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THREE systems of legislation influenced the administration of English justice during the twelfth century. The common law of the country had remained in full force from Saxon times. Formed originally by a mixture of Germanic customs and traditions of Roman law, modified by the church canonists, and latterly by Norman lawyers, it further varied in different places, as these had retained or lost their privileges under successive conquerors. The feeling of the times was against the codifying of customs; it was felt that what had grown up loosely, had better be left vague and indeterminate English law was accordingly, from the earliest times, "case-law;" and although codes more or less official existed, they only contained general principles, which might influence, but could not determine, the decisions of the courts. Side by side with the common law was the canon law of the church, based originally upon Roman law and the Bible, but modified in England by decrees of national synods and the practice of the clergy. Within the last fifty years, there had been a great revival of the study of Roman civil law on the continent; and under Stephen, Vacarius had lectured upon the institutes at Oxford. The contrast of a highly philosophical code with the barbarous English

Thus the empress Matilda disapproved of the constitutions of Clarendon being reduced to writing: "hoc enim a prioribus factum non est."-Becket, Epist. 346.

2 Maine's Ancient Law, pp. 31-33.



common law, could not fail to impress the thoughtful minds of our lawyers, who accordingly drew largely from the labours of their more civilized predecessors. But the nation, tenacious of its old customs, and the barons, inflamed by repeated feuds with the church, were jealous of any open infringement on the common law. Hence it is often difficult to distinguish whether traces of Roman influence in our legislation are due to the conquest by Cæsar, to Augustine's mission, or to the movement initiated by Vacarius. But the great prominence given by Norman lawyers to the theory of royalty and its powers, was certainly not derived from the aristocratic Saxon times, or from any disposition of the church to exalt kings. In a general sense, it may therefore be said that the crown and its lawyers favoured civil law, the barons and the people common law, while the church abode by the canons.

A people divided between two systems, and with a third struggling to intrude, was ill-situated for justice. The multiplicity of the laws hindered their execution; rival courts clashed; and the intellect of the middle ages, from its very subtlety, favoured the growth of legal subterfuges. In the midst of all this, the people, vaguely conscious of oppression which they could not trace to its source, clamoured for strong justice and more law. It is difficult to conceive a more rigid police and judicial system than existed in the twelfth and thirteenth centuries. Every town and village was bail for its inhabitants, every lord for his vassals; every guild was interested in the fortunes of its members. A strange comer in a village, who was neither armed nor rich, nor a clerk, must enter and leave his host's house at day-light; even then he could not be harboured for more than a night out of his own tithing. Twice a year the county court held a visitation to ascertain whether any fugitive serfs were within its jurisdiction.1 The best chance for the runaway was to take refuge in

The enactments about strangers are found in Edward the Confessor's Laws, and though the date of their compilation is probably later than Edward's reign, the fact need not be doubted, as it is in harmony with the tenour of the later Anglo-Saxon government.-Leges Edw. Conf., 23; Leges



a town. There, if he excited no jealousies, and could lurk undenounced for a year and a day, he enjoyed the protection of the city, and was no longer a serf. But, by the notions of the time, every town had a personality, and the rights, more or less varied, of a feudal lord. Now the new-comer would not naturally be taken up into that corporate existence. The laws would protect his life and property, but if he had not the city franchise, or was not a member of some guild, his position was terribly at the mercy of chance; fire, sickness, poverty, or the expenses of law, might ruin him beyond hope. It was this class, accordingly, that were the great social evil of the times; the lazars and lepers, who died like flies in a time of pestilence; the canaille, whom knights and burghers trod down pitilessly. They have passed away without noise, almost without record in history; they were wretched, and dared not speak.1

Even in Saxon times, the king, who was no more than the elected first noble of the land, had been called the anointed of the Lord. Under the double influences of Roman precedent, and a strong popular belief in human systems as counterparts of the divine order upon earth, he came to be regarded by legists as the incarnation of abstract law. The comparative degradation of the local courts favoured the progress of royal power; as all, except the great nobles, were glad to call in a third party as arbiter in their differences. Both parties were benefited by the process. The suitor might hope for an impartial decision, and the king enlarged his revenue from the fines of justice. To modern notions, the frequent payments in a mediæval suit, and the king's direct interest in enforcing the laws of the land, are a strange medley of corruption and barbarism. No doubt the medieval theory was clumsy; but the payments for justice must not be confounded with bribes; it was only that the expenses of the royal judges and courts were defrayed by a fluctuating percentage upon the suits in them, instead of by certain

Henry Imi, vii., 4; A. S. Laws, vol. i., pp. 452-514. Assize of Clarendon, 15, 16, 19; Palgrave's Eng. Com., p. clxx., clxxi.

