: r.i vi ( f v;ir.frIrnY 
 
 Y OF CALIFORNIA LIBRARY 
 
LIBRARY 
 
 UNIVERSITY OF CALIFORNIA. 
 
 Class 
 
THE KING'S PEACE 
 
Social Bnolanfc Scries, 
 
 Edited by KENELM D. COTES, M.A. (Oxon.) 
 
 The Troubadours and Courts of Love. 
 
 J. P. ROWBOTHAM, M.A. 
 
 The King's Peace : A Historical Sketch of the English 
 Law Courts. 
 
 F. A. INDBHWICK, Q.C. 
 In Preparation. 
 Introduction to the Social History of England. 
 
 THE EDITOR. 
 Chivalry. 
 
 F. W. CORNISH, M.A., Vice-Provost of Eton. 
 Gilds and the Rise of the Merchant Class. 
 
 ALICE LAW. 
 The English Manor. 
 
 Prof. VlNOGEADOFF. 
 
 Evolution of the English House. 
 
 SIDNEY O. ADDT. 
 Evolution of Household Implements. 
 
 HENKY BALFOUK. 
 The Fine Arts: History of. 
 
 Prof. G. BALDWIN-BKOWN. 
 Influence of Geography on Social Life. 
 
 GEO. G. CHISHOLM. 
 Mysteries and Miracle Plays. 
 
 LUCY TOULMIN SMITH. 
 The Influence of Alien Immigration on Social Life. 
 
 Prof. J. CUNNINGHAM. 
 The Navy. 
 
 W. IMIRD CLOWES. 
 Other Volumes to be announced shortly. 
 
 LONDON: SWAN SONNENSCHEIN & CO. 
 NEW YORK : MACMILLAN & CO. 
 
" THE FIRST DAY OF TERM," an engraving by Gravelot, a French 
 engraver, who came to England in 1733, left about 1745, and died 
 in Paris, 1773. It shows Westminster Hail as it would have ap- 
 peared down to the time of George II. 
 
 The original of this illustration is in the Library of the Inner 
 Temple. 
 
Social lEnolanfc Series 
 
 EDITED BY KENELM D. COTES, M.A. OXON. 
 
 THE KING'S PEACE 
 
 Q Historical SMiettlj of tlje itglts|j Ifafo Courts 
 
 BY 
 F. A. INDERWICK, Q.C. 
 
 Author of " Side-Lights on the Stuarts,'' " The Interregnum" etc. 
 
 WITH 15 ILLUSTRATIONS AND 1 MAP 
 
 OF THE 
 
 ( UNIVERSITY ) 
 
 OF 
 ILiFOHj 
 
 IL'onti0n 
 
 SWAN SONNENSCHEIN & CO. LIM. 
 
 NEW YORK : MACMILLAN & CO. 
 
 1895 
 
BUTLER & TANNER, 
 
 THE SELWOOD PRINTING WORKS, 
 
 FROME, AND LONDON. 
 
To THE JEllGHT 
 
 LORD RUSSELL OF KILLOWEN, G.C.M.GL 
 
 LORD CHIEF JUSTICE OP ENGLAND 
 THIS SKETCH 
 
 19 Dedicates 
 
INTRODUCTION 
 
 A STRANGER who, passing up the Strand, looks at our 
 Ro3 7 al Courts of Justice, will be struck with the graceful 
 harmony of the pile standing at the gates of the city 
 and supported by the church of Saint Clement Danes. 
 The building has an appearance at once dignified and 
 symmetrical, and seems to embody the idea of a Royal 
 Court of Justice. On further investigation, however, 
 there is found a noble stone-roofed hall of lordly propor- 
 tions leading apparently to no result, with no outward 
 sign of any facilities for the despatch of business. But 
 wooden signboards are supplied to point the way to the 
 courts, which are reached by narrow and precipitous 
 causeways leading into crowded and inconvenient pas- 
 sages, where numbers painted on the doorposts indicate 
 the various courts. A consideration of the combined 
 effect of the external and internal arrangements of the 
 building suggests the work of a man who, having in his 
 mind a great sense of architectural beauty and recognising 
 that success depends upon convenience and convenience 
 upon accuracy of detail, has been cramped and harried 
 by pressure to produce something practical, though not 
 necessarily graceful, sufficient for the requirements of 
 the moment without regard to the possibility, of future 
 expansion, But this combination of external beauty and 
 
 219B38 
 
viii Introduction 
 
 internal confusion presents, though unintentionally, a 
 great similarity to the system of judicature for which it 
 provides a home. 
 
 The leading motives of our law and our procedure have 
 always been constant, founded as they are upon a spirit of 
 equity and of self-government, and even now, with their 
 suggested crudity, are the admiration of foreign jurists. 
 But we have always sacrificed science and symmetry 
 on the altar of utility. Our judges from time im- 
 memorial would rather give an ephemeral judgment 
 doing practical justice between a man and his neigh- 
 bour than deliver one of lasting reputation dealing with 
 great interests and world-wide principles ; our courts, 
 in which all classes of our laymen take their places as 
 spectators, litigants, jurymen, or assessors, have been 
 constructed and altered and reconstructed to suit their 
 varying notions of convenience ; and our legislators 
 being men not mainly of law, but of business, have made 
 their laws to meet the daily and hourly requirements of 
 the people and to render more easy and more safe the 
 duties of their social life. For the social life of English- 
 men, from the time when they shouted under the uplifted 
 spear to the time when, as now, they sit with apparent 
 content in the wooden boxes which the custom of many 
 generations has consecrated to their use, has ever been 
 concerned with the administration of justice to an extent 
 unknown probably in any antient, certainly in any 
 modern state. When, therefore, it was suggested to me 
 to write some account of our Courts of Law, I recognised 
 that such a theme did form part of our social story and 
 might fairly be a chapter in our national life, 
 
Introduction ix 
 
 The methods and details of our procedure have moved 
 on with the intelligence and education of our people. 
 In the old Anglo-Saxon and Norman days, when the or- 
 deal of God's judgment was invoked to decide questions of 
 law and of fact and to demonstrate the innocence or the 
 guilt of the accused, the administration of the law which 
 was thus vouched by miracle was a sacred function in 
 which it was a privilege, rather than a right, to take part. 
 Afc superstition died out, and knowledge was spread over 
 the face of England, the fortuitous success of a fiery 
 ordeal or of a hireling champion was no longer regarded 
 as due to a special intervention of Divine Providence. 
 The law itself became the subject of comment and of 
 discussion ; our procedure rapidly assumed a practical 
 character, and was regulated by well-recognised and defi- 
 nite rules, excluding as far as possible the old system of 
 chance. Oar forefathers worshipped the sun as the god 
 of life, of heat, and of fertility, and our fathers, wiser 
 than they, while rejecting his spiritual godhead, utilized 
 his beams to bleach their linen and to force their fruits. 
 And thus the determination of legal questions ceased to 
 be regarded as the direct judgment of Heaven, and came 
 to be accepted as the adjudication of a business-like com- 
 munity. 
 
 Limit of space has necessarily had its efi'ect upon the 
 thoroughness of this book ; and accordingly, with a view to 
 presenting a more compact volume than would otherwise 
 have been possible, I have confined my sketch of the 
 King's Peace (for it would be presumptuous to describe 
 these pages as more than a sketch) to the consideration of 
 what are commonly called the Superior Courts. I have 
 
 b 
 
Introduction 
 
 purposely avoided touching upon the Ecclesiastical 
 Courts, as that would involve the consideration of an 
 aspect of social life in England interesting, no doubt, but 
 opening up an inquiry extending far beyond our re- 
 stricted boundary. Similarly I have avoided any refer- 
 ence to the High Court of Parliament as involving the 
 discussion of other phases of social life from another and 
 a different standpoint. And when I have referred to any 
 tribunals outside of our Superior Courts, I have done so 
 but lightly and in few words. 
 
 The Courts and the procedure of the Anglo-Saxons 
 were, until very recently, almost a sealed book to any 
 but the most experienced of antiquaries. Coke, Spel- 
 man, Prynne, Selden, Dugdale, and other writers of the 
 seventeenth century, without making a special study 
 of that period, but investigating its laws and customs 
 in common with other branches of the law, have given 
 us their views, in which they generally concur, on 
 many matters connected with this subject. The nine- 
 teenth century has produced writers and students who 
 have devoted themselves with unwearied assiduity to 
 the special study of the Anglo-Saxon period, with the 
 result that the nineteenth century finds the seventeenth 
 century to have been ignorant and iaaccurate. Such 
 men as Dr. Stubbs, the Anglo-Saxon essayists, Professor 
 Freeman, and others, have evolved a scheme of Anglo- 
 Saxon law and procedure which places before us the lives 
 and habits of the people of this period with a complete- 
 ness of detail never before attempted. Whether the 
 twentieth century will cause us or our children to 
 
/// trodu ction x i 
 
 modify these views, and will draw for us an altogether 
 different picture of the daily life of our ancestors, time 
 alone will show. There are still, however, many matters, 
 even after this patient investigation of the subject, fairly 
 open to discussion. The place of the King in the antient 
 judicature, whether he was, as always contended by the 
 lawyers, the fountain and the last resort of justice, or, 
 as now propounded by the philosophers, merely an over- 
 lord, whose decrees and judgments could be over-ridden 
 by the freemen of the County Court, is one of those open 
 questions upon which the authors to whom I refer may 
 be read with profit. For my own part, I hold to the 
 view of the lawyers, and I believe that the further the 
 question is investigated, the more clearly this will ap- 
 pear. A question more difficult of solution is perhaps 
 to ba found in the consideration how far, if at all, 
 the Roman had any part in the formation of the English 
 Common Law. That it had such part in determining 
 civil rights I cannot doubt ; though how far its influence 
 extended in the formulating of the system actually in 
 vogue at, and before the Conquest, may be somewhat 
 doubtful, and is, at all events, a topic well worthy of 
 the discussion it has raised. Descriptions of Anglo- 
 Saxon procedure are, however, necessarily speculative. 
 If A owed B fifty pence, a trustworthy account of the 
 preoise course of procedure to be adopted by B to recover 
 his money cannot be given. 
 
 A study of the social life of our citizens as affected by 
 successive laws and ordinances and by the -varying 
 provisions k of our common law would be especially in- 
 
xii Introduction 
 
 teresting in these days, when public attention has been 
 directed by some of our deepest thinkers and most 
 lucid writers to the social condition of the masses at all 
 periods of our national history. It would include amongst 
 other topics an inquiry into Saxon and Norman customs 
 and rights, feudal tenures, the varying reciprocal rights 
 and duties of men and women, the course of sumptuary 
 laws, and the changing and gradually civilizing views of 
 the community on crimes and punishments. But these, 
 with many similar considerations, are outside the province 
 of this sketch, and must remain for their elucidation by 
 other writers and teachers of these abstruse and recondite 
 subjects. 
 
 It is a remarkable incident in this study that as just 
 one thousand years have passed since King Alfred is said 
 to have set his hand to our judicial institutions, so the 
 history of the courts divides itself by natural selection 
 into cycles of two centuries each. From the suggested 
 origin of our jurisprudence under Alfred to the Norman 
 Conquest is just two hundred years. The duration of the 
 Curia Regis as the Supreme Court of England was two 
 hundred years. Another two hundred years passed from 
 the division of the courts to the end of the Wars of the 
 Roses, after which the time came, with the advent of 
 peace under Henry VII., for a further development of the 
 judicature and the confirmation of the reforms of Edward 
 IV. The period from the advent of the Tudors to the end 
 of the Commonwealth saw us through a cj^cle of arbitrary 
 government, of personal rule, of an interference with the 
 courts rudely resented by the nation, and of republican 
 attempts to amend the process of the courts and the laws 
 
Introduction xiii 
 
 which they administered. And this was accomplished 
 within a fraction of another two hundred years. In the 
 course of 1660 the reconstituted Royal Courts resumed 
 their sittings on, what was hoped to be, new lines of 
 liberty and integrity, and in 1867, just two hundred 
 years afterwards, Sir Roundell Palmer, reflecting public 
 opinion, made his .celebrated speech in the House of 
 Commons, successfully calling for a return to the antient 
 procedure and for the erection of one Supreme Court of 
 Justice for the whole of England. We begin, therefore, 
 under the Anglo-Saxons, with all the functions of justice 
 discharged in and by the several counties of England, 
 each doing completely its own work, with appeals dis- 
 couraged and decentralization supreme. With the Con- 
 quest we have the opposite system, the work of the 
 country collected together and disposed of in one central 
 court by one supreme authority; decentralization is in 
 principle condemned, and centralization is supreme. 
 After a trial of two centuries the Supreme Court is found 
 unable to discharge the duties cast upon it, and by a 
 compromise always dear to the English heart a portion 
 of the Supreme Court is decentralized, and by dividing 
 the labour and increasing the labourers, the central 
 tribunal once more comes abreast of the wants of the 
 country. 
 
