Chapter XIV: Front Matter (14)

These enormities raised him so many enemies among his subjects, of all kinds, that Robert had a strong party, and an insurrection was begun in his favour, which William, profiting of Robert’s indolence, easily suppressed, and then invaded him in Normandy, and was near conquering it, as, by a sum of money, he detached the king of France from the alliance, if he had not been invaded by Scotland, in favour of Robert. He patched up, therefore, a peace with him, ratified by the barons on both sides, the terms of which were, that the adherents of each should be pardoned, and restored to their estates, and the survivor succeed to the other[342].

Thus there was a legal settlement of the crown of England made, which ought to have taken place, but did not. For William being accidentally killed in hunting, while Robert was absent in Italy, on his return from the holy war, Henry the youngest son, took the advantage, and seizing his brother William’s treasure, was crowned the third day, after a very tumultuous election, the populace threatening death to any that should oppose him. The reason of their attachment to him was, that he was, by birth, an Englishman, and therefore, they hoped for milder treatment from him than they had met from his two Norman predecessors. Besides he had promised a renewal of the Confessor’s laws, with such emendations as his father had made. And in pursuance of this promise, as soon as he was crowned, he issued a charter, containing the laws as he now settled them, and sent copies of it to every cathedral in his kingdom.

These laws were, as to the bulk of them, the old Saxon constitutions, with the addition of the Conqueror’s law of fiefs, and some things taken from the compilations of the canon law. However, with respect to the feudal law, he, in many instances, moderated its severity. With respect to _reliefs_, he abolished the arbitrary and heavy ones which William had exacted, and restored the moderate, and certain ones, which his father had established. With respect to the _marriage_ of his vassal’s children, he gave their parents and relations free power of disposing of them, provided they did not marry them to his enemies, for obviating which, his consent was to be applied for, but then he expressly engaged not to take any thing for his consent; and the _wardships_ of his minor tenants he committed to their nearest kindred, that they might take care of the persons and estates of the ward, and account with him for the profits during the minority, upon reasonable terms. He even, in some degree, restored the Saxon _law of descents_, and permitted alienation of lands. For if a man had several fiefs, and several sons, the eldest had the principal one, on which was the place of habitation, only, and the rest went among the sons, as far as they would go; and if a man purchased or acquired land (as land might be alienated by the feudal law, with the consent of the superior lord,) such acquisitions by the laws of Henry, he was not obliged to transmit to his heirs; but might alien at pleasure[343].

This mitigation of the former law was very agreeable to his people, both English and Normans. The former were pleased to see the Saxon law so nearly restored, and the latter, harrassed with the oppressions of William, were glad to have the heavy burthens of their tenures lightened; and indeed, began, by degrees, to relish the old English law, and to prefer it to their own.

To attach the bulk of his subjects to him still more strongly, he took another very prudent step. He married Maud the daughter of the king of Scotland, by Edgar Atheling’s sister, so that in his issue the blood of the Norman and Saxon kings were united. But still he was not firmly settled, until the affairs of the church, and the right of lay persons granting investitures of church livings were settled. He intended to proceed in the same manner that his father and brother had done. He accordingly named persons to the vacant bishopricks, and recalled Anselm, archbishop of Canterbury, who had lived in exile during the latter part of William’s reign, on account of the then famous dispute of lay investitures. But Anselm, adhering to the canons of a council held at Rome, refused to consecrate the bishops named by the king, and also to do him homage for the temporalities of his own see, which the king required before he gave him possession.

Henry, afraid of detaching from himself, and attaching to his brother Robert, the pope and so powerful a body as the bulk of the clergy, with so popular and high spirited a priest at their head, was obliged to propose an expedient, that he should send ambassadors to the pope, to represent that these canons were contrary to the antient law and customs of the nation, and to endeavour to obtain a dispensation for not complying with the canons; and that, in the mean time, Anselm might enter into the temporalities of his see. This proposal was accepted. But, though, the king’s desiring to do that by dispensation, which he had a right to do by law, was tacitly giving up his cause, the pope knew his own strength, and Henry’s weakness too well, to grant this favour. He insisted on the canons being executed, which produced another quarrel between the king and archbishop. The archbishop, attended by other bishops his adherents, went to Rome to complain. The king sent new ambassadors, but all in vain. The pope proceeded to threaten excommunication, which, in those days of superstition, would have tumbled Henry from the throne, so he was obliged to submit, and come to a composition. He renounced the nomination and investiture _per annulum & baculum_, restored the free election of bishops and abbots to the chapters and convents, which, as the pope was judge of the validity of such elections, was, in effect, almost giving them to him; and, in acknowledgment of his antient right of patronage, was allowed the custody of the temporalities during the vacancy; was allowed to give the _congé d’elire_, or license to proceed to election, without which they could not elect, and was allowed to receive homage from the elect, upon the restitution of the temporalities.

