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].
The temporal judges, on the other hand, with a firmness highly to be
commended, have successfully not only resisted these encroachments,
but, by way of reprizals, have, in these latter days, made considerable
inroads into the antiently allowed territories of those courts; not to
the detriment of the subject, I must confess; for the method of trial by
the common law, is certainly preferable to theirs. But the common law
courts have not satisfied themselves with extending their jurisdiction,
in derogation of those courts, which they justly looked on, in those
days, as enemies to them, and to the laws and constitution of the
kingdom, but they have made invasions into each others territories, and,
by what they call _fictions of law_, have made almost all causes, except
criminal ones, cognizable in any court; contrary to the very intention
of dividing the courts; which was, that each should have their separate
business, and that the judges and practitioners, by being confined in a
narrower track, should be more expert in their different provinces[364].
In treating of these courts, I began with the _King’s Bench_, which, as
long as the office of _Justiciarius Angliæ_ subsisted, was the superior;
but since Edward the First discontinued that office, on account of its
too great power, and the business of that officer hath been shared
between several judges, the rank of this court hath declined, and the
_Chancery_ hath obtained the first place. To this court, then, I shall
now proceed. And as in it there are, at present, and have been for some
ages, two distinct courts, one _ordinary_, proceeding by common law,
and the other _extraordinary_, according to the maxims of equity, where
common law could give no relief; I shall, for the present, confine myself
to the former, and defer treating of the latter, until I come to that
period when the _Equity jurisdiction_ arose.
In the antient times, before the division of the courts, the chancellor
was a very considerable officer of the _curia regis_. It was his business
to write and seal with the great _seal_ the _diplomata_, or _chartæ
regis_, what we now call _letters patents_; to issue all writs, either
for founding the jurisdiction of the _curia regis_, and the bringing
causes into that court, that by the antient law belonged to the courts
in the country; or those to the nobles, to summon them to attend the
_commune concilium_, or parliament. Afterwards, when the House of Commons
was formed, he issued writs to the proper places, for the election of
the members thereof. Hence, when the courts were divided, the making
out letters patents, the keeping the inrolments thereof, and issuing
of _original writs_, as they are called, that is, those that found the
jurisdiction of courts, and other writs of like nature, continued to
belong to him; and, as these records remained with him, there arose to
him a jurisdiction concerning them; except as to such writs as were
intended to found the jurisdiction of another court, which, though issued
from Chancery, were returnable into the proper court, and the cause
determined there[365].
The first branch of the jurisdiction of this court, then, was the repeal
of letters patents, that had issued improvidently, to the detriment of
either of the king or the subject; and this properly fell to the lot of
the chancellor, as he made out the patents, and kept the enrolments of
them. The method of repealing those was by a writ called _scire facias_
notified to the party claiming under the patent, and calling him in to
shew cause why it should not be revoked. This _scire facias_ issued in
three cases: the first, at the suit of a subject; where two patents were
granted to two persons of the same thing, the first patentee brought a
_scire facias_ against the second, to repeal his grant; the other two
were at the suit of the king, where the king was deceived, either by
false suggestions of merit, or as to the value of the thing granted; or,
in the second place, if the king had, by his patent, granted what by law
he could not have granted. Here, if the case was clear in law, and there
was no controverted matter of fact necessary to be settled, to ascertain
the right, the chancellor was judge; and if his judgment was against the
patent, it was his duty to _cancel_ the inrolment thereof; from which
part of his office he had his name. I say if the case was clear in law,
and there was no controverted matter of fact; for, if this latter was
the case, he could not try it, he being antiently but an officer of the
_curia regis_, and not a judge; and therefore unqualified to summon a
jury. The rule continued the same after the separation of the courts, and
his becoming a judge; principally, as I conceive, for the preservation
of the common law, and the birthright of Englishmen, the trial by jury.
For, as the chancellor was almost always, in those days, an ecclesiastic,
and consequently supposed more attached to the _civil_ and _canon law_,
there might be danger, if he was suffered to try matter of fact himself,
he might introduce a new method of trial. When, therefore, the cause was
heard upon a _demurrer_, that is, the facts admitted of both sides, and
only the law in dispute, he gave judgment; but if they came to issue on a
fact, he must carry the record over to the King’s Bench, who summoned the
jury, and gave judgment on the verdict[366].