1 Brewer's Mon. Francisc., preface, pp. xvi., xvii.

2 Concilium Calchuthense, xi.; Wilkins, vol. i., p. 148.



fixed charges on the tax-payer. When Walter de Mahurdy fined in twenty shillings that an inquest might find whether he held his lands by serjeanty or by knight's service, a direct commission from the crown was substituted for some proceeding that would probably now take the form of a legal action. When the earl of Warenne fined in a palfrey and a hawk that he might not be justice of the Cinque Ports, he was like a country squire who pays a certain sum rather than serve as sheriff.1 In the numerous cases where a fine appears as a composition for a breach of the law, we are not to assume that every offence might be condoned for a certain sum in money, but that the offender was purged at law, with or without other punishment, by the payment of a pecuniary penalty. Another kind of fine was that which gave what we should now call a chancery title to lands. A fictitious suit was brought in the king's court; a verdict was entered conveying away the estate; and a certain sum was paid to the crown for allowing the suit to be ended by friendly composition. The termination (finis) thus agreed upon having been solemnly made in the king's courts, was held at law to be irreversible, unless proceedings were entered against it within a year and a day. These considerations will explain the nature of the right which the crown had to interfere, and of the dues that perpetually accrued to it. But nothing can explain away the great evil of an intimate connection between the courts of justice and the exchequer.

Historically, the court of exchequer was the first established in England. It was developed out of the curia, or great court of the king's tenants-in-chief, and was a sort of finance committee of the privy council, with judicial authority. But the grand justiciary, or judicial representative of the crown, was the first law officer of the realm, whose province it was to hear and judge the pleas between tenants-in-chief. Other barons might be present as assessors, but they did not apparently vote

Madox's Exchequer, vol. i., pp. 439-461.

2 Coke upon Littleton, p. 121a; note i., by Hargrave.
Reeves' History of the English Law, vol. i., pp. 48-52.



in these trials. From time to time, the justiciary visited the provinces, and held a general gaol-delivery. As crown business increased, this part of his duties was put in commission, and justices in eyre were appointed. The date of their first institution is uncertain; but the council of Northampton, 1176 a.d., divided the country into six circuits, which nearly correspond with our present division. The justices were rather royal commissioners, than judges, in the modern sense. They tried malefactors indeed, and held pleas of the crown, where the value did not exceed half a knight's fee. But they also received oaths of fealty; saw that the royal castles were properly garrisoned; supervised weights and coinage; looked after the sources of crown income; and prevented the introduction of new customs.1

The first step the justices in eyre took when they came into a county, the legal notice of fifteen days having been given, was to impanel four jurats from every township, and twelve from every hundred. These were to be of good character, and not accused or accusers in any suit. They were then sworn to declare, upon,oath, whom they suspected in their respective districts of crimes lately committed there. Let it be assumed that a murder had been committed a week before: if the criminal were caught red-hand, or if there were what the law considered evidence of his guilt, the sheriff might at once seize and detain him to receive judgement from the justices, when they came, or might hand him over to the ordinary, if he were a clerk. If he fled, he was outlawed; if he escaped to an asylum, he was forced to quit the kingdom. On these cases, therefore, the justice had nothing to say. But where the guilt was uncertain, a man might be charged with the crime by one of his neighbours, or the jurats might present him as a suspicious person. Such a man might refuse to stand trial; he was then liable to the 'peine forte et dure," confinement, and meagre fare, to subdue his obstinacy, but if he died in the process, he was reputed innocent, and his property was not forfeited. If he consented to stand trial, and were accused by some specific person, he


1 Bracton, fol. 116, 117.

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