Thus the pope gratified the king with the shadow, and gained to himself and the church the substance, and thus, at this time ended, that contest in England, which had cost so many thousand lives abroad, between the pope and emperors. Henry, however, retained a considerable influence in the elections, for before he issued his _congé d’elire_, he generally convened his nobles and prelates, and with them recommended a proper person, who generally was chosen; and this the pope, for the present, suffered to pass[344].

I have little else to observe touching the laws in this reign, save what pertains to the _celibacy of the clergy_. The popes, aiming at detaching the clergy entirely from secular interests, had made many canons against their marrying, and all the eloquence of some centuries had been employed in recommending celibacy. These canons, however, had not their full effect in England; for very many of the secular clergy were still married. Anselm, in a synod he assembled, enacted a canon against them, commanding them to dismiss their wives, upon pain of suspension, and excommunication, if they presumed to continue to officiate. Cardinal de Crema was afterwards sent legate by the pope to England, where, in a general assembly of the clergy, he re-enacted the canons against their marriages, and presiding in a lofty throne, uttered a most furious declamation against such a sinful practice, declaring it a horrid abomination, that priests should rise from the arms of a strumpet, and consecrate the body of Christ. And yet the historians assure us, that, after consecrating the eucharist in that assembly, he was found that very night in the stews of Southwark, in bed with a prostitute; which made him so ashamed, that he stole privately out of England[345].

Henry, though he had subdued Normandy, and kept his brother Robert in prison, was not without uneasiness as to the succession to his dominions; for Robert’s son was an accomplished prince, and protected by the king of France, whereas his own bore but a worthless character. However, to secure the succession to him, he assembled the barons of Normandy in Normandy, and those of England in England, and prevailed on them to take the oath of allegiance to him as such. But he being soon after drowned, the king, in hopes of male issue, took a second wife, and after three years fruitless expectation, he turned his thoughts to making his daughter Maud his heir, and did accordingly prevail on his nobility to take the oath of allegiance to her as successor. But one of the steps he took for securing the throne to her, in fact, defeated his scheme. He knew that a woman had never yet sat on an European throne, that Spain, which was the only nation that admitted persons to reign in the right of females, had never suffered the female herself, but always set up her son, if he was of a competent age; if not, her husband. As to the circumstances of his own family, his grandson was an infant, and neither he nor his daughter had confidence in her husband. He knew that this oath was taken against the general bent of his people, and that little dependance could be had on it when he was gone, so easy was it to get absolution. His chief dependance was on the power and influence of his natural son Robert, who, indeed, did not disappoint him, and of his nephew Stephen, and of his brother Roger, bishop of Salisbury, on all of whom he heaped wealth and honours.

Stephen, thus advanced, began to lift his eyes to the crown. He, as well as his cousin Maud, was a grandchild of the Conqueror, and descended from the Saxon kings; and he had the personal advantage of being a male, and bearing an extraordinary good character. By his ability and generosity he had become exceedingly popular, and his brother Roger secured the clergy in his interest. Immediately on his uncle’s death, he seized his treasure, which he employed as Henry had done William’s, and having spread a report that Henry, on his death bed, had disinherited Maud, and made him his heir, he was crowned in a very thin assembly of barons. Sensible of his weakness, he immediately convoked a parliament at Oxford, where, of his own motion, he swore, not only to rule with equity, but that he would not retain vacant benefices long in his hands, that he would sue none for trespassing in his forests, that he would disforest all such as had been made by the late king, and abolish the odious tax of _Danegelt_; concessions, which, with the pope’s approbation of his title, so satisfied the people, that all the lords and prelates who favoured Maud, and had kept aloof, and among them Robert her brother, came in, and swore allegiance to him as long as he kept these engagements; from which conditional oath they expected he would soon release them, and indeed they did all they could to provoke him to it. This bait taking, and he having disobliged his brother and the clergy, Maud’s friends rose in her favour; and made the kingdom for many years a field of blood[346].

In one of these battles Stephen was taken, and Maud was universally acknowledged; but her insufferable haughtiness, her inflexible severity to her captive, and her haughty refusal of the city of London’s request, to mitigate her father’s laws, and restore the Saxon, so alienated the people from her, that she was forced to fly from London, and arms were again taken up for Stephen. Her brother, who was the soul of her cause, being soon after taken prisoner, was exchanged for Stephen, and he dying soon after, Maud was forced to leave the kingdom to her competitor. However, Stephen continuing still embroiled with the clergy, her son Henry, in a few years after, invaded England, and was joined by multitudes; but some noblemen, who loved their country, mediated a peace, and at last established it on the following terms; that Stephen should reign during life; that Henry should succeed him, and receive hostages at the present for the delivery of the king’s castles to him on Stephen’s death; and that, in the interim, he should be consulted with on all the great affairs of the kingdom; and this agreement was ratified by the oaths of all the nobility of both sides. In this treaty no mention was made of Maud’s title, though she was living[347].

LECTURE XXXI.

