. They might likewise, in cases where no suit had been commenced by an appellor, command the sheriff to proceed to outlaw a person charged before them of any crime ; but this could not be done till an inquisition had been taken, to try whether he was guilty or not. If the inquisition found him guilty, then the sheriff was commanded to proceed ; otherwise, no direction was given about it. The sense of this was, that a reasonable presumption of the party's guilt should be raised before he was made liable to the penalty of an outlawry. The presumption founded upon a suit commenced, though intermitted, was thought sufficient to warrant the justices to direct a continuance of it ; and if no suit had been commenced, a sufficient presumption Avas raised in this manner by the verdict of an inquisition. 1 This Avas the course in Avhicli criminals might ' Bract. 126. CHAP. VIII.] OF OUTLAWRY. 471 be prosecuted at the king's suit, in default of the suit of the party. If the due order and formality was observed in proceeding to outlawry, it could be removed no otherwise than by the king's pardon, even though there should afterwards appear to have been no crime committed, as if the person supposed to be killed sliould be produced alive. But should any of the necessary requisites towards the outlawry be wanting, it became void. Many were the instances in which this might happen. An outlawry iteversal of was void if it had been without suit, or without a con- "utlawiy. tinuance of the suit, if it was proceeded in after the iter of the justices, without authority from them ; or if it was commenced at the suit of the king, without a previous inquisition ; if it was pro- nounced anywhere tlian within the county ; sui)posing it for Lon- don, if it was pronounced out of the busting; if the offender died before the outlawry ; if the person sui)posed to be killed apjieared alive before the outlawry pronounced ; if the prosecutor died before the outlawry pronounced ; if the accused had answered for the same offence in some other county ; if he had surrendered himself to prison before the outlawry ; if he had submitted to banishment by consent of the king ; if the outlawry was pronounced before the legal time was elapsed ; if he was under twelve years of age ; in all such cases the outlawry would be declared void, upon the accused coming in to stand a trial for the offence.l Process of outlawry lay in every case which was charged to be against the king's peace ; but not in matters which concerned the sheriff's peace only.- Outlawry lay not only against those guilty of the fact, or, as they are more commonly called, principals, but also against those guilty of force, or, as they were afterwards called," accessories ; and if neither of them appeared, the proceeding would be against both at the same time ; only, at the last county, judgment was first to be pronounced against the principal, and then against the accessory, on the same day. Some thought it ought not to be even on the same day ; and others said that the accessory was not even to be demanded till the ])riucipal was first convicted. But Bracton thought that, should they both fly, they ought to be proceeded against together, as above mentioned ; only, should the accessory appear alone, then indeed he was not to be proceeded against till the principal was convicted, because, by his appearance, a presumption was raised of his innocence. When a person was outlawed, every one who knowingly fed, received, or harboured him was subject to the same penalty as the outlaw himself ; for w^hich reason an outlaw had in earlier times been called a frencllesman ; one who could not, by law, have a friend. An outlaw was said caput gerere lupinum, by which it was not meant that any one might knock him on the head, as has been falsely imagined, but only in case he would not surrender himself 1 Bract. 127 a. b. » Ibid. 127 b. 472 HENRY III. [chap. VIII. peaceably wlien taken ; for if he made no attempt to fly, his death would be punished as that of any other man, though it seems that, in the counties of Hereford and Gloucester, in the neighbourhood of the. marches of Wales, outlaws were in all cases considered literally as capita htpina.^ If an outlaw returned without the king's pardon, he might be executed without further legal inquiry ; for, says Bracton, Jushim est judicium, quod sine lege et judicio pereat, qui secundum legem vivere recusal.'^ An outlaw forfeited everything he had, whether it was in right or in possession ; all obligations and contracts were dissolved, and all rights of action ; and, like a judgment of felony, it operated with a retrospect to make void all gifts and sales made after the felony committed. The manner in which tlie forfeiture was distributed was this : all chattels went to the king ; the lands were taken into the king's hands for a year and a day, and after that (unless holden in capite) they reverted to the lord of whom they were holden. The king's year and day had grown into a regular casualty, in lieu of the singular species of punishment he might inflict by destroying houses, gardens, and meadows ; and even the year and day used sometimes to be released upon the lord's paying a flue. 3 When a person had been outlawed according to all the forms of law, he could only be restored, as was said before, by the king's pardon, and that restored him only to the king's peace, so as to enable him to appear without hazard to his person ; all the for- feitures remained, and every other consequence of the outlawry. For though the king might remit his own claims, he could not release or disturb the interest of others.^ This pardon, however, as it only removed the outlawry, still left the party to be proceeded against by the appellor for the offence with which he was charged. 5 In such instances, where the king would have pardoned a con- viction of the fact, he would readily pardon the outlawry, as in case of homicide ^jer infortunium, or se defendendo ; and in general where there was really no offence committed. Process of outlawry would not lie against a clerk, any more than judgment of death.^ We have hitherto spoken of such homicide as had been com- Of murdrum ^^^^^^^ ^^ ^^^ presence of persons, who could testify con- cerning it. There was another degree of homicide, which was when any one was killed mdlo scienie vel vidente, prceter solum interfectorem, et suos coadjictores et faidores, et ita quod statim assequatur clamor p)opularis ; this was called murdrum, and had been described in the same manner by Grlanville.7 In this case it was presumed, according to the law of William the Con- queror, that the party killed was a Frenchman, unless Englisliery — that is, his being an Englishman was proved by the relations, and presented before the justices. § There were many cases where a county was excused from pay- » Bract. 12S b. 2 j^ia, 129. ^ jj,-,; i29. 4 jua, 131. 132 a.b. ^Ibid. 133 b. 6 ma. 131 b. 7 vide ante, vol. i. 19S. 8 Bract. 134 b. CIIAI'. Vni.] CRIMINAL LAW— ABJURATION. 473 ing a fine for tliis murdrum. One was where the killer, whether taken or not, was known ; for then the felony might be prosecuted, either by suit or infjuisition, to outlawry ; much more if the killer was taken, for then he mi,i,^ht be i)unisbed ; so, if the party survived some days, for he mij^dit discover the ollender, and declare whether he was an Englishman or a Frenchman ; if any had fled to a church for the death, and had confessed it; so where the i)erson was killed per infortmiiam, as by sutibcation, drowning, or the like accident, though in some places the custom was otherwise. In all cases but the preceding, if the killer was not known (whether the person slain was English or not) a murdrum was to be paid, unless Engl inker ij was duly presented. This present- prcspntment ment was to be before the coroners, at the very time ^^ '-^"o'liHiicry. they made inquisition of the death. The proof was different in different counties ; in some, the fact was presented by two males on the part of the father, and two females on the part of the mother, of the nearest of kin to the deceased; in some counties by one of each ; in others differently. The names of these persons were to be enrolled in the rolls of the coroners, and to be presented before the justices itinerant. If there was any doubt, either of ^v'hat the relations alleged, or whether they were related to the party, the E)u/Ii.sher)/ was to be declared jjer jMtriam.^ If an offender fled to a jirivileged place, he might either surrender himself to justice, or abjure the realm of j^, •^j.^^tij^^ llngland. If he chose tlie latter, a certain number of days were to be allowed him to reach any port he should choose, to which he was to make the best of his way, never leaving the king's highway, nor delaying two nights at a place ; but he was to keep on, so as to arrive at the port within the stated time, and transport himself as soon as possible. Before he set out he was to bind iiimself by an oath, taken before the coroners or the justices, that he would leave the kingdom of England, and never return to it but by permission of the king. This oath ought to be taken within forty days from the offender's first going to the privileged place, that being the space of time allowed by the law to sanctuary- persons, and })articularly prescribed by the Constitutions of Clar- endon,2 as the period within which persons acquitted by the ordeal should abjure. However, if the person flying to sanctuary would not leave it at the appointed time, he C(Kild not be removed from thence by lay hands ; but it rested with the ordinary of the place to remove him, if he thought fit. Should the bishop scruple to infringe the privilege of sanctuary (a scruple which could very rarely be removed in the mind of a churchman), there remained nothing but to starve him out.3 Thus stood the law of sanctuary and abjuration. If a person was in custody for a felony, he was not to be stripped immediately of his goods and chattels, but as soon as he was 1 Bract. 134 b. 135 a.b. - Vide ante, voL i. 193. ^ Bract. 135 b. 136. 474 HENRY III. [chap. Vllf. taken, they were to be appraised by the guardians of the pleas of the crown, the bailiffs, and other lawful men, and to be safely kept by the bailiffs till the prisoner was either convicted or acquitted. In the meantime, he was to have the use of them to provide him- self with necessaries ; and if they were taken from him, he might have a writ, commanding the sheriff to see it ordered in the above manner. It was a rule that a prisoner should not be brought be- fore the justices legatis manibus, with his hands tied; though sometimes, to prevent escapes, they might bind his feet."!- Having thus brought the prisoner into court, the next step would be to state the words of the appeal, with the defence of the appellee, and the joining issue on the fact, and going to trial ; but before we come to speak so particularly of this proceeding, it will be proper to premise somewhat concerning the alterations which had taken place during this reign in the modes of trial in criminal inquiries. The trial by ordeal had continued till the judgments Ordeal goes of couucils^ and the interference of the clergy at length out of use. prevailed against it. In the third year of this reign direction was given to the justices itinerant for the northern coun- ties (and probably to the others likewise) not to try persons charged with robbery, murder, or other such crimes, by fire and water ; but, for the present, till further provision could be made, to keep them in prison under safe custody, so, however, as not to endanger them in life or limb ; and for those who were charged with inferior offences, to cause them to abjure the realm.'^ What further pro- vision was made, as thereby promised, does not appear (a) ; but (a) There was no statutory enactment, but (as Dr Lingard states) the judges, of their own authority, adopted a practice which had been creeping into the criminal courts ever since the proof of innocence by compurgation had been aboHshed under Henry III. When a prisoner found himself incapable of battle, or was afraid of the trial by battle, he would solicit, and sometimes purchase of the crown, permission to put himself upon his country — that is, to have the question of fact determined by in- quest of the jurors of the court, as was generally done in civil suits (see instances in Hot. CuricE Reg. of Richard I. and 1 John, vol. i. 204 ; ii. 30, 97, 121, 173, 230, 245). On these occasions the accused often pleaded that the charge was founded in malice and hatred, and asked that the jury might inquire, " utrum atia sit vel non." It had been hitherto a favour, which depended on the discretion of the judges ; but now it was offered to all, and was gladly accepted by most. The accused had, indeed, the right of rejecting it ; but if he did, and refused to jilead before a jury, he might be remanded to prison, and be made to suffer the 2^dne forte et dure. — (Lingard^s Hist. Eng., ii. c. 6). For this latter part of the statement, the learned writer cites no autho- rities, except the entries in the rolls already quoted — entries of prisoners putting themselves on the country, which do not support it. It is certain, however, that in Alfred's time there was trial by jury in criminal cases, and equally certain that jurors, in those days, were witnesses ; and that if there were no witnesses, as there could hardly be in many criminal cases, as murder, there could be no trial by jury, and therefore the ordeal was resorted to, in default of witnesses. On the other hand, if there were witnesses (in which case the accused might prefer the ordeal), it does not appear whether trial by jury was enforced, or whether the accused had an option. The question, however, as to the enforcing of trial by jury in all criminal cases, appears to depend upon a consideration overlooked by the learned historian just quoted — viz.. Whether or not, at this period, trial by jury had ceased to be mere ' Bract. 13G b. 1.37. ^ Dec. pars. 2, caus. 2, quest. 5, c. 20. ^ Diigd. Ori. Jur. 87. CHAP. VIIT.] CRIMINAL LAW — TRIAL. 475 we find this order of council had such an influence towards abolishing this superstition, that it went quite out of use by tlie time of Bracton, wlio makes no mention of it in his hook (a). As to the trial by duel, it should seem that some direction, like that just mentioned, had been made, which gave to a party appealed an trial by witnesses, and had become a trial by the jurora upon the evidence ; for, if not, it is difficult to see how the trial by jurors could be enforced in all cases — i.e., in cases where there were no witnesses. For so long as jurora were witnesses, there could be no trial by jury where there were no witnesses. It rather apjtears that, at this period, jurors had not ceased to be witnesses ; and therefore there is reason to doubt whether the learned Lingard is right in supposing that, at this time, trial by jury was directly enforced in all cases ; nor do the entries on the rolls he refers to a[)iiear to support such a couclu.sion, as they only show that there was trial by jury allowed. It was quite another thing to enforce it ; and of this there is no evidence. The ancient usage, as stated by the author a little further on, was to give the option to a prisoner to be tried " by Go/ ciiHidr;i — thou^'h now the or is changed to and; the former sicnifyiug the same a.i per corpus, which was always consideretl as an ai>pcal to heaven. ^ Bract. 138 b. * Ibid. 13'J b. 140 a.b. ilOid. 141. 478 HENRY III. [chap. VIII. the appellor was a clerk. The appeal might also be deferred for a time, by alleging the minority of either the appellor or appellee.i If none of these exceptions could be made and supported, the duel might be waged. We have seen in what manner a right to land was tried by duel.2 We have now an opportunity of relating the method of ordering this proceeding in an appeal. When the duel was waged, the appellee first gave security to defend, and then the appellor gave security to maintain the appeal ; after which the appellee took an oath, denying the matter of the appeal word for word : " Hear this, man, whom I hold by the hand, who call yourself John by the name of bai)tism, that I did not kill your brother, nor gave him a wound with a sort of w^eapou by which he might be removed further from life, or brought nearer to death ; nor did you see this, so help me Grod, and these holy Gospels." This was the form of swearing, with the additional circumstances of time, place, and the like. It seems very remarkable, that any- thing should be rested upon the sort of instrument Avith which a man was killed ; but so it was. Bracton says, it might be laid in the appeal as done with any kind armorum molutorum ; but not with a stick, or stone, or other weapon that could not be said to be arma rnoluia. It may be said, that Bracton states this only as an opinion held by some, secundum quosdam ; yet he seems to give an absolute opinion, that a wound with a stick or stone would not be properly laid. 3 After this, the appellor sw^ore in maintenance of his appeal thus : " Hear this, man, whom I hold by the hand, who are called John by the name of baptism, that you are perjured, and therefore perjured, because you wickedly and feloniously did kill C. my brother ; and wickedly and feloniously, and with a premeditated assault did give him such a wound, with such a sort of weapon, that he died thereof in three days ; and this I saw, so help me God, and these holy Gospels : " to which were to be added, as in the former oath, the time, place, name, and the other necessary circum- stances, so as to support and cover everything charged in the appeal. After the oaths were thus taken, the appellee was to be committed to two knights or other lawful men, according to his rank, who w^re to lead him to the field assigned for the duel ; and the appellor in like manner. There they w^ere both to be guarded so that no one might converse with them, till they engaged in the duel. Before they engaged, each was to swear in this manner : ^ " Hear this, ye justices, that I have not eat nor drank, nee aliquis pro me, nee per me jjropter quod lex Dei deprimi deheat, et lex dia- holi ex altari, sic me Deus adjuvet" After this a proclamation was made, forbidding all persons, whatever they heard or saw, to move or speak a word, upon pain of imprisonment for a year and a day ; and then the appellor and appellee engaged. If the appellor was vanquished, or if the appellee defended himself the whole day till ' Bract. 141 b. ^ Vide ante, vol. i. 123. ^ Bract. 138. * Ibid. CHAP. YIII.] CRIMINAL LAW — PROCEEDING PER FAMAM. 479 the star.s bof^an to appear, he was accpiittod of tlie appeal ; because the appellor had engaged to convict him that daij, and had failed. He was also acquitted as against all others who had appealed him of the same fact ; as were those lilvcwise who were appealed of force or command. But if the ap})ellee was vanquished, he suflered ca])itally, and forfeited everytliing from him and his heirs, as was before stated in case of outlawiy. Should the apjjcllor, when he came into the field, make a rciraxU of the a^ipeal, he was to be sent to gaol, and he and his pledges of prosecuting the duel were in misericordid. But it was otherwise, if he was vanquished ; for though he was to be sent to gaol, he was generally pardoned the miser icordia, in consideration that he had engaged in maintenance of tlie king's peace. i After the principal was convicted, they might proceed to the duel against the accessory. This might be the next day. Or, if the accessories had not been yet appealed, they might then state an appeal against them, and proceed in like manner as before men- tioned in case of principals ; ami the accessory, if convicted, would suffer, as the })rincipal, according to tlie maxim, satis occidlt qui pracipif. If anything hajipened which prevented the appeal against the accessories, the king might take it up 2)i'o pace sua ; and then the trial would of necessity hQ p>er patriam ; for the duel could not be waged against the king. There were other instances where the duel could not be waged ; as, when the appellor was a woman ; when the appellor had been maimed, or was above sixty years old ; though in this last case he had his election.