 For six hundred years the compromise between the 
 Anglo-Saxon and the Anglo-Norman system was effectual 
 to transact, with varying success and slight modifications, 
 the business of the country. But the divided court again 
 became unequal to the pressure put upon it, and now 
 another compromise between the two systems finds us 
 
xiv Introduction 
 
 rapidly approaching the constitution of the original Curia 
 Regis, discussing the propriety of abolishing the circuits, 
 au<l on the high-road to a complete system of centraliza- 
 tion. 
 
 One of the most valuable elements of our judicial pro- 
 cedure is the right of every litigant in our courts to be 
 represented by counsel of his own selection. When and 
 under what circumstances this right arose it is impossible 
 with any accuracy to determine. It grew with the ex- 
 pansion of our legal system, and we can only distinctly 
 affirm that it existed in the time of Edward I. The 
 Serjeants, the fathers of the Bar, whether described in 
 Latin as narratorcs, in French as conteurs, or in English 
 as counters, began, as will be seen, as nominees of the 
 Crown and officers of the courts. They continued to in- 
 crease in strength, affluence, and independence, until, in 
 the great pressure of business, they became almost over- 
 shadowed by members of the Bar who never received or 
 aspired to that rank and degree. But though Serjeants 
 were recognised by early statute, neither they nor any 
 other class of counsel were constituted by that or by any 
 other statute or edict, for the entire constitution and 
 position of the Bar rests on custom and tradition. Cus- 
 tom puts their services at the call of every member of 
 the community, grants them freedom and immunity of 
 speech and pre-audience in the courts, and tradition 
 declares them to be agents and ministers of justice in 
 the discovery of truth and in the correct ascertainment 
 of the law. In their professional conduct they are 
 by custom responsible only to their colleagues in coun- 
 cil assembled, with an appeal from the judgment of 
 
Introduction xv 
 
 their colleagues to the judges of the Royal Courts con- 
 vened in solemn session. But the Serjeants, though they 
 have disappeared, have not been abolished, and the same 
 public clamour which rendered necessary the restoration 
 of a Supreme Court might at any time revive the degree 
 and dignity of a Serjeant-at-Law. 
 
 As we are still strictly conservative in retaining the 
 nntient forms of our judicial process and, so far as may be, 
 of our judicial staff, so it will be seen that we are alike 
 conservative in the outward model and habits of the 
 judges. The fashion and colour of their robes differ but 
 slightly to-day from those of the first judges, who in the 
 time of the Plantagenets sat in the newly erected court 
 of King's Bench; and they are identical in colour and tex- 
 ture with those worn by Chief Justice Gascoigne when he 
 committed the Prince of Wales to prison and by Chief 
 Justice Fortescue when, under Henry VI., he declared the 
 law of England from his seat in Westminster Hall. 
 
 During the eight hundred years of our modern pro- 
 cedure various courts have disappeared, numerous 
 methods of trial have ceased, and great judicial offices 
 have been discontinued. And yet no statute has ordered 
 their discontinuance, and no day can be ascertained upon 
 which it may be said that their functions ceased or were 
 determined. As they arose by custom and were confirmed 
 by prescription, so they ceased by non-user, and their 
 cesser was made perpetual by prescription. The Witena- 
 gemot dissolved into the Curia Regis, but no date can 
 with precision be affixed to the dissolution of the one or 
 the establishment of the other. The Curia Regis died 
 out, having struggled on into the life-time of its sue- 
 
xvi Introduction 
 
 cessor. The ordeals of fire and water and other of God's 
 judgments came to an end through the growing intelli- 
 gence of the people and the teaching of the Church, and 
 the wager of battle, being challenged in the present 
 century, was found never to have been legally abolished, 
 though no duel had been fought for nearly three hundred 
 years. The Courts of the Forest ceased to harass and 
 plunder when the national sentiment would no longer 
 permit of their continuance, but no Act of Parliament dis- 
 established the judges of those courts until nearly two 
 centuries after the last effective assertion of their author- 
 ity. The Courts of Markets and of Fairs came to an end 
 one hardly knows how or when. And we recognise in 
 these gradual changes over a long period of years not only 
 the beneficent operation of our unwritten law and its 
 remarkable adaptability to the requirements of the day, 
 but also. in a high degree the power of public opinion 
 to remove abuses without the active interference of any 
 ordinance or statute. 
 
 Doubts have been freely expressed as to the probable 
 results of the latest amendment of our judicial procedure. 
 The change is too recent, and legal, like agricultural 
 experiments, are too slow in development, to justify any 
 expression of opinion on this topic. As our methods are 
 founded on expediency rather than on any other virtue, as 
 our present procedure is flexible and our complex legal 
 system is susceptible of receiving rapid adaptation to 
 whatever may be the requirements of the time, we may 
 look forward to a considerable, though a gradual, extension 
 of the scheme propounded, rather than accomplished, by 
 the Judicature Acts. Pessimist predictions have no place 
 
Introduction xvii 
 
 in our national horoscope. From the earliest days of our 
 judicature we have slowly but surely moved on in the 
 path of reform. We have had some melancholy incidents 
 and encountered many impediments in our progress, but 
 we have steadily advanced in freedom of judicial thought, 
 as in freedom of political life. Where in some instances 
 we may seem to have failed in the realization of our 
 ideas, such failure has arisen rather from the promulga- 
 tion of premature and ill-considered schemes than from 
 the reluctance of our judges to join in the movement, or 
 from the opposition of our people to necessary reforms. 
 A too great veneration for an existing system may some- 
 what impede the action of Parliament in what many 
 would consider the requirements of modern legislation, 
 but a spirit of steadfastness and caution, characteristic of 
 the Anglo-Saxon strain, is one of the surest safeguards for 
 the purity and integrity of our Courts of Justice. And 
 so long as the law is administered by judges of irremov- 
 able tenure, of sufficient means, of independent character, 
 and of legal training, it matters but little to the ordinary 
 Englishman what is the precise nature or construction of 
 the channel through which the stream of justice is com- 
 pelled to flow. 
 
 To bring the view of justice to every man's door, to 
 emulate the Cadi under the palm tree, the justice-seat in 
 the king's gate, the shout of the Wapentake, has ever 
 been the ideal of law reformers. Equally necessary is it 
 to bring to the doors of our people some knowledge of the 
 principles on which our laws are modelled and of the 
 system under which they are administered. Xo better 
 mode of transmitting this knowledge can probably be 
 
xviii Introduction 
 
 found than b}^ a consideration of the story of our Courts 
 of Law, their origin, their growth, their disuse, their 
 modification, and the more freely this subject is discussed 
 the more clearly will it appear that our laws have been 
 framed and our procedure has been settled in the 
 interests of the people ; that for their benefit these Courts 
 exist; that through the medium of the Courts internal 
 quiet is secured, contracts are enforced, rights are re- 
 spected, and injuries are redressed ; and that the safety, 
 the freedom, and the social happiness of our nation are 
 mainly dependent upon the fearless and impartial adminis- 
 tration of the King's Peace. 
 
 AVlXCHELSEA, Jit/?/, 1895. 
 
CONTENTS 
 
 CHAPTER I 
 
 TIIK ANGLO-SAXON PERIOD 
 
 [A.D. 871-1066] 
 
 I 
 
 The Common Law of England, 2. Dooms of Alfred, 2. Of 
 Canute, 2. Laws of the Confessor, 2. Nature of Anglo- 
 Saxon Procedure, 4 Subjects for Adjudication, 5. The 
 Land, 5. The Rights of the King in regard to his Forest*, 
 5. The Prevention and Punishment of Crime, 5. Matters 
 and Causes Ecclesiastical, 5. Counties or Shires, 6. The 
 Court Baron, 6. Hundred Court, or Wapentake. 8. Trithing, 
 Leete, and Lathe Courts, 11. County Court, 12 Trial be- 
 tween Archbishop Lanfranc and Odo of Bayeux, 14. Insti- 
 tution of the Shireeves Turn, 15. Trial of a Will, 16. The 
 Burh-geat-setl, 17. The Witenagemot, 18. Civil Procedure, 
 18. Oaths in Civil Cases, 19. Criminal Procedure, 19.-- 
 Compurgator's Oath, 20. The Ordeal, or Judicium Dei, 20. 
 Ordeal of Water, 21. Ordeal of Fire or Hot Iron, 21. Trial 
 of Witches, 24. Punishments, 25. Wer, 26. Murdrum, 26. 
 
 II 
 
 The Anglo-Saxon Chancellor, 27. History of the Office, 28. 
 Origin of the Name, 30. Charters of Westminster Abbey, 
 A.D. 1065, 31. The Great Seal, 32. Introduced by the Con- 
 fessor, 34. Its Custody, 35. Lords Lyndhurst and Brougham. 
 3">. Never leaves the Kingdom, 35. Origin of the Custom, 
 37. Wolsey, 38. Swithin, 38. Chaplain and Tutor to King 
 Alfred, 39. The Anglo-Saxon System, 40. Long- continued 
 Affection for the Laws of the Confessor, 42. 
 
x x Contents 
 
 CHAPTER II 
 
 CUKIA REGIS 
 [A.D. 1066-1268] 
 
 Anglo-Saxon and Norman Systems of Jurisprudence, 45. Curia 
 Eegis, 46. The Chief Justiciar, 47. Law Terms, 48.- 
 Westminster Hall, 49. The King's Exchequer, 50. Th^ 
 Exchequer Chamber, 52. Process of the Exchequer, 53. 
 Burning of the Tallies in 1834, 55. The Title of the Ex- 
 chequer, 55. Hearing of Causes, 56. Troubles of Richard dc 
 Anesti, 57. Institution of Judges 1 Circuits, 60 Trial bv 
 Jury, 60. The Great Assize, 62. Wager of Battle, 63. The 
 Court Bolls, 67. -Royal Progresses, 68. Chief Justice of the 
 Common Bench, 70. Decline of the Chief Justiciar, 71. 
 Position of the Smaller Courts, 72. The County Courts, 
 73. The Rise of the Chancellor, 73. Thomas a B3cket, 75. 
 His Connection with Westminster Hall, 76. 
 
 CHAPTER' in 
 
 FUUM THE ACCESSION OF EDWARD I. TO THE DEATH OF HICIIAHD III. 
 
 [A.D. 1272-1485] 
 
 I 
 
 The Courts of Common Law, 77. The Chief Justice of the King's 
 Bench, 80. The Chief Baron of the Exchequer, 81. Division 
 of Business among the Courts, 81. The Common Bench, 83. 
 Judges of the Common Bench, 83. Appointment of Justices 
 of the Peace, 84. Quarter Sessions of the Peace, 85. Per- 
 manence of the Judges. 85. Torture, 87. Opinions of Suc- 
 cessive Judges, 88. The Bar of England, 89. The Order of 
 the Coif, 89. Inns of Court, 91. Writers and Commentators 
 on the Common Law, 92. The Serjeants-at-law, 92. Their 
 Privileges, 93. Their Duties to the Crown and the People, 
 93. Counsellors-at-law. 95. Classification under Richard 
 II., 96. Courts reorganized by Edward L, 96. The High 
 Court of Admiralty, 96. The Peace of the S^as, 98. The 
 Black Book of the Admiralty, 99. The Courts of the Cinque 
 Ports, 102. Court of Shepway, 102. Courts of Trailbaston. 
 103. Court of the Clerk of the Market, 101. An Article of 
 Wolsay's Impeachment, 105. The Court of Py powders, 105. 
 
