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The constitutional history of England, in its origin and development online

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tinct and permanent bodies of judges, each under its own chief
But the court or courts thus organised must no longer be
regarded as the last resource of suitors. The reservation of
knotty cases to be decided by the king with the council of his
wise men ^, cases which, as we learn from the Dialogus de Scac-
cario, included questions of revenue as well as of law in general ',
continues the ancient personal jurisdiction of the sovereign.



against it; Judges of England, ii. 161. See also Hardy 'b Introduction to
the Close KoUs, vol. i. pp. Jtxv. sq. Instances of Mnal Concords made
before the justices of the Curia, answering to those described by Glanvill
as made before the justices in Banco, will be found in Madox, Formulare
Anglicanum, pp. 217 sq., and in the Fines published by the Eecord Com-
mission ; above, p. 641, note 3.

^ By the seventeenth article of Magna Carta. The Provisions of the
Exchequer, 1 2 Edw. I, and the Artiouli super Cartas, 28 Edw. I, c. 4, forbid
Common Pleas to be holden henceforth in the Exchequer.

^ Above, p.645. The same principle is stated in the Articles of the Assize
of Korthampton : ' Nisi tarn grandis sit querela quod non possit deduci
sine domino rege, vel talis quam justitiae ei reporteut pro dubitatione sua.'

= Dialogus, i. c. 8 : ' Si . . . fieri contigerit, ut inter ipsos majores dis-
sensionia oriatur occasio . . . horum omnium cognitio ipsi jirinoipi re-
servabitur.'



XIII.] Itinerant Justices. 647

The veiy act that seems to give stability and consistency to the
ordinary jurisdiction of the Curia, reduces it to a lower rank.
The judicial supremacy of the king is not limited or fettered by The judicial
the new rule ; it has thrown off an offshoot, or, as the astro- of S'Mng.
nomical theorists would say, a nebulous envelope, which has
rolled up into a compact body, but the old nucleus of light re-
mains unimpaired. The royal justice, diffused through the its con-
close personal councU ^, or tempered and adapted by royal grace ™™' ^'
and equity under the pen of the chancellor ^, or exercised in the
national assembly as in the ancient witenagemot, or.concentrated
in the hands of an irresponsible executive in the Star Chamber,
has for many generations and in many various forms to assert
its vitality, unimpaired by its successive emanations.

In tracing the history of the central judicature we have had Tiie growth
to anticipate the leading points of interest in the development lantjudioa-
ofthe visitatorial jurisdiction. The whole may be briefly summed
up. The circuits of the royal of&cers for fiscal and judicial

' See Sir Francis Palgrave's Essay on the Jurisdiction of the King's
Coimcil, and Dioey's Essay on the Privy Council.

^ The growth of the Chancellor's jurisdiction does not fall within the
present period ; but the increased importance of his position is remarkable,
and the germ of his future functions was in being already. William Fitz-
Stephen, who was one of Becket's clerks, writes thus : ' CanceUarii Angliae
est ut secundus a rege in regno habeatur, ut altera parte sigilli regii, quod
et ad ejus pertinet custodiam, propria signet niandata ; ut capella regis in
ipsius sit dispositione et cura, ut vaoantes archiepiscopatus, episcopatus,
abbatias et baronias cadentes in manu regis ipse suscipiat et conservet ; ut
omnibus regis adsit consiliis, et etiam non vocatus accedat ; ut omnia
sigilliferi regii clerioi sui manu signentur, omnia cancellarii consilio dispo-
nantur ; item ut, suffragantibus ei per Dei gratiam vitae meritis, non
nioriatiir nisi archiepiscopus aut episcopus, si voluerit. Inde est quod
cancellaria emenda non est : ' V. S. Thorn, i. 186 ; ed. Eobertson, iil. 18.
The Dialogus de Soacoario represents the justiciar as ' primus post regem ; '■
the term ' secundus a rege ' probably means next after the justiciar ; the
form is frequently used by Becket's friends. The Dialogus (lib. i. c. 5)
confirms most of the statements of the biographer just cited ; nothing is
done without the chancellor's consent and advice either in the Curia or in
the Exchequer; he has charge of the royal seal, sealing it up Into its
loculus or purse, which is kept by the treasurer.