_Henry II. succeeds to the crown—The reformation
of abuses—Alterations introduced into the English
Law—The commutation of services into money—Escuage or
Scutage—Reliefs—Assizes of novel disseisin, and other assizes._

Upon Stephen’s death, Henry the Second succeeded, according to the settlement of the crown before made, and came to the possession of the kingdom with greater advantages than most kings ever did. He was in the flower of youth, had an agreeable person, and had already given the most convincing proofs both of wisdom and valour. He was by far the most powerful prince of his time: For, besides England, which when united to its king in affection, was, by the greatness of its royal demesnes, and the number of knights fees, incomparably the mightiest state in Europe, in proportion to its extent; he had in France, where he was but a vassal, greater territories than the king of France himself. In him were united three great fees, to each of which belonged several great dependancies; Anjou, which came from his father; Normandy from his mother, and Guienne by his wife. And, from the very first steps he took on coming to the throne, his subjects had good foundation to hope that this great power would be principally exerted to make them happy. The whole reign of Stephen, until the last pacification, had been a scene of dismal confusion, in which every lord of a castle tyrannized at pleasure, during the competition for the crown; and though, from the time of the settlement of peace, Stephen published edicts to restrain violence and rapine, and made a progress through the kingdom, in order to re-establish justice and order, he lived not long enough to see his good intentions answered, but left the work to be accomplished by his successor.

The first thing Henry did was to discharge a multitude of foreigners, whom Stephen kept in arms during his whole reign. His next care was the reformation of the coin, which had been greatly debased. He coined money of the due weight and fineness, and then cried down the adulterated which had, in the late reign, been counterfeited by the Jews, and the many petty tyrants in their castles. These to humble, and make amesnable to law, was his next concern. As to the castles in private hands, that had been erected in his grandfather’s time, or before, he meddled not with them; but all that had been built during Stephen’s reign, either by permission or connivance, through the weakness of that prince, which were the great nuisances, he issued a proclamation for demolishing, except some few, which, from their convenient situation, he chose to keep in his own hands, for the defence of the realm. And, lastly, as the crown had been greatly impoverished by the alienations Stephen had, through necessity, been forced to make, he issued another, to renounce all the antient demesnes that had been so alienated, that he might be enabled to support his dignity without loading his people, except on extraordinary occasions[348].

These reformations, however just in themselves, or agreeable to the subject, he did not proceed on merely by his own authority. He had deliberated with the nobles, who attended at his coronation, concerning them, and had their approbation; and though there were no acts of parliament made at that time, yet, as form in those days was less minded than substance, these edicts had the obedience of laws immediately paid them by all, except some mutinous noblemen, who still held their castles in a state of defence. Having taken these prudent steps, he formed his privy council of the best and wisest men of the nation, and by their advice summoned a regular parliament, wherein many good regulations were made. The laws of the Confessor, as amended by Henry the First, were re-established, and every thing, both in church and state, settled on the footing they were in the time of that king. Being thus armed with a full parliamentary authority, he marched against his mutinous nobles, whom he soon brought to submit; and demolished their castles.

In another parliament, in order to settle the succession, contests about which had had fatal effects ever since the death of the Conqueror, he prevailed on his subjects to take the oath of allegiance, to his two sons, though both in their infancy, first to William, then, to Henry, as his successors. And having taken all these wise and just measures, for the peace and security of his kingdom, he repaired to his foreign dominions; but his transactions there, or even at home, that do not relate to the laws or constitution, are not within the compass of the design of these lectures. Let it suffice to say, that he made as good laws for, and was as good a sovereign to, his French as his English subjects.

In his reign many were the alterations introduced into the English law, most of them, no doubt, by act of parliament, though the records of them are lost. For, in the beginning of his reign, as I observed, he enacted in parliament the laws of Henry the First; and yet from the book of Glanville, written in the latter end of his reign, it is plain there were great changes, and the law was very much brought back to what it was in the Conqueror’s reign; nay, in one respect, to what it was in Rufus’s, I mean reliefs, the law of which I shall mention hereafter. Many likewise were the regulations he introduced of his own authority, which in the event proved very beneficial to his subjects.

The first I shall take notice of was his commutation of the services due of his tenants in demesne, which formerly were paid in provisions and other necessaries, into a certain sum of money, adequate to the then usual price. His grandfather Henry did somewhat of this kind, but he it was that established and fixed it; and his example was followed by his lords, so that, from this time, rents became generally paid in certain yearly sums of money, instead of corn and provisions. What advantage the successors of these socage tenants gained thereby will be evident, if we consider the price of things at or about that time. In the reign of Henry the First, we are told, the current price of several commodities, which, however, must be trebled when reduced to the money of our standard, were as follows: That of a fat ox five shillings, of our money fifteen; a wether four-pence, of ours, a shilling; wheat to serve an hundred men with bread for one meal, a shilling, of ours, three shillings; a ration for twenty horses for a day, four-pence, of our money a shilling. And although we should allow that, in Henry the Second’s time, the prices of things were even doubled, which is impossible to be admitted, it is easy to see how greatly the future socage tenants paying the same nominal rent, the value of which was daily decreasing, rose in wealth and importance. Besides, they were greatly eased in point of the expence and trouble of carrying the provisions to the king’s court, to which before they were obliged, wherever he resided in England; whereas, now, they had only to carry, or send by a proper messenger, the money to be accepted as an equivalent[349].