Contents xxi 
 
 II 
 
 The Chancellor, 10G. The Master of the Rolls, 108. The Rolls 
 House, or Domus Conversorum, 109. Masters in. Chancery, 
 110. The Chancellor's Marble Chair and Table, 111. The 
 Chancellor sitting alone, 112. Definite Subjects for his Ad- 
 judication, 113. Equity and Common Law, 115. Results of 
 this Period, 116. Robss of the Judges and their Officers, 117. 
 The Judges 1 Scarlet, 118. Court of Chancery, 122. Court 
 of King's Bench, 123. The Common Bench, 123. The Ex- 
 chequer, 123. Ordinance of 1635, 125. 
 
 CHAPTER IV 
 
 THK COURTS OF THE FORKST 
 
 The Forest Laws, 127. Dooms of Canute, 128. Primarii, 129. 
 Medial Thanes, 129. Tithing Men, 129. Trial of Forest 
 Causes, 130. Lawing of Dogs, 131. The Confessor, 131. 
 The Conqueror, 132. The New Forest, 133. No Forest Law 
 of the Conqueror known to exist, 134. Position of Free- 
 holders and Husbandmen, 135. Extent of Forest Land under 
 the Norman Kings, 136. Forest Map, 136. The Definition 
 of a Forest, 138. A Chase, 140. A Park, 141. A Warren, 
 141. Beasts of the Forest, 142. Birds of the Forest, 143. 
 Vert, 143. The Purlieu, 143. Extortions, Exactions, and 
 Impositions, 144. Gibbet Laws, 147. Judges of the Forest, 
 148. Chie: Justices of the Forest, 148. Verderers, 148. 
 Agistators, 149. Foresters, 149. Regarders, 149. The 
 Woodmote, 150. The Swanimote, 150. Survey of Dogs, 151. 
 ix Court of the Chief Justice, 152. Purprestures, 152. 
 . Assarts, 152. Jurisdiction of the Chief Justice, 153. Henry 
 I M 154. Stephen, 155. Henry II., 155. Assisa de Foresta, 
 155. Fines, 157. Magna Carta. 158. Carta de Foresta of 
 Henry III., 159. Edward I., 160. The Clergy, 160. Edward 
 III., 161. Richard II., 162. Henry IV., 162. Henry VII., 
 162. Henry VIII., 164. Elizabeth and James I., 164. 
 Charles I., 165. Revives the Justice-seat, 165. A Sinecure 
 Office after the Restoiation, 166. Abolished in, 1817, 166. 
 
x x i i Contents 
 
 CHAPTER V 
 
 FKOM THE ACCESSION <>F HKNKV VII. TO THE KKSIOUATION OF 
 THE MONARCHY 
 
 [A.D. 1485-1660] 
 
 I 
 
 Henry VII., 167. The Star Chamber, 169. The Rack, 173. The 
 Privy Council, 173. The Exchequer Chamber, 174. Collar 
 of SS, 175. Its Supposed Origin, 176. Bestowed on the 
 Offices of Chief Justice and Chief Baron, 180. Suits in 
 forma Pauperis, 180. Cardinal Wolsey as Chancellor, 181. 
 The Chancellor's Mace and Bag, 182. Court of Wards and 
 Liveries, 184. Court of Requests, 185. High Commission 
 Court, 185. Westminster Hall under Edward VI., 186. The 
 Courts in the Time of Queen Mary, 186. Sir Nicholas 
 Throckmorton and the Jury, 187. Revival of Business 
 under Elizabeth, 187. Bacon the First Queen's Counsel, 
 188. Barons promoted to Equality with Judges of King's 
 Bench and Common Pleas, 189. Cursitor Barons, 191. 
 
 II 
 
 Treatment of the Judges by the Stuart Kings, 191. Sir Edward 
 Coke, 192. Felton's Case, 194. Constitution of the Courts 
 on the King's Death, 196. No Judges on his Trial, 196. 
 Appointment of Judges, 196. The Admiralty, 198. Arrears 
 in Chancery, 199. Lord Chancellors and Lord Keepers, 200. 
 Projected Reform, 201. Interference with Judges, 201. 
 Baron Thorpe and Justice Newdigate, 202. Counsel sent to 
 the Tower, 203. Courts and Costumes of Judges, 203. Wigs 
 and Bands, 204.- Judges in Parliament, 206. The Upper 
 Bench, 207. Special Commissions, 209. 
 
 CHAPTER VI 
 
 FROM THC RESTORATION TO THK EKKCTION OF THE SUPREME COUKT 
 OF JUDICATURE 
 
 [A.D. 1660-1873] 
 
 Effect of the Commonwealth on Law and Procedure, 211. The 
 Jlesto ration, 212. Policy, of Retrogression, 212. Appoint- 
 
Contents xxiii 
 
 ment of Judges, 213. Removal of Judges, 213. The Rebuild- 
 ing of London, 214. Sir Matthew Hale, 216. King James 
 If., 217. Judges after the Revolution, 218. Their Tenure 
 of Office, 218. Their Integrity, 218. Complaints of the 
 Judicial System, 219. Mercantile Code established by the 
 Judges, 219. Partial Abolition of the Ecclesiastical Courts, 
 220. The Court of Probate, 219. The Court of Divorce, 219. 
 Proposals for a Supreme Court of Judicature in 1873, 223. 
 The High Court of Justice arid the Court of Appeal, 224. 
 Further Consolidation of the Courts, 225. Suggested Fusion 
 of Law and Equity, 226. Further Division of the High 
 Court, 228. The Chancellor and the Lord Chief Justice, 228. 
 The Ro3 7 al Courts of Justice, 230. Former Alterations in 
 the Courts, 232. The Removal from Westminster to the 
 Strand, 233. 
 
 ADDENDA 237 
 
 INDEX .... 247 
 
LIST OF ILLUSTRATIONS 
 
 PAGK 
 
 Westminster Hall ". Frontispiece 
 
 Great Seal of Edward the Confessor . . . Face page 32 
 
 The Great Exchequer Court ., 53 
 
 Wager of Battle ,,64 
 
 Hanaper and Tally ,.68 
 
 Court of King's Bench 80 
 
 Court of Common Pleas ,. 83 
 
 Black Book of the Admiralty ,,99 
 
 Court of Chancery 122 
 
 Court of Exchequer 124 
 
 Forest Map. ,,137 
 
 Seals o-f the Forest ,,148 
 
 Collars of SS ,,177 
 
 Sir Edward Coke ....... .,181 
 
 Queen Elizabeth's Bed-chamber .... 187 
 
 Plan of Westminster Hall in 1795 . 2; 5: 1 
 
THE KING'S PEACE 
 
 CHAPTER I. 
 
 THE ANGLO-SAXON PERIOD. 
 
 (A.D. 871-10(;<;.) 
 
 I. 
 
 The Common Law of England Dooms of Alfred Of Canute- 
 Laws of the Confessor Nature of Anglo-Saxon Procedure 
 Subjects for Adjudication The Land The Rights of the 
 King in regard to his Forests The Prevention and Punish- 
 ment of Crime Matters and Causes Ecclesiastical Counties 
 or Shires The Court Baron Hundred Court or Wapentake 
 Trithing, Leete and Lathe Courts County Court Trial 
 between Archbishop Lanfranc and Odo of Bayeux Institu- 
 tion of the Shireeves Turn Trial of a Will The Burh-geat- 
 seti The Witenagemot Civil Procedure Oaths in Civil 
 Cases Criminal Procedure Com pur gator's Oath The Or- 
 deal or Judicium Dei Ordeal of Water Ordeal of Fire or 
 Hot Iron Trial of Witches Punishments Wer Murdrum. 
 
 THE position which King Alfred holds in relation to 
 English Law and Procedure has been so much exalted on 
 the one hand, and depreciated on the other, that the icono- 
 clastic spirit of modern writers raises a doubt whether 
 his existence as a statesman, a law-giver, and a scholar, 
 is more authentic than that of King Arthur. Whatever 
 may be the justification for this scepticism, his splendid 
 reign is, for many reasons, a convenient epoch from which 
 to start on the consideration of our subject. We are 
 told that he wrote a book of his laws ; and Alfred's 
 Dooms (A.D. 871-901) contained in an Anglo-Saxon MS, 
 
 B 
 
The King's Peace 
 
 in the Library of Corpus Christ! College, Cambridge, was 
 published with a careful translation by the Commis- 
 sioners of Public Records in 1840. 1 Alfred's Dooms 
 were followed by a compendium of laws by Canute (A.D. 
 10 17-1035) 2 which continued, with slight alteration, to 
 represent the English Law till the time of Edward the 
 Confessor, after which the laws and customs of the realm 
 were again collected and promulgated as a code or record 
 of customs under the title of Laws of the Confessors 
 They have thus become the foundation of all English 
 jurisprudence, being known by the style and title of the 
 Common Law of England. Whether this body of law 
 took its origin, as suggested by Csesar, 4 from the Druids, 
 who delivered their judgments under the oak or beside 
 the cromlech, or -whether, as Lord Ellesmere supposes, it 
 dated still further back, and derived its inspiration from 
 the first instincts of Nature founded on the Law of God, 
 the Common Law of England, an unwritten but well- 
 recognised customary code, had undoubtedly received 
 emendations and accretions from each of the various 
 dynasties by which the country had been ruled. The 
 Roman, the Dane, but above all the Teuton, had given 
 tone and colour to the mass, so that it became from time 
 to time suited to the somewhat conglomerate people for 
 whose use it was framed. 
 
 It was an unwritten law, in the sense that there existed 
 for its exposition no code and no statute, although there 
 
 1 Ancient Laws and Institutes of England, vol. i. p. 44. 
 
 2 Laws of King Cnut, ib., 358. 3 Ibid., p. 41'J. 
 4 De Bella Gallico, lib. vi. 
 
The Anglo-Saxon Period 
 
 were even then in the hands of the clerks, and of the 
 officers of State, some few writings such as those to which 
 I have referred, in which the law was recorded and 
 explained. But it was mainly preserved in the breasts 
 and in the closets of the clergy, who, as a rule, were the 
 only persons educated in the law ; in the knowledge and 
 recollection of the Thanes and the landowners whose lands 
 and whose persons were governed by it ; and in the tra- 
 ditions handed down from father to son by the freeholders 
 and the husbandmen who felt its pressure and who claimed 
 its protection. In this respect the English system differed 
 from that of most other countries of the time, inasmuch 
 as the latter had their laws in written codes, to which the 
 learned or the interested could from time to time refer 
 a contrast which, even as late as the reign of Henry III., 
 struck one of our great juris-consults and legal writers, 
 Henry Bracton, who, writing however with some lack 
 of exact information, remarks, " In all other countries 
 they use written laws : in England alone they rely on 
 custom and on unwritten law." This customary or un- 
 written law, therefore, as it existed at the time of the 
 Confessor, was the Common Law of England, bonce et 
 approbates antiques leges Anglice, "the good and well 
 approved old laws of England," referred to over and over 
 again in Charters and in Statutes: the law which the 
 Conqueror swore faithfully to observe when he took the 
 coronation oath, and to which the Barons referred when, 
 in answer to the demand that they should alter the law 
 of succession to real estate, in accordance with Norman 
 custom, they returned the haughty answer, " Nolumus 
 
The King's Peace 
 
 Au</li<r iinituri." This is the Common Law of 
 England, which we speak of to-day as distinguished from 
 the statute or written law contained in a series of Acts of 
 Parliament passed since the conquest ; and it is typical 
 of the sturdiness and tenacity of the Anglo-Saxon strain, 
 that a great part of the customary law under which we 
 are now governed comes in a direct line from our an- 
 cestors before the Conquest. It must nevertheless be 
 admitted, upon perusal of the somewhat imperfect records 
 that we possess of what our distant forefathers regarded 
 as law, that it was of a semi-barbarous character, often 
 cruel, often capricious, and depending, especially in 
 criminal matters, very much upon the law of chance, 
 which in their ignorance and superstition they were apt 
 to regard as the direct interposition of Heaven. 
 