- We have seen, in Glanville's time, that there was a different judgment, when the oflender failed to purge himself p)er legem, and when he was vanquished in the duel.^ A similar difference seems to have sub- sisted at this time ; for when the king pursued an appeal pro pace sua, and convicted the party by the inquest, Bracton doubted what was to be the punishment. Some thought it was to be capital, as it would have been if the appeal had gone on at the suit of the party ; others thought, that it was to be only a pecuniary })enalty ; and yet, where a woman convicted a man of a rape per patriam, he suffered as upon an appeal in other cases.* We have hitherto been treating of a prosecution when a person chose to stand forth as accuser, and when the king carried on the suit, on the omission or failure of such person in continuing it. It remains now to say something upon the other mode of prosecution, which was when a person was indicted per famam jjatj'ia'. This was probably no other than ihefama iruhlica mentioned Proceeding per by Glanville;'' which raised a presumption amounting /«'««'« i^«<'"'<^- to a conviction, till the party had purged himself from the sus- picion thereby thrown upon him ; for this, like other presumptions, was open to a proof or purgation to the contrary. The fame which ' Bract. 142. l Ibid. IJL' b. ' Vide ante, vol. i. 197. * Bract. J 43. Vide ante, vol. i. 200. 480 HENRY III. [chap. VII I. was sufficient to raise this presumption, ought to be such as was entertained by good and grave men, who deserved credit, and not the flying reports of common conversation. Thus, as a person indicted per famem j^atria: was charged by the j^atria, or twelve jurors, elected in the manner before mentioned, who had founded the accusation upon their own knowledge or persuasion, collected from observation or report ; it became the judge, if he had any doubt, or suspected the jury, to make strict examination into the matter, and ask the twelve how they learnt what they in their verdict declared concerning the person indicted; and upon their answers he might judge whether the charge was founded in truth or malice. 1 Perhaps, says Bracton, some of the jurors might say, that they collected their information from one of their brother- jurors ; who, upon being interrogated particularly, might say he had it from such a one, and so on, till it was traced to some dis- reputable person, who deserved no credit. It often happened that these examinations brought to light the iniquity of a charge. ^ It sometimes turned out that an imputation of a crime was contrived to be thrown on a freeholder by his lord, in order to get an escheat ; sometimes by a neighbour from other malicious motives. When this examination had been made in order to proceed to taking the verdict, and giving judgment thereon with more security, then the judge was to inform the party indicted, that, if he enter- tained suspicion of any of the jurors, he might have them removed ; for, if no objection was made to any of them, when the twelve jurors- appeared, they were all sworn, either singly, or all together as follows: " Hear this, ye justices, that we will speak the truth of that which you shall require of us on the part of our lord the king, and in nothing will we omit to speak the truth ; so help," &c. After which one of the justices gave them the matter in charge, in this way : " This man, who is here present, charged with such a crime, comes and defends the death and everything with which he is charged, and puts himself thereof upon your tongues, de bone et onalo ; and therefore we charge you, by the faith by which you are bound to God, and by the oath you have taken, that you make known to us the truth thereof ; nor do you omit, through fear, love, or hatred, but that, having God before your eyes, you declare whether he is guilty of that with which he is charged, or not guilty ; and do not bring any mischief on him, if he is innocent of the crime." According to the verdict given by the jurors, the party was either delivered or condemned. The form in taking an inquest j^er patriam was to be observed by the justices in all cases, where a party, as in the above-mentioned instances, had put himself upon an inquest. Whenever the justices 1 Bract. 143. 2 It seems from the manner in wliich Bracton expresses himself, as if, in cases of killing, the four townships which had appeared l>efore the coroners were joined with thejui'orsof the 2)ntria, and must concur with them in their verdict. Bracton says, that any of the townships might be challenged, the same as the other jurors. Bract. 153 b. 154 a. Vide ante, vol. i 193. CHAP. VI I I.J CRIMINAL LAW — TRIALS. 481 suspected the cliari^e to be true, aiul that tlie Jurors, tlu'OUgU fear, or love, or uuilice, were inclined to conceal the truth, they might, if they i)leas'ed, separate theui one from the other, and examine them apart, in order to sift out the real truth of the matter.^ Here then do we see the oltice of the twelve jurors chosen out of each hundred at the eyre ; they were to digest and mature the accusations of crimes founded upon report, and the notorious evidence of the fact; and then, again, under the direction of the justices, they were to reconsider their verdict, and upon such review of the mailer, they were to give their verdict linally. Again, wher- ever any circumstance rendered it unlawful or impossible that tlie duel should be waged in an ap})eal, the truth was inquired of by these jurors; and we may suppose, tiiat in all other causes in the eyre, whether civil or criminal, where a matter arose that was to be tried by a jury, it was referred to one of these juries who attended there on the business of the county. It may be collected from a single mention of purgation by IJracton, that a person chaig'cd j)er patricDii might purge himself, as formerly,- or put himself on the country, as before mentioned. Now have we finished all that can be said concerning an appeal of death. There were several other cases of personal of other injury, where an appeal was the usual mode of prose- appeals, cution. One of these was de pace et phir/is, as they called it. The form of this appeal was, A. appellat B. quod such a day, sicutfait in pace domini regis in such a place, venit idem B. cum vi sua, et contra pacem domini regis in felonid, et assultu premeditito fecit ei insultum, et quandam plagam ei fecit \n such a part, with such a sort of arms ; et quad hoc fecit nequiter, et in felonid, offert probare versus euni per corpus suum, etc., as in the before-mentioned appeal. To this the appellee made his defence : Et B. venit, et defendit pacem domini regis infractam, et J'eloniam, et plagam, et qaicquid est contra pacem domini regis, and so on, denying the whole ai)peal per corpus suiwi secundum quod curia consideraverit. In this there might be the same general exceptions made, as were stated in case of homicide ; as, that suit was not made before the sheriff and coroners, and the like. The appellee might have his option, whether to defend liimself per corpus or per patriam, except in some few cases, where the trial by duel was not allowed ; as, if it was not a plaga, but only a bruise ; and for that purpose the party was to be inspected and examined ; for if it was not a plaga, it was only a trespass, and no felony.^ In like manner, if it was not laid armis molutis, but if it was done by a stone or stick, in this appeal, as well as in that of homicide, as we before observed, they could not decide it by duel ; for these weapons, says Bracton, made only a bruise, and not a plaga, or wound. ^ Another appeal for a personal injury, more aggravated than the foregoing, was that de plagis et mahemio ; which appeal was stated 1 Bract. 143 b. =* Vide ante, vol. i. 195. 3 Uiact. 144. •• Ibid. 144 b. 2h 482 HENRY III. [chap. VIII. much in tlie words of the former : A. appellat B. quod cum esset in jyace domini regis in such a place, &c., venit idem B. cum vi sua, et in felonid et assultu premeditato, etc., as in the former, et fecit ei quandam plagain in capite, ita quod vialiemiatus est ; et quod hoc fecit nequiter et in felonid, offert probare versus eum, sicut homo onahemiatus, prout curia dam. regis consideraverit : and the defence, Et B. venit, et defendit, dx. The first step to be taken was for the justices to inspect the wound, to see if it was a mayhem ; and if it was, the appellee was constrained to defend himself by the country ; for it would be a double injury to oblige the appellor to engage in the duel. A mayhem was defined to be, when a man was rendered, in any part of his body, unfit for fight ; as if a bone was extracted from the head ; if any bone whatsoever was broken ; or the foot, hand, or finger, or joint of the foot or hand, or any other member was cut ofi" ; or if the sinews or any member were contracted, or the fingers crooked, by a wound ; if an eye was beat out ; in short, if any hurt was done to a man's body tliat rendered him less able to defend himself. Bracton thought, that breaking out the teeth was a mayhem, if they were the front teeth, because it disabled, in some measure, from fighting ; but not so of the others. Castration was a mayhem, though an injuiy out of sight, and causing no out- ward disfiguring. There were some mayhems which were not a bar to the appellor engaging in the duel ; as whei-e an ear or a nose was cut off ; this, thougli a disfiguring, not being such as would disable him from sustaining the duel. There lay in this appeal the same objections concerning the wounding and weapons, as in the former.^ The next appeal, grounded upon a personal injury, is what they call de pace et imprisonamento ; which was, where a free man was taken and imprisoned against the king's peace. The words of the appeal were. A, appellat B. quod sicut fait in pace domini regis, d'c, venit idem B. cum vi sua contrap acem, cfcc, et duxit eum to such a place, &c., et in jjrisona ihi eum tenuit, &c., donee deliberatus fuit per ballivum domini regis ; et quod hoc fecit nequiter^ et in felonia, offert, <^c. The defence was, Et B. venit, et defendit vim, et injuriam, et pacem domini regis infractam, et captionem, et imprisonamentum, &c. To this appeal might be taken the like exceptions as to the former. The appellee might justify taking him as his villein nativus, and might produce his relations to prove him such. The principal issue might be tried, as in the other ap])eals, j^er corpus or per patriam. In an appeal, says Bracton, de pace et plagis, and in this de pace et imprisonamento, they might proceed civilly, notwithstanding the fact was criminal, and make the complaint as for an injury, with- out charging it feloniously ; quod B. imprisonavit A. contra pacem domini regis: and so, if in the county, contra piacem vicecomitis ; if in an inferior court, contra pacem of the lord. If it was laid as 1 Bract. 145. CIIAr. VIII.] CRIMINAL LAW FORCIBLE IMPRISONMENT. 483 an injury in Uiis manner, it would not be followed with any corporal pain, but only a pecuniary fine, by way of darnaf,a'.s ; but when it was prosecuted as a felony, tliese offences, as well as the others, produced a judt^nnent of Uia ami liinb.i It should seem, that an ai)])eal, laid in this way, woidd become what we should now call an action of trespass. Before we take leave of mijyrisoniiient, it may be proper to men- tion a more speedy redress, in cases of imi)risonment, than an a])peal. This might be resorted to, not only where a private per- son ini[)risoned or put restraint u[)on another, without any show ot authority, but also where officers of justice, under colour of [jrocess, caused persons to be put in confinement. It was from this latter case that the writ de liomine replegiando took its name, and to this it was more peculiarly adapted ; for, in the former instance, it was most probable a person would use that power, which the law allowed, of recovering his liljerty by force, or whatever means fell in liis way. The wj'it was directed to the sheriff, as follows : — Fracipiiuus tihi, quod jmth et sine dUatione replegiari /aa'as A. quern B. cepit et captum detinet ; nisi captus sit per spjcciale prcccep- tum nostrum, vel capitalis justitiarii nostri, vel pro niorte kominis, vel forestd nostra, vel p)ro aliquo alio recto, quare secunduni legem Anglice non sit replegiandus, ne ampUiis, d-c, pro defectu justitiw, cC-c, teste, (Oc.2 A man, therefore, wlio was taken and detained un- lawfully, was to be discharged upon pledges being given, as in the case of goods taken for a distress. To these remedies by way of redress, or punishment when an injury had been done to a man's person, it may be added, that the law held out a protection, by way of security and prevention, to those who apprehended any danger^of that sort. Thus a man might pray the king's peace in court against any particular person ; and if such person should, after that, do anything^ in breach of such peace, he incurred the penalty of the court's displeasure, and was accordingly in niisericordid.^ Thcrenow remain only four more appeals to be explained ; that de 2}ace et roherid ; that de comhustione domorum; that de raptu virginum; and lastly, that cZe/(w^o. The appeal of robbery was in this way : A. appellat B. quod sicut fuit inpxice domini regis, Jsc, venit idem B. cum vi sua, et nequiter 'et in fetonid, et contra i~>aceni domini regis, et in roherid ahstulit ei, (Cc, naming the thing taken, its quality, quantity, price, weight, number, colour, and the like. Sometimes there was contained in this appeal a charge of wounding, mayhem, or imprisonment. The conclusion was, as in the other appeals, et quod hoc fecit nequiter et in felonid, cC-c. Then begun the defence. Et B. venit, et defendit jmcem et feloniam, d-c. A person might have this appeal for the goods of another which were then in his keeping, but he was to state such circumstance specially: Ahstulit ei decem aiireos, de ' Bract. 145 b. ' Ibid. 151 » Ibid, 142 b. 484 HENRY III. [CIIAP. vnr. denariis domini sui, quos habuit in custodia sua, et unde ipse in- travit in solutionem erga dominmn suum, vo servitio quod idem qucerens, et tenens sims ei dehuit, et ei ioijuste detinuit; for which he might vouch his court to warranty, if he pleased, and deny that he detained it against gage and pledge. To this the plaintiff might reply, quod ille injuste cejjit, et detinuit; "because, being sum- moned to appear in the defendant's court to answer for certain services and customs demanded of him, he there said he owed him no services, and demanded judgment, if he was to be put to answer without the king's writ, in a matter that touched his freehold ; and yet, nevertheless, the defendant took his cattle, and distrained them for a service which he did not admit to be due, and when he demanded his cattle, he refused to deliver them ;" et de lioc pradu- cit sectam, which was to consist of credible persons, who were present in court. i If they agreed in maintaining what he had said, then the court was summoned ; and if that agreed with the secta, then there remained nothing but to inquire whether the distress was made by judgment of the court, or by the lord's own voluntary act. If the former, then the court was in misericordid, for its false judgment ; if the latter, then the lord was in misericordid ; and in both cases the cattle remained with the person to whom they had been delivered. If there had been no proceeding in the lord's court, and he justified for service due, then they proceeded as before mentioned, observing the above distinction, where the service demanded was a question of rig Jit, and where oi recent seisin.'^ The defendant might avow the taking to be just, because he had a freehold in which neither the plaintiff nor any one else had a right of common, or other easement, and yet the plaintiff had put his cattle there without any right, and therefore he took them ; though he was ready to restore them, if the plaintiff would abstain from the like trespasses, which he refused to do. To this the plaintiff might reply, that the taking was unjust, because he had a right to common there, which he was ready to show as the court should direct ; and therefore it was, that he would not find pledges to obtain a release of his cattle. When the suit was brought to this issue, the county court could proceed no further in it, and the cattle were to remain with the person to whom they had been delivered. J Vide ante. - Bract. 157 b. CITAP. VTir.] DISTRESS AND RKPLKVIX. 493 If tlie pLiintifF still persisted in exercising the rir,dit, the defendant, could he not otherwise defend himself", might luive tin assize of free- hold, or the plaintiff an assize of common. The defendant might say, that the taking was just, hecause lie found them (hiviVKjcd feasant^ or doing damage in his land, and therefore he impounded them, as hy the law and custom of the realm he might do, till satisfaction was made him ; that the ])lain- tift" would not make satisfaction, nor give security for it; nor did he demand them upon gage and pledge ; or, if he did, they were tendered to him : and of all this the defendant was to produce his secta. If the plaintiff meant to deny the whole, he was to defend it (for so Bracton expresses himself, as if he considered the plain- tiff, in this situation, in the light of a defendanl) per Icf/ein. If he meant to reply to any particular parts of the tlefendant's answer ; as, that though they were taken lawfully hy the defendant, yet they were detained unjustly against gage and pledge, for he came with other credible persons to the (lefendant, and offered to make amends, which he refused, and still detained the cattle ; then, in cither of lliese cases, he was to produce a sufficient secfa : and if the defendant meant to deny the whole of the reply, he was to wage his law ; so that then law would be waged on both sides. If the plaintiff denied that any damage was done, or that any was shown to him when he tendered amends, then the defendant was to pro- duce a secfa, to prove that he took them damage feasant} Where a defendant justified for service due, if the plaintiff said there was nothing in arrear, and produced a sufficient sccta to prove it, the taking being tluis proved unjust, the defendant could not defend himself ^jc)' legcni.'-^ If a servant had taken cattle in the absence of his lord, and, when they were afterwards demanded of the lord, he refused to deliver them upon gage and pledge, then they were both liable, the one for the caption, the other for the detention ; and if he avowed the caption, this did not free the servant, but both of them became answerable for the servant's act.^ When the cattle had been once delivered l)y the judgment of the county court, they were not to be taken for the same cause, till the suit was determined ; and if any should presume to take them again, it was considei-ed as a breach of the peace, and there issued a writ, stating specially what had been done therein, and conmianding the sheriff, (juud liaheas corum jiisfitiai'iis ad primam assisam, etc., corpus ipsius B.ad respond de secundd captione, d'c., or the party might be heavily amerced in the sheriff's court, coram te, et coram cns(odd)us placitorum coromc nostra\ ut castigcUio ilia in casu consimili edits timorem irihvat delinqucndi, as one of the forms of this writ expresses it. This second caption, or, as it was afterw'ards called, rccup)tion,'^ as well 1 Eract. 158. - IhvL ir,S b. Ihhl. * This writ of Recaption is said by the O. N. B. to be by the Stat, ilarlb. c. iii., but we see it was at the common law. 494 HENRY III. [chap. YIIT. as the first, was to be proved by examining the secta produced on both sides. ^ Sometimes chattels were demanded under the name of averia ; as where any one had begun to hedge, or raise a fence upon another's soil, and had brought a cart, horses, and tools there ; if these were detained against gage and pledge, the question might be brought into the county court, in the above way. But here, if the plaintiff said the locus was his freehold, the jurisdiction of the county failed, and recourse must be had to an assize of novel disseisin ; and in the meantime the things were to be returned.