The fact that the chancellor was always in attendance on the king led to
the petitions for royal grace and favour being entrusted to him, first for
custody, and afterwards for hearing. Hence arose the equitable jurisdiction
by which he remedied the 'summum jus ' of the common law or promised
remedies in cases which were not provided for by the common lawyers.
The statement that the chancery is not purohaseable is disproved by some '
important exceptions. See above, pp. 414, 541.



648 Constitutional History. [chap.

purposes, wliicli we have traced in tie reign of Henry I, continue
to have the same character under Henry II, the judicial forms
following rather than preceding the fiscal. In 11 66 the itinerant
court receives new and full instructions from the Assize of
Clarendon, but it is still the Curia Eegis in progress, a great
Formation part of the work being done by the sheriffs'. In 1176 six

and changes . . ' -^^ -i :i cc • •

of circuits. Circuits are formed, eighteen judges are specially told on in six
detachments, as had been done in the fiscal iter of 11 73 : in
1178, 1 1 79, and 1 1 80 there seem to be four circuits, and the
arrangements in the later years vary between two and six.
Under Eichard we have still further modifications, and the
same in the early years of John, none of them however involving
a new principle of construction, but all perhaps implying a re-
striction of the local jurisdictions of the sheriff and the shire-

itinerant moot^. At last, in the eighteenth clause of Magna Carta, the
king undertakes to s^idstwo justices four times a year to take
the Assizes of Mort d'ancester, Novel disseisin, and Darrein
presentment. This arrangement proved no -doubt far too burden-
some to be continued, but the changes indicated in the re-issues
of the Charter and carried into effect in periodical iters of the
judges lie beyond our present inquiry. The justices of the
year 1 176 are the first to whom the name Justitiarii Itinerantes
is given in the Pipe EoUs : the commissioners of 1 1 70 are called
/ Barones errantes : ' perlustrantes judices ' is the term used by
/ the author of Dialogus ; the sheriffs were the ' errantes justitiae'
/ known to John of Salisbury in 11 59. The various applications
of the terms may mark the growth and consolidation of a system
by which the sheriffs were deprived of the most important of
their functions.

The courts The visits of the itinerant iustices form the link between the

of these _ , ,

justices are Curia Eegis and the Shire-moot, between roval and nopular

full county , . ° i i n

courts. justice, between the old system and the new. The courts in

which they preside are the ancient county courts, under

new conditions, but substantially identical with those of the

' The action of a justice itinerant at Bedford in 1163 waa one of the
grounds of the quarrel between the king and Becket ; the judge was Simon
Ktz-Peter, who had ceased to be sheriff of Bedfordshire two years before ;
Kog. Pout. S. T. C. i. 114. 2 Above, pp. 544 sq.



xin.] The County Court. 649

Anglo-Saxon times. The full sHre-moot consists, as before, of
all the lords of land and their stewards, and the representatives
of the townships, the parish priest, the reeve and four men from
each ; but the times of meeting, the sphere of business, and the
nature of procedure during the period before us have undergone
great and significant changes, some of which can be minutely
traced, whilst others can be accounted for only by conjecture.

The Anglo-Saxon shire-naoot was held twice a year : the Times of
county court of Henry I was held as it had been in King county
Edward's days, that is, according to the ' Leges Henrici I,'
twice a year still. Yet in the confirmation of the Great Charter,
issued by Henry III in 12 17, it is ordered that the county court
shall meet not more than once a month, or less frequently where
such has been the custom ; the sheriff is to hold his tourn twice
a year in the hundreds. An edict issued in 1234 further pro-
vides that the hundred courts, which under Henry II had been
held fortnightly, should be held from three weeks to three
weeks, but not under general summons^. It is not easy to
determine the date or the causes of so great a multiplication of
sessions of the shire-moot, unless, as it would be rash to argue,
we suppose the sessions of the hundred court to be included
in the term comitatus. Possibly the sheriffs had abused their
power of summoning special meetings and of fining absentees ;
a custom which comes into prominence in the reign of Henry III,
and which shows that it was the direct interest of the sheriffs to
multiDlv the occasions of summons. Possibly it may have arisen increase of

^ -^ . n •, smaU suits

from the increase of business under the new system ot writs in the
and assizes, which involved the frequent adjournment of the courts.
court for short terms : possibly from an earlier usage by which
the practice of the county court was assimilated to that of the
hundred with the special object of determining suits between
litigants from different hundreds or liberties. Or it may have
been caused by the gradual withdrawal of the more important
suits from the shire-moot, the natural result of which would be
the increase of the number of less important meetings for the
convenience of petty suitors.