 Although there was no great alteration in the law from 
 the death of Alfred to the accession of Edward, there 
 was necessarily some extension and modification in the 
 manner of its administration. During the years which 
 covered this period population had increased, new in- 
 terests had been created, commerce had grown up inter- 
 nally and externally, there was more education among the 
 upper classes, and the frequent communication between 
 England and Normandy had led to some taste for luxury 
 and refinement. But such changes as there were in the 
 administration of the law were to be traced to German 
 rather than to Norman sources, although King Edward, 
 as a result of his Norman education, is believed to have 
 introduced some innovations. These, however, if any, 
 were small, and the law continued to be administered 
 
The Anglo-Saxon Period 5 
 
 under him in substantial accordance with the procedure 
 which had been observed under his predecessors. 
 
 The subjects to be dealt with, out of which questions 
 for adjudication arose, were : 
 
 (1) The Land. This involved the rights of the King 
 as against his subjects clerical and lay. The rights and 
 duties of the Lords and landowners towards the King, 
 towards each other, and towards their tenants or their 
 villeins. 
 
 (2) The rights of the King in regard to his forests and 
 all unoccupied spaces, together with forfeitures and fines. 
 
 (3) The prevention and punishment of crime. 
 
 (4) Matters and causes ecclesiastical, involving many 
 questions of much nicety and at times of danger to the 
 public peace. 
 
 Personal property was of comparatively small account 
 and entered little into legal consideration. 
 
 Procedure varied but little in the several states. 
 Alfred and his lineal descendants accepted the plan based 
 on the conception of independent communities, which has 
 ever since been recognised as politic and wise, by which 
 the country was divided into sections, each being under a 
 chief officer with various subordinates, and these sections 
 sub-divided again and again, till every man, woman and 
 child was found to be settled in a community where 
 he was known to all the other members of that com- 
 munity, and was easily accessible for purposes of legal 
 process, of military service, or of taxation. A recognised 
 head of each subdivision, responsible to his immediate 
 superior and through him indirectly to the King, was 
 
The King's Peace 
 
 thus at hand for every member to whom in time of need 
 he could apply for justice or protection. These sections 
 were called counties or shires, and with few exceptions, 
 they are identical and co-terminous with the counties of 
 England as they exist to-day. The county was then 
 divided into hundreds, the terms implying, as is supposed, 
 either a hundred hides of land, equal in extent to about 
 ten thousand acres, or a hundred friboroughs or decades. 
 The hundreds were again sub-divided into tithings or 
 tenths, and there were other sub-divisions for various 
 purposes. The chief judicial officer of the county was 
 called the Shire-reeve, afterwards the Sheriff. Of a 
 similiar, if not a more exalted position in social rank 
 and dignity, was the alderman. And the Baron or Lord 
 of the Manor (a Thane), was the head of the Manor, to 
 which a manorial Court is always appurtenant. Each of 
 these persons and some others (as hereinafter mentioned), 
 held his Court at stipulated seasons. And as these were 
 the most antient Courts of the country and their names 
 still subsist, although their jurisdiction has been cur- 
 tailed, I will deal with them before passing to the con- 
 sideration of those of more recent institution. 
 
 The MANOR COURT was held under the presidency of a 
 Thane, a Baron or a head borough, as the case might be, 
 for the trial of causes arising within the manor, or if 
 both parties were content to accept the jurisdiction, in 
 reference to persons or things connected with the manor, 
 but not within it. If, however, the cause of action was 
 between persons, one of whom was not subject to the 
 jurisdiction of the Manor Court, the suit, upon objection 
 
The Anglo-Saxon Period 
 
 taken, could not proceed, but was removed to the Court 
 of the Hundred, or to such other Court as had the 
 requisite authority. A Manor Court being thus primarily 
 attached to every manor of which the Baron or Lord 
 was the head, there would seem necessarily to have been 
 in the kingdom as many Courts as there were Manors. 
 Some of these, however, were so small as not to be 
 capable of providing a sufficient number of freemen to 
 constitute a Court, and under these circumstances their 
 causes, if tried at all, were disposed of at the Court of the 
 Hundred. The Baron proceeded by appointing from the 
 freeholders at least ten judges or triers, who knew person- 
 ally or by repute the other inhabitants of the manor or 
 village, and who were responsible for their production 
 when their presence was required, or for the fines imposed 
 upon, or compensation demanded of the manor for injuries 
 inflicted by the inhabitants if the malefactors themselves 
 could not be produced. The Court sat by custom once a 
 fortnight, until Henry III. restrained their sittings to 
 once in every three weeks, and it was held in the Manor 
 House, which had then become not only the home of the 
 Lord of the Manor, but also the local Temple of Justice. 
 I am not aware that any Anglo-Saxon Manor House is 
 still in existence, but the Manor itself is still part of our 
 legal and social system, though facilities are now afforded 
 for enfranchising all manors and turning them into free- 
 holds. There are many, however, which are not yet enfran- 
 chised, where tenants are still admitted by quaint devices 
 according to immemorial custom, and where heriots are 
 still due upon the demise of every tenant for life. An 
 
8 The King's Peace 
 
 antient building, probably of the 16th century, at Water 
 Eaton, near Oxford, would give a good example of the 
 development of the old Manor House. A square-built man- 
 sion with spacious hall forms the top of a square. Rooms 
 for servants, and stables for horses and cattle, occupy the 
 two sides ; the dovecote which, in the olden days, a Lord 
 of the Manor or a freeholder was alone entitled to erect, 
 and a chapel are close to the main structure ; and a square 
 open space is then left in the centre of the buildings, 
 where tenants, labourers, and litigants might wait their 
 turn out of doors, while other business was being trans- 
 acted within. Some such building, if fancy could people 
 it with Anglo-Saxons, would give a good picture of what 
 the Baron's Court would have been in the alternate weeks 
 of its session. 
 
 The HUNDRED GEMOTE, otherwise the COURT of the 
 HUNDRED or WAPENTAKE, was a Court of higher and 
 more extended jurisdiction than the Court Baron. It was 
 recognised by an Ordinance of King Edgar (A.D. 954- 
 975), 1 who declared that it should meet always once with- 
 in four weeks, and that every man should do justice to 
 another. It tried causes civil, criminal, and ecclesiasti- 
 cal, sitting once in each month as ordered by Edgar and 
 his successors, until Henry III., acting as in the case of 
 the Court Baron, ordained that its sittings should take 
 place once in every three weeks. It was presided over by 
 a Sheriff or an Alderman when in the hundred, who sat 
 with the freeholders acting as judges, and tried tho 
 
 1 Ancient Laics and Institute*, vol. i. p. 2G9. Stubbs 1 
 
The Anglo-Saxon Period 
 
 causes. The title of Baron did not originally import any 
 rank of nobility, but commonly denoted a freeman and a 
 landowner, who was the only person qualified for certain 
 important positions. The name still exists in the same 
 sense. Thus the expression " baron and feme " to repre- 
 sent man and wife is well known in legal phraseology. 
 The Barons of the Exchequer, as will hereafter appear, 
 were originally none other than good men and afterwards 
 high officials who sat in the Exchequer to discharge their 
 duty to the King in the due assessment and recovery of 
 his revenue. And the Barons of the Cinque Ports, 
 originally the Mayors and Jurats of those towns, are to 
 this day called over from the Roll of Parliament, as repre- 
 sentatives of the Cinque Port towns of Hastings, Dover, 
 and Hythe. The title, however, was probably not used in 
 England before the time of the Confessor. 
 
 With the Alderman, who was frequently himself an 
 ecclesiastic, a Bishop or Archdeacon was usually associ- 
 ated as assessor when questions were tried contra pacem 
 ecclesice, " against the peace of the Church," or when 
 otherwise the interests of the Church were directly con- 
 cerned. And here, again, the court only had jurisdiction 
 over persons or lands within its territorial limits. Cases 
 beyond these limits were disposed of in courts of more 
 extended powers. The judges in these Hundred Courts 
 were freeholders drawn from dwellers in the Hundred 
 who had personal knowledge, as was supposed, of the 
 reputation of their co-dwellers. They were sworn as 
 compnrgators, if willing, in criminal cases,, and they 
 decided according to their knowledge on all questions 
 
10 The King's Peace 
 
 of contract, or of right to land or dower. The judg- 
 ment of these courts was, therefore, that of a man's 
 neighbours, who knew him from his youth, and could 
 say whether he was a person to be believed upon his oath. 
 And as the parties themselves were their own counsel, 
 the procedure in civil cases must have partaken more 
 of the form of an arbitration than of an action at law. 1 
 An appeal apparently lay from this to the County Court, 
 but not till after the party had applied again and again to 
 the Court of the Hundred, and had been refused redress. 2 
 
 It is not stated where this Court held its sitting, but 
 it probably did so in the open air, or in any Manor Court 
 which might be available for the purpose. 
 
 In the laws of Edward the Confessor, Sec. 30, 3 in 
 illustration of the rude procedure of the period, an expla- 
 nation is given of the term Wapentake as applied to the 
 Hundred Court. It is there said that when the President 
 of the Court arrived at the appointed place, all the suitors 
 and others, gathering to the accustomed spot, dismounted 
 from their horses and received him under their spears. 
 And then he, raising his own spear in the midst, touched 
 theirs, and was thus confirmed in his post. In justifi- 
 cation of this theory, it is said that the words composing 
 
 1 Athelstane (A.D. 925) ordered search to be made for men 
 who were known not to be liars, so that there might always be a 
 number of truthful jurors forthcoming when their attendance 
 was required to vouch the character of a litigant. Laws of 
 JEthehtane. Ancient Laws and Institutes, vol. i. p. 223. Stubbs' 
 Charters, p. 65. 
 
 2 Ancient Laws and Institutes. Laws of Cnut, vol. i. p. 385. Dug- 
 dale's Oriyines Juridiciales, fol. 29. 
 
 3 Ancient Laws and Institutes, vol. i. p. 455. 
 
The Anglo-Saxon Period 11 
 
 the name Wapentake are ivcepen (arms) and taccare (con- 
 firm), and that thus the assembled warriors bound them- 
 selves to uphold by their arms the authority of their chief. 
 The tradition is probably accurate, but the combination 
 of Saxon (wsepen) and Latin (taccare) is not satisfactory. 
 The TRITHING, the LATHE COURT, and the COURT LEETE, 
 were Courts of a similar character to that of the Hundred, 
 but they tried cases over which the latter had no juris- 
 diction. The Tri thing, or modern Riding, as found in the 
 counties of York and of Lincoln, according to the laws of 
 the Confessor, Sec. 31, J was composed of three hundreds, 
 and could therefore try cases over three times the area 
 of the Hundred Court. The Lathe Court had probably 
 the same jurisdiction. This latter was peculiar to the 
 county of Kent, where the territorial division of the 
 county into Lathes 2 still exists, and is said to be com- 
 posed of three hundreds. The Court Leete, however, had 
 no territorial limit. It was chiefly concerned with the 
 affairs of manors, towns, and cities, and exercised mainly 
 a criminal or quasi-criminal jurisdiction. The Leetc 
 Jurisdiction of Nomvich, recently published by the 
 Selden Society, affords information as to the extent and 
 variety of the pleas in this Court. It appears to 
 have had conferred upon it in more recent times some 
 jurisdiction in regard to offences under the Forest 
 Laws. At a later period, probably about Henry VII., 
 the jurisdiction of these Courts in matters of debt and 
 
 1 Ancient Laws and Institutes, vol. i. p. 455. 
 
 2 The original name is supposed to have been " Lething," a 
 military levy. Lappenberg's Anglo-Saxons, vol. ii. p. 330. 
 
12 The Kings Peace 
 
 damages was limited to forty shillings, a sum, however, 
 which, at that time, would represent about twenty pounds 
 of our present money. Their early course of procedure is 
 subject to much difference of opinion, but I apprehend that 
 the freemen were the judges, as in the Court of the 
 Hundred, and that an appeal lay probably on a denial 
 of justice, to the County Court. 
 