His military tenants he eased in a much more considerable manner. By the law of the Conqueror, every military man was obliged to serve at his own expence forty days as well abroad, where the king’s occasions required, as in England, and in person too, unless notoriously incapable; in which case they were obliged to find each a deputy, and if they failed herein, by the strictness of the feudal law, they forfeited their lands, or rather, as the law was used in England, compounded at the king’s pleasure; which, if he was very avaricious, came pretty near the same thing. This was a miserable heavy grievance. For what oppression must it be for a knight of Northumberland, who had, perhaps, but a single fee, to transport himself, it may be, to Guienne, to serve forty days, and then return? Nay, it was inconvenient to the king himself; for as France, where the scene of the king of England’s wars generally lay, was every where full of fortifications, it was scarce possible to finish a war in forty days, however great the humour of that age was for pitched battles; the consequence of which was, that, after that time, the king was ever in danger of being left in the midst of a campaign, with an inferior army.

Henry then, sensible of these inconveniencies, both to himself and his subjects, devised _escuage_, or _scutage_, in the fourth year of his reign, upon account of his war with Toulouse upon which his wife had some pretensions. He, knowing that this war required but a small part of his force, did, both in Normandy and England, publish, that such of his military tenants as would before-hand pay a certain sum of money, should be excused from serving, either in person or by deputy; and this sum, which was rated by him extremely moderately, and was, therefore, generally paid by his vassals, rather than serve in so remote a place, he employed in hiring mercenary soldiers of fortune, of whom there was plenty on the continent; and those, by their engagement, were obliged to serve during the continuance of the war[350].

That his sole view, in this new project, was the ease of his people, and the better prosecution of his wars, and not the depressing the military spirit of his subjects, appears from hence; that those who were qualified, and chose to serve in person, he caressed, and encouraged by all means possible; that he never brought a single mercenary into England, when he had wars with Wales or Scotland, but insisted on his subjects personal service; nay, that he never kept those mercenaries on foot in his foreign dominions, but dismissed them as soon as the war was at an end. And this of _scutage_ was the general method he followed in his subsequent wars in France and Ireland. What wonder is it then, that this prince was universally beloved by his people of all ranks? though, as the best institutions are liable to be corrupted, this very scutage, that he devised for public ease, was turned into an heavy engine of oppression by his son John.

Another alteration in the law in the reign of this king, was the point _of reliefs_, as I mentioned before. The old relief of William the First, which was restored by Henry the First, was certain, to all lords and knights, according to their degrees, and was paid in horses and arms; but now the humour of the times being that every thing should be paid in money, the relief of a knight’s fee was settled at one hundred shillings, the fourth part of its then computed yearly value, and which I suppose was about the price of the armour, a knight was before to pay; and henceforward the arms of the deceased descended to the heir, and consequently the coats of arms blazoned thereon became hereditary. But the reliefs of barons, or earls, were not settled at this time, but remained arbitrary, as Glanville informs us. _De baroniis & comitatibus nihil certum est statutum, quia juxta voluntatem et misericordiam domini regis solent baroniæ capitales de releviis suis domino regi satisfacere[351]._

From the word _statutum_ I take it for granted this change of reliefs into money was by act of parliament. Indeed, how could it be otherwise; but, then, the most surprising circumstance is, that the great lords, who, in that age principally composed the parliament, should take care in this material point, of the knights, the lower military tenants, and leave themselves at the mercy of the crown. I shall venture on conjecture to assign the reason. The Conqueror settled the reliefs of earls and barons at a certainty, because he had fixed the number of knights fees they should contain; twenty to an earldom, and thirteen and two-thirds to a barony; but by the time of Henry the Second, the number of knights fees contained in them might be greater or less. For instance, if an earl died, and left two daughters, his twenty fees would be divided equally between them; but the dignity was to go to the husband of that daughter the king chose. Now it would be hard that he should pay for ten knights fees, merely because he had the same title, as much as the predecessor paid for twenty. Again, in the new created honours, it seems very probable, from many circumstances, that an earldom might be erected but with fifteen knights fees, or, perhaps, with twenty-five. The certainty of the _quantum_ of land an earldom or barony should consist of not being settled, I imagine, was the reason that the _quantum_ of relief was not expressly determined, though, by fixing that of a knight’s fee, the reasonable relief might, in any case be easily determined. And that Henry, and his son Richard exercised that discretion the law left in them in this equitable manner, we may infer from there being no complaints, as to reliefs, from the earls or barons, during their reigns; but John revived the arbitrary relief of William Rufus, to the great oppression of his nobles, until he was restrained by _Magna Charta_.