- Thus have we travelled through the learning and practice of the reign of Henry III. It is with regret that we must here take leave of an author who has been our constant and faithful guide through the intricate paths of this long pursuit. From the time we are deserted by Bracton, we are left to make the remainder of our in- quiry with such information as can be collected from many different sources. Instead of having the whole of the law of any particular period laid open to our view in a systematical manner, we must be content, except in a very few instances, to pick out the following part of our narrative from statutes and records, year-books, and other compilations. It appears from the investigation which we have just been mak- ing, that, notwithstanding tlie civil commotions of this reign might perhaps, in some particular cases, interrupt or suspend the full execution of the law, the learning of it was advanced to a very high degree. The great pains bestowed by Henfy II. («) in establishing our law, and improving the administration of justice, enabled it to take deep root, and support itself through the reigns of Eichard and John, though not assisted by any particular regard from those {a) There is no evidence that he or any other of the Norman kings took any interest at all in the law or in the administration of justice, otherwise than as a source of revenue or a means of oppression ; and it has been shown elsewhere, and is indeed suggested by the author liimself elsewhere as to John, that the only interest they took in the subject is to be ascribed to those motives. All the improvements in the law and the administration of justice in these times will be found to have emanated from the able men who were appointed to the office of chancellor or justiciary, especially the celebi-ated Glanville. The justices itinerant were sent not only to hear pleas of the crown and common pleas, Vjut to assess "talliages" upon the tenants of the king's demesnes, and collect fines and amercements and other sources of revenue, and their executions and opjiressions were often so infamous and intolerable, that their approach was dreaded; and in the year 1261 (45 Hen. III.), we find from aeon- temporary chronicler that a county remonstrated against their coming, because seven years had not elapsed since their last visit {Anrj.-Sax. Laws, i. 495). As regards the administration of jtistice in general, in this age, it certainly had attained a certain dec'ree of settlement and regularity. Thus, for instance, tliat separation of the law from the fact, and that distinction of the functions of the jury and of the judges, which form the foundation (as Sir J. jMackintosh observes) of our system, had become well understood. In the Placitorum Ahhreviatw there is an entry in the 6 Richard I., that "eubjudicibus licet contentio fuit, citrum carta prasdicta debet tenere versus puerum que infra a^tatem" [Plac. Ahr. 5 War. temp. Jlick. I.) And again, in the fourth year of kiuf John, the jury, upon an inquisition, declare, "non pertinet ad eos de jure die- cernere" {Plac. Ahr. 40; Line. Temj^. 4 Johan.) "Veritas habenda est iu juratore 1 Braiit. 159. ' Ibid. CriAP. VIII.] PROGRESS OF THE LAW. 495 monarchs. In tliis reii^n it had acquired a stability, wliicli with- stood every discouran disseisiverit ; et secun- dum hoc videtur judicium. Sed cum ad judicium pertineat justum proferre judicium et leddere, opportebit eum diligenter deliberare et examiuare, si dicta juratorum in se veiitatem coutineant, et si eorum justum sit judicium vel fatuum" (liracton de Leijlhus, HI), iv. p. 187). " Item sic ad justiciarum jiertinet delcgentissima examinatio, ita pertinet ad eum justa sentcnti;!; prolatjc sed ante judicium examinare debet fac- tum, et dicta juratorum, ut secure possit procedere ad judicium" (Ibid.) So the administration of justice had become so far regular that an order of advocates was already established. Bracton makes express mention of counsels, pleaders, and advocates in the reign of Henry III. [De Lerjibus, lib. v. fol. 412 a, 372 b). Aud none but advocates were allowed to appear, as is proved by an entry in that reign upon the rolls ; "Abell. de )Sancto Mirtino venit et narravit pro Episcopo ■ et non fuit advocatus : Ideo et iu misericordia custodiatur" (PUic. Abr., 1.37 ; Kane. rot. 22, temp. 32 Ucn. HI.). But, for all this, the administration of justice was far from being as yet firmly established in point of purity or impartialitj-, aud it was still open to the grossest perversion and coiTuption, arising from the influence either of the sovereign or powerful persons, insomuch that we find re])eatediy in this reign the barons deemed it necessary to appoint knights to go roftnd with the itinerant justices to observe and rejiort how they administered the law. An admirable illustratiun of the state of the administration of justice iu that age is afforded by the following pas- sage from one of the chronicles. The chronicler states certain injuries which the abbey of St Albans had sustained from some person under the protection of one Maiisel, and he then goes on thus : " Nee quicquam juris rel ultionis assistente memo- rato Johanne Regis lateribus et conciliis, potuimus obtiuere. Quiuimo metus et per- Bua sio ipsius Johannis omnium Justiciariorim et placitantium advocatorum (quoa Banoi narratoi-es vulgaritcr appellamus) ora penitus obturavit, ita, ut multo totiens oportuitDom. Willielmum tunc cellarium (visum scilicet circumspectum et faciendum) suum sermonem et querclam in persona propria coram Justiciariis imo etiam coram Piege proponore. Et protostati sunt Justiciarii, secretius in aure dicti, Dom. Wil- lit-lmo iustillantes, quod duo tunc temi:)oris in regno dominabantur, scilicet comes Ricardus et Johannes Mausel, contrd quos, non audebant sententione " (Matt. Par. Hid., p. 1077). That is to say, that they durst not do justice against them. ((') It is conceived that this is an error. The very idea of such fixed, formal requi- sites of actions is evidently borrowed from the formula; of the Roman law. Their whole style, in their severe compressed brevity, is evidently framed upon those models, and iu many iu.-jtances there is an exact conformitj- even in expression. Take, for instance, those well known and essential words of the writ of trespass : " vi et armis ; " they are evidently borrowed from the formula founded upon the Lex Julia as to vi. A learned author, iu an interesting note on the subject, cites from a French writer some instances of writs used in French courts iu order to show a French origin for the system. The writs cited, however diffuse and narrative in their style, are as unlike ours as possible, and, moreover, were evidently only French adaptations of the Roman usages. Ours adhered far more closeiy to the Roman 49G HENRY III. [chap. VIII. of the civil and canon law was much nobler than that of borrowing their language. To enlarge the plan and scope of our municipal customs ; to settle them upon principle ; to improve the course of our ]iroceeding ; to give consistency, uniformity, and elegance to the whole ; these were the objects the lawyers of those days had in view : and to further them, they scrupled not to make a free use of those more refined systems. Many of the maxims of the civil law were transplanted into ours ; its rules were referred to as parts of our own customs ; and arguments grounded upon the principles of that jurisprudence were attended to as a sort of authority. This was more particularly so in what related to personal property; while the law of descent, the inquiry ^jer famam, purgation, wager of law, and other parts of our j udicial proceedings, seem borrowed from the canonical jurisprudence. A considerable accession had been made to the original canon law contained in the Decretum of Gratian by the publication of the decretals of Gregory the Ninth, which happened during this reign. This must have given new vogue and reputation to canonical studies ; and, no doubt, encouraged the commentators of this age to pursue their inquiries, in that way, with more freedom. The application they made, whether of the canon or civil law, in treat- ing subjects of discussion in the law of England, is visible from the account just given from Bracton. To consider particulai'ly, how originals, and the learned writer alluded to evidently thought that our writs were of Roman origin, for he thus concludes his elaborate note on the subject: "One of the earliest refinements in forensic science was that of classifying the various subjects of litigation, and allotting to each class an apjjropriate formula of complaint, or claim — a method devised with a view, jirobabiy, to the more certain definition of the nature of those injuries for which the law afforded redress, and perhaps also to save the trouble of inventing new modes of expression for each particular case of wrong as it arose. Whatever the object, it is certain that such was the practice of ancient Rome, and that from a period almost as early as the formation of the laws of the Twelve Tables {Dig., lib. i. tit. 2, Cic. pro Rose. Com., c. viii.) ; and so severely were these formulae observed, that any deviation from them was fatal to the cause. This strictness evidently tended to injustice, and we accordingly find that it was banished from the Roman law by Constantine, who abolished the judicial formulte {Quint., lib. vii. c. iii.). Yet form was not altogether extirpated. Certain general distributions of the subjects of litigation were recognised under the title of actions, and considerable attention continued to be paid to the frame and wording of the complaint {Just., lib. iv. tit. 6). When, therefore, we find the rude judicature of the nations who were in possession of Europe at the fall of the Roman Empire exhibiting, at a very remote period, the same contrivance of fixed judicial formulte, we are naturally led to refer it to an imitation either of the ancient or more modern system of their predecessors " {Stephens on Pleading, note 2). It is impossible not to perceive that the learned writer was of opinion that our writs were derived from the Roman law, and that his opinion was correct. They were, it may be added, issued under the Romans by the praetor, and ours were issued by the chancellor. So the whole system of pleading was derived from the Roman law. Bracton has a chapter devoted to it, headed " De Ex- ceptionibus,'' a phrase borrowed from the Pandects ; and he uses the phrase "litis contestatio," which is taken from the civil law, and means, in substance, an issue. The terms used in pleading — "narratio," or " intentio," '"' exeeptio,'' "replicatio" — were used by the civilians and canonists [Dig., lib. xliv. tit. 1, s. 2 ; Corv. Jus. Canon., liV). iii. tit. 32). Thus Bracton says : " Usque ad litem contestationem, scilicet quous- que fuerit prtecise responsum intention! petentes, et ita quod teuens se posuerit in assisum," &c. (172, a). It is obvious that Bracton had the right idea of the real prac- tical object of pleading — viz., to eliminate and define the real point in dispute. CHAP. VIII.] INFLUENCE OF CIVIL AND CANON LAW. 497 much of the latter is indebted to those two systems, either for its origin or improvement, would lend us into a larger ficdd than our present design could allow. It .seems to be an object oi a separate consideration ; and might, perhaps, make a proper appendage to a History of the English Law. The Book of Feuds was [)ublished during this king's reign, about the year 1152; and the ])articular customs of Lombardyas to feuds began to be the standard and authority to other nations, on account of thegreater rcHnement with wiiieh that kind of learning had been there cultivated It is probable that coni[)iiation was known here, but it does not appear that it had any other eifect than influencing our lawyers to study their own tenures with more diligence, and work up the learning of real property with much curious matter of a similar kind. Tims, tenures in England continued a peculiar species of feuds, partaking of certain original qualities in common with others, but, when once established here, growing up with a strength and figure entirely their own. While most of the nations in Eni-ope referred to the Book of Feuds as the grand code of law by which to correct and amend the imperfections in their own tenures, there is not in our law-books any allusion that intimates the existence of such a body of constitutions. To trace out the affinity between the Law of Feuds wliich prevailed with us, and that which governed in Lombardy and other i)arts of the continent inhabited and settled by the German invaders, would be a subject of very curious inquiry ; but this likewise, for the reasons before given, must be passed over in silence. As study was encouraged, and the learning of the law advanced, a curious anxiety to improve imperceptil)ly led to refinement. The scholastic logic of the times was affected by all persons who wished to have the appeai-ance of learning. The law, a disputatious science, naturally adopted the prevailing fashion, and our courts, like our universities, were filled with subtlety of argument and captiousness of exception. In the reign of Henry III. this rage of minute refinement had infected all branches of the law, and made almost every part of our jurisprudence in the highest degree artificial and complex. Plaving taken a view of the law as it stood in the fiftieth year of this reign, it follows now that we should mention the statutes made subsequent to that period. The first of these is the assisa panis et cerviske, made in 51 Hen. III. stat. 1, containing many provisions on the subject from which it is entitled. To this sttitute another of the same year, entitled judicium 2^illorie, may be consiilered as sui)plemental. In the same year follow two statutes relating to the days of ajipearance in court, which deserve more par- Dies commu- ticular notice. The first is entitled, Dies communes »*'« '« ^«"<'''- in banco, generally in all real actions ; the other is entitled, Dies communes in banco inplacilo cJofis. These two acts alford us the first opportunity of speaking particularly concerning the days for return of writs, and continuance of proceedings, in term. 2 I 498 HENRY III. [chap, VlII, We have already seen that writs were returnahle at certain stated days in difterent seasons of the year.i These returns, or termini ad quos, when they fell very near together, collectively con- stituted a period of legal business, which was called generally ter- minus, or term, during which the returns were seldom more than seven or eight days distant from each other. It has not yet appeared that any precise rule was settled, by which a writ was required to be returnable at any one of these stated days in prefer- ence to another. Indeed, in the early times of our law, there does seem to have been some difference between the length of time allowed to persons summoned. In a law of one of our Saxon kings, it is directed, that if the party dwelt one county off, he should have one week ; if two counties, two weeks ; and so, for every county a week.^ The same is laid down by a law of Henry I., with a restriction not to go beyond the fourth week, uhicunque fuerit in Anglici; but if the party was beyond sea, he might have six weeks. 3 There is no intimation, either in Glanville or Bracton, of any such rule prevailing in their times. It is not, however, imlikely that the returns, in the time of the latter, might nearly correspond with the scheme laid down by the statute of dies communes in banco. But this act does not give us entire satisfaction on that head ; for, being only a direction to the justices iii banco how to fix the returns of process which they issued in consequence of the return of some other writ, we are still uninformed as to the rule that governed in the return that was to be affixed to original writs. These, we know, might be obtained in the office of the chancery any day in the year. Whether they were made returnable at the pleasure of the clerks who penned them, or at the option of the purchaser, as is more probable, or whether a certain rule subsisted in the chancery office on this head, we are not able to collect (a). When the original was once returned in banco, the rule for making (a) It appears that there had been a fixed period of fifteen days substituted for the variable period formerly allowed for appearance, iu order that the defendant might know when he was bound to appear, and that the plaintiff might know when there was a default ; and, further (as appearance in that age was personal), that certain days were appointed for returns and appearances, for the convenience of the court and the suitors. In the Mirror of Justice it is said to be an abuse to summon men without giving them reasonable warning upon which to answer (c. v. s. 6), and in the chapter ■describing writs, it is observable that no return day is mentioned. In another article it is said that after fifteen days no default should be allowable (c. v. s. 10, art. cviii.), and that in Alfred's time the process was " hasted " from day to day — that is, that it ran on, de die in diem, without any arbitrary return-days. The original practice, no doubt, was to allow a reasonable time for appearance, and reckon default, if there was DO essoin or excuse, upon non-appearance, on the lapse of that time. But in course of time, appearance being personal, it became convenient to fix specific days for ap- pearances and returns to writs, as otherwise the business of the court would be daily di.'^turbed by appearances, &c. Thus it should seem that fixed return-days were an. incident of personal appearance, and, when appearance ceased to be personal, were only an inconvenience, and probably would have disappeared, but for the tenacity of 1 Vidi ante, vol. i. 191. - Leges Etheld. c. 93. ^ Ley. Hen. Prim., c. 141. Vide Spelm. on Terms, s. 5, ch. 6. CHAP. VIII.] DIES COMMUNES IN BANCO. 401) the return of process ii[)Ou it, and process upon tluit })rocess, was as follows. The statute of communeH dies in banco diix'cts, that if a writ came (accordinf^ to the lan<:;na<^fe oC those times, or, us we should say now, was returned) in octahis of Ht Miciiael, a day should be given (that is, the writ which issued upon it should be returnable, and there should be a dies datus parlibus) in octahis of'fSt Hilary; if in quindcnd of St Michael, day should be giv^en in quindend of St Hilary. If a writ came in three weeks of St jMiehael, day was to be given in crastino Puri/icdlionis; if in a m^jiith of St ^liehael, m oc((d)is Puri/icalionis ; if on the morrow of All Souls, m quin- dcnd of Easter; if on the morrow of St Martin, in three weeks ot Easter ; if /« octahis of St Martin, in a month of Easter ; if in quindend of St Martin, in five weeks of Easter. There was a special day given in crastino Ascensionis, which countervails (says the act) the same as in five weeks of Easter. H" a writ came in octahis of St Hilary, day was to be given in octahis of the Holy Trinity; if in quindend of St Hilary, in quindend of the Holy Trinity, and sometimes in crastino of St John the Baptist ; if on the morrow of the Purification, in crastino, or in octahis of St John the Baptist; if in octahis of the Purification, in quindend of St John the Baptist; if in quindend oi' l^aiiiev, in octahis oi St Michael; ii' in three weeks of Easter, in quindend of St Michael ; if in a month of Easter, in three weeks of St Michael ; if in five weeks of Easter, or on the morrow of the Ascension, in a month of St Michael ; if in octahis of the Holy Trinity, on the morrow of All Souls ; if in quindend of the Holy Trinity, or on the morrow of St John the Baptist, on the morrow of St Martin ; if in octahis of St John the l^aptist, in octahis of St Martin ; if in quindend of St John the Ba[)tist, in quindend of St Martin. Such is the matnier in which these continuances connected one term with another. The returns that intervened between the issue and return of a writ were generally eight or nine, and the space of time about five or six months. 