 The COUNTY COURT, as it was among the most antient, 
 so also was it among the most active and important in 
 the kingdom. It was held under the Presidency of the 
 Sheriff once in every month, according to the laws of 
 Edward the Elder (A.D. 901-924) and of Canute, at a time 
 and place to be duly appointed. 1 The Sheriff sat in a 
 Court of his own, or in a Manor Court, if there were one 
 convenient. If there were none, then in the open air or 
 a church. Dugdale, who is responsible for this latter 
 statement, refers in support of it to the instance of a 
 proceeding against a certain priest whom the people, 
 suitors and litigants having met together at the church 
 early in the morning to plead, but before the pleading 
 began inquired for the priest to say mass, u found that 
 he had the night before slept with his wife," 2 which 
 precluded him from singing the early mass, and laid him 
 open to ecclesiastical censure. Further confirmation of 
 
 1 Laws of King Edward, section 11: "I will that each Reeve 
 have a gemot always once in four weeks ; and so do that every 
 man be worthy of folk-right ; and that every suit have an end 
 and a term when it shall be brought forward." Ancient Lair* 
 and Institutes, vol. i. p. 165. Dugdale's Oriyines Juridicialex, fol. 
 28: "And so is the County Court holden to this day." Coke, 
 Mli Institute, p. 259. 2 Orifjines Juridiciales, fol. 31. 
 
The Anglo-Saxon Period 13 
 
 this is also found in the fact that the Bishops resolutely 
 discouraged the practice of holding secular courts in 
 churches and churchyards, and at the Synods of Exeter 
 and Winchester, in 1287, the Bishops formally inhibited 
 the use of churches and churchyards for these secular 
 purposes. 
 
 The County Court had jurisdiction in civil, criminal, 
 and ecclesiastical causes, the Sheriff associating to him- 
 self a Bishop or an Archdeacon if necessary, together 
 with other ecclesiastical or learned persons, who might 
 aid him in the administration of justice. They tried, as 
 may be seen from the instances recorded by Dugdale, 1 
 the title to land in the county, the right to tithes, 
 bargains and sales of land, services and customs, and 
 other causes of great moment. They also heard cases in 
 the nature of appeals from the Hundred, Lathe, and 
 Tri thing Courts, in regard to any suits where the suitors 
 in the inferior courts complained of the conduct or per- 
 versity of the judges or the presidents. The judges of 
 these courts were the freeholders of the county, who 
 were summoned by the Sheriff, and who in this instance 
 were called not the jurors or triers, but sectatores or the 
 suitors of the court. These decided all questions of law 
 and of fact ; the Sheriff or Alderman, as the case might 
 be, who presided, not being for this purpose a judge; 
 and, as far as can be ascertained, their judgment was 
 not required to be unanimous, but in case of difference 
 the opinion of the best men was to prevail. 2 
 
 1 Oriyines Juridiciales, fol. 29. 
 
 2 Ancient Laws and Institutes, vol. i. p. 612. The words ct 
 
14 The King's Peace 
 
 Numerous instances are given in the old records of 
 trials of much interest in these County Courts. It will, 
 however, suffice to notice one which took place in the year 
 107G, the tenth year of King William I., in which Lan- 
 franc, Archbishop of Canterbury, was the plaintiff, and 
 Odo, 1 Bishop of Bayeux and Earl of Kent, half brother to 
 the Conqueror, was defendant. The action was brought 
 to try the title of Odo as Earl of Kent to certain lands in 
 the county which, formerly belonging to the see of 
 Canterbury, had since been seized by Odo under some 
 claim of right. The lands and the parties being in Kent, 
 the case came on to be tried in the court of that county 
 held according to custom on Penenden Heath, a table land 
 overlooking the town of Maidstone. This was formerly a 
 Roman encampment ; it is in the immediate neighbourhood 
 of many Druidical remains, and has for hundreds of years 
 been dedicated to the administration of justice, to the 
 execution of malefactors and to public assemblies of 
 freeholders and voters of the county. The court was 
 presided over by Hamo, Sheriff of Kent, with whom were 
 associated Geoffrey de Coutance, a Justiciar of the King, 
 and Egelric, Bishop of Selsey. 2 This ecclesiastic, then 
 
 cui justicia mayis acquieverit are added ; but the practice indi- 
 cated is inexplicable, unless it means that in an equal division 
 of opinion the Sheriff is to have a casting vote. 
 
 1 Odo the Bishop is a prominent figure in the Bayeux tapestry, 
 where he appears in a coat of mail leading the Norman cavalry 
 into action. But carrying out the principle that an ecclesiastic 
 must not be a shedder of blood, he is armed with a huge baston 
 or club instead of the customary sword or lance. 
 
 2 He is usually described as the Venerable Bishop of Chichester : 
 this is hardly accurate. The see of Chichester was not created 
 
The Anglo-Saxon Period 
 
 of very advanced age, was brought to Penenden Heath 
 from beyond Chichester through the forest in a wagon to 
 instruct the judges in the antient laws and customs 
 of the Realm as " the most skilful person in the know- 
 ledge of them." * The court, composed of divers barons 
 as suitors, sat for three days, at the end of which period 
 they gave a verdict for the Archbishop, and twenty-five 
 manors in Kent formerly seized by Odo were adjudged to 
 belong to the see of Canterbury. 
 
 The SHIREEVE'S TURN was a session of the County 
 Court held twice in the year, in each hundred, by the 
 Sheriff and Bishop, if the Sheriff were forthcoming, or by 
 the Alderman and Bishop if there were no Sheriff. It 
 was called once after Easter and once after Michaelmas, 
 with a Bishop to direct in Divine and a Sheriff or Alder- 
 man to direct in secular matters. 2 It enquired into frank- 
 pledge and had power to proceed alike against those who 
 broke the peace of the Church, and those who broke the 
 peace of their Lord the King. 
 
 Business was taken in the following order : 3 (1) Eccle- 
 
 till after the death of Egelric (or Elfric) when Stigand (not the 
 celebrated Archbishop) was appointed. He died in 1087. Elfric 
 was appointed Bishop of Selsey by the Confessor in 1057, and was 
 continued in that see by William/'who consulted him on all 
 questions relating to the national jurisprudence of the kingdom. 
 Lower's Worthies of Sussex, p. 101. See also Lappenberg's Anglo- 
 Xorman Kings, pp. 145-171. 
 
 1 Foss' Judges, vol. i. pp. 26, 39. Dugdale's Origines Juridiciales, 
 fol. 30. .Reeve's History of English Law, vol. i. 
 
 2 Laws of Edgar, sec. 5. Ancient Laws and Institutes, vol. i. 
 p. 269. Laws of Cnut, ib., p. 387. 
 
 3 Coke's Institutes, vol. iv. p. 260. 
 
1 6 The King's Peace 
 
 siastical. (2) Pleas of the Crown or Criminal Cases. (3) 
 Causes between party and party. The practice of a 
 Bishop or other ecclesiastic sitting along with a Sheriff 
 or Alderman was strongly objected to by the clergy after 
 the Conquest, who wished to try ecclesiastical matters in 
 their own courts, and both William the Conqueror and 
 Henry I. inhibited Bishops and Archdeacons 1 from sitting 
 in Civil Courts to try ecclesiastical matters, a decree 
 which did not, however, prevent the clergy sitting as 
 judges in other cases. And as they were the only 
 persons really conversant with Roman Law and in- 
 structed in the Laws and Customs of England, they were 
 for many generations necessarily selected as justices 
 in the King's Courts. It seems, moreover, notwith- 
 standing such inhibition, that the secular courts continued 
 to try clerics and their causes till the law relieved eccle- 
 siastical suits altogether from liability to be instituted 
 and tried by the process of Civil Courts. Hallam 2 
 gives an account of a so-called trial in the Shire-gemote 
 in the reign of Canute. But according to the report, the 
 business partook less of the nature of a trial at law than 
 of the settlement of a family dispute between a mother 
 and her son, in the course of which the former declared her 
 will to be in favour of her daughter and not of her son 
 a declaration which appears by leave of the court to have 
 been recorded in the parish church. 3 The matter does 
 
 1 Ancient Laws and Institutes, vol. i. p. 213. 
 a Middle Ayes, vol. ii. p. 280. Essays in Anylo-Saxon Law. 
 8 It was, however, a common practice of the Anglo-Saxons to 
 deposit treasure and valuable documents of all kinds in the 
 
The Anglo-Saxon Period 17 
 
 not seem to have been tried as a cause, and the court 
 under those circumstances more nearly resembled a 
 BURH-GEAT-SETL, or seat at the town gate, a court 
 which, according to Selden, was convened for the purpose 
 of trying family quarrels and disputes between tenants. 1 
 The case is interesting, however, as being an early instance 
 of a nuncupative testament or verbal will of lands and 
 goods having been given effect to by the court and 
 finding its record on an ecclesiastical and not a secular 
 roll. 
 
 These courts were still exercising their functions under 
 the same presidents, and with the suitors as judges, when 
 the Great Abridgement of the Law was published in the 
 33rd year of King Henry VIII. According to the table 
 contained in that book, the courts of the hundred and of 
 the county tried at that time, among various other plaints, 
 actions on the case, actions for the admeasurement of 
 dower and of pasture, customs, services, debt, detinue, 
 dower, wardship, trespass and nuisance. Their jurisdic- 
 tion in matters of debt and account was then, however, 
 limited to forty shillings. If they exceeded that amount 
 a prohibition would issue, and further proceedings in the 
 suit would be stayed. 
 
 The times of the sittings remained as previously fixed, 
 viz., the Hundred Court once in three weeks, the County 
 Court once in the month, and the Shireeves Turn or 
 
 parish church for safe custody, and not necessarily for enrolment. 
 Lappenberg's Anglo-Norman Kings, p. 143 . 
 
 1 Selden: Ancient Laws and Institutes, vol. ii., glossary. 
 
 C 
 
1 8 The King's Peace 
 
 Tourne de Vicomtc, as it was then called, twice in the 
 year. 1 
 
 The WITENAGEMOT, or meeting of wise men is usually 
 referred to as the court of highest consideration under the 
 Anglo-Saxon system. It sat at the king's palace, was 
 attended by him and by the great officers of State, and 
 did on occasions try cases of great importance, either from 
 the subject-matter of the dispute, or by reason of the 
 eminence of the parties concerned. 2 It resembled, how- 
 ever, a great Council rather than a Court of Justice. Its 
 sittings were spasmodic, and it can hardly be reckoned 
 among the judicial tribunals of the country. 
 
 The mode of trial used by the Anglo-Saxons for the 
 determination of civil suits has never been definitely 
 ascertained. The better opinion seems, however, to be 
 that the parties were put to their oaths, and were sup- 
 ported by witnesses on each side who swore, if necessary, 
 that they believed the plaintiffs or the defendant's con- 
 tention to be true. If this were not sufficient, the wit- 
 nesses were questioned by the court ; and if that failed to 
 secure a determination, they went to the proof by one or 
 other form of ordeal. 
 
 The following Anglo-Saxon oaths in civil cases give 
 good examples of the procedure. In the case of a plaintiff 
 
 1 The Greate Abbrigement, etc., London, 1542, fol. 64, 137. 
 L'authorite et jurisdiction des Courts de la majestic de la fioi/ync, 
 by R. Crompton. London, 1594, fol. 231. " And so is the Turn 
 holden to this day." Coke, 4th Inst., p. 259. 
 