To no other reign than this, I think, can be ascribed, so properly, the invention of _assizes of novel disseisin_, and the other _assizes_, for obtaining possession of lands. By the strictness of the very antient feudal law, if a man had been disseized, that is, turned out of possession, if he did not enter, and regain his possession, or, at least, claim it within a year and a day, he lost all right; for, if he was a socage tenant, the possessor had, within that time, paid a rent to his lord, and been by him, who was supposed the best judge, allowed to be the rightful tenant; and, if he was a military one, it was probable, in those ages of perpetual war, he had actually served, at least he had kept himself in constant readiness if called upon. But the limitation of a year and day being soon found too short, it was after extended to five years; then, to the time of the possession of the disseizor himself, namely till he had either died or aliened it. But upon the alienée, or heir of the disseizor, he could not enter, because they came in honestly, by a fair title, and were guilty of no wrong. However, this antient law, that gave no remedy but by entry, during the seizor’s possession, was still too severe; for the _disseizor_ might alien, or die suddenly, before the _disseizee_ could enter, or he might hold the possession _manu forti_, so that the disseizee might not be strong enough to enter and recover his possession[352].

To remedy these evils, and to prevent bloodshed, the law provided for the disseizee his right of action, either against the disseizor himself, or his heir or assigns, and, in which, upon shewing his right to the land, he should be restored to his possession by the king’s officer, the sheriff, with the _posse_ of the county. But still this action was hitherto but the _writ of right_, which meddled not with the unlawful possession, only with the absolute right to the land, and this action, if brought in the _curia regis_, where only impartial justice could be expected; was very dilatory. It was dangerous also, as the tenant in possession might offer battle. In this reign, then, were these _possessory actions_ introduced, for the determining the point of possession, leaving the right of propriety as it was. It was advantageous likewise to the subject, both disseizor and disseizee, as it gave him two trials for his lands; for the writ of right when once determined was final and conclusive[353].

This distinction between the _right of possession_, and the _right of propriety_ was borrowed from the civil law, which was first introduced in the late reign, and was now, and for some time forward, studied with great assiduity by the English, as appears from the many long transcripts from it to be found in the books of our antient lawyers. There they found the distinction of _actions possessory_ and _petitory_; _possessory_ when a man had been notoriously in possession, and reputed the owner, and was put out by another of his own authority. The public peace was concerned to protect the possession of the reputed owner, and not to let him suffer the loss thereof while he was suing his petitory action, that is on the mere right, which the other undoubtedly would delay, by all the arts and shifts he could invent. The proceedings, therefore, in possessory actions were summary and expeditious; for they only regarded the possession, and did not determine the absolute right: so there was no conclusive wrong done to either party, let the matter of possession be decided how it would; for he that failed might bring his petitory action for the right.

An _assize_ in our law was a very summary action. Bracton, who lived an hundred years after, calls it _novum & festinum remedium_, and indeed so _festinum_ was it, that, in its proceedings, it seems to depart from the general rules of reason and all laws. For it is a maxim of all laws, except in some few very extraordinary cases, that no proofs are to be taken till an _issue_ is _joined_, as our law calls it, or till there is a _contest_, as the civil law expresseth it; that is, till it is settled what is the matter to be proved, or till there is something affirmed on one side, and denied on the other, upon which the merits of the cause turn. If there be no disagreement about _facts_, but the question is mere _matter of law_, the judges, who are best acquainted therewith, are, by our law to determine. If the question be matters of fact, or facts mixed with law, the jury, assisted with the judges, are to determine; though if they doubt about the point of law, they may find the facts specially, and leave the law arising thereon to the judges, which is what we call a _special verdict_. No jury, therefore, ought to have been summoned till the defendant appeared, and issue was joined, so that it was known what was the matter to be tried; and this is the general rule. But, for the speedy settling and quitting possessions, the assize is an exception thereto, as appears from the _writ of assize_ directed to the sheriff. For, besides giving notice to the defendant, or _tenant_, as he is called in this action (because he is in possession) the sheriff is immediately to summon a jury or assize, as it is called upon this occasion, who shall directly go to the place, and make themselves judges, by their view, of the nature, quality, and quantity of the land, or thing demanded, and inform themselves, by all the ways they best may, of the former possession of the demandant, and how he came to lose it. They are then to appear the same day with the demandant and tenant, and, when issue is joined between them, are to determine the matter according to their own prior knowledge, and the evidence then given before them. I observed that this action is not final. A brings an assize against B. If judgment be given for A, B may bring his _writ of right_, if he has the right of propriety, and recover, and so _e contra_. But though B cannot deny his disseizing A, he may still defend himself. The words of the writ are _injuste, & sine judicio, disseizivit_. He may therefore shew that he disseized A, justly, that is, that he had a right of entry. As, suppose B was first in possession, A disseizes him; then B, as he lawfully may, disseizes A, A shall not recover. But if B had been in possession, and A’s father had disseized him, and died, so that the land has come to A, who is innocent, B, not entering in the father’s life-time, has lost his right of possession. It is so in A. Now if B disseizes A, the son, though he had ever so good a right to the land, A shall recover the possession; for B had no right to enter, though he had a right to recover the possession he was deprived of by A’s father, by bringing an action. Wherever a man comes innocently to a possession, the law will defend that possession, until it is proved that he hath no good right to it[354].