1 If the process in any of the many actions which we have con- sidered in the course of this reign was compared with this scheme of continuances, we should then see what a length of time must often be consumed before a party could be brought into court («). any usage once established, and especially sanctioned by statute. And the ordinance under consideration, though one of those which Hale enumerates as not a statute of record, and po.snibly not acts of parliament at all, yet obtained in use as such (Hist. Com. Lmc, c. vii.). These return-days were modified by 1 W. 4, c. Ixx., and abolished by the Uniformity of Process Act, '.i & 3 W. 4, c. xxxix. (a) And there can be no doubt that all this elaborate system of process had been devised by astute and servile lawyers for the mere purpose of creating occasion for further fees at each successive stage of the process. For, be it observed, that erf ry ' How the*e differ from the terms in former timei;, ride ante, vol. i.l92. It appears, that in the time of (rlanville there were the tbret- followiiiu rt turns in Easttr term— viz., In cra.'itino poft oetabus clausi Faselue—a crastino octalis clausi Paschoe in quindecim dies— a clauno Paschce in quindecim dici. Glanv. lib. i. c. 6, \6, 15. Vide also Spelm. on Terms. 500 HENRY III. [chap. VIII. We shall content ourselves with one example, namely, the process in a personal action, as given by Bracton.^ Suppose a summons in a personal action was returnable in octahis Michaelis, the 6th of October, the process of attachment issued upon that would be returnable in octahis Hilarii, the 20th of January. If the party did not appear, there issued a second attachment yer meliores plegios returnable in octahis Trinitatis, the 19th of June. If he did not then appear, there issued a writ of habeas corpus to take the body, returnable in crastino Animaritm, the 3d of November. Thus ended the solennitas attachiamentorum, and so passed away a full year and almost one month. If the sheriff returned upon this last writ, as it was probable he would, 7ion est inventus, they then resorted to the process of dis- tress, and a distrincjas per terras et catalla would issue, returnable in tres septimanas Paschce, the 8th of May. If he did not appear to this, there issued another distringas, returnable in quindend Mi- chaelis, the 13th of October. If he did not appear, another dis- tringas issued, ne quis manum apponat, returnable in quindend Hilarii, the 27th of January. If he still did not appear, another writ issued for a caption into the king's hands, returnable in quin- dend Trinitcdis, the 26th of June, or in crastino Sti. Johannis Baptistce, which happens sometimes on the same day. And here ended the distress per terras et catalla, and the space of one year and more than seven months ; so that the whole of this pro- cess, from the return of the summons to the return of the last distringas, would continue two years and more than eight months. This is the utmost length to which the above process might be extended if no essoin was cast ; but if any essoins intervened, and they were managed with dexterity, particularly if the parties could essoin simtd et vicissim, the appearance in court might be still further protracted. Delays were not at an end, even after appear- ance. In real actions, we have seen how frequent occasion there was for summons and resummons, upon all which essoins might be cast. In all actions, whether real or personal, there were writs of venire, and other judicial process, together with dies dati partihus. The delay that might be procured by all these must have placed the issue, judgment, and execution at a great, uncertain, and almost unlimited distance. Judicial process, like a venire, which issued merely out of the writ meant a fee, and therefore the more writs there were, the better for the king's revenue, which, as already observed, and as suggested by Lord Hale, and hinted by the author, was the great object of the interest shown by the Norman sovereigns in the administration of justice. It was, as Lord Hale observes, the rapacious and un- scrupulous John who showed most attention to the subject, and there can be little doubt that this lengthening and elaborating of the process had its origin in motives of that kind, and that this system it was which was alluded to in Magna Charta, and is repeatedly complained of in the Mirror, as tending to delay justice — the delay in fact often amounting really to denial. ' Vide ante, vol. i. 480, &c. CHAP. VIII.] DIES COMMUNES IN BANCO. 501 record, might not perhaps be considered as strictly within tlie statute, which, in tlie terms of it, is literally confined to the issue of a writ upon the return of a forniei'. It is, therefore, not im- probable that, in such cases, the justices exercised a discretion to shorten the intervals of the continuances, in the same manner as we know they had, very freely, in lessening the number of them.i At any rate, the return of a venire facias for sununoning jurors must have been accommodated to the seasons within whicli such trials could be had. The dies datiis, we know, was left not only to the discretion of the court, but to the election of the parties ; hence dies amoris, and dies datus consensu part ium . In general, however, the justices were tied up to the times pre- scribed by the statute.* This produced great inconvenience, to remove which the legislature interposed both in this and the follow- ing reign. In the very same yeai* nn act was ]mssed, by which the writ of dower was made an exception to the above scheme (»f continuances; for, in that, days were to be given at much shorter intervals, in order that widows might not be delayed in recovering the mainten- ance which the law had provided for them. If a writ of dower came in ocfahis of St Michael, day was to be given only to the morrow of All Souls ; if m quhidend of St Michael, to the morrow of St Martin ; if in three weeks of St Michael, in ocfahis of St Martin ; if in a month of St Michael, in quindend of St Martin ; if on the morrow of All Souls, in ocfahis of St Hilary ; if on the morrow of St Martin, in quindend of St Hilary; if in ocfahis of St Martin, on the moi-row of the Purification ; if in quindend of St Hilary, in ocfahis of the Purification ; if in ocfahis of St Hilary, m quindend of Easter ; it' in quindend of St Hilary, in three weeks of Easter; if on the morrow of the Purification, in a month of Easter; if in ocfahis of the Purification, on the morrow of the Ascension ; if in quindend of Easter, in ocfahis of the Holy Trinity ; if in three weeks of Easter, in quindend of the Holy Trinity ; if in a month of Easter, on the morrow of St John the Ba})tist ; if in five weeks of Easter, in ocfahis of St John the Baptist ; if on the morrow of the Ascension, in quindend of St John the Baptist ; if in ocfahis of the Holy Trinity, in ocfahis of St Michael ; if in quindend of the Holy Trinity, in quindend of St Michael ; if on the morrow of St John the Baptist, in three weeks of St Michael ; if in ocfahis of St John the Baptist, in a month of St Michael ; if in quindend of St John the Baptist, then on the morrow of All Souls. These intervals, as may easily be seen, were much shorter tlian those appointed by the former statute to be observed in all other actions ; we shall find that many other exceptions were made thereto in succeeding par- liaments. These are followed by two statutes concerning fhe exchequer, both passed in the same year ; the first is entitled Dc Disfricfione *■ Vide ante, vol. i. 355, 35G. 502 HENRY III. [chap. VIN. Scaccarii, tlic other Statutum de Scaccario. The former speaks of the damn^-es sustained by the commonalty of the realm through the wrongful distresses which had been taken by sheriffs and other bailiffs of the king, for the king's debts and for other causes. To remedy such evils, the statute ordains generally, that when a sheriff, or any other man, took the beast of another, the owner of the beasts might give them their feed without disturbance, so long as they were impounded, and should pay nothing for their keep ; nor was the distress to be given or sold within fifteen days after the taking. It further ordains, that no one shall be distrained by the beasts that plough his land, nor by his sheep, so long as other dis- tress or chattels can be found sufficient whereof to levy the demand; which provision, as well as the former, has 'been construed to extend to the distresses of private persons as well as to those of the king. But this exception of beasts of the plough and of sheep seems not to relate to cattle damage feasant, which were still to be taken according to the old custom of the realm. It was moreover required, that all distresses should be reasonable, and according to the value of the demand. The remainder of this statute, and the whole of the other, is confined to the collection of the king's debts, and the accounting for them in the exchequer. After these statutes, in the same year, follows the Dictum de Kenilworth, and then the statute of Marlbridge or Marlborough, 52 Henry III., containing some provisions of a miscellaneous kind, which deserve more particular observation. This statute was made after the long contest between the king statute of and his barons had subsided, and the nation began to Marlbridge. breathe from the disorders of civil war. During this period, many abuses had prevailed, some of which it was mtended to remedy by this statute. Of all the oppressions that were felt from the doctrine of tenures, none bore so hard upon landholders as the claim of wardship (o). Many devices had been practised to defraud lords of this valuable casualty. One of them was this : A tenant would, in his lifetime, mfeoff his eldest son and heir, being within age ; in consepuence of which, as there was no descent of the land, there could be no ward of the infant in case the father should die. It was declared by this act that no lord should lose his ward by reason of such feoffment. Another way was, to make a feoffment in fee, reserving no rent, but supposing the feoff er to be satisfied for a certain term, which, (a) Under which their children were committed to mere strangers. The following, for instance, is a curious illustration of the feudal system, under which a mother could be sued for letting her own child go with her away from his guardian. The action was for entering the plaintiff's court and taking away his ward, and the defendants, one of whom was the child'.s mother, pleaded, "quod ipsi fuerunt versus Oxon, et tunc viderunt prsedictura puerum, et puer jjercipit quod prscdicta Isabella, (one of the de- fendants), fuit mater sua ; et secutus est earn, usque domum suam, et adhuc moram facit cum ea, sed ipsi eum non duxerunt," &c. On these facts the court held, however, that the mother, with the rest of the defendants, was guilty — guilty of taking her own child {Plac. Abr., 136, BacTc., temp. Hen. III.) CHAP. VIII.] STATUTE OF MARLBRIDGE — WARD.SIIIP. 503 upon calculation, would end when the heir came to full age; and then it was conditioned tliat the feoffee sliould pay a certain sum, beini^ much more than the land was worth : as none would ^ive so hii^h a ])rice, the heir used to enter l)y virtue of the original condi- tion : but it was now declared that no lord should lose Ids ward by reason of any such feigned feolfinents. Yet lords were not to be empowered to disseise persons infeotfed in that way; but they were to ])roceed by a writ to recover the custody. The tiial, whetlier such feoffments were made l^oiid Ji(fe, or in fraud of the lord, was to be by the witnesses contained in the deed of feoffment, and other free and lawful men of tlie country. Shouhl the lord have judg- ment to recover his ward, the feoffees were still to have their action to recover the term or fee which they had therein wlien the heir came of age. On the other hand, it was provided that, should any lord implead feoffees, who were bond fide such, under pretence of the above-mentioned collusion, tliey should have their damages and costs, and the plaintiff should be amerced.^ A provision in protectioii of heirs against the intrusion of their guardians was partly a new regulation, and partly a declaration and confirmation of the common law. First, it was enacted, if a lord having wardship of an infant's lands Avould not restore them when he came of age, the heir might have an assize of mortaun- cestor, and recover the damage he had sustained by the withhold- ing of the land since his coming of age.2 It was moreover declared and enacted, that where the heir was of full age at the death of the ancestor, the lord sliould not put him out, nor remove anything, but only take simple seisin thereof (for so relief was sometimes called), in acknowledgment of his seignory ; and if such an heir was put out, and had recourse to a writ of mortauncestor, he should be entitled to his damages, as in an assize of novel disseisin. It was declaretl that the king was to have the prima seisina, or primer seisin (which corresponded with relief) of his tenants in eapite, as was used in times past ; nor was the heir to have it till he had first sued livery of the land out of the king's hands, as his ancestors had before done. This was to be understood of lands and fees which used to be in the king's hands by reason of knight's service, serjeanty, or juris patronatus — that is, of the foundation of bishoprics, monasteries, and the like.3 So great havoc had been made in the rights of persons, and of things, during the late disorders, that a parliamentary sanction was necessary to confirm some of the plainest propositions in the common law. The law underwent some alteration in favour of a particular description of wards. It was enacted, that when land holden in socage was in the custody of the heir's relations during his minority, the "guardian should make no waste, sale, or destruction of the inheritance, but safely keep it for the use of the heir ; and, when ' Ch. 6. * No damages were recoverable iu an assize of mortauncestor at common law. Vide ante, vol. i. 36G. ^ Ch. 1(3. 50 i HENRY III. [chap. YIII. he came of age, should answer to him for the issues, by a lawful accompt, with an allowance to the guardian of his reasonable costs. Such guardians were not to sell the marriage of the heir, except for the emolument of the heir himselfV so that the privilege of guardians in socage, which heretofore had been the same as that of guardians in chivalry,^ ceased to be a source of emolument. But the great lords who composed the legislature had no inclina- tion to make the same provision in case of ward and marriage in military tenure. Some provision was made for the better ordering of services. As to suit of court, owing to great lords and others, it was ordained that no person infeofFed by charter need do more than the charter bound him to ; excepting such suit as any one or his ancestors had been accustomed to perform before the king's first voyage into Brittany, which was thirty-nine years and a half before the statute of Marlbridge.3 As to those who were infeofFed without charter, from the time of the Conquest, or some other ancient feoffment, they were not to be distrained to do such suits, unless they or their ancestors had performed them before the above period of limitation. Further, persons infeoffed by charter to do a certain service, as to pay so many shillings in the year to be acquitted of all services, were not to be bound to any other suits or service contra formam feoffamenti, contrary to the terms of their feoffment. It enacts (as had before been directed where such cases happened in Ireland) ,4 that where an inheritance descended to parceners, the eldest should do the service, and the others be contributory to her according to their portions. Where there were several feoffees of land for which only one suit was due, the lord was not to exact more than that one suit ; and if the feoffees had no warrantor or mesne to acquit them, then every one of them, according to his portion, was to be contributory towards doing the service. Thus far did this act make order for apportioning suits and services. It goes on to furnish a course of redress for those who were injured contrary thereto. It ordains,^ that should lords dis- train their tenants for such suits contrary to this act, then, at the complaint of their tenants, they were to be attached to appear in the king's court, at a short day, to make answer thereto. Upon this clause a writ was afterwards framed, called, from the design of it, contra forman feoffamenti. This writ, as it is not mentioned by Bracton, who is very particular on the subject of services, probably did not exist at common law, notwithstanding a su^Dposed case in Fitzherbert ;6 besides, the writ bears an internal mark of its origin, by always reciting this statute. The remedy in such ' Cb. 17. 2 Vide ante, vol. i. 288. 3 In the fourteenth year of the king, before the disorders of his reign had given opportunity for the invasion of every species of property. We have before seen, that this period had been fixed for the limitation in a writ of nuisance, and also in an assize of novel disseisin ; though, in the latter instance at least, in direct violation of the Stat. Mei-t. Vide ante, vol, i. 344, 325, 264. ■• Vide ante, vol. i. 259. i Ch. 9. 6 Avow. 243. 16 Hen. III. CHAP. VIII.] STATUTE OF MAULBRIDGE — DISTRESSES. 505 cases before was of a less concise nature llian what was now pro- posed ; for now, besides the i)iocess of attaciunent, the lord was to have but one essoin, if he was within the reahn ; and the beasts taken on the occasion were to be iinnu-dinlely delivered to the com- plainant, and so remain till the question between them was deter- mined. If the lord did not appear upon the attachment, nor keep the day ^iven by the essoin, another writ went ; and if that was not obeyed, then he was to be distrained by everything lie had within the county, and the sheriff was to answer to the king for the issues thereof ;^ he was also to have his body at a certain day. If the lord came not at that day, the complainant was to go sine die, and the beasts and other distresses taken were to remain with him, until the lord recovered the services by judgment of the king's court ; in the meantime, all further distresses for the same services were to cease, though the lord was yet to be at liberty to sue for them in form of law. If the lord came in, and upon answer was convicted, the complainant was to recover the damages he had sustained by the distress (a). While this redress was provided for the tenant, the following was contrived for the lord. If tenants withdrew from ^. , J-)lStF6SS6S their lords such suits as they had continued to perform before the above period of limitation, then the lord of the court to which suit was owing was to recover it with damages, by the same speedy justice as to the limiting of days, and tlie awarding of dis- tresses, as was above provided for tenants. It was enacted also, that lords should not recover seisin of such suits against their tenants by default, as was the old course at common law.