 2 Eeeve's History, vol. i. p. 17. 
 
The Anglo-Saxon Period 19 
 
 finding the cow or horse which he had purchased to be 
 unsound, he swears as follows : 
 
 " In the name of Almighty God, thou didst engage to 
 me sound and clean that which thou soldest to me, and 
 
 full security against after-claims on the witness of N , 
 
 who was then with us two." 
 
 N , the witness, then swears : 
 
 " In the name of Almighty G-od, as I here for in true 
 witness stand, unbidden and unbought, so I with my eyes 
 oversaw, and with my ears overheard that which I with 
 him say." 
 
 The defendant swears : 
 
 " In the name of Almighty God, I knew not in the 
 thing about which thou suest foulness, or fraud, or infir- 
 mity, or blemish, up to that day's tide that I sold it to 
 thee ; but it was both sound and clean, without any kind 
 of fraud. 
 
 " In the name of the living God, as I money demand, so 
 
 have I lack of that which promised me when I mine 
 
 to him sold." 1 
 
 In the CRIMINAL PROCEDURE of the period, as in civil 
 process, the party was put to his oath, and was tried by 
 the sheriff or alderman, with triers or judges selected as 
 for civil causes. Once before the court, however, the 
 procedure against the defendant was barbarous, super- 
 stitious and illogical. There were two modes of trial 
 for the defendant who denied the charges against him. 2 
 
 1 Ancient Laws and Institutes, vol. i. p. 181. 
 
 2 Keeve's History of English Law, vol. i. p. 27. Lappenberg's 
 Anglo-Saxons, vol. ii. p. 345. 
 
2O The King's Peace 
 
 First, if it was not a matter of such notoriety as to admit 
 of no defence, the party could purge himself on a first 
 offence by his oath and the oaths of certain of his neigh- 
 bours called compur gators, who swore that they knew 
 him, and that they believed he spoke the truth in denying 
 the offence. The oaths were as follows. The accused 
 swore in Saxon : l 
 
 " By the Lord I am guiltless, both in deed and counsel, 
 of the charge of which N accuses me." 
 
 The compurgators each swore : 
 
 " By the Lord, the oath is clean and unperjured which 
 he hath sworn." 
 
 This amounted to an acquittal. But if it were not his 
 first offence, or if his compurgators did not agree to make 
 the necessary oath, he was put to the ORDEAL, or God's 
 judgment of fire or water. Of these judgments the ordeal 
 of fire or hot iron was applied to noblemen and freemen 
 as being the more honourable and more easy ; the ordeal of 
 water being reserved for husbandmen or persons under 
 the rank of a freeman. 
 
 The ordeal was regarded as a religious rite. It was 
 conducted by the priests in the parish church, and the 
 intervention of Providence was thus assumed to be se- 
 cured on behalf of the innocent. To accomplish this 
 result, the party charged was handed over to the Church 
 to be prepared by prayer and fasting for the trial he had 
 to undergo. After three days' preparation, he was brought 
 into the church by the priests, and stood in the presence 
 
 Ancient Laws and Institutes, vol. i. p. 181. 
 
The Anglo-Saxon Period 21 
 
 of his accuser, each party being accompanied by friends 
 not exceeding twelve in number. Certain collects were 
 then read, and prayer was offered up that heaven would 
 interpose on behalf of the innocent. The accused, if the 
 ordeal were by hot water, then plunged his naked hand 
 or arm, according to the gravity of his alleged offence, 
 into a bowl of boiling water, and picked out a stone 
 which was suspended therein ; in the former case to the 
 depth of a man's hand, and in the latter to the depth of 
 a cubit. If his hand or arm came out uninjured, it was 
 assumed that heaven had worked a miracle to declare 
 his innocence. If, on the contrary, his hand or arm was 
 injured by the water, he was held to be guilty. In the 
 ordeal by cold water he was, after three days' fasting 
 and preparation, tied with his thumbs to his toes, and 
 in this condition was thrown into a stream. If he sank 
 he was innocent; if he floated he was guilty. Before, 
 however, this was done, the accused was given holy water 
 to drink, and the priest addressed the stream, adjuring it 
 in the name of the Almighty who first created the water ; 
 by the baptism of Christ in the waters of Jordan ; by His 
 walking on the water ; by the Holy Trinity, by whose will 
 the Israelites passed dry-footed over the Red Sea, and at 
 whose invocation Elisha caused the axe to swim, not to 
 receive the accused if he were guilty, but to make him 
 swim upon it. 1 
 
 In the ordeal of hot iron, after the accused had been 
 similarly prepared, the fire was brought into the church, 
 . 
 
 1 Dugdale's Oriyines Juridiciales, fol. 87. 
 
22 The Kings Peace 
 
 after which no one was allowed to enter but the priest 
 and the accused. Nine feet were then measured from the 
 fire to a mark, being nine times the length of the man's 
 foot. The iron, weighing from one to three pounds, ac- 
 cording to whether it was the single or the threefold 
 ordeal, 1 was then laid upon the embers, where it remained 
 while the mass of judgment was performed, until the 
 last collect was read. It was then placed upon the 
 stapela (a pile of wood). The hand of the accused was 
 then sprinkled with holy water and he took the hot iron. 
 With this he walked the prescribed nine feet, when he 
 threw down the iron and went direct to the altar where 
 his hand was bound up by the priest. 
 
 After three days the bandage was removed in the 
 presence of all parties, 2 and his guilt or innocence de- 
 pended upon the appearance of his hand. 3 If the wound 
 was clean, he was innocent ; if impure, he was guilty. 
 
 By another method the supposed culprit walked be- 
 tween red-hot ploughshares a foot apart, 4 and by another, 
 
 1 Ordinances of Edgar (A.D. 959-975). Ancient Laws and Innti- 
 tutes, vol. i. p. 261. Stubbs 1 Charters, p. 70. 
 
 a Laws of Athelstane, sec. 7. Ancient Laws and Institutes, vol. 
 i. p. 227. Dugdale's Oriyines Juridiciales, fol. 86. 
 
 8 " Ce qui doit, je crois, faire entendre que Ton n'etait pas 
 coupable quand la main conservait des marques de brulure, 
 mais seulement lorsque la brulure tombait en suppuration."- 
 Glanvil, p. 352. Houard, Traitd sur les Continues Amjlo- 
 Normandes, torn. i. p. 577. 
 
 4 The legend that Emma or -ZElfgifu, mother of the Confessor, 
 being charged with unchastity, purged herself by walking bare- 
 footed over nine red-hot ploughshares in Winchester Cathedral 
 is now suggested to be without foundation. See Freeman's For- 
 
The Anglo-Saxon Period 23 
 
 called offa exccrata, the accused was given a piece of 
 bread from the altar. If he swallowed it, well : but if, 
 like Macbeth's Amen, it stuck in his throat, he was 
 guilty. 1 Another mode was to blindfold the accused 
 and make him select from two pieces of wood, one being 
 plain and one marked with a cross. If he chose that 
 which bore the cross, he was free ; but if he chanced on 
 the other, he was guilty. 
 
 Sir Matthew Hale is of opinion that this form of trial 
 by ordeal hardly survived the Conquest, having been con- 
 demned by the clergy as cruel and inconclusive, and that 
 it was obsolete by the time of King John ; trial by battle, 
 an equally illogical plan, being the Norman substitute. 
 Dugdale, however, who was contemporaneous with Sir 
 Matthew Hale, is of opinion 2 that the Ordeal continued 
 till the reign of Henry III., when it was abolished by an 
 ordinance of that monarch, a copy of which he sets out in 
 his book, reciting that the Ordeal was condemned by the 
 Roman Church, and leaving it to the discretion of the 
 justices not to enforce it. This opinion of Dugdale is 
 supported by a perusal of the list of fines paid into the 
 exchequer during the reigns of Henry II., Richard, John, 
 and Henry III. 3 From this it would appear that in the 
 
 man Conquest, vol. ii. p. 368. Lee's Wager of Battle, etc., p. 258. 
 The earliest authority for the story is Richard of Devizes, and it 
 certainly has no inherent improbability. 
 
 1 Godwin is said to have been choked by a piece of bread 
 blessed by the Confessor. Lappeiiberg's Anglo-Saxons, vol. ii. 
 p. 258. 2 Origines Juridiciales, fol. 87. 
 
 3 Madox's History of the Exchequer, vol. i. p. 557. Ibid., pp. 
 544-47. Lyttleton's History of Henry II., vol. iii. p. 214. 
 
24 The King's Peace 
 
 12 Henry II. the Soke of Averton was fined ten marks 
 for putting one to the judgment of water without the 
 presence of the king's officer (scrvicns rcgis) ; that in the 
 21 Henry II., Philip, the son of Wiard, and five others, 
 were fined three and a half marks for letting one in a 
 trial by ordeal of fire bear the iron twice with only one 
 heating ; that in the 3-1 Henry II. the town of Preston 
 was fined five marks for putting a man to the water 
 without warrant ; and that in the 3 Henry III. the court 
 of the Abbot of Waltham was fined thirty marks for a 
 trespass in putting certain men to judgment by the 
 water. There were, in addition, several instances of fines 
 for unjust judgments by water, and many others for pro- 
 ceeding in the absence of the king's servants, or Serjeants 
 (servientcs regis). It is probable, therefore, that the 
 ordeal as practised by the Anglo-Saxons and continued 
 by the Normans did in fact cease about the time of King 
 Henry III. The efficacy of the ordeal by cold water 
 seems, however, to have become established in the 
 English mind, and to have continued long after the 
 abolition of the other forms of ordeal. For people of all 
 parts of England still continued to believe in the Divine 
 interposition in these matters, and the ordeal of water 
 was the common and ordinary mode of trying a witch 
 long after the time of Sir Matthew Hale. This particular 
 mode of investigation was in fact explained and recom- 
 mended by King James I. in his celebrated treatise on 
 witches. 1 It was actually practised in England down to 
 
 1 Dcemonologia, London, 1603, fol. 79. The passage is extracted 
 in Sidelights on the Stuarts, p. 142. 
 
The Anglo-Saxon Period 25 
 
 the year 1712, when Chief Justice Parker declared that 
 if the trial by water caused the death of a suspected 
 witch, he would hold every person engaged in it to be 
 guilty of wilful murder. And in 1751 a man named 
 Colley, who, notwithstanding this warning, had been one 
 of a party to try a witch by the water ordeal, in the 
 course of which she sank and died, was convicted of 
 murder and executed. 
 
 The origin of the system of compurgators lies far back 
 in the history of the Teuton race. But, like many other 
 customs which reach beyond the memory of man, the 
 principle of it still survives in the practice of our 
 criminal courts, where a man is allowed as part of his 
 defence to call witnesses to character. These are sworn, 
 and, speaking from knowledge, declare their belief in his 
 integrity. Their evidence is left to the jury as a part of 
 the defendant's case, and the prosecution is not permitted 
 to traverse their statements by giving general evidence 
 of bad character. 
 
 The defendant, however, when convicted, was not, 
 under the Confessor and his Anglo-Saxon predecessors, 
 punished with that severity which might have been 
 anticipated from the mode of trial adopted. For among 
 these people every man had his wcr, otherwise his 
 money value, and accordingly nearly every offence could 
 be expiated by a money payment either to the Crown or 
 to the person injured, or, in the event of death, to the 
 relatives of the party killed. Whether this system arose 
 from clemency or cupidity it is impossible to determine. 
 Probably both sentiments shared in its inception, and 
 
26 The King's Peace 
 
 while the clergy, who then and for many centuries were 
 the poor man's friends, saw their way to an alleviation of 
 the miseries of malefactors real or supposed, the monarchs 
 saw an easy mode, and one generally acceptable to the 
 people, of replenishing the coffers of the State from the 
 goods and lands of culprits. These payments were regu- 
 lated from time to time by royal ordinance, the most 
 complete of which was published by King Edward the 
 Elder (A.D. 901-924). 1 The payment for a man's life 
 called the iver-gcld was thus ascertained according to a 
 scale of which the King of England came at the head 
 with 30,000 thrimsas, or 500 of the money of the period, 
 half of which went to the king's kindred and half to the 
 State ; an archbishop or earl 15,000, or 250 ; a bishop 
 or alderman 8,000, or 133 6s. Sd. ; a priest or a thane 
 2,000, or 33 6s. Sd. ; a ceorl, or common person, 267, or 
 4 9s. In a similar way a pecuniary fine of smaller 
 amount would relieve a man from corporal punishment 
 for various minor offences. 
 