> Ann. Dunst. pp. 140, 141. See above, p. 430.



650 Constitutional History. [chap.

Limitations The power of the sheriiF. again, had been very much limited,

of the power 1. t • i ■ i • j.i i ^

of the not only by the course of poutical events noticed in the last

chapter, but by the process of centering the administration of
justice in the hands of the itinerant justices and the Curia
Regis, — a process the stages of which may be more easily
traced. , At the beginning of the period the sheriffs were the
' errantes justitiae,' only occasionally superseded and super-
intended by the itinerant justices. As sheriffs, probably, they
presided in the court of the county in which the suitors were
the judges, and were answerable for the maintenance of the
peace : as royal justices they acted under special writ, managed
the pleas of the Crown, and conducted the toum and leet, or
the courts which were afterwards so called. In 1 166 they were
still in the same position ; the itinerant' justices by themselves,
and the sheriffs by themselves, received and acted on the
presentment of the grand juries. But from 1170, after the
great inquest into their exactions ', their authority is more and
more limited. In the Assize of Northampton they are rather
servants than colleagues of the itinerant justices ; in 11 94 it is
provided that they shall no more be justices in their own
counties, and the elective office of coroner is instituted to re-
lieve them from the duty of keeping the pleas of the Crown ''.
In 1 195 the duty of receiving the oath of the peace is laid, not
on the sheriffs, but on knights assigned in each county, the duty
of the sheriffs being only to receive and keep the. criminals
Th« .*?"*L taken by these knights until the coming of the justices. In
hold pleas of 1 2 1 .s the barons propose that the sheriffs shall no longer meddle

the Crown. , r r ^ &

With the pleas of the Crown, without the coroners ^ ; whilst the
Great Charter, in the clause founded on that proposal, forbids
either sheriff or coroner to hold such pleas at all. We may
question whether these regulations were strictly observed,
especially as before the year 1258 the sheriffs seem to be as
powerful as ever, but they show a distinct policy of substituting
the action of the justices for that of the sheriffs, a policy which
might have led to judicial absolutism were it not that the

^ Above, p. 510. ^ Above, p. 544.

' Articles of the Barons, art. 14 ; Magna Carta, art. 24.



xni.J The County Court. 651

growing institution of trial by jury vested in the freemen of the
county far more legal power than it took away from the
sheriffs. These ofBcers too had long ceased even remotely to
represent the local feeling or interest.

The shire-moot which assembled to meet the itinerant judges The fullest
was, however, a much more complete representation of the held by the
county than the ordinary county court which assembled from jMtioes.
month to month. The great franchises, liberties, and manors
which by their tenure were exempted from shire-moot and
hundred were, before these visitors, on equal terms with the
freeholders of the geldable, as the portion of the county was
called, which had not fallen into the franchises. Not even the
tenants of a great escheat in the royal hands escaped the
obligation to attend their visitation^. The representation was
thoroughly organized : side by side with the reeve and four
men of the rural townships appeared the twelve legal men of
each of the chartered boroughs which owed no suit to the
ordinarv countv court ^. In the formation of the iury of pre- Representa-

•' ■' ... - J J r tivejurieB.

sentment the same principle is as clear ; each hundred supplies
twelve legal men, and each township four, to make report
to the justices under the Assize of Clarendon, and in 1194
twelve knights or legal men from each hundred answer for their
hundred under all the articles of the eyre, whether criminal,
civil, or fiscal '. The court thus strengthened and consolidated
is adopted by the royal officers as an instrument to be used for
other purposes. All who are bound to attend before the
itinerent justices are, in the forest counties, compelled to at-
tend the forest courts*; and they probably form the 'plenus

^ Assize of Clarendon, art. g, 11.

1 Charter of Dunwioh, Select Charters, p. 311 ; Customs of Kent, Statutes
of the Realm, i. 223. Instances of this sort of representation taken from
the Assize KoUs will be found in Eyton's History of Shropshire in con-
siderable numbers. Writs of Henry III, from 3 21/ onwards, are found
among the Close Bolls, ordering the summons to the county court to be
addressed to ' archbishops, bishops, abbots, priofs, earls, barons, knights,
and freeholders ; four men of each township and twelve burghers of eacli
borough to meet the justices;' Hot. CI. i. 380, 403. 473, 47° ! Select
Charters, p. 358.