^ IMany provisions had been made in the former part of this statute concerning distresses. It complains that, during the late troubles, great men and others refusing to abide the order of the king's courts, and the due course of the law, took upon them to be their own judges in their own causes, and revenged themselves of their neighbours by taking distresses, till they had fines and ransoms paid at their pleasure. Others, again, would not be justified — that is, submit to the king's officers, nor suffer them to make deliveiy- of such distresses as they had taken of tlicir own authority, though without any pretence of right to justify them. To remedy these disorders, it was now enacted and enjoined that they should not be any longer endured ; and, further, that any person taking (a) In the commentary upon this statute in the Mirror, it is said : " Some points in this statute are reprovable — viz., the first five points, because every perdoual tres- pass is punishable by a corporal jiunishment, if the trespass be not compounded for by ransom, according to the quality thereof" (Mirror, c. v. s. 3). That is, that there ought to be fine or imprisonment, and not mere damages. " The chajiter which com- mands the Great Charter to be kept is defective for want of addition of punishment. The chapters remedial as to lords of fees is reprovable for mitigation of punishment, for all who so defraud the law are punishable by corporal punishment, and not by mere amercement" — i.e., in damages (Ibid.) • That is, the process was to be an attachment, and then another attachment pir miliorcs plajios, and then the last distress. Vide ante, 58, 59, and vol. i. 480. 2 Ch. 6. 506 HENRY III. [chap, VIII, revenge, without a judgment of the king's court, should be punished by a fine according to the offence ;^ in the same manner of a dis- tress made without authority («). Besides sucli fine, amends were to be made to them who had sustained any damage by the distress.- Moreover, it was declared, that none should distrain any person to come to his court, who was not within his fee, or within his hun- dred or bailiwick ; nor was any to take distresses out of his fee or place where he had a bailiwick or jurisdiction ; all which, like the provisions of the former act, were nothing more than declarations of the law as it stood before ; only in this, as in the former case, it was ordained, that persons offending against this act should be punished in damages and fine, as above mentioned, according to the nature of the fact.^ Again, if any would not permit such distresses as he had taken to be delivered by the king's officers, according to the law and custom of the realm, or would not suffer process of summons, attachment, or execution of judgments of the king's courts to be done according to law, he was to be punished in the (a) The practice here denounced was that of taking revenges for injuries in other instances than those allowed by law. The " revenge" meant taking cattle or goods as a distress, to enforce a demand whicli ought to be enforced at law, not taking cattle as a distress for doing damage, distress "damage feasant," which was allowed bv law. Hence several passages in the Saxon laws which prohibit taking distresses until the right has been claimed at law, and default has been committed by defend- ant, supply the best possible commentary upon the ancient statute of Marlbridge. The terms of the statute are — " Et nullus de cetero ultiones aut distnctiones, faciat per voluntatem suam absque consideratione curiaj domini regis, si forte dampuum vel injuria sibi fiat unde emendas habere voluerit de aliquo vicino suo sive majore sive minore." Here it will be seen that "revenges" and "distresses" are spoken of as identical, upon Avhich Lord Coke observes in his comments on the law : — " Ultiones : that they, refusing the course of the king's laws, took upon them to be their own judges in their own causes, and to take such revenges as they thought fit, until they had ransom at their pleasure. " Districtiones :" that is, taking distresses, not according to law ; as for rent services, or for damage feasant, or for other law- ful cause ; but for revenge, without cause, of his own head and will — that is, to be his own judge and lawyer — to satisfy himself without any lawful means or course of law" (2 Infititutcs, p. 303). Here it will be seen that Lord Coke recognises the risht of distre.ss for rent, and for damar/e feasant on the land of the party dis- training. The statute itself recites that the great men refused to be bound by process of law, and took upon themselves to be judges in their own causes, and to take such revenges or distresses as they thought fit, until they had ransom at their pleasure ; and it enacted that no person should take revenges or distresses of his own will without legal process (2 Inst. 103). Thus it also provided (s. 15), that no subject should dis- train out of his own land (2 Inst. 131). it is clear, therefore, that the mischief was that men took distresses, not where allowed by law, as for rent or damage feasant (in both which cases it would be on their own land), but off their land, to enforce real or pretended claims for redress for injuries or payment of debts ; and it is thus beyond a doubt, which is declared illegal, as undoubtedly it always has been by the law of this country. Distraining of goods was iudeed allowed at common law, as part of the process of the courts, to enforce appearance in a suit ; and in that way it was under the authority of the law, and the object was to prevent its being done without such authority. Such a distress was afterwards called distringas. 1 Lord Kaiins is certainly mistaken, when he relies upon this provision of the Stat. Marlb. to show that it was a -prAciwe warranted by our old law to force payment of a debt bv taking, at short hand, a pledge from the dt-btor. The distresses here meant are men- tioned by the act as breaches of the law, and do not correspond with poinding in the Scotch Law- Kaims' Law Tracts, 158, Ersk. b. 3, tit. 6, sec. 2. Ch. L * tJh. 2. CHAP. VIII.] STATUTE OF MARLBRIDGE— DISTRESSES. 50 above-mentioned way, as one wlio would not Le justified by tlic hnv of the land. The i'ornier chapters of this statute inflicted punishment where the di.stress was unlawful, or the per.son disti'ainin;^ had no seif^nory, or jurisdiction at all, or distraiuL-d out of his fee or jurisdiction. The following provision was made res])ectinf^ distresses that were lawful. It directs, that where a lord distrained his tenants for ser- vices and customs due to him, or for anythin<^ which fi;ave the lord of the fee a rii^ht to distrain, and it was afterwards found that the services were not in arrear, the lord should not be punished by fine, as in the above cases, if he suH'ered the distress to be immediately delivered according to the course of law ; but shoidd be amerced only in such manner as had hitherto been used, and the tenant should recover his damages against him.^ The general construc- tion of this chapter has been, that an action of trespass was hereby taken away in such cases ; ^ though, from the bare words of the act, there seems to have been no such design in the legislature, but merely to exem})t distresses of this kind from any conclusion which might possibly be drawn from the former provisions respecting dis- tresses that Avere wholly unlawful. It was declared and enacted, that no one should drive a distress out of the county where it was taken ; and if one neighbour did so to another, of his own will, and without any lawful rigiit, he was to be punished by fine, as for an offence contra ^Mccm. Nevertheless, if a lord did so towards his tenant, he was to be proceeded against in another way, and only amerced heavily. It was declared, that distresses should be reasonable ; and that those who took unreason- able and improper distresses, should be heavily amerced for the ex- cessiveness thereof^ As the king had, by his prerogative, a right to distrain for rent in any of his tenants' lands, though they Avere out of his fee and seignory, several lords had taken upon themselves to do the like ; but it was now enacted, that no man should, for any cause what- soever, take a distress out of his fee, or in the king's highAvay, or in the common street, except only the king, or his officers having a special authority for so doing.^ The only remedy in case of distress was a writ of replevin, the manner of proceeding in wdiich is still fresh in the reader's memory.^ Some time was required before a replevin could bring relief to the owner of t^e goods or beasts ; and this delay was greatly increased Avhen the distress was imi)ounded within a liberty that had return of writs ; for the sheriff" could not, in general, act within such franchise in person, but was to make a warrant to the bailiff thereof, ordering him to make delivenmce." To remedy such inconveniences as might arise from these exclusive jurisdic- tions, it was provided by another chapter of this statute, that where 1 Ch. 3. 20 Inst. 106. ^ Ch. 4. * Ch. 15. * Vide ante, 46. « Iljid. 48, in what manner Bracton states the authority of the sheriff iu this par- ticular. 608 HENRY III. [chap. VIII. the beasts of any man were taken, and wronj^fully withheld, the sheriff, upon comphiint made to him, might deliver them without any impediment or contradiction of the taker, if they were taken out of a liberty ; and if taken within one, and the bailiff thereof refused to deliver them, then the sheriff, upon their default, might himself_ make a deliverance of them.i Thus was the sheriff con- iirmed in his - power to make replevin without a writ ; and, either by parole or by precept, either in or out of the county court, he might now command his bailiff to deliver the distress ; a very great improvement in the proceeding by replevin. Another abuse of the summary process by distress, was endea- voured to be removed by chap. 22 of this statute,^ wliich ordains, that none should distrain his freeholders to answer for their free- holds, nor for anything touching their freeholds, without the king's writ ; nor should any cause his freeholders to swear against their wills ; because, says the act, no man has any authority to do that, but by the king's command. It should seem, that, before this, lords would by distress compel their tenants to discover their title- deeds, and show by what services they held, and so lay them open to litigations and contest : a proceeding more harsh and unpopular than even that by quo ivarranto or quo jure, which was calculated to attain the same object, and was, unfortunately, justified by law.* The swearing here is supposed to mean the discharge of their duty in the court baron and hundred court, where the freeholders were sectatores and judges, and were sometimes forced, by oppressive distresses, to give their verdict on oath between party and party, according to the pleasure of the lord.^ The remaining part of this statute relates to the general admin- istration of justice, either civil or criminal. We shall first consider what concerns the former. Of this, the first is the chapter upon heaupleader. It seems, that bailiffs and judges of inferior courts had followed the example, set by kings of England, of selling justice, and used to take fines of suitors for a fair or perhaps fav- ourable hearing of their cause ; which fair hearing was called pul- clire placiiare, or heaupleader. It was ordained, that neither in the itinera of the justices, nor in the counties, hundreds, nor courts baron, should any fines be taken pro jJidchre placitando, nee per sic quod non occasionenturS^ That this is the meaning of beaupleader, and not that it was a fine for amending a wrong plea,7 seems pro- bable from a passage in the statutum Wallice, and from the manner in which the author of Fleta speaks of this fine : Nititur, says he, dominus vel ejus senescallus ipsos occasionare, arguendo, et redar- guendo, donee finem fecerint pro pidchre 2:)lacitando. s The statute says, Vicecomes verd, in veredictis, et recogniiionihus admittendis, non quccrai occasiones versus prcesentantes, nee capiat ah eis fines ^ Ch. 21. 2 Vide ante, 48. 3 Ch. 22. ■» Vide ante, vol. i. 426, s 2 Inst 142 « Ch 11 7 2 Inst. 122, 123. 8 piet. 147, ' ' ' CHAP. VIII.] STATUTE OF MARLBRIDGE— PROCEDURE. 509 per sic quod non occasionentur ^ ; wliich, at least, has no reference to pleading, Upon this statute a writ was framed to relieve those who were distrained for any fines of tliis kind.- In furtherance of proceedini^s in court, it was provided, that charters of exemption and liberties, granting that certain persons should not be impannelled in assizes, juries, or recognitions, should not operate as an impediment to justice ; but that, where right could not be done witliout them, as in the great a.ssize, in peram- bulations, and in charters and deeds of covenant where they were witnesses, and in the like cases, they should submit to be sworn ; saving, however, their franchi.se in all other cases.3 When a court baron had given a false judgment, it seems, the regular order of appeal was to the court baron of the lord next above, and so upwards to the chief lords ; but if the next imme- diate mesne lord had no court, the judgment could not be redressed in the court of the next superior, for want of privity, and recourse was to be had to the bench, or the justices in eyre.^ This series of appeal occasioned great delay and expense : to prevent which it was provided, that none, except the king only, should hold plea of false judgment given in the court of his tenants ; for such jileas, says the statute, speciaHcr spectant ad coronam et dicjnitatem domini regisP False judgments were thenceforward to be heard in the common pleas and the eyre. A great inducement to the king for depriving inferior courts of this subject of jurisdiction, and bringing it imme- diately into his own court, was, that the fines to be impo.sed for f;ilse judgments were thereby brought under the immediate cognizance and direction of the king's justices (a). The power of amercing for defaults was exercised by all persons authorised to make judicial inquiry; and this jwwer was exercised in a manner not wholly satisfactory. An act, to the following effect, was thei'ofore made to redress this. It was ordained, that no escheator, or inquirer (which is said to signify sheriffs, coroners (a) Attention has alreaily been drawn to the important influence of thia matter of fines, or fei s, or amercements, and other pecuniary impositions or penalties upon the administration of justice. It lias been seen that there is every reason to believe that the interest the Norman soverei>rns took in the administration of justice arose entirely from their finding that it could be made a source of revenue, and that the attention they paid to it was directed almost altogether to that object. There is, it has been shown, every reason to believe that the sending of justices itinerant into the counties, and the institution of a regular judicature — the establishment of superior courts — were all dictated by this motive; and that to the same motive may be ascribed the various devices invented and resorted to in order to discourage liti- gation in the local courts, to remove it into the superior courts, and to convert them into courts of ordinary and primary jurisdiction. The steps by which this was accomplished have been, in some degree, traced and described in the Introduction, ■where, however, attention was not fully called to the various modes adopted for encouraging removal of causes from inferior couit:=, and the various means provided for the puriKise. The ef!ect happily was. in the result, to improve the administration of justice, at a period when nothing could cflcct an improviuieut except a regular judicature. ' Stat. Wall. 12 Ed. I. » Flet. 147. ^ Ch. 14. * 2 lust. lot). * Ch. 20. 510 HENRY III. [CHAr. VIII. ffuper visum corporis, and all those who received power to inquire in special cases) i, or justice assigned specially to take certain assizes, or to hear and determine certain complaints, should any longer have authority to amerce for default on the common summons ; and, in short, none but the capitales justitiari in itineribus suis:^ Among the alterations made for the improvement of judicial pro- Writ of entry ccedings, that which concerned the writ of entry was of inthejjos^. great importance (a). We have seen, that this new remedy v\\as confined to certain degrees, which gave a denomination to the different writs, some of which were thence said to be in the per, and others in the p)er and cui.^ This was a check upon the application of the writ of entry, which, in other respects, was of a general import, and capable of being further extended. With a view to this, it was ordained, that if those alienations upon which a writ of entry used to be had, were so many degrees removed, as not to be properly within it, the complainant should have a writ to recover his seisin, without mention of the degrees, into whatsoever hands the land should have come by such alienation : and this, says the statute, shall be^er hrevia originalia per concilium clomini o-egis providendaA In pursuance of this permission, a new writ was formed,- called a ivrit of entry in the p)ost, because, instead of specifying the particular steps by which the alienation had hap- pened, it said generally, that post such alienation, &c. This new writ, from its indefinite nature, was applicable to almost every possible case of ouster of freehold, and tended to make the writ of entry a still more general remedy. There were two defects in the law, as some thought, respecting the property of abbots, priors, and other religious persons and societies, which it was now endeavoured to remove : first, if the goods of a monastery were taken away in the time of a predecessor, it was au opinion, that, after his death, the successor had_ no remedy for tlie trespass : the other defect was, that, if in the time of a vacancy, when there was no abbot or prior (or whoever might be the head), any intrusion were made, the successor had no remedy to recover the land with damages, though the predecessor died seised thereof : both these were now remedied.^ (a) " It is to be observed, that the common law provided for the quietness of men's freehold and inheritance, and that they should not be disturbed" (i.e., in their possession) "insomuch as he that had right could not enter upon him that came in by descent or lawful conveyance, but was driven to his writs of entry " [i.e., to his suits at law), " and the common law, for the safety of men's possessions, fur- ther provided that, if the land were conveyed out of certain degrees — the demand- ant was driven to his writ of right (a long and final remedy) to the end that suits might have an end ; and that he who had right should take his remedy by writ of entry before there were above two descents or conveyances, and also within the time of prescription " (2 Inst. 153). This was distinguished from the assize of novel dis- seisin, which was, as liOrd Coke says, " festinum remedium, and much favoured in law for the relief of the disseinee in regaining possession of his stock of cattle and goods" (2 Inst. 236). i2Inst. 13C. 2Ch. 18. ^ Vide ante, \ol. i. 121, 393. *Ch. 29. 5Ch. 28, 2 Inst. 151. CHAP. YIII.] STATUTE OF MARLBRIDGE — PROCESS. 