 One penalty, however, known as murdrum, deserves a 
 passing remark. If an unknown man was found dead, it 
 was enacted by Canute that he should be assumed to be 
 a Dane, and the fine called murdrum should accrue to the 
 king, unless it were conclusively shown that the dead 
 body was that of an Englishman. A similar law was 
 promulgated by the Conqueror substituting a Norman for 
 a Dane, the object in each case being to prevent the 
 killing of Danes or Normans by the hostile English while 
 
 1 Ancient Laws and Institutes, vol. i. p. 187. Wer-gilds. 
 Heeve's Iliatory of English Law, vol. i. p. 28. 
 
The Anglo-Saxon Period 27 
 
 their king and protector was away from the country. 
 This gave rise to the custom of proving the Englishery, 
 to which constant reference is made in old books and 
 charters ; in other words, proving that the deceased was 
 English by birth or parentage, in which event murdrum 
 did not become payable to the Crown, and the malefactor 
 or the hundred to which he belonged, and which was 
 answerable for him, would only be liable to account to 
 the family (if any) of the deceased. 
 
 II. 
 
 The Anglo-Saxon Chancellor History of the Office Origin of 
 the Name Charters of Westminster Abbey ; A.D. 1065 The 
 Great Seal Introduced by the Confessor Its Custody 
 Lords Lyndhurst and Brougham Never leaves the King- 
 dom Origin of the Custom Wolsey S within Chaplain 
 and Tutor to King Alfred The Anglo-Saxon System Long- 
 continued Affection for the Laws of the Confessor. 
 
 THE position of a King as fons et origo justitice, the 
 fountain-head and source of justice, as of honours and 
 dignities, seems to be co-existent with the establishment 
 of monarchy itself. The theory of all monarchical 
 constitutions has originally been that the sovereign, as 
 God's vicegerent here on earth, is himself present in his 
 court, personally administering justice to all comers. 
 And as in the oldest times of our national history the 
 King, whether of a province such as Wessex or North- 
 umbria or of the whole of England, as in the case of the 
 Confessor, issued his writs from his Chancery and sum- 
 moned his subjects, or those within the territorial limits 
 of his power, to attend his presence and, submit to the 
 
28 T7/6- A7//0- Peace 
 
 justice there meted out ; so now, in the year of our Lord 
 1895, Victoria, by the grace of God, Queen, etc., still 
 summons her subjects and any others to be found within 
 her dominion to attend in her court at a specified time 
 and place, to submit their differences to her determination 
 and to abide by the judgment to be there given. And to 
 complete the identity of procedure, all such writs now, as 
 then, are tested or witnessed by the Chancellor. 
 
 How far the office or the occupation of a Chancellor as 
 keeper of the King's conscience and his assistant in the 
 administration of justice can be traced back in our his- 
 tory, is a subject of antiquarian research about which 
 there is much difference of opinion; The Mirror of 
 Justices suggests, and Lord Campbell 1 seems to adopt 
 the suggestion, that there was such an office even in 
 the remote and fabulous time of King Arthur, and Lord 
 Coke 2 puts the existence of a Chancellor in the time of 
 King Alfred as a matter hardly admitting of dispute. 
 Other writers disagree with this, and from their collected 
 views I think it safe to draw the following conclusions. 
 So long as population was sparse and the area of the 
 King's jurisdiction was small, he might well on occa- 
 sions sit in person on the seat of judgment and deal 
 with the varied complaints of his subjects. But, as he 
 gradually enlarged his borders, and as his subjects in- 
 creased in number and in wealth, it would become neces- 
 sary for him to depute to others the duties of judication, 
 
 of the Chancellors, vol. i. p. 3. 
 2 Institutes, vol. iv. p. 78. 
 
The Anglo-Saxon Period 29 
 
 reserving only to himself the hearing of appeals from his 
 deputies, or the trial of causes of such magnitude as to 
 be beyond the scope of any but the Royal authority. To 
 assist him in dealing with these cases he would require 
 a scribe or secretary, not only to record the proceedings, 
 but to make out the writs which would be issued in the 
 King's name to the various defendants. This involved 
 the regular employment of an ecclesiastic, for the clergy 
 were the only persons instructed in reading and writ- 
 ing who could be relied upon for knowledge of the 
 Roman or the Canon Law, and from that class alone 
 would a suitable scribe or secretary be available. Here, 
 therefore, the actual necessities of the Sovereign caused 
 the institution, under whatever name it might have been, 
 of an officer (not necessarily in the first instance a judge) 
 charged with the primary duties of a Chancellor, viz. the 
 preparing and issuing of original writs calling defendants 
 into court, and stating the reasons for their being sum- 
 moned. Writs having been issued and local courts of the 
 nature already described having a recognised jurisdic- 
 tion in the various counties, petitions to the King 
 either to hear appeals from the courts, or to sit himself as 
 a judge of first instance, would again increase, and it 
 would become the duty of the King's scribe or secretary 
 to make himself acquainted with the laws and customs of 
 the realm, to consider these various applications, and to 
 advise with the King which, if any, were fit and proper 
 to be granted. The person who occupied this position 
 and discharged these duties under the Anglo-Saxon kings 
 was known as the Referendarius or Referee and, accord- 
 
30 The King's Peace 
 
 ing to Selden, 1 one of our greatest legal antiquaries, "\vlio 
 took pains to investigate this subject, Referees discharg- 
 ing the primary duties of Chancellors are to be met with 
 in the reigns of Ethelbert, Edward the Elder, Athelstan, 
 Edmund and Edred. 
 
 The title Cancellarius, or Chancellor, according to the 
 opinion of some of our older writers, arose in the follow- 
 ing manner. The Referendarius and his clerks being 
 besieged by people wishing on divers grounds for the 
 King's interference either in civil or criminal matters, for 
 the re-hearing of causes in the one case, and for the obtain- 
 ing of pardons or the releasing of penalties in the other, 
 were separated from the suitors, like the officials in a 
 Basilica or Roman Law Court, by an open grille or lattice. 
 This lattice-work was formed by laths called cancelli, or 
 little bars, and the clerks and others who sat behind the 
 lattice and took in the plaints were thus called the clerks 
 of the cancelli or chancery. 2 When the name of Chan- 
 cellor was actually given to this officer seems also to be 
 subject to some doubt. Writers of the twelfth and 
 thirteenth centuries refer to all these officers of the 
 Anglo-Saxons as Chancellors ; but the first occasion upon 
 which the name is definitely ear-marked as attached to 
 the office is during the period of the Confessor. Towards 
 the end of his reign this king granted a charter to St. 
 
 1 A brief Discourse touching the Office of Lord Chancellor, dedi- 
 cated to Sir Francis Bacon, by John Selden. London, 1677. 
 
 2 Dugdale's Origines Juridiciales, fol. 32. Lord Campbell's 
 Lines of the Chancellors, vol. i. p. 1. 
 
The Anglo-Saxon Period 31 
 
 Peter's, at Westminster 1 (Westminster Abbey), which 
 bears the following among other signatures : " Ego Rem- 
 bald regis Cancellarius relegi et sigillavi" I, Rembald, 
 the King's Chancellor, have perused and sealed. Here 
 then we find in the reign of the Confessor absolute and 
 indisputable evidence of the existence of an officer called 
 the Chancellor, whose duty it was to peruse public docu- 
 ments on behalf of the King, and to put the seal to them 
 when approved by him. It by no means follows, how- 
 ever, that he was at that time the judge of a court, or 
 that there was in fact any Court of Chancery ; and I am 
 disposed to believe that although the office of a Chancery 
 out of which writs were issued, and a Chancellor who 
 ordered their issue and advised the Sovereign on various 
 matters, existed during the Anglo-Saxon period, yet that 
 the judicial functions of the Chancellor and the court of 
 Chancery did not commence till after the Norman Con- 
 quest. Nor did the Anglo-Saxon Chancellor, though a 
 person of distinction, occupy a very high position ; for he 
 was, in most instances, one of the King's chaplains, and 
 on his retirement was usually promoted to some dignity 
 in the Church. The Charter of Westminster Abbey, to 
 which I have referred, gives his exact precedence. It is 
 dated 28th December, 1065, 2 and is the earliest existing 
 public document in which the King's Chancellor is so 
 described, and also the earliest existing document which 
 
 1 Dugdale's Origines Juridiciales, fol. 34. Coke, 4lh Institute , 
 p. 78. Selden's Discourse. 
 
 2 " V. Kalen., Jan., die Sand. Innocentium, A.D. 10C6." This 
 would be 28th Dec., 1065. 
 
32 The King's Peace 
 
 bears the Great Seal. The signatures are as follows : 
 First the King signs EADPARD in a schoolboy's hand, 
 an<l makes his cross ; next the Queen Eadgytha ; then the 
 Archbishops of Canterbury and of York ; then the Bishop 
 of London and eight other Bishops; then seven Abbots ; 
 then Rembald the King's Chancellor, who seals ; then 
 three of the King's chaplains (capellanus), who sign ; then 
 Duke Harold, and Earls Edwin, Garth and Leoffwine ; then 
 seven deacons (minister) ; then five knights ; and lastly 
 the notary, who says he drew the charter under the 
 authority of Rembald the Chancellor. 1 In a second 
 charter of the same date, the notary, Smithgarus, who 
 says he drew it, also signs it on behalf of Rembald the 
 Chancellor. The first of these bears the Great Seal of 
 the Confessor, in addition to the signatures ; the second 
 bears the signatures only. 
 
 It will be remarked that Rembald, the Chancellor of 
 the Confessor, executed the Charter of Westminster 
 Abbey by sealing, as well as by affixing his signature. 
 From this it is assumed that the Chancellor was at that 
 time the Keeper of the Great Seal which was set to the 
 Charter of the Abbey. And this gives rise to the 
 question, When did the Great Seal first exist? The 
 answer to this question can be given with exactness. 
 Seals were not common, if in fact they were used at all by 
 any Anglo-Saxon king before the Confessor. It is said 2 
 
 1 An exemplification of this Charter in photo-zincography has 
 been published by the Record Office, among their facsimiles of 
 Anglo-Saxon MSS., edited by W. Basevi Sanders. 
 
 * Dugdale's Oriyines Juridiciales, fol. 33. Selden's Discourse 
 of the OJice of Lord Chancellor. 
 
'// 
 
 
 
 i. 
 
 GREAT SEAL OF THE CONFESSOR. 
 
 Face page 32. 
 
GREAT SEAL OF THE CONFESSOR, A.D. 1053-65. 
 
 The obverse shows the king with flowing beard and moustache ; a 
 loose robe fastened by a brooch on the rigid shoulder ; an open crown 
 of four points ; in the right hand, a sceptre topped with fieur <le 
 lys ; in the left hand, an orb. 
 
 The reverse shows the king with pointed beard and moustache 
 trim nied in the French fashion, enthroned and robed; a helmet 
 with bars; in the right hand, a sceptre with a dove on the top; 
 in the left, a sword resting on the left shoulder. 
 
 The legend on each side is " SIGILLUM EADWARDI ANGLORUM 
 BASILEI." 
 
 This impression is taken from a leaden cast in the British 
 Museum. The original seal is in the National Archives in Paris, 
 and is the finest known to exist. A full description of the Seals of 
 the Confessor may be found in the Catalogue of Seals in the MS. 
 Department of the British Museum, by W. de Gray Birch ; Lon- 
 don, 1887, vol. i. p. 2. 
 