LECTURE XXXII.

_The institution of Judges itinerant, or Justices in Eyre—The
advantages attending it—The jurisdiction of these Judges—Their
circuits—The present form of transacting the county
business—The division of the Curia Regis into four courts—The
jurisdiction of the court of King’s Bench._

The greatest and most beneficial step taken by Henry the Second, was the institution of _judges itinerant_, or _justices in eyre_, as they were called, from the Norman word _eyre_, equivalent to, and derived from the Latin _iter_. I observed before, that almost all businesses relative to the administration of justice were, in the Saxon times, transacted in the county, and hundred, that the leet and manor courts were held in the county, near the suitors doors, and that none but the causes of the great lords, or such as were of difficulty, were handled in the _curia regis_. Under the reign of the Conqueror, I took notice, that the administration of other causes was facilitated in the king’s great court, and that, consequently, the business of the inferior courts began to decay; and I laid open the motives William had for that conduct, the introduction of the Norman, and suppression of the Saxon law. But the scheme succeeded in the same manner as his other one did, of rooting out the English language, and introducing his own in lieu thereof. As _this_ produced a new language, from the mixture of both, so _that_ caused the English law to consist henceforward partly of feudal, partly of old Saxon customs. However, the causes of most persons were still determined in the inferior courts; for they were but few who were able to undergo the trouble and expence of suing in the _curia regis_, especially, as all persons, whose causes did not properly belong to the cognizance of that court, were obliged to pay a fine for declining the proper jurisdiction, and for having licence to plead in the superior[355].

But by this time the decisions of those courts, where the freeholders were judges both of law and fact, had fallen into great and just disrepute, had occasioned many mischiefs, and were likely to produce many more. The reasons, as they are delivered by lord Hale, were principally three: First, the ignorance of the judges in the law: for as the freeholders in general were Saxons, they must be supposed to be entirely ignorant of the feudal law, which was now introduced with respect to titles in lands; or, if they did know any thing of it, it is not probable that they would prefer that to their own customs. Nay, the Norman freeholders could be of little service in this point, considering their illiteracy, their education being confined solely to arms, as also their frequent absence almost every year to attend their lords in war. With respect to the Saxon law also, it could be little expected that it should be regularly observed, now that the clergy, who only were acquainted with it, were removed, and none of the judges could possibly know more than an illiterate juryman at this day, who could neither read nor write, might be able to pick up by attending a court held once a month. How inadequate such a knowledge would be, even in those times, when the laws were comparatively few, need not be enlarged on[356].

It is true, some remedies were applied to obviate the bad consequences of this ignorance; but they were very ineffectual. It was required that the sheriff, who presided, should have some skill in the laws, but notwithstanding, he was seldom found to have any; and if he had, it was not very probable, as he was a Norman, that the jury would pay much regard to his direction in giving their verdicts. As a further remedy to this ignorance, by the laws of Henry the First, the bishop, the barons, and the great men of the court, that is, the king’s immediate tenants, were ordered to attend. But the bishop, in obedience to the canons, applied himself solely to his ecclesiastical jurisdiction; and the others were generally in the king’s service; so that they could but seldom attend, and if they did, they could do but little service, being almost all bred to nothing but the sword, and as illiterate as any other set of men.

The next mischief, and which flowed from the former, was, that this bred great variety of laws in the several counties, whereas the intention of the Confessor in his compilation, and of his successors afterwards in theirs, was to have one uniform certain law, common to the whole kingdom. But the decisions, or judgments, being made by divers courts, and by several independent judges, who had no common interest, or communication together touching the laws, in process of time, every several county was found to have several laws, customs, rules, and forms of proceeding; which is always the effect of several independent judicatories, administered by several judges. And, indeed, this I look upon to be one of the great causes of very many local customs in many parts of England, different from, and derogatory to, the general common law.

But the third and greatest evil, was the frequent injustice of the judgments given in those petty courts, and every business of any moment being carried by parties and factions. The contest about the crown had been carried on with such violence, that one half of the people, all over the kingdom, were professed enemies to the other; and though both sides, wearied with war, came into the expedient of Henry’s succession, and he behaved so that there were no factions against him, yet as to individuals, the sense of past injuries, and the rancour arising from thence, still remained. For the freeholders being the judges, and these conversing with one another, and those almost entirely of their own party; and being likewise much under the influence of the lords, every one that had a suit there sped according as he could make parties; and the men of great power and interest in the county did easily overthrow others in their own causes, or in such wherein they were interested, either by relation, tenure, service, dependance, or application. True it is, the law provided a remedy for false judgments given in these courts, by _a writ of false judgment_ before the king, or his chief justice; and in case the judgment, given in the county court was found to be such, all the suitors were considerably amerced. Yet this was insufficient for the purpose: For, first, it was too heavy and expensive for many that were aggrieved; next, it was hard to amerce all for the fault of a few, _viz._ the jury, who gave the verdict; and the amercement, though sometimes very severe, being equally assessed, on all the freeholders, was not a sufficient check upon the injustice of some juries[357].