3 Hoveden, iii. 262 ; above, p. 544. ^ ^ j

* Assize of "Woodstock, art. 11. Cf. Magna Carta, art. 44; Carta de
Foresta, art. 2 ; Assize of Arms of 1253 ; Select Charters, p. 374.



653



Constitutional History.



[chap.



Institution
of juries, a
step in the
growth of a
representa-
tive system.



comitatus ' whicli elects, according to Magna Carta, the knights
who are to take the assizes, and the twelve knights who are
to inquire into the abuses which Magna Carta was designed
to reform.

164. It is in the new system of recognition, assizes, and pre-
sentments by jury that we find the most distinct traces of the
growth of the principle of representation; and this in three
ways. In the first place, the institution of the jury was itself
based on a representative idea : the jurors, to whatever fact or
in whatever capacity they swore, declared the report of the
community as to the fact in question. In the second place, the
method of inquest was in England brought into close connexion
with the procedure of the shire-moot, and thus the inquisitorial
process, whether its object was the recognition of a right or the
presentment of a criminal, was from the moment of its intro-
duction carried on in association with the previously existing
representative institutions, such as were the reeve and four best
men, the twelve senior thegns, and the later developments of the
same practice which have been just enumerated in our account
of the formation of the county court and the usage of legal
assessment. In the third place, the particular expedients adopted
for the regulation of the inquests paved the way in a remark-
able manner for the system of county representation in the
parliament as we saw it exemplified on the first occasion of its
appearance in the reign of John. The use of election and re-
presentation in the courts of law furnished a precedent for the
representation of the county by two sworn knights in the
national council. On each of these heads some detail is neces-
sary which may throw light incidentally on some kindred points
of interest.
Trial by jury The history of the Jury has been treated by various writers
treated. from every possible point of view ^ : its natural origin, its his-
torical development, the moral ideas on which it is founded, and

^ See Palgrave, Eise and Progress of the English Commonwealth;
Forsyth, History of Trial by Jury ; Biener, das Englische Gesohwornen-
gericht ; Gneist, Self-Government, i. 74 sq. ; K. Maurer in the Kritische
Uehersohau, T. pp. 180 sq., 332 sq. ; and Brunner, Entstehung derSchwur-
gerichte.



xili.J Ongin of Jury. 653

the rational analysis of its legal force, have all been discussed
many times over with all the apparatus of learning and the
acute penetration of philosophical research. Some of these
aspects are foreign to our present inquiry. Yet the institution
is of so great interest both in itself and in its relations that
some notice of it is indispensable.

We have sketched, in an earlier stage of this work, the form- Modes of
ation of the primitive German courts : they were tribunals of the German
fully qualified members of the community, a selection it might
be from a body of equally competent companions, able to de-
clare the law or custom of the country, and to decide what,
according to that custom, should be done in the particular case
brought before them. They were not set to decide what was
the truth of facts, but to determine what action was to be taken
upon proof given. The proof was itself furnished by three Oaths,
means, the oaths of the parties to the suit and their compurga- ordeai,
tors, the production of witnesses, and the use of the ordeal : the
practice of trial by battle being a sort of ultimate expedient to
obtain a practical decision, an expedient partly akin to the
ordeal as a judgment of God, and partly based on the idea that
where legal measures had failed recourse must be had to the
primitive law of force, — the feud or right of private war, — only
regulated as far as possible by law and regard for the saying of
life. For each of these methods of proof there were minute
rules and formalities, the infringement or neglect of which put
the offender out of court. The complainant addressed his charge Formalism
to the defendant in solemn traditional form ; the defendant tem,
replied to the complainant by an equally solemn verbal and
logical contradiction. The compurgators swore, with joined
hands and in one voice, to the purity and honesty of the oath of
their principal \ Where the oath was inconclusive, the parties
brought their witnesses to declare such knowledge as their
position as neighbours had given them; the court determined
the point to which the witnesses must swear, and they swore -to

1 The Anglo-Saxon forms of oath may be found in the Ancient Laws, ed.
Thorpe, pp. 76, 77- The oath of the compurgator runs thus : ' On thone
Drihten se ath is claene and unmsene the N. swor.