The Anglo-Saxon Period 33 
 
 in regard to certain charters of the Anglo-Saxon period 
 that there were labels attached to them, suggesting the 
 existence of seals which have since disappeared, and that 
 the word siyillum (seal) appears in some even earlier 
 charters. In the possession of the Dean and Chapter 
 of Chichester is an original grant, bearing date A.D. 780, 
 of certain lands in Sussex to the Cathedral of Selsey, 
 by Oslac, Duke of the South Saxons. This grant is con- 
 firmed by Offa, King of the Mercians, and concludes as 
 follows : " & Ego Offa Deo donante rex Merciorum hanc 
 supradictam terrain . . . conroborans subscribe ac do- 
 ininicse crucis inprsessione confirmabo." / Qffa, by gift 
 of God Ring of the Mercians, corroborating the above 
 mentioned grant . . . subscribe, and will confirm with 
 the impression of the Lord's Cross. This points to the 
 practice of attaching gold crosses to important documents, 
 but does not involve the use of any seal. 1 Crompton refers 
 to certain Forest Charters of the Confessor signed with 
 crosses of gold, and sets out a grant by him in that form. 2 
 Nor am I aware of any duly authenticated seal to any 
 public document before that date. However this maybe, 
 seals were undoubtedly in use on the Continent many years 
 before their adoption in this country, The Great Seal 
 
 1 A somewhat imperfect copy of this very antient document 
 may be found in Monasticon Anglicanum, vol. vi. p. 1163. It is 
 written on vellum and is in good preservation. It was repro- 
 duced in autotype fascimile under :ne supervision of Mr. Walter 
 de Gray Birch, F.S.A., of the British Museam, and a few copies 
 with annotations by him were printed for private circulation. 
 
 2 Crompton, fol. 147, and see post cap. IV. 
 
The Kings Peace 
 
 of England was therefore introduced by the Confessor, 
 whose long pupilage in Normandy had imbued him with 
 : inn customs and ideas. Examples of the Confessor's 
 whence we may confidently derive the Great Seal 
 of England, are still to be seen. One in very perfect 
 condition is at the British Museum. It represents the 
 king in his royal robes, seated on his throne, holding a 
 sceptre in his right hand and a sword in his left, and 
 bears the legend, " Sigillum Edwardi Anglorum Basilei" 
 This was the first of the Great Seals of England, for whose 
 custody a high official is appointed and to counterfeit 
 which is an act of high treason. 1 It was in old days 
 kept in the treasury of the Exchequer at Westminster, 
 in an oaken, iron-bound chest, which also contained the 
 original Domesday Book. This was fastened by three 
 several locks, of which the keys were kept respectively 
 by the Justiciar, the Chancellor, and the Treasurer. 
 Some other great seals of later date, as they came into 
 use, were deposited in this chest, such as the seals of the 
 King's Bench and of the Common Pleas, of the Principal- 
 ity of Wales, of Calais and the English possessions in 
 France, and of certain Bishoprics when the sees were 
 vacant. 8 In each succeeding reign a new seal was made, 
 and the old seal became the property of the Chancellor 
 who was in office at the late King's death. Lord Lynd- 
 
 1 1 Edward III., c. 6. 
 
 8 Hall's Antiquities of the Exchequer, p. 46. A drawing of this 
 oaken chest, which still exists, is given as a frontispiece to Mr. 
 Hall's book. 
 
The Anglo-Saxon Period 35 
 
 hurst and Lord Brougham discussed with some energy 
 which of them was to have the reversion of the Great 
 Seal of George IV., Lord Lyndhurst having been in office 
 when the King died, and Lord Brougham being in office 
 when, the new seal being completed, the old seal was 
 rendered useless. 1 The dispute was settled by William 
 IV., who after the approved precedent of King Solomon, 
 ordered the Great Seal to be divided into two parts, 
 and half to be given to each claimant. Unlike the rival 
 mothers in Israel, the legal litigants accepted the royal 
 judgment, and decided by l<?t the destination of the respec- 
 tive parts. 
 
 One other matter should be mentioned in reference to 
 the Great Seal. By the customary law of England as 
 at present established the Great Seal never leaves the 
 kingdom. When the Plantagenets left home for their 
 foreign ventures the Great Seal was usually deposited in 
 the care of the Chancellor or of some other great official. 
 The monarch, however, on one or two occasions had a 
 duplicate seal in silver, made for his own use, though it 
 was never recognised as having the same authority as 
 the Great Seal. King Richard being in Sicily on his way 
 to the Crusades, Master Roger Malus Catullus, who is 
 described as Vice-Chancellor, was sent over sea to obtain 
 the King's signature to certain charters, the Chancellor 
 himself (William de Longchamp) being not only keeper 
 of the Great Seal, but acting Viceroy of England in 
 his master's absence, and accordingly unable to leave 
 
 1 Campbell's Lives, vol. i. p. 27. 
 
36 77/4- A' tug's Peace 
 
 the reiilm. On his way homo the Vice-Chancellor \vas 
 drowned off Cyprus and the King's Seal was lost, being, 
 as is said, hung round his neck, and the charters had to 
 be re-executed. 1 Whether, however, this was the Great 
 Seal of England which had been sent out by the hands 
 of the Chancellor's deputy, or, which is much more 
 probable, it was the King's Privy Seal, authorizing the 
 Chancellor to sign and seal in the King's name, does not 
 clearly appear. In June, 1253, when Henry III. 
 was going to Gascony, and William de Kilkenny, the 
 Chancellor, was sick, the Great Seal was committed to 
 the custody of Queen Eleanor under the King's Privy 
 Seal until the Chancellor's recovery in the following 
 year. 2 These, however, seem to be the only authenticated 
 cases of an early date when the Great Seal was committed 
 to the care of a person who was not himself to execute 
 in effect, or in name, the office of Chancellor ; and they 
 tend to corroborate the view that the Great Seal never 
 properly leaves the country. Great pomp and ceremony 
 also accompanied the deposit of the Great Seal in the 
 chest of the Exchequer when the King departed from his 
 kingdom, and its resumption by the monarch on his 
 return. The details of this function are given by Madox, 
 who also informs us that when so deposited it was kept 
 in a bag or purse of white leather, sealed with the 
 Chancellor's Seal. In the reign of Edward I., however, 
 
 1 Madox's History of the Exchequer, vol. i. p. 77. Campbell's 
 Liven, etc., vol. i. p. 117. 
 
 .'s Discourse, etc.; Madox, vol. i. p. 68, where the writ 
 is set out in a note. 
 
The Anglo-Saxon Period 37 
 
 there is some evidence that the Great Seal did leave the 
 kingdom, for it is stated that the King, when leaving 
 England for Flanders in 1297, in one of the Winchelsea 
 ships, called the Cog Edward, took the Great Seal on 
 board with him and delivered to his son, as regent during 
 his absence, another seal, which was accordingly used by 
 the Chancellor during this period. The King on his 
 return in 1298 took back the regent's seal in exchange for 
 the Great Seal then restored to the Chancellor. 1 It also 
 appears that Henry V. had the Great Seal of England with 
 him during his French campaign, and that he actually 
 lost it with his baggage at the battle of Agincourt. 2 
 Whether, therefore, the theory, which has now obtained 
 the dignity of a customary law, that the Great Seal never 
 leaves the kingdom, was founded on convenience or super- 
 stition it is impossible at this time to say. There is no 
 written law, edict, or ordinance to that effect, nor does the 
 Chancellor in his oath of office swear not to convey the 
 Seal out of England ; and I am disposed to believe that 
 it originated merely in a matter of convenience. It 
 certainly was not safe for the King or his Chancellor to 
 travel with the Royal Seal in foreign parts, when the 
 King and the Seal might both be taken prisoner and held 
 to ransom. And thus the act of precaution which led to 
 the Great Seal being duly and safely deposited in the 
 Exchequer might well have given rise, as many such 
 customs do, to a belief among the people that there was 
 something sacred attached to the Great Seal, and that, 
 
 1 Foss' Judges, vol. iii. p. 8. 2 Ibid., vol. iv. p. 186. 
 
38 The King's Peace 
 
 like the bones of a saint, some national calamity might 
 be expected to follow its removal from England. Lord 
 Campbell says 1 that one of the articles of impeachment 
 against Cardinal Wolsey was that he took the Great Seal 
 out of England and sealed writs with it at Calais. His 
 Lordship, however, gives no authority for this statement, 
 and I am unable to find any except the exceedingly 
 doubtful authority of Shakespeare, 2 who puts this charge 
 into the mouth of one of the lords when reviling Wolsey 
 after his fall. The only articles given by Coke, among 
 the forty-four which he copied from the original 3 im- 
 peachment, which bear upon the point are the second and 
 third. By the former Wolsey is charged that being an 
 ambassador in France he made a treaty with the Pope 
 and the French King without the knowledge or assent of 
 the King ; and by the latter that being the King's am- 
 bassador in France he sent a commission to Sir Gregory 
 de Cassalis under the Great Seal to conclude a treaty 
 with the Duke of Ferrara without the knowledge or 
 assent of the King. The gist of these offences seems, 
 therefore, to have been, not that he took the Great Seal 
 to France, but that he made treaties on his own ac- 
 count without previously ascertaining the wishes of the 
 monarch. 
 
 Of the officials holding the post of referee, secretary, 
 or chaplain to the Anglo-Saxon kings, one at least de- 
 serves mention, Swithin, Bishop of Winchester, who, 
 while discharging the duties of Referee or Chancellor, 
 
 1 Lives of Chancellors, vol. i. p. 27. 
 
 2 Henry the Eighth, Act 3, So, 2. 3 Institutes, vol. iv. p. 88. 
 
The Anglo-Saxon Period 39 
 
 was Chaplain to King Ethelwulf, and at the same time 
 tutor to Alfred, the future king. Swithin, afterwards 
 canonized and known as Saint Swithin, was a man of 
 great parts, of singular and unaffected piety, and his 
 name lived long in the memory cf the people. He taught 
 his young pupil all the learning that was to be had in 
 those days, and accompanying him to Borne, instructed 
 him in the history and showed him the remains of art 
 and of literature in that country. Before the death of 
 Ethelwulf he retired to his cathedral at Winchester, with- 
 drew himself from the world, and died in peace. He did 
 not live to see his former pupil on the throne, but to a 
 careful and judicious training, and to the good principles 
 imbibed during his youthful days, the success of King 
 Alfred's reign may possibly be ascribed. 
 
 Thus, far back in the history of our country, long 
 before the institution of Justiciars, Chief Justices, or 
 Chief Barons, do we trace the origin of the Chancellor 
 and of his jurisdiction. Gradually, as will be seen, he 
 rose from the position of a subordinate clerk or secretary 
 of the monarch to be the monarch's rival, if not his con- 
 troller. Skilled in the common law, but not bound by 
 its rigours, representing the conscience and mercy of 
 the king, as distinguished from the justices of the various 
 courts, who by their impartial administration enforced 
 the strict letter of the law, he entertained the appeals 
 of the people and moderated their burthens by giving 
 effect to those equitable considerations which reason or 
 clemency might suggest, but which other judges of the 
 country were without authority to apply. 
 
4O 77/6' King's Peace 
 
 These, then, were the Courts in which justice was 
 administered under the Confessor. They proceeded upon 
 the principle that the application of the law should not 
 be left in the hands of one adjudicator; that a man's 
 judges should be his neighbours and his fellows; that 
 the best evidence in a case was the evidence of the liti- 
 gant's character and reputation, and that the Manor, the 
 Hundred, or the County in which the parties resided 
 should alone provide freemen for the trial of all com- 
 plaints arising within its limits. Though such trials 
 could not accurately be described as trials by jury, as 
 we now understand the term, yet they involved the 
 principle of such trial, and demanded a certain power of 
 organization to arrange the details. They also had this 
 advantage, that they brought justice down to every man's 
 door, and they probably enjoyed, what are now regarded 
 as essential requirements, cheapness and dispatch. Advo- 
 cates were not required