Justices of Assize and of Nisi Prius appointed—County Court. 115

pleas civil as well as criminal (a). The Assizes of Clarendon sanctioned and enforced the continuance of this mode of administering justice in the provinces (b). The Chancellor occasionally went as a Justice in Eyre and of assize (c). The Justices in Eyre held, amongst others, common pleas in their courts (d): there was an appeal from their decisions to the King's Court (e);—in all cases they had to give an account of their proceedings, which, for this purpose, were regularly entered on Rolls (f). But very grave cases were excluded from their jurisdiction, and reserved for that of the king himself (g). This institution,-as Sir M. Hale has observed, afforded a remedy to the evils arising from the administration of the common justice of the kingdom being, except in greater cases, wholly dispensed in the county courts, hundred courts, and courts baron; which must have bred great *inconvenience, uncertainty, and variety in the laws; besides, in these several [*116] courts, all the business of any moment was carried by parties and factions; and although in cases of false judgment the law even then provided a remedy by writ of false judgment before the king or his chief justiciary, yet this proved but an ineffectual remedy for these mischiefs (h). Justices of Assize and nisi prius (i), and of gaol delivery were appointed by special commission in the reign of Edw. I. to hold sessions of Justice in the provinces. The object of appointing Justices of Assize and nisi prius was for the speedy trial of disseisins; and that these justices should for ease of the people, try issues joined at Westminster, to save the parties and jury from traveling to Westminster (k). The office of these Justices ceased when the business for which they were appointed was concluded (1).—The increased powers given to the Justices of Assize, and the improvements made in their proceedings, superseded the necessity of the appointment of Justices in Eyre, and after the 10 Edw. III. none such were appointed excepting to hear pleas of the forests (m).

The consequence of these several alterations and improvements was to force or to draw almost all the judicial business of the country into the King's Court. The president of the hundred court soon became merely an officer of police, and although the county courts continued to meet under the presidency of the sheriff for many important purposes,

lar list of the Justices in Eyre from 16 Hen. II. is given by Dugdale, in his Origines Judic.

(a) Memda in Scacc. 12 Edw. I. p. 12. (b) See the Assizes of Clarendon, A. D. 1176; they are set out by Lord Lyttleton, v. p. 408. The Eyres appear to have been originally held at intervals of seven years, Selden's Notes on Hengham, p. 127. By Magna Cart. of Hen. III. c. xii. Justices were to be sent once a year to take assizes of nov. disseisin.

(c) Mad. Hist. Ex. i. p. 61.

(d) 12 Ed. I. Mem. in Scacc. at the end of Y. B. p. 12.

(e) Mad. Hist. Ex. i. 122. (f)"Regi ratio redditur administrationis," Diceto, 606. b, 3 and 33.

(g) "Reservatis quibusdam ad Principis audientiam," Diceto, ubi sup., Lord Lytt. v.

409, Assizes of Clar.

(h) Hale, Hist. Com. L. x. c. vii. p. 169; Lord Lytt. vol. v. 271—3.

(i) This term had its origin from the statute of nisi prius, 13 Edw. I. c. 30, which directed that the writs for summoning juries to the superior courts should have this clause, nisi talis et talis (the justices appointed to take the azzizes), should first come into the county; and on this statute and that of 14 Edw. III. trials of nisi prius now take place, Stephen on Plead. Append. note 25.

(k) V. supra, 115, n. (a); Crompton, 204 a: these justices were appointed by special commission, ib. 206 b, as now. (1) Bracton, 108 a.

(m) Hale, C. L. c. 8; and see Bla. Comm. iii. 60.