654 Constitutional History. [chap.

that particular fact'- They were not examined or made to
testify all they knew; but swore to the fact on which the judges
determined that evidence should be taken. If the witnesses also
failed, the ordeal was used. And where the defeated party
ventured to impugn the sentence thus obtained, he might
challenge the determination of the court by appealing the
members of it to trial by combat ; or as was the later practice,
by applying to the king for a definitive sentence. Trial by
combat, however common among some branches of the German
stock, was by no means universal, and, as has been pointed
out, was not practised among the native English.
The germ of In these most primitive proceedings are found circumstances,
contained in wMch on a superficial view seem analogous to later trial by
jury : but on a closer inspection they warrant no distinct im-
pression of the kind. The ancient judges who declare the law
and give the sentence — the rachinburgii, or the scabini — are not
in any respect the jurors of the modern system, who ascertain the
fact by hearing and balancing evidence, leaving the law and sen-
tence to the presiding magistrate ; nor are the ancient witnesses,
who depose to the precise point in dispute, more nearly akin to
the jurors who have to inquire the truth and declare the result of
the inquiry, than to the modern witnesses who swear to speak not
only the truth and nothing but the truth, but the whole truth.
The compurgators again swear to confirm the oath of their prin-
cipal, and have nothing in common with the jury but the fact
Yet the oath that they swear ''^ Yet although this is distinctly the case, the

and evidence . . . ,

are of a re- precedure m question is a step m the history of the jury : the

presentative „,« , -^ .-,.-, , .. n.

character, first lorm In wnich tne jury appears is that of witness, and the
principle that gives force to that witness is the idea that it is
the testimony of the community : even the idea of the com-
purgatory oath is not without the same element ; the compurga-
tors must be possessed of qualities and legal qualifications which
shall secure their credibility.

^ The number of witnesses required varied in the different nations : the
Saxon and Lombard laws required two at least ; the Bavarian, three or
more ; the Frank laws, seven or twelve, accordiug to the importance of the
matter in question ; Brunner, Schwurgericht, p. 51.

^ Forsyth, Hist, of Jury, p. 83 ; see also Sohm, i. 130.



XIII.] Recognitions. 655

Beyond this stage, modified it is true here as elsewhere by Anglo-Saxon
different circumstances and local usages, the Anglo-Saxon
system did not proceed. The compurgation, the sworn witness,
and the ordeal, supplied the proof; and the sheriff with his
fellows, the bishop, the shire-thegns, the judices and juratores,
the suitors of the court, declared the law. Only in the law of The twelve
Ethelred, by which the twelve senior thegns in each wapentake the sMre-
are sworn not to accuse any falsely^, do we find the germ of a more
advanced system, in which the community seems to undertake
the duty of prosecution : but the interp:fetation of the passage
is disputed, and its bearing contested, although it seems to imply
no more than that the English were not far in arrear of the
Frank jurisprudence.

The whole system of recognition by sworn inquest, with the Becogni-

..«., . -.,- , tions intro-

smgle exception, if it be an exception, which has just been men- duoed into
tioned, was introduced into England by the Normans : the laws the Nor-
of Edward, the Domesday Survey, the fiscal recognitions of the
reigns of William Eufus and Henry I ^, are distinctly a novelty,
a part of the procedure of the newly-developed system of
government. Various theories have been invented for their
origin. Many writers of authority have maintained that the
entire jury system is indigenous in England, some deriving it
from Celtic tradition based on the principles of Eoman law and
adopted by the Anglo-Saxons and Normans from the people
they had conquered '. Others have regarded it as a product of

> Above, pp. 129, 427. ^ Above, pp. 416, 426, 427.

^^ According to Brunner, pp. 11-19, the origin of the jury among the
Welsh, from whom it was borrowed by the Anglo-Saxons, is maintained
by Phillips (On Jurie?) and Probert (On the Ancient Laws of Cambria) ;
Selden, Spelman, Coke; Turner, Phillips, and G. L. von Manrer regard it
as a product of Anglo-Saxon genius. Of the authors who hold that it was
imported from primitive Germany, Brunner mentions Bacon, Montesquieu,
Blaokstone, Savigny, and Nicholson in the preface to Wilkins' Anglo-
Saxon Laws ; WormiuB and Worsaae held that it was derived from the
Norsemen through the Danes ; Hiokes, Beeves, and others, that it was
derived from the Norsemen through the Normans of the Conquest ; and
Koniad Maurer, who has investigated the analogous system in use among
the Norsemen, argiiea,for a common North German origin, from which the
principle of jury has been developed in diflfereut ways by the several races
in which it is found. Of those writers who allow that it is of Norman



Online LibraryWilliam StubbsThe constitutional history of England, in its origin and development → online text (page 69 of 74)