511 Several provisions were nifidc for improvinf? the pi-ocess of law. By one act it was jH-ovidecl, that if baiiills, wiio ow^ht to account with their kjrds, withdrew themselves, and liad no hmds or tene- ments by wliich they mi<;ht be distrained, tliey should be attaclied by their bodies, so as the sherift' nii;^ht cause tlieni to come to render an account.! Thus was a process against tlie person framed upon this statute, bejjjiniiing with lUon.sfravit nobis A. (jnodchvi li. balli- vus suns, ttc.,^ of whicli, and tlie action of account, more will bo said in the next reign. Wliile this care was taken for securing the regular accounting of bailiffs, the interest of the lord was again consulted by another ])rovision, that restrained farmers from making waste. It is the opinion of some,^ though not, as it slionld seem, well founded,-^ that there was no remedy at connnon law for waste, except against a tenant by courtesy, in dower, and a guardian (a). These being, say they, estates created by operation of law, the law likewise provided that they should not be abused ; but such in- (a) This is very important, as the first statutory enactment of the process of arrest for debt, or mere civil demands. At common law, arrest, it should seem, was only allowed in cases of trespass with force ; which was deemed an oflcnce against the kinir, although venial, and admitting of satisfaction to the i)arly along with a fine to the king. It is said, indeed, in the Mirror, in treating of personal actions, that the defendants were distrained or attached to the value of the demand ; and for default, after default, judgment was given for the plaintiff, but that this usage was changed in the time of llonry I. (query Henry III.), so that no freeman was to be di.strained (or attached) by his body for a personal action venial, so long as he had lancb, as to which the judgment by default was in force till the time of Henry HI., that the plaintiff" should hold the land until due satisfaction was made (c. iv. s. 5). It is further said, that in personal actions venial, where the defendant.s lia>l not free- hold land, the process was first awarded to arrest their bodies, and then they were outlawed (c. vi.). Tint this, it is to be presumed, meant cases of trespass, as it would not be consistent with what had already been said, and there is no doubt that at common law the first process was summary, then distress or attachment of goods. This is what had been previously alluded to in the clauses as to distress, or rather distringas, to compel satisfaction for alleged injuries, no one having a right to levy such distresses, except on hk own land, for rent or damaf/e ftamnt. Thus it is said in a subsequent section of the Mirror, that where the king commands the sheri(r(a3 in an original writ) that he command such a one to appear, and if he do not, then that he summon or attach the defendant ; in which case, if the .sheritl' had not teamed the tenant to appear, he would not take surety, &c. (s. 9). Elsewhere it is said that perso..al actions are commenced by attachments of the body real by sum- mons, and mixed actions first by summons and afterwards by attachment (c. iii. s. 6) ; hut the context shows that the section is treating of trespasses, false imprisonments, &c. ; and mixed actions are defined to include contracts and distresses, &c., and that they are called "mixed" by reason of the mixture of process. So that it is clear that " personal actions," in the Mirror, means actions for trespasses to the person, and that in all others the first process was summarj-, and attachment even of the goods was not allowed until after default upon summons ; and arrest of the per- son was not allowed where the defendant had immovable property like land, the principle obviously being that arrest (before judgment) was only for sccuril;/, and that if a man had land, which could not be removed, and the seizure of which would be an ample security, he should not be arrested, except for an otl'ence against the king, committed with personal violence. But then this principle did not apply whe^n the parties had no lands, and withdrew themselves with their personal goods, so that there would be no security without their arrest, and hence the present enact- ment, limited in the first instance to actions of account, but afterwards extended to all other personal actions, or rather actions as to personalty. As to actions for recovery of realty, the old principle still applied. ' Ch. 23. - Fleta. ^ 2 Inst. 299. * Vide ante, vol. i., 336. 512 HENEY III. [chap. VIII. terests as were conferred by agreement between man and man, were left wholly to the terms of such agreements ; and if there was no provision made therein by the parties themselves, the law would make none for them. But the common law was otherwise ; and it was now enacted, in confirmation thereof, that farmers (which sig- nified as well those for life as for years), during their terms, should not make waste, or exile of woods, houses, or men, nor of anything belonging to tlieir farm, unless they had a special licence or cove- nant for so doing ; and if they did, and were convicted thereof, they should refund full damages, and be heavily punished by amerce- ment.^ The other parliamentary regulations about process were as fol- low: Chap. 7, speaks of the common lorit de custodid ; of which there appears no mention in Glanville nor Bracton. It should seem, however, that this meant the lurit of right of ivard. The process in this, as in most other personal actions, was summons, attachment, and distress. This was thought not sufficiently com- pulsory, v.diere the possession of the ward was, probably, of more value than all the lands and goods which were taken by the dis- tress. A new course was therefore devised ; and it was enacted, if the deforceors came not at the great distress,^ then the same process should be repeated twice or thrice, within the next six months, and be read openly in the county court: and that pro- clamation should be made for him to appear at a day limited ; and if he came not at the end of half a year, according to the proclama- tion, he was to lose the seisin of the ward, as a rebel, and one who would not abide the judgment of the law. If a custody was de- manded against one who held it by reason of ward, the process ordained by this statute was not to lie ; but that proceeding was left to the course of the common law.^ The process in several actions was altered in the following way: Not satisfied with the special exception already made from the dies communes, in favour of process in dower unde nihil {d),^ the parlia- ment now declared in a general way, that dentur quatuor dies per annum ad mi7ius, and more if conveniently could be, so that they (a) This is worth notice as the earliest enactment of judgment for default of ap- pearance. Lord Coke, in his reading upon this statute says : — " Put the case then upon tlie summons, the defendant is returned nihil ; and at the attachment for dis- tress nihil also. Tlais case is out of the letter of tlie statute, because the defendant was never summoned ; but it is said, that when there be two mischiefs at the com- mon law, and the lesser is provided for by express words, the greater shall be in- cluded within the same remedy. And this case, where nihil is returned, is the greater mischief ; for he (the defendant) by his default shall lose nothing; but in the case provided, the defendant by his default shall lose issues ; and the law intends that he will rather appear than lose issues " (2 Inst. i. 24). This is worth notice, as the earliest illustration of the liberal construction put upon remedial statutes. 1 Ch. 23. This latter clause, about waste, is made a separate chapter in 2 Inst., and is numbered as the twenty-fourth ch;ipter ; which makes this statute contain thirty chapters in that author, though in the common editions it has only twenty-nine. - By the great distress is meant the last and most compulsory of the four processes of distringas. ^ Ch. 7. * Vide ante, GO. CHAP. VIII,] STATUTE OF MARLBRIDGE — PROCESS, 513 sliould have five or six in the year at lea8t.^ In assizes ultimcB prajsentationis, and suits of fjuarc imped it, of churches vacant, days were to be given from fifteen to fifteen days, or from tliree weeks to tliree weeks, as tlie jilace liappened to be near or remote ; and in a quare impecUt, if the disturber appeared not at tlie fiist dtay of summons, nor cast an essoin, he was to be attached; and if he did not ai)i)ear to that, lie was to be distrained by the great dis- tress. If he still made default, a writ was to go to the bishop of the place to prevent the lapse (a). 'J'his shortening of the ])ro- cess in quare impedit, was only confirming a practice- established (though as Bracton says without sanction of the law) l)y the courts upon their own authority. It was further enacted, in all cases of attachment, that the second attachment should be per melioris plegios, and then should follow immediately the last distress : ^ a regulation which the first check upon the solennitas attachiamen- torum^ and the four processes of distringas. In order to save some of the grievous delay occasioned by essoins, it was enacted, that after [my one had put himself upon an inquest, no party sliould have more than one essoin, and one default.^ As no inquest could be taken by default in a real action, this provision has been held to relate to personal actions only.'^ Again, no one was to be obliged to swear, as had been the practice, to warrant the truth of an essoin : ' though the statute speaks generally of essoins, this provision has been held to apply only to the common essoin de malo veniendi, so that the practice of swearing the warrant of other essoins still continued.^ Warrantors in pleas of land were exempted from a fine for non-appearance at the summons of justices in eyre, but were to be further warned to appear.^ The last provision on the subject of process was to give effect to a regulation made by the statute of Merton about re-disseisins. It had been directed by that act,^o that a person guilty of re-disseisin should be committed to prison, till he was delivered by the king, (a) This is remarkable as the first known enactment in our law of a power to give judgment by default, though there is some obscure intimation in the Mirror of a practice in personal actions to allow judgment by default ; and it should seem that in this action of quare impedit, for the particular reason assigned — to prevent a lapse, — such a practice had arisen. In the Mirror it is said that in real actions the prac- tice in case of default was to seize the defendant's land, to the value of the demand, to be adjudged to the plaintiff" to hold as a distress; " but this was only to enforce appearance, and so as to mixed actions, the defendants were distrainable by all their movable goods, until they appeared and answered " (c. iv., s. 7, S). As to personal actions, it was said that the defendants were distrained to the value of the demands, and for default after default judgment was given for the jdaintiff. This, however, it should seem, was only as a distress ; for it is added, that the body waa not to be seized so long as the defendant had lands, as to which the judgment by default was of force till the reign of Henry III., that the plaintifl" should hold the land until due sdiisfarlion made (c. iv. s. 5). It was not until ages afterwards that final judgment by default was allowed, except in quare impedit. 1 Under the former statute the returns were about five in a year. The common returns in the statute of dies communes are uot more than two in a year. 2 Vide ante, vol. i. 3.55, 350. '' Ch. 12. * Vide ante. vol. i. 482, 483. « Ch. 13. fi 2 In.st. 120. 7 Ch. lU. 8 2 lust. J 27. » Ch. 26. " Namely, c. 3. Vide ante, vol. i. 2C4. 2k 514 HENRY III. [chap. VIII. vel aliquo alio modo. Under tliese last words, such persons used to be delivered by the common writ de liomine replegiando} To prevent this in future, it was now ordained, that they should not be delivered sine speciali prcccepto domini regis, and that they should also make fine with the king for the trespass. If the sheriff delivered them any otherwise, he was to be grievously amerced ; and the person so delivered was to make fine for the trespass.^ Thus far of the provisions of this statute relating to civil matters. Some few alterations were made in our criminal law by this statute. The splendid appearance of the sheriff's tourn was wholly diminished by a law, which ordained that archbishops, bishops, abbots, priors, earls, barons, or any religious man or woman, should not be obliged to attend there, unless they had some special busi- ness ; but the tourn in other respects was to be held as formerly, in the time of Magna Charia, and of the reigns of king Kichard and king John. Those who had tenements in different hundreds were not to be obliged to attend the tourn, except only in the dis- trict where they were most conversant.^ The attendance before the sheriffs and coroners was virtually dispensed with in another in- stance. It was declared, that the justices in eyre, in their circuits, should not, in future, amerce townships, because all such as were twelve years of age came not before the sheriffs and coroners to make inquiry of robberies, burnings, and other things appertaining to the king's crown, provided there were sufficient others of the townships to make inquisition. However, it was still required, that in inquisitions for the death of a man, all persons twelve years old should appear, unless they had a reasonable excuse for their ab- sence. ■* A provision was made on the subject of murder, which has created some difficulty among modern lawyers. Murdrum, says the statute, de ccctero non adjudicetur coram justitiariis, uhi infor- tunium tantilmmodo adjudicatum est; sed locum haheat murdrum in intersectis per feloniam, et non aliterP The fine called murder, which has been so often mentioned, though by the general law only due upon a secret felonious killing, yet, as appears from Bracton,^ was by the particular custom of some places exacted in other cases of homicide, and even in such as were not felonious. The object of this statute, therefore, was to abrogate such customs, and reduce the whole law of the realm to a uniformity. This is very different from the opinion of those who imagined the murder here spoken of to signify the fact of killing ; and that the statute ordained, that killing per infortunium should not be deemed felonious, or murder. The other regulation concerning matters of crime was this : that where a clerk was arrested for an offence, and was afterwards by the king's command let to bail, or replevied, with a condition, that they to whom he was let to bail, should have him before the 1 2 Inst. 115. 2 ch. 8. !> Ch. 10. *Ch. 24. Vide ante, vol. i. 2Q,Z. -^Ch. 25. ^ Vide ante, 22. CHAP. VIII.] STATUTE OF MARLBRIDGE — CRIMINAL LAW. 515 justices ; such sureties and such bail, if they had his body before the justices, were not to be amerced, tliougli lie refused to answei-, and claimed his privilcf>^e of cleri^^y:! a provision which seems dictated by sucli plain and obvious justice, that one may wonder how it ever should be thoni^lit necessary to be secured by statute. These were the alterations and confirmations of the common law made by the statute of Marlbridge, 52 lien. III. to which may be added a chapter, whose substance was frequently repeated in the following reigns. Tliis required, that Mufjna Cltarto should be observed in all its articles, as well those relating to the king, as to others (rr); and it was directed, that this should be inquired of before the justices in eyre in tlieir circuits, and before siieritl's in their counties. Writs were to be granted gratis against such as («) Upon this, tlie commentator in the Mirror slirewdly observes, " The chapter whicli comuiandetli tlie Great Charter to he kept in all points is defective, for want of provision of puniiihmcnt, and it seems idle to make coiiatitutions not holdcn " (Mirror, c. v. s. 7). That was written after the statute of Marlbridjje, which was in the 52d Henry III., that is more tiian half a century after JIagna Charta had been first granted by the king, and a quarter of a century since it had been ronjirmed by him ; and yet the commentator treats it as idle, it had been so little observed ! And in the same chapter of the Mirror we find a long catalogue of " abuses," most of them in violation of tlie charter. The great difficulty of the age, however, was in enfoiri)/;/ the law ; and that difficulty woulil not have been met, as the commentator in the Mirror appeared to suppose, merely by enactin'^ punishments for breaches of the charter, for still the difficulty would have been in the execution of the law. The difficulty lay in the want of puriti/ixnd the want oipouer in the administration of justice. It was in vain to declare tlie rights of the subject, and it would have been as vain to enact punishments for their infraction, there being not sufficient honesty or not sufficient strength in the courts of justice to pronounce and enforce judgments which should vindicate and protect these rights. The whole of the reign was occu- pied in endeavours to eflfect the object. When the charter was confirmed, the itinerant justices were ordered to summon all knights and freemen to their courts, and to administer to them an oath — that they would keep the peace and observe the good and lawful customs of the realm. But what were oaths in those times of turbulence and violence. Later in the reign the law was, as the Parliament of Oxford insisted, that four knights should be chosen by the freeholders of each county to ascertain and report to parliament the excesses and injuries committed within the county by the ministers of the king and the itinerant justices themselves. But what manner of protection there were may be gathered from the fact, that the chief justiciary, appointed by the barons, surrendered the whole body of the Jews in Loudon to plunder and massacre [Linrjard, v. 2, c. vi.). There was no real guarantee for liberty and law until the authority of parliament was established (vide post). " Volons nos que generale crie soit fait solempncment par les marches, cytes, et burghes, par tout Ic countc, &c. Et que le visconte du pays est illonques trestans les brefs ([ue ajournes outre este jesques en eyre, et toutes les assi.^es de novel dissei- sin de mort d' aucester. et de dower, etc. Et manudrouns a nos justices de banks, que trestans les pleas del counte adjournent et enneyent devaunt nous ou devaunt eeux justices errantrc en cet counte, essint que lis soient a certein jour. Et quant a la venue de nos justices volons nos que comme ils serront venues la ou il deyrent eyrer q'ils monstrent, le poer que ils averount de nous par nos lettres patentes et en audience del people les facent lire, et puis celui que primis serra nos ne en celes lettres, nostre et die al people les enchesons et les profitcs de leur venue en eel couute" (Britton, c. ii.). "An commencement soient enquies, oyer et terminer lea veus articles et ehapitres presentes en le darrcyn eyre eis eel counte, &c." (c. iii.) Now, these extracts from Britton have been given with the object of explaining that justices in eyre were justices itinerant of a larger jurisdiction than ordinary- justices itinerant, coming with a larger commission, to hear and determine ail mat- ters, civil or criminal, apparently without any limitation ; whereas the justices 1 CLi. -21. 516 HENRY III. [chap. VIII. offended therein, returnable coram rege, coram Justitiariis in banco, and before the justices itinerant; the like of the Charter of the Forest : all offenders of this kind were to be grievously punished. ^ In the meantime the legislature of the national clergy were em- ployed in framing regulations, that were considered as binding to a certain degree, like those of the parliament. Several synods were holden during this reign ; some by archbishops, and some by the pope's legates. The former were provincial, the latter national councils ; the constitutions made in the former are accordingly called provi7ickd; but those in the latter, legaiinc. Of the canons and constitutions made in these assemblies, many have come down to our times. These foi-m a kind of national canon law ; and as such, were better received than the pontifical law, which had been intro- duced into the kingdom in the reigns of Henry II. and John (a). From the parliamentary appearance of those assemblies, their laws carried in them some similitude to acts made by the legislature of the kingdom. The subjecting the church and clergy to such an authority seemed reasonable, consistent, and safe. Among the legatine constitutions of this reign, the most distinguished are those of Cardinal Otto, made in a council held in 1220 ; and those of Cardinal Ottohoni, in one held in 1268 {IS). itinerant appear, as lias been already seen, to Lave had only a jurisdiction over pleas of the ci-own, with a limited jurisdiction in smaller civil matters. Both Britton and the Mirror were of the reign of Edward I., whereas Bracton, upon whom our author founds his account, wrote in the latter part of the present reign ; but there is, it will be seen, an entire accord between what is said by Britton as to justices in eyre, and by Bracton as to justices itinerant. These justices liy degrees superseded the county courts. In the Leges Uenrici Primithere is a chapter on the county court which com- mences thus — "Judices regis sunt barones comitatus," which Spelman considers — no doubt truly — to mean the freeholders of the county. Originally, as seen in the Saxon laws, and as stated by Lord Coke, all who held by military tenure were called " thanes " or " barons ;" those who held of the king being called king's thanes or greater barons, the others lesser thanes or barons. The system of tenure originally comprised all freeholders, as appears by the Mirror, and they were the suitors and judges in the county courts. («) It has already been seen what an exaggerated and incorrect idea our author had of these pontifical laws, which were simply the same as the old Saxon laws of the country. And it may be conceived how little likely it was that constitutions and canons, enacted under papal legates, would be one whit less papal than the papal constitutions themselves. Yet, such is the force of traditional prejudice, that because it had become a national habit to feel and express dislike to anything papal, the very same constitutions which were denounced by the author in a former chapter as papal, are here represented, rightly enough, as being the most natural things in the world, in a Eoman Catholic countrj' with a Roman Catholic Church. (b) Dr Lingard says that many of the canons which Cardinal Ottobone published, relating to commendaries, residence, delapidations, repairs, and the plurality of benefices, still retain the force of law in the ecclesiastical courts. Otho, his prede- cessor, had vainly attempted to abolish the abuse, which was so prevalent in England, of bestowing a number of benefices on the same person. On the present occasion, some of the prelates appealed from the legate to the Pope, but were induced to with- draw their appeal ; and indeed, adds the learned historian, it would not have suc- ceeded. So inexorable was Clement on the subject that, as soon as he learned that bis nephew possessed three benefices, he compelled him to resign two {Lingard's Hist. Eng. v. ii. c. vi.) From this we see that the national prelates were sometimes in favour of abuses, and that the papal authority was sometimes exercised for their repression. Our author, in another chapter, shows this. 1 Ch. 5. CHAP. VIII.] THE ECCLESIASTICAL JURISDICTION. 