116 Courts of Record and not of Record-Chancellor Vice-Chancellor.

they soon ceased to be courts in which suits of any importance were instituted. As a check to the general disposition to resort to the king's justices in all cases, it was enacted by the Statute of Glocester, 6 Edw. I. c. 8, that the sheriffs should plead pleas of trespass in their counties as they had been accustomed to be pleaded, and that none should thenceforth have writs of trespass before justices, unless he would swear by his faith that the goods taken away were worth 40s. at the least; a provision that has been enforced and its principle extended by subsequent statutes (a). We have already seen that no cause relating to freehold could be instituted in any court without the king's writ, and by tacit consent and continued usage, for there does not appear to have been *any enactment on the subject; it became a maxim of law not [*117] only that no pleas touching freehold and of trespass with force (vi et armis), but also as to any chattels, debt, or damages to an amount exceeding 40s. should be entertained in courts not being courts of record, (which neither the county nor the hundred courts ever were,) unless by virtue of the king's writ. Such a writ (the writ of justicies) might be obtained for the county court; but the sheriff was thereby constituted the king's justice for the particular case (b): all proceedings in the courts of record, were by writ.-The sheriff also held an assembly called the Tourn; but which solely had reference to matters of police (c).

The office of Chancellor in these times had greatly increased in dignity. In the charters of Hen. I. he generally signs his name before all the earls, but after the bishops (d). The author of Beckett's Life places him next to the king, and makes him the person who principally wielded the royal authority. This, as Lord Lyttelton observes, may be the language of panegyric, but when Longchamp, the proud Bishop of Ely, was Grand Justiciary and Chancellor in the time of Rich. I., he placed the latter title before that of Justiciary (e). The emoluments must have been very large: one Geoffrey (who, however, is not in the lists of Dugdale or Hardy) paid 3,0067. 13s. 4d. to be appointed to this dignity: the office was then occasionally granted for life (f). The Chancellorship had become the object of ambition even to the Archbishop of Canterbury (g). The office of Vice-Chancellor is mentioned in the reign of Hen. II.,

(a) 43 Eliz. c. 6, and 21 Jac. I. c. 16, which bar the plaintiff of his costs in many personal actions where less than 40s. is recovered. The jurisdiction of the County Court is extended by 3 and 4 Will. IV. c. 42, § 17 and 18.

(b) Lord Coke's Comm. on Stat. of Glocester; 2 Inst. p. 311; 3 Inst. 266; 3 Bla. Comm. 36. The freeholders or suitors were still the judges, the sheriff being a minister only. The proceedings in ordinary cases were, and still are, by plaint, 3 Bla. Comm. 34; 4 Inst. 466.

(c) Bracton, 155 b. &c.

(d) Rymer's Fœdera, i. p. 12, 16, &c. (e) M. Par. p. 135. In the Chronicle of Walt. Hemingford, ap. Fell. p. 528, he is described by his dignity of Chancellor only. The singular adventures of this bishop, who

and

was Viceroy in Richard's absence, but was expelled with ignominy, are told by Bromton without much regard to delicacy: this bishop did not understand English, Bromt. 1227, 45.

(f) Mad. Ex. i. 62, 63. Walter de Grey, Archbishop of York, gave to John five thousand marks for the office for life, Spelman, Gloss. p. 108.

(g) In the time of John, Hubert, Archbishop of Canterbury, formerly Chief Jus ticiary, having been made Chancellor, and glorying in his office, some one said to him, "Domine non deberes gloriari de jugo servitutis; audivimus enim de Cancellario Archiepiscopum factum, sed non e converso," Knyghton, p. 2413; et v. supra, note (ƒ).

Fidei Lasio-Jurisdiction of Ecclesiastical Courts—Probate. 117

again in that of Richard I., when the Vice-Chancellor bore the rather singular name, as Latinized, of Malus Catulus (a).