The king therefore took a more effectual course; and, in his twenty-second year, by advice of his parliament, held at Northampton, instituted _justices itinerant_. He divided the kingdom into six circuits, and to every circuit allotted three judges, men knowing and experienced in the laws of the realm, to preside in such cases as were of consequence, and to direct the juries in all matters of law. They were principally empowered to try _assizes_, that is, as I explained in my last lecture, the rights of possession, which had been notoriously invaded in the last reign; and which, from the continuance of the old parties, could not even, in this reign, be fairly determined in the inferior courts[358].

Not that this was their sole business; for they had in their commissions power to enquire into several other matters, such, particularly, as the king found, by the advice he had received from the several counties, to be evils not likely to be remedied in the county courts. These were, before every commission for justices itinerant in eyre went out, digested under certain articles, called _Capitula Itineris_, or _The chief heads of the eyre_ or _circuit_, which specified what actions they were to deal with. These were, in general (for the commissions varied at different times, being sometimes more, sometimes less extensive) _civil_ and _criminal_ actions, happening between party and party; actions brought at the suit of the crown, either for public crimes, or the usurpation of liberties, franchises, or jurisdiction from the crown, which had been very frequent in the former times of confusion; and also the escheats of the king.

The thing I find most remarkable is, that, in these distributions of England into circuits, are omitted some counties, (I do not mean Middlesex, where the _curia regis_ sat, or Chester, which was a county palatine, for they of course were not to be included) as particularly Lincoln, in the second eyre; also York, in the second eyre, is but one county, whereas, in the first, it is two, York and Richmond; as in Lancashire also, Lancaster, and Copeland; and Rutland is omitted in both. All which shews, that the limits and divisions of all the counties were not ascertained with precision at that time. The second eyre was instituted three years after the first, by parliament also held at Windsor, and in this there were but four circuits. After these two first, the king appointed the circuits, and distributed the counties at his pleasure.

The usual times of their going was once in seven years. However, they were not stated certainly; for sometimes, if there was a more than ordinary complaint of want of justice, they went every three or four years, and sometimes, if there was no complaint, they were intermitted beyond seven. Neither was the number of judges sent on the circuits fixed, but alterable at the king’s pleasure.

The determinations in these circuits, being under the inspection of men of integrity and skill, were in high estimation, and accordingly are several times quoted by Bracton, as being of as great authority as the decisions in the _curia regis_; and in consequence thereof, the business in the county courts continually declined; justice was every day administered worse in them, and at length they were confined, except in some cases, to pleas under forty shillings. Nay even these were, upon application, easily removeable by a writ called a _pone_, into the king’s courts[359].

But as the hopes of obtaining justice in the inferior courts waxed every day more faint, it was found necessary, during the intervals of the eyres, to substitute other courts in their place. Hence the invention of _justices of assizes_, of _oyer and terminer_, of _goal delivery_; and the necessity of affairs afterwards obliging these to be sent very frequently, it was thought fit, about the end of Edward the Third’s reign, to lay aside the justices in eyre, as superfluous, since these other did their business, except as to pleas of the king’s forests, where the _eyres_ were continued. And, in process of time, to prevent the enormous expence of bringing juries up to the king’s courts, the justices of the _nisi prius_ were instituted, to try issues joined in the king’s courts, and, the verdicts so found to return to the court from whence the record was brought; which court, on the record so found, proceeds to judgment. These are the judges who now transact the county business in their circuits, under the several commissions before-mentioned; and going regularly twice every year for that purpose, the whole business they transact is, in common speech, called _Assizes_; that being, in the antient times of their institution, the principal part of their employment, though now such actions are scarce ever brought; personal actions, which may repeatedly be tried, having superseded them[360].

About this time, also, it seems that the _curia regis_, the business there increasing, was divided, for the more convenient dispatch thereof, into four courts; and to each its separate jurisdiction allotted. The exchequer, indeed, was in some sort a separate court before, and had its distinct business of the province; and in it the treasurer, not the _Justiciarius Angliæ_, presided, as he did in the other courts. It is not impossible that, before this time, they had, in the _curia regis_, set apart different days for different kinds of causes. But they were all, in one respect, the same court; because they had the same judges, namely, all such nobles as attended the court. But this being found inconvenient, as these great men were generally ignorant in law, and business began to encrease, it was found proper to appoint settled skilful judges, and to divide the court, and appoint each part its separate jurisdiction. However, those limits were not exactly settled, or, at least, not exactly observed, for some time after: For we find in John’s reign, that _common pleas_, that is, civil suits between party and party, and particularly fines of lands, which are of the same nature, were held in the King’s Bench; though, on the contrary, we find no pleas of the crown tried in the court of Common Pleas. I suppose the reason was, that the latter being derived out of the former, the king’s bench had a concurrent jurisdiction with it, until restrained by that branch of Magna Charta, _Communia placita non sequantur curiam nostram_. The first of those courts in dignity and power, especially while the _Justiciarius Angliæ_ remained, was the _King’s Bench_, though of late days the Chancery hath over-topped it. Here, as the king used frequently, in the antient times, to sit in person, the king is supposed always present; which is the reason why a blow given in this court, upon any provocation whatsoever, is punished with the loss of the hand, as it is done in the presence of the king. The proper jurisdiction of this court is causes where the king is either directly or indirectly concerned, except as to his revenue[361].