517 These constitutions, wIicIIk r provincial or Ic^atine, are principally taken up in such matters as peculiarly helon^ed to the considera- tion of a national assembly of the cler^'V. The life and conver- sation of churchmen; the due administration of spiritual things; whatever related to religion or to manners ; such are the objects upon which these clerical ordinances are mostly employed. But among these godly and sol)er regulations, there are certain consti- tutions of a fjunous ])relale that breathe nothing l)ut the spirit of clerical ambition. These are the constitutions of I'oniface, arch- bishop of Canterl)ury. This determined successor of Bceket had set on foot all the claims so steadily urged by that famous martyr in the cause of the church ; and resolv^ed, by a legislative act of the convocation, at once to establish them for law, at least as far as they could be established by the sanction of an ecclesiastical synod. 13y the authority of a convocation hold a.i>. 12G1, he ordained, that if any archbishop, bishop, or other inferior prelate, should be called by the king's letters Ijcfore a secular judicature, to answer respecting matters that were known to concern merely their office and court ecclesiastical ; as, whether they had admitted, or not admitted clerks to vacant churches ; whether they instituted, or did not institute rectors ; whether they had passed excommunica- tion or interdiction; whether they had consecrated churches, cde- brated orders, taken cognizance of causes ])urely spiritual, as tithes, oblations, bounds of parishes, and the like (which, says the consti- tution, cannot concern the secular court) (a) ; whether they had (a) This certainly was otherwise, according to the view of the English law as it was then settled and understood, and it has already been shown that, accordinij to the principles of the canon law itself, the ecclesiastical law could only interfere with the secular courts in matters within their province, upon the ij;rounil of a rccoirnition of the ecclesiastical power \>y the law of the land. So that, even upon canonical prin- ciples, the right of the church to interfere with sucli matters would depend upon the degree in which her power was recognised by the law. Now, as to this, the result of the struggle which had taken place in the reign of Henry II. had been undoubtedly to work some .ilteration in the law, and to settle it upon a basis far less favourable to ecclesiastical power than as it had been before understood. As already observed, in commenting on the Constitutions of Clarendon, although they were not per se of statutory authority, and tlie degree to which they were law would depend upon the extent to which they had been afterwards incorporated Avith the law by actual use and adoption, they had certainly to a large extent been so used and adopted, and liad greatly altered the law. For instance, in the treatise of Glanville, written at the close of the reign of Henry II., it is (as already stated) laid down as clear law that the right of advowson or presentation was of secular cognizance, and^ that prohibition would go to the ecclesiastical court if it took cognizance thereof (Glam: lib. v. c. viii.,ix.), although if a question arose lietwcen clerk and ji.itron.or between two clerks— as to institution, not presentation— it should be decided in the ecclesiastical court (Ibid. c. viii., ix.) The principle involveil is tlii.^^, that wlierever temporality was annexed to spirituality, the former should draw the latter into the king's court, and not the latter the former into the ecclesiastical court, was laid down and expounded by Bracton in his great treatise, and applied to various oases. And however illogi- cal this might appear to be upon his own principles, that the principal would draw to it the accessory— unless indeed the law decreed the temporality to be the jirincipal and not the spirituality, to which it was annexed— such was certainly the law as laid down in his treatise, composed and written towards the end of this reiirn. And as even, according to the ecclesiastical law, this question depends upon the degree to which the law of the land allows of or recognises the power of the church, it may 518 HENRY III. [chap. VIII. taken cognizance of sins, or excesses, as perjury, jidei Icesio, or breach of faith, sacrilege, violation or perturbation of ecclesiastical be proper here to present the passages in Bracton in which he lays down the prin- ciple on which it depends :— " Est etiam jurisdictio qucC pertinet a,d forum ecclesias- ticum, est etiam alia jurisdictio qux pertinet ad coronum, in causis et placitis tem- poraliiim in foro seculari, et unde videndum cujus juditium et forum actor adire debet et verum est quod sive laicum sive clericum venit quis convenire, debet adire judi- cum et sequi forum rei et judicem habebit ilium apud qucni rem habet domicilium, sive domicilium habuerit sub jurisdictione unius vel duorum. Et licet generaliter verum sit quod actor forui^ rei sequi debeat, fallit tamen in casibus, propter diversi- tatem jurisdictionum et causarum de rebus spiritualibus et temporalibus et eorum sequela sicut iu causa matrimoniali, et rebus pra^misses ob causam matrimonii quae in foro ecclesiastico debent terminari, quia cujus juris jurisdictionis est principale, ejusdem juris erit accessorem. Et eodem modo sicut si in foro seculari agatur de aliquo quod pertinet ad coronam et fides fuerit ap posita in contractu non propter hoc pertinebit cognitio super principale ad judicem ecclesiasticum. Item fallit in causa testamentaria et aliis pluribus causis ecclesiasticis. Item, ratione contractus. Item, ratione rei petitai sit se clericus petat versus clericum vel laicum debitum, quod non sit de testamento vel de matrimonio, sequi forum laicale " (Bracton, Be Leyibus, lib. V. c. xi., ss. 1, 2, p. 401). And so there was prohibition if the ecclesiastical court entertained suit of debts not bj' testament (Tbid. c. iii. s. 2). From this it is clear that the secular courts claimed jurisdiction wherever temporal rights or interests were involved, except where the secular law itself, as in the case of testaments, had given the ecclesiastical courts jurisdiction. Hence the distinction drawn as to con- tract, although breach of contract might be, as breach of good faith, a spiritual offence. Hence also the distinction as to debts not arising out of testament (as legacies), although non-payment of debts may be a spiritual offence. And it is obvious that if the ecclesiastical courts were allowed to claim cognizance of every matter which involved a spiritual offence, as every matter in the world miyht involve such an offence, they would have jurisdiction over all matters, and there would be constant conflicts between the two jurisdictions, the ecclesiastical often deciding on different principles from the secular, because deciding in foro consckntke. And it is obvious that it would be no sufficient answer to urge that the ecclesiastical courts could only enforce their sentences by excommunication ; for if it had any deterrent effect (as it must be presumed that it would have in a country professing the Roman Catholic religion), to the extent to which it had effect it would obstruct the exercise by the king's courts of their jurisdiction, and tend to erect an ecclesiastical sove- reignty in the realm often opposed to the secular sovereignty. How far this is or is not" the necessary consequence of the principles of the church could be atheological question; the legal question, it is conceived, and, even upon the view of the church, the practical question, would be how far the state, as the law then stood, recognised, or allowed of the exercise of such a power by the church when not in accordance with the law of the state. Now, to the extent to which the exercise of her purely spiritual power was not antagonistic to the secular law, the state con- sidered its exercise spiritual, and allowed of it ; but so far as it was antagonistic to secular law, and so directly interfered with temporal matters, which were its pro- vince, the state deemed it not purely spiritual, and did not allow of it. Thus Bracton says — " Quia clericus in nullo conveniendus est coram judice seculari quod pertinet ad forum ecclesiasticum, sicut in causis spiritualibus vel spiritualitate annexis, ut si pro peccate vel transgressione fuerit poniitentia injungendi, et quo casus judex, ecclesiasticus habet cognitionem, quia non pertinet ad Kegem injun- gere poenitentias, nee ad judicem secularem, nee etiam ad eos pertinet cognoscere de iis qua3 sunt spiritualibus annexa ; sicut de decimis et aliis ecclesia proventioni- bus. Item nee de catuUis qute sunt do testamento vel matrimonio, et quamvis in omnibus aliis actionibus sive placitis ad forum seculare pertinentibus videatur quod clericus sequi debeat forum seculare, et ibi agere respondere ratione rei vel con- tractus ubi agitur realiter vel personaliter, sicut in actione injuriarum vel criminis dum tamen civiliter agatur, secundum quod videri poterit tota die, quod si clericus quia laicum fuidum non habet, summonitionem suscipere noluerit nee plegios invenere inandabitur episcopo vel ordiuario loci quod faceat talem venue coram rege vel jus- ticiariis suis ad respondendum. Quamvis sunt qui dicant (very likely alluding to the claims set up by archbishop Boniface, as stated in the text), ' quod de nullo placito tenentur respondere, nee ratione rei contractus, vel delicti coram judice secu- CHAr. VIII.] THE ECCLESIASTICAL JURISDICTON. 519 liberty, particularly as such violators and perturbators were sub- jected to excommunication by the confirmation solemnly passed of lari, et salva pace corum, videtur quod fit in omnibus actionilju.s et placitis civilibii.s et criminaliltus pneter quam in executione jiidicii in causa criuiinali ubi laicus con- demnandus essut ad amissionem vitaa vel luenilironim, et quo casu quamvis judex scculari habet coj^nitioncm ut cognoscat de crimine, tamen ncc habet potentiam excijucndi judicium, non enim possit degradarc clericiim, et ideo propter ejus defectum liabet ordinarium executionem judicii," which is wrung, seeing that as he goes on to chap, ix., that bishups could not give capital sentences. " In causa enim sanguinis judicare non potest nee debet" (c. ix.), and his infer- ence therefrom that, tlierefore, they sliould execute sentences tiiey could not pronounce is inconsistent with what he allows to be recognised as the law of the church ; and the natural inference from what he states elsewhere in an earlier part of his work, viz., that, as the secular courts could not execute their sentences, they had no jurisdiction ; and ultimately the vexed question was settled practically in that way, by the recognition of privilege of clergy, which withdrew the culprit, although after conviction, from the secular jurisdiction. But this was because the law of the state did still recognise the privilege of clergy, for Bracton admits that the secular courts could not execute sentences in such cases. Bracton therefore went wrong in one direction, as Boniface went wrong in the other. The archbishop would not allow secular jurisdiction in any case over clerks. The judge insisted upon it even in cases where the law itself allowed of and recognised an immunity against it. And the only practical test, in the determination of the question in cases where the exercise of the church's power interfered with secular law, is whether the matter was within the scope of secular law, and, if so whether the state allowed or recognised the claim of the church against it. Now, no one could doubt that matters of debt, of contract, of perjury, or of murder, were properly within the scope of secular law. It allowed the jurisdiction of the church in cases of capital crimes by clerks (for the special reasons mentioned by Bracton), and also in cases of debt arising out of tes- tament, i.e., legacies, but not in other ca.ses. And Bracton goes on to state that prohibition would go to the ecclesiastical judge, even although a papal delegate, if he interfered in other matters, as " De tanta terra," or " de catellis vel debitis qua; non sunt ex testamento vel matrimonio " (c. iii.) If it was the case of a papal dele- gate, the form was different, but that was the only difference. " Si delegati fuerunt h, domino papa, vel alio ordinario, tunc sic. Prohibemus vobis ne teneatis placitum in curia christiauitatis autoritatc literarum domini papa;." So there is a chapter as to pro- hibitions in cases relating to advowsons. " Prohibitio si rectores ecclesiarum contend ant inter se sine patronis," because the right of the patron, it was supposed, might be prejudiced, though, as it would be res inter alios acta, it would not be so. '" Pro- hibitio si clcricus prsesentatus ab eo qua; optinuerit implacitatus fueritk elerico ipsius qui amisit in curia regis," which seems contrary to what was laid down as law by Glanville. So, generally, " prohibitio contra cum qui sequiter contra judicium factum in cvria rerjis" (c. iv.) And then as to presentations and admissions of clerks pre- sented, " Si minus idoneus fuerit recusatus, et idoneus admissus, ad (juerelam breve formatum d justiciario." " Est et aliud genus prohibitionis ubi quis clericus praesen- tatus ad ecclesiam pro dominum regum propter insufficientiam recusatus fuerit, et alius idoneus institutus, si velit inquietare institutum ; " that is, if when the bishops had rejected a clerk as not a fit and jiroper person (which was admitted to be of ecclesiastical cognizance), and another had been instituted, he Avas disturbed by the other. It was decreed that this was of temporal cognizance (although, of course, it was also an ecclesiastical ofli;nce), because the clerk then had a freehold vested in him at la.w, and a temporal right of action, which, however, was a better reason for allowing him to sue at law, than not allowing him to sue in the ecclesiastical court. But it must be observed that this great question of ecclesiastical or lay jurisdiction wa.s regarded by the sovereigns, and disputed bj- the lawyers, with so keen an interest, uot merely from the jealousy which had arisen between the two jurisdictions— espe- cially on account of the superior learning of the clergy — but on account of its prac- tical bearing upon the vital question of fees; which had begun t(3 be regarded with great interest as a source of revenue to tlie crown, and of profit to the king's judges. And although Bracton was a cleric, he was a king's cleric, for he was a king's judge ; 60 his sympathies would be with the crown and the king's courts on such questions. On the other hand, a.s he was a cleric as well as a lawyej-, it may be presumed that he would be careful how he went beyond the line of sound doctrine, as laid down by 520 HENRY III. [chap. VIII. Magna CJiarfa) ; ^ or whether they took cognizance of actions per- sonal concerning contracts, or quasi-contracts, trespasses, or quasi- the church, though he would probably stretch it to the utmost. And the instance just given is a strong one, for the clerk rejected would have a right of appeal, and the prohibition is directed to the papal delegate, the suit prohibited being a spiritual suit before him, though it appears to be after the canonical institution of the other clerk ; and it is to be presumed that there would be no such institution after a caveat or notice of appeal ; " habet ipsum in placitum de eadem ecclesia coram vobis autoritate literarum domini paj^se, et quoniam injustum est quod idem A ipsum B implacitet qui per ipsum archiepiscopum sicut idonea ad eandem ecclesiam admissus et canonice institutus" (c. iv). The case, it will be seen, was close to the line of a downright interference with the admitted rights of the ecclesiastical courts to deter- mine questions of canonical fitness of clergymen for benefices. So of the next case of prohibition, where the king had, by reason of the vacancy of a see, presented to a living belonging to it, which involved the royal claims to the custody of vacant bene- fices. That the distinctions drawn were often of great difficulty and nicety is mani- fest from some of the cases put by Bracton. Thus as to a suit by a spiritual person for disturbance of a right to nova garba, if the possession had been long and peace- able, and the disturbance recent, so that the right really was not in question, the ecclesiastical court had cognizance of, otherwise not so (c. viii.) So in cases between ecclesiastical persons as to payments for services purely spiritual, as if a religious house were bound by deed to pay a certain rent to a clerk as curate or chaplain. The language of the writ allowing the ecclesiastical court to proceed is curious, and contains a clear recognition of canon law, so far as it did not trench upon the juris- diction of the king's courts in matters temporal, " qtiod cum juri canonico sit con- trarium, quod si clericus clericum, et maxime viros religiosos convenerit coram judice ecclesiastico, quod iidem religiosi quasi religionis suaj immemores et de ecclesia (salva pace eorum) male scientes, ut negotii processu impechant, et judicium ecclesiasticum subterfuf'iant," &c. But the next chapter declares the law to be that the ecclesiasti- cal courts had no jurisdiction in matters of contract,notwithstanding a supposed breach of faith, nor matters of debts or goods, except arising out of testament : " Item iurisdictionem suam non mutat fidei interpositio, nee sacramentum prestitum. Et illud idem dicendum erit de debitis et catallis qua; non sunt de testamenta " (c. ix.) On the other hand, it was laid down that there could be no prohibition of things purely spiritual : "Non habebit prohibitio in curia Christianitatis de aliquo spirit- uali vel spiritualitat^ annexo, sive agatur inter clericos sive inter clericum et laicum, vel ubi agatur ex causa testamentaria vel matrimoniale vel de aliquo de ciuo sit pocnitentia iujungenda pro peccato " (c. xl. fol. 40). " Nee de aliquo tenementi, quod si sacrum et per Pontifices Deo dedicatum. Item quasi sacra, quia spiritualitati annexa sicut sunt terra? datse ecclesias tempore dedicationis cum Eedeficiis in eadem contentis et in pertinentis eorum. Item non habebit prohibitio si de decimiis agatur. Item si pecunia legitur et petatur ut debitum in foro ecclesiastico ex causa testa- mentaria. Item ut si clericus clericum spoliaverit de decimiis vel aliis de quibus cog- nitio pertinet ad forum ecclesiasticum" (c. x.). Next, however, comes a chapter which has an important bearing upon the above-mentioned constitutions of the arch- bishop as to excommunication. It is headed, " De judicibus qui fraudulenter simul facivmt suas comminationes ut faciliu.s procedaut ad excommvmicationem," in order, as the chapter explains, to evade the prohibition. " Sunt judices qui, cum citatus comparuerit de re ad cognitionem suam non pertineute, ut prohibitionem evadere possent faciunt ei tres comminationes quam libet post aliam primo die litis, et ubi satisfecerit eorum voluntate, inuodant eum vinculo excommunicationis et pendente prohibitione cum talis in hujusmodi excommunicatione prestitent pro xl. dies, ut prohibitionis' prosecutio ne evadant, ad impetrationem eorumdem, judicum significat ordinarius Kegi quod talis in excommunicatione extibit per tantum tempus, et pro- curat captionem," i.e., the writ "De capiendo excommunicato," for the arrest of an excommunicated person remaining arrested forty days. It is most important to observe and to bear in mind that the secular law did then thus enforce the sentence of excommunication by the temporal punishment of imprisonment, because it has a double bearing upon the question raised by the above-mentioned canons, especially 1 A D. 1253. "Wnien Boniface and the other bishops solemnly in Westminster Hall pronounced excommunication against the infringers of that statute. Vide ante, vol. i. 258. CHAP. VIII.] THE ECCLESIASTICAL JURISDICTION. 