The clergy from the first claimed (b), and it was expressly conceded by Richard I. to the Norman clergy, that all questions of *breach [*118] of faith and of oaths, and as to dotal gifts, should be tried before the ecclesiastical tribunals (c); the inability of the courts of law to entertain such questions, unless they could be brought within any of the ordinary forms of action, must have favored this pretension in England. However, this jurisdiction was assailed by the Constitutions of Clarendon, 10 Hen. II. (d), and in 1247, 31st Hen. III., the ecclesiastical courts were altogether restrained from meddling with questions as to breach of faith or trust arising between laymen in regard to civil matters (e). But questions relating to marriage and wills, (including money agreed to be paid on marriage, and legacies, as accessories to the principal subjects which were within their jurisdiction (ƒ), ) and devises of purchased lands and tenements in cities and towns which were devisable by custom (g), (but not if they came by descent) (h), as well as all matters merely spiritual (i), were left to the cognizance of the ecclesiastical courts (k). From this time, therefore, cases of breach of faith, where there was no remedy at law, could only be relieved by application to the king; this, as we shall see, was the origin of one great branch of the jurisdiction of the Court of Chancery. The probate of wills of personal estate, that is, their authentication as the last will of the deceased, -has, ever since the separation of the cognizance of ecclesiastical matters from the county court, belonged to the ecclesiastical courts, and

(a) Mad. Hist. Ex. i. p. 77; Philipot's Catal. of the Chancellors, p. 13.

(b) "Creditor ipse" says Glanville (x. c. 12), "si non habet inde vadium neque plegios, neque aliam diracionationem nisi solam fidem, nulla est hæc probatio in curia Domini regis; veruntamen de fidei læsione vel transgressione inde agi poterit in curia Christianitatis; sed judex ipse Ecclesiasticus, licet super crimine tali possit cognoscere, et convicto pœnitentiam vel satisfactionem injungere, placita tamen de debitis laicorum vel de tenementis in Curia Christianitatis per assisam regni, ratione fidei interpositæ, tractare vel terminare non potest." Glanville, x. c. 12; et v. Bracton, 175 a.

(c) Matt. Paris, A. D. 1190, p. 134, "Item generaliter omnes de fidei læsione vel juramenti transgressione quæstiones, in foro ecclesiastico tractabuntur. Item quæstiones de dote vel donatione propter nuptias, quando mobilia vel se moventia petuntur, ad ecclesiam referuntur." According to Glanville, the jurisdiction of the Ecclesiastical Courts in regard to marriage, was, propter mutuam affidationem, vii. c. ult.

(d) V. inf. p. 119, n. (m).

(e) See M. Par. 85, 4; Crompt. 60; Fulbeck, ii. p. 14 b. A prohibition was granted by the King's Court when the Ecclesiastical Court exceeded its jurisdiction, though act

ing under the express authority of the Pope, Bracton, 403; but Stillington, Chancellor temp. Edward IV., still asserted this jurisdiction for the ecclesiastical courts. See on this subject, 3 Bla. Com. 414, n. (g), Serj. Stephen's edition.

(f) Bracton, 407 b, 409 b.

(g) As they were quasi catalla, Bracton, 47 b. In fo. 412 b, it is stated that a customary devise of land was a subject for the jurisdiction of the lay courts, as an assignment.

(h) Ib. 408 a.

(i) The subjects of ecclesiastical cognizance were defined by the ordinance or stat. Circumspectè agatis, 13 Edw. I., see 1 Freeman, p. 296; 2 Inst. 489. An enumeration of the subjects of ecclesiastical cognizance according to the more modern doctrine may be seen in Cawdrie's case, 5 Co. Rep.: Burn's Eccles. Law, by Phillimore, ii. 39. Money agreed to be paid on marriage is excluded. Devises of lands afterwards become subject to the cognizance of the common law courts by statute, as will be after noticed; and now the ecclesiastical courts have no jurisdiction in regard to testamentary gifts or devises of lands and tenements, except of terms for years, as personal estate.

(k) 3 Bla. Comm. 413, Serj. Stephen's ed.; Matt. Paris, p. 634; Bracton, ii. 26, s. 2, 61 a; iv. c. 12, 175 a.

118

Treatises on the Law-Glanville-Bracton.

without this authentication no notice can be taken of a will of personal estate by any civil tribunal (a). In the same reign ecclesiastics were prohibited by the legatine constitutions from *practising as advocates in the civil tribunals, but it seems without effect (b).

[*119]

The want of some authentic account of the laws and customs according to which pleas were determined in the King's Court, or Curia Regis (c), before the king's justices, would naturally be severely felt, now that all suits of any importance were there determined. The task of supplying this deficiency seems first to have been committed to Glanville (d), who was appointed a Justice in Eyre in 1179 (e), and in the next year, Chief Justiciary, and Lord Steward or Dapifer of Henry II. and "who of all in those days was the most skilled in the law of the realm" (f).

In that "excellent collection," as it is called by Lord Hale (g), which was compiled under his directions, the following enumeration is given of the subjects in respect of which the King's Court entertained original jurisdiction. All pleas concerning baronies, homage, and reliefs; as to advowsons, dower, perprestures, that is encroachments on the public ways, and questions as to personal liberty, debts owing to lay persons (h), arising from different kinds of contracts, as from sale, purchase, gift, loan, borrowing, letting out, and hiring; and as to pledges and gages (i), whether of movables or immovables, where the contract was made by deed under seal (k), or was completed by delivery. Of mere agreements, "privatæ conventiones" (l), not so perfected, and claims arising upon verbal promises, the King's Court took no cognizance;-in these cases, where the non-performance implied a breach of faith, in Glanville's time the Ecelesiastical Court might still be applied to (m).

In the reign of Hen. III. Bracton, Doctor of Civil Law, and one of

(a) Burn's Eccles. L. iv. 292, et seq.; ib. 302. In Marriott v. Marriott, Gilbert Rep. 203, the history of the jurisdiction as to probate, and its analogy to the similar process before the Roman Prætor, is detailed.

(b) Spelman, Concil, A. D. 1217; "nisi vel proprias causas, vel miserabilium prosequantur," Reeves, ii. 90.

(c) The Curia Regis can hardly yet be considered as designating a distinct judicial tribunal; Concilium and Curia are some times used as synonymous even by Bracton, 70 b. 71.

(d) The same necessity produced the Scotch treatise called Regiam Majestatem, which is for the most part copied from Glanville.

(e) Together with two Bishops, a. d. 1189. Glanville by Beames, p. 200.

(f) Lord Lytt. iii. 152, 208; Dug. Orig. The work that goes by his name is supposed, by Dr. Robertson, to have been compiled A. D. 1181.

(i) Many of the terms which Glanville uses are those which we find in the Institutes, so that the Corpus Juris must have been in familiar use in his time in the King's Court; but this subject will be noticed hereafter.

(k) Glanville, x. c. 12. Hence perhaps, the origin of the doctrine of profert, for as the deed alone gave jurisdiction to the King's Court, it was natural that the Court should inform itself of the right of the plaintiff to sue by inspection of the deed; the rule also applied to a deed pleaded in defence.

(1) Glanville, x. c. 8.

(m) Glanville, lib. i. c. 3. x. c. 12; but one of the Capitula established at the Council of Clarendon, Mat. Par. A. D. 1164, p. 85, was that" Placita de debitis quæ fide interposita debentur, vel absque interpositione fidei, sint in Justitia Regis:" this was directed against the claim of the Eccles. Courts to hold jurisdiction in cases of breach of faith, "fide interpositâ," which is thus recognized by Glanville, v. sup. p. 118.

Treatises of Glanville and Bracton-Compensation for Injuries. 119

the king's justices (a), collected, though not professedly by authority, *the laws and customs which then prevailed in England (b). In [*120] describing the business of the King's Court, he adds some subjects of jurisdiction-as questions as to fines levied; and he states that many suits were entertained there from the impotence of the other courts, and from necessity (c). Bracton's treatise, like that of Glanville, as far as regards civil rights, is almost exclusively devoted to the laws which prevailed in the King's Court and before the Justices in Eyre; these laws were then, as appears by the title of his treatise, (he being then a judge,) considered as the general or Common Law of England.

We learn from this treatise, that it was then a recognized maxim, that all judicial authority flowed from the King; that the King would have been bound, according to his coronation oath, himself to administer justice to his people, if such a task could have been performed by him; but that as this was impossible, it was his duty to appoint competent persons as justices, sheriffs, (vice-comites) (d), and ministers to perform this important office (e).

(a) I am favored by that very intelligent and accomplished scholar and antiquarian, Sir Henry Ellis, with the following authority, which establishes the fact of Bracton having been a justice; I had searched in vain for any authentic information on the subject.

"In the Chartulary of Waltham Abbey, (Harleian Manuscript, 371, fol. 71,) there is a 'Final Concord' of the 30th Hen. III., made before the King at Westminster, in the close of which among the greater per sons present, there are particularly mentioned 'Henrico de Batonia, Jeremia de Caxton et Henrico de Bracton, Justiciariis, et aliis domini Regis fidelibus.' The Instrument is an agreement between Peter de Savoy, and Simon Abbot of Waltham, respecting common of pasture at Cheshunt. This was a public authentic Instrument." By some, Bracton had been stated to be Chief Justice; Baheus, cited Petyt Jus Parl. p. xiii.; by others, a Justice in Eyre, Dr. Duck. A writer, of great learning and intelligence, in the Penny Cyclopædia, under the article BRACTON, to which I have been referred by Sir Henry Ellis, speaking of the writers to whom we are indebted for collecting what could be recovered of the English authors of the Middle Ages, says, "Their statements that Bracton was a judge of the Common Pleas, and that he was Chief Justice of England, are now regarded as questionable. There is better reason to believe that he was a Henry de Bracton who delivered Law Lectures in the University of Oxford towards the middle of the thirteenth century, and that he sat, once at least as a justice itinerant."

The 30th Hen. III. (A. D. 1246), says Sir H. Ellis, decides the exact time when Bracton may be said to have flourished.

(b) "Ego Hen. de Bracton, animum erexi ad vetera judicia justorum perscrutanda,

facta ipsorum, consilia et responsa, et quicquid inde notatu dignum inveni,in summam redigendo, compilavi," &c.

This treatise was written in the latter end of the reign of Hen. III. about A. D. 1270; (Præf. p. ii.); but some additions were made in the reign of Edw. I., fo. 372 b. It is largely quoted by Plowden and Lord Coke, (and see Pref. to Lord Coke's Reports, parts iii. and ix.) in a manner to lead one to suppose that it was wholly of English manufacture. This work is very superior to the corresponding treatise compiled by Beaumanoir, Baily of Beauvoisis, A. D. 1283, chiefly by reason that Bracton has drawn more largely from the texts of the Roman law; but the two treatises agree in many particulars. Neither the Grand Custumier, nor Glanville's treatise, are quoted in it-in all probability the former had not yet been compiled. Hale's Hist. C. L. c. vi. (c) Bracton, iii. c. 7, fo. 106 a.

(d) In the time of Will.I. William Bishop of Durham bought the earldom of Durham, and caused himself to be appointed Sheriff, "et insolenter extorsit pecuniam infinitam," M. Par. p. 8, 17, and see Lord Lytt. iii. 137. But by the Articul. Super Cartas, and by the subsequent statutes 14 Edw. III., 23 H. VI., and 21 H. VIII. c. 20, the choice of the Sheriffs was committed to the Chancellor, Treasurer, President of the Council, Chief Justices, and Chief Baron. The custom since the time of Hen. VI. has been for all the judges to attend, 1. Black. Comm. 340-4, et v. 558. 9. In C. J. Fortescue's time the Master of the Rolls attended, De Laud. c. 24. The sheriffs were not the deputies of the Earls, but supplied their places after the Earls ceased to perform their civil functions; besides which, they had separate functions to perform, see Co. Litt. 168 a; and Lord Lytt. ubi sup.

(e) Bracton, iii. c. 9. s. 1, fo. 107; “Si