In all _pleas of the crown_ therefore, that is, suits of the king to punish offences, as indictment of treason, felony, breach of the peace, are proper subjects for this court. He is indirectly concerned in this, that all erroneous judgments, given in the Common Pleas, or other inferior courts, are here reformed; for the king is concerned to see justice done to his subjects.

Secondly, for the same reason, this is a proper court to grant prohibitions to courts that exceed their jurisdiction, though this is not particular to the King’s Bench, but common to all the four courts.

Thirdly, it hath cognizance of all privileges and franchises, claimed by any private persons or corporations; and if any usurped upon the king in this respect, they are called in, by a _quo warranto_, to shew by what title they claim such privileges. Likewise where any member of a corporation is disfranchised, or removed from, or disturbed in his office, here shall he be remedied. For when a king has given a franchise, he is concerned, in honour and interest, to see that every man entitled, shall enjoy the benefit of it.

Fourthly, the king is interested in the life, limbs, and liberty of every subject. Therefore this is the court wherein appeals, brought by private persons, of murder, felony, and maim, should be tried; and if any man complains of wrongful imprisonment, this court shall, by writ of _habeas corpus_, have him brought into court, with the cause of his imprisonment returned; and if the cause is insufficient to discharge him, or if the offence he is charged with be bailable, to bail him. Nay, this court, in favour of liberty, hath a power, in all cases; they may, if they see proper, bail a man for crimes that are not ordinarily bailable by common law.

Fifthly, they have a right to hold plea of all the trespasses done _vi & armis_, though brought principally for a private reparation to the party; for this action favours of a criminal nature, and the king is entitled to a fine for the breach of the peace.

Lastly, it has cognizance of all personal actions brought against persons that have the privilege of this court. The persons privileged are two, first the officers of the court, who are supposed to be constantly attendant thereon, and to whom it would be inconvenient, as well as to the court, to sue or be sued elsewhere; and therefore the privilege extends to suits brought as well by, as against such officers; secondly, the prisoners who are in the custody of the marshal of the court, and who are consequently not at liberty to appear in any other. These therefore can only be sued here; for the court will, in such case, order the prisoner up from their own prison to make his defence; and, under the colour of this rule, they now, by a fiction, make all sorts of a actions suable in this court; for it is only alledging the defendant is in the custody of the marshal, though in fact he is not, and that is held sufficient to found the jurisdiction[362].

I shall next proceed to the jurisdiction of the high court of Chancery, the second in antient times, but for some ages past the first court of the realm.

LECTURE XXXIII.

_The jurisdiction of the high court of chancery—The Chancellor,
a very considerable officer in the Curia Regis—The repeal of
letters patent, improvidently issued to the detriment of the
King or the subject, a branch of the jurisdiction of the court
of chancery—The chancery, assistant to the exchequer in matters
of the King’s revenue—Other branches of the business of this
court._

In my last lecture, having taken notice, that, in the reign of Henry the Second, the _curia regis_ and the _Exchequer_, which dealt with the king’s revenue, were distinct courts, and that there were even traces of the _Common Pleas_, as another court, different from the higher court, the _curia regis_; I took occasion to treat of these several courts, and the several limits of their jurisdictions; although the now general opinion be, that these courts were not separated till after the barons wars, that is, not until an hundred years later; which opinion, as I conceive, hath, thus far, its foundation in truth, that the precise limits of their several jurisdictions were not perfectly ascertained, and kept distinct till then, though the division had been made before, that is, about the time I am now treating of. For, if it be a good maxim, as my Lord Coke says, _boni judicis est officium ampliare jurisdictionem_, it is not to be wondered at, that, for some time after the separation, the _Justiciarius Angliæ_, who had the sole jurisdiction in him before, should retain, in many instances, the exertion of it, where, after the separation, the matter properly belonged to another court.

The maxim, indeed, is, in my opinion, utterly false. For where there are separate courts with distinct powers, surely it is the duty of each court, were it only to prevent confusion, to keep within their proper limits. However thus much must be allowed in justification of Lord Coke’s maxim, that, as it is too much the inclination of human nature, when in power, to grasp at more than is properly our due, so the judges of all courts, and of all nations, have been as little exempt from this infirmity as any other set of men. Witness the outrageous usurpation upon the temporal jurisdiction in antient days, both by the ecclesiastical judges in the times of the Pope’s grandeur, and by the judges of the constables and admirals courts, when supported by arbitrary kings[363].