521 trespasses, either between clerks, or between clerks complainants, and la}Tnen defendants ; if any archbishop, bi.shop, or other prelate as to excorninnnicatioii. For, on the one band, it implied a recognition by tbe law of the state of the right of the church to enforce her laws by that sentence (so that it did not interfere with the jurisdiction of the king's courts) ; and, on the other hand, it entitled and indeed necessitated the state to consider what were the cases in nvhich it would allow such interference with the jurisdiction of its own courts ; for other- wise there would bo two inconsistent and compulsory jurisdictions, each supported by the arm of the temporal power, which would be absurd. Hence in th(^ ab<)ve chapter, it will be observed, that the right of the ecclesiastical court to pronounce sentence of excommunication even in matters which might be also of secular cogniz- ance is not disputed, so long as it was not directed to thwart and obstruct the juris- diction of the secular covirts. And hence, on the other hand, the canonical law itself admitted that the extent to which it was allowed thus to interfere with the secular jurisdiction as to matters which came within it, must depend upon the secular law. It was one thing to claim, as the church, jure dUino, to say that such an act was an offence against her laws, and to pronounce a purely spiritual and private sentence or penance as the condition of her spiritual privileges ; and quite another thing to claim to pronovmce judicial sentences, having the sanction of the state, against the courts of the state. The degree to which the church could use the arm of the state must necessarily depend upon compact with the state. Hence the claim set up by the archbishop for an unfettered use of the judicial sentence of excommunication was a very formidable one in that age, and in such a stivte of the law, when the sentence had temporal consequences, and might, as the other articles showed, be u.sed against the state itself with the aid of the power of the state. These observations also have another bearing, to .shovv^ how entirely these questions of the extent of canon law are confined to countries where the Roman church is recognised, and not only recognised, but established by the state. It was this, so to speak, which gave the state its locus standi in the matter. For Bracton admits that, as to the mere enjoining of penance by spiritual sentence, the courts of law would not interfere. The judicial sentence of excommunication was quite different, as it involved temporal consequences by the law of the state. If it had not, it is implied that the state would have had no right to interfere. It claimed to interfere because the church was claiming to use the power of the state. And the views of the state as to how far the church should be allowed to do this had materially altered since the Saxon times. It was here our author was in error. He fancied the church had changed ; but it was not so ; it was the state. It was not that the church had encroached in the reign of Henry II., or receded in the reign of Henry III. It was the state which had altered its policy, in consequence of an alteration in public opinion. The Saxon times no doubt were times of sujierstition and of ignorance, and the ecclesiastical power had then an ascendancy, which naturally declined, as the preponderance of intellect and educa- tion on its side began to lessen. No one who has mastered the spirit of the Saxon laws could conceive it possible that the king's court (if there were one) could order a bishop to be arrested for proceeding in an ecclesiastical cause. The thing would be impossible ; for the bishops were recognised as the principal members of the courts, for the purpose of instructing the courts in the laws spiritual and secular, and there- fore as to the respective limits and bounds of each. But Bracton goes on to show that if a bishop, or even a papal delegate, proceeded in defiance of a prohibition, he should be arrested or attached. " De judicibus attacheandis si procedant contra pro- hibitionem." " Breve de judicibus attacheandis si autoritatc litcrarum dominijmpoe," &c.(c. xii.fol. 409). Enough has been .said to show how serious the question was ; one of equal delicacy and difficulty. On the one hand was the state allowing the church to use the arm of secular power to enforce her sentences : and, on the other hand, the church, claiming to use it against the state itself. On the one hand, the church in- directly claiming to arrest — or to have arrested — the officers and ministers of the state ; and, on the other hand, the state threatening to arrest the officers and ministers of the church, and even the delegates of the sovereign pontiff himself. It is not likely that the canon law, based, as it was, upon the civil law — which had firmly and clearly settled the principles upon which such questions were to be determined — should have led to, or allowed, such a complete dead-lock of the two powers of church and state. And our author was entirely in error in supposing that it had ever laid down doctrines which could load to it. It must be evident that in the canons or constitutions set up by the archbishops, were some serious departures from the principles of caiioaical 522 HENRY III. [chap. VIII. were called upon by the king's letters to answer before a secular judicature upon any of the before-mentioned points, it Avas ordained by the authority of this clerical council, that they should not appear ; for these were all pronounced by the same authority to be spiritual matters ; and further, that no power was given to laymen to judge God's anointed (as laymen, instead of an authority to command, M'erc under a necessity to obey the church and church- men) ;^ and they were directed, either to go, or to write to the king, to inform him that they could not, but at the hazard of their order, obey such mandate. He further ordained, that if the king's prohibition or summons should speak, not of tithes, but of right of advowson ; not of breach of faith, or perjury, but of chattels ; not of sacrilege or disturbance of ecclesiastical liberties, but of trespass of some of his subjects ; law, aud claims to exclusive jurisdiction, which went beyond what the canon law warranted. It was on that account they were disallowed by the see of Rome, and not from any change in papal policy. It is plain that the archbishop virtually claimed exclusive jurisdiction in every case in which a spiritual offence might enter, for he claimed jurisdiction, and also claimed unfettered power of excommunication, which might be used to enforce the sentences of that jurisdiction, even although opposed to secular law, upon matters admitted to be within secular jurisdiction. To have allowed this would have been to constitute the ecclesiastical tribunals the sole, or at all events the supreme tribunals of the realm. Yet in nothing is the canon law more clear than in holding the distinction between the two kinds or orders of power, and allowing its due province to each : and the sounder views of the canonists only allowed of a superiority of the spiritual over the temporal in the sense of its indirect spiritual or moral influence by its sentences in foro conscientice. To any extent beyond that, i.e., to the extent to which it used the ai-m of the state, it must depend upon the assent of the state. The canons above mentioned went beyond this limit, and did not have the assent of the state. Therefore they were disallowed. The dis- tinction between the two powers was well understood in that age, and by ecclesi- astical authors, some of whom Bracton, as a cleric, had no doubt read. " Spiritualis siquidam potestas non ideo pra3sidet, ut terreuEe in sue jure praajudiciumfaciat, sicut ipsa potestas terrena quod spirituali debetur nunquam sine culpa usurpat" {Hugo de St Victoi- de Sacramento, lib. ii. part i. c. vii. p. 60S). And again, " Secundum causam justitia determinatur, ut videlicet negotia saocularia a potestate terrena spi- ritual! vero et ecclesiastica ii spirituali potestate examinentur " (Ibid. c. viii.) It would be difficult to find anything in Bracton opposed to this. There were no doubt theories of divine right, but it will not be found that they were ever adopted by the popes in any other sense than this, that their power of spiritual direction over the members of their own church was of divine right. It was nobler than that of princes in this sense, that it was exercised over the soul, whereas that of princes was exer- cised over the body. " Prineipibus datur potestas in terris, sacerdotibus autem potestas tribuitur et in coelis, illis solummodo super corpora, istis etiam super ani- mas, unde quanto dignior est anima corpore, tanti dignior est sacerdotum quam sit regnum." These were the words of Innocent III. (Responsio Domini Papse — Boccuje Epistol. Innocent III. p. 527, 8). What was this but in effect saying that the power of the church, jure divino, was entirely over the soul, on which account alone it Ls nobler than that of princes, which is over the body ? But it follows plainly from this that when the church exercised jiower over bodies, by the aid of the state, it could not be jure divino, and must, therefore, depend entirely on compact with the state. That being so, the question would be what was the extent to which the state allowed it. The archbishop's canons went beyond that limit, and therefore were disallowed ; and disallowed by a successor of Innocent III. in exact accordance with his own views. This seems to have been the plain truth of the matter. ■^ This is the language of the canon law : Laicis super ecclesiis et ecclesiasticis personis nulla sit ultrihutafacuUas, quos obsequendi manet necessitas, non imperandi autoritas. Pecret. lib, i, tit. 10, CHAP, viil] the ecclesiastical jurisdiction. 523 then the prelates were to make answer, that they neither had, nor pretended to liave cognizance of rights of advow.son,nor of chattels, nor of things that belonged to the king's conrts ; but only of tithes, and other things merely spiritual, appertaining to their office and jurisdiction, and to the safely of souls ; and they were to i)ray him, that he would not prohibit their proceedings in such cases. To this extent did they state their claim of jurisdiction. The manner in which the council directs the bishops to act in support of this jurisdiction is very worthy of notice. It directs that the bishop who was immediately affected by the king's interposition, should admonish him to desist. If he did not desist upon this representation, then the archbishop was to wait on the king, or,_ in his absence, the bisho}) of London, as dean of the bishops, taking with him two or three more bishops ; and if, after this, the mandate was enforced, the sheriffs and officers who made the attachment or distress were to be excommunicated, and their lands laid under an interdict: if clerks and beneficed, they were to be suspended and deprived ; if not beneficed, they were not to be admitted to any benefice for five years. Canonical punishments were also inflicted on those who advised, dictated, or penned the writs. ^ If the king did not, ui)on this, revoke such process, the bishop im- mediately affected was to put under an interdict all the vills and castles of the king within his diocese ; if he still persisted, the other bishops, as in a common cause, were to do the same. If the process was not revoked within twenty days, then the archbishop and bishops were to put their whole dioceses under an interdict. Such was the process devised by this council of churchrnen against the king, if he presumed to encroach on their clerical privileges by the forms of law ;i but the pope, who saw reasons for changing his policy with respect to the church and churchmen in this country, and began to enterain some jealousy of their independ- ence, readily consented, on the application of the king,- to annul the wdiole of these provincial constitutions. These canons, however, made a variance between the temporal and ecclesiastical power. In the year 1267, which was the 51st of this king, the archbishop Boniface and the rest of the clergy made a formal comi)laint to parliament, and exhibited many articles as grievances, called articuli deri What the contents of these articles were we are ignorant, except so far as can be collected from the mutilated remains of some of the answers given by the parliament. From these, and from the tenor of the before-mentioned canons, it may be conjectured what was their principal aim.^ Such was the state of the law, whether common or ecclesiastical, at the close of this reign. There was not in this king, nor in his ministers, any remarkable 1 Vid. Lyndw. rroviuc. ad finciu. Johnson's Canons. Spcjm. Cone. 2 Hum. vol. ii. 192. ' 2 lust. 599. 624 HENRY III. [chap. VIII. attention to the cultivation of our laws. They were all too much The king and employed in concerting schemes of defence against the government, rehcllion and intrigues of the potent barons («). How- ever, notwithstanding this neglect, and the convulsions attendant on civil broils, the events of this reign had a very great effect in promoting the improvement of our laws. Hitherto our kings had been kept imder no rules of government, but had exercised a prerogative above law, except such as the necessity of the time and their own discretion prescribed them. The establishment of the Great Charter, as it defined certain points of supreme authority, and ascertained some valuable privileges of the subject, so far put a restraint upon the royal power. The king had now certain bounds limited to him, which he could not trans- gress without the invasion being perceived, and the nation taking immediate alarm. (a) It is strange that our author should not have noticed the important advance made in this reign towards a representative constitution. As ah-eady mentioned, the f^reat Charter of John contained this clause : " No scutage or aid shall be raised in our kingdom (except in those specified cases warranted by feudal law), but by the general council of the kingdom. And we shall cause the prelates and greater barons to be separately summoned by our letters ; jmd we shall direct our sheriffs and bailiffs to summon generally all who hold of us in chief." In the charter of Henry III., indeed, this matter was reserved for further consideration, as grave and doubt- ful ; but, as Sir James Mackintosh observes, " the formidable principle had gone forth ; and though every species of impost, without the authority of parliament, was not expressly renounced until the Confirmatio Chartarum, in the 15th Edward I., still, durino- the reign of Henry III., iramen.se advances were made towards the establish- ment of a representative assembly." Representatives were more than once appointed by the barons, even to watch over the administration of justice ; and it is observed by the historian just quoted, " that these and other measures of the kind, proposed or adopted in this reign, may be considered some irregular approach to the principles which the constitution afterwards, in its more mature age, applied more effectually to the same purpose " {Hist. Eng., vol. i.) In the Parliament of Oxford, it was ordained that a body of barons should be chosen, part by the council, part by the parliament, to redress grievances and reform the state, subject, however, to a parliament to be assembled thrice in the year, and who were to be informed of breaches of the law and justice throughout the country, by four knights, to be elected for that purpose by each county {Eymer, i. 375, 377, 38). This was the course taken by the barons at the time of the first charter, under John ; and they amounted, of course, to a complete revolution, and led to civil war, as before. Yet it is difficult to see what other course could have been taken to ensure an observance of the law and an honest administra- tion of justice. The great difficulty, as Guizot observes, in that age, was as to guar- antees or securities. It was indeed recognised and laid down by Bractou in this reign, that the king should govern with the advice of a council, " Legis habet vigorem, quicq'uid deconsDioet consensu magnatum, et republicse commune sponsione authori- tates 7-egis j uste f uerit definitum." But this implied that authority emanated from the king, though under the advice of his council ; and it was far removed from the com- pulsory imposition of an authority over the king, however necessary it might be, in consequence of the abuses of the age, and the absense of constitutional control. This administration of affixirs more or less lasted for some years, durmg which, how- ever, a more constitutional system, by means of elective representative assemblies, by degrees gained ground. The learned Lingard has collected numerous instances of royal ordinances for the election of knights of the .shire to inquire into grievances, or superintend the collection of taxes. This system, indeed, had begun under John. In the most ancient instance of it on record, in the year 1207, the subsidy was col- lected under the inspection of the itinerant judges ; but the method was found accompanied with inconvenience and delay; and, in 1220, we find writs to the sheriff, appointing him the collector, in conjunction with two knights, to be chosen CHAP. VIII.] THE GENERAL GOVERNMENT, 525 Nor was tlie disposition which Henry so frequently showed to break throur,di tliis new restraint without some good effect. It occasioned resistance in the l)arous, whicli ended in repeated and more solemn confirmations of this <^reat declaration of the subjects' rights. In the meantime, tlie jealousies of the people, long engaged on this one object, wrought wonderfully on their nu'nds ; the violence with which the observance of this law was demanded, might inspire a ha])itual regard for laws in general. The king felt very uneasy under the restrictions imjwsed by 3Ia(jna Churta: and not forgetting the arbitrary manner in which his predecessors had ordained, suspended, or qualified laws, he used iu a full court of the county with the consent of all the suitors (Briuly, ii., App. 149-1'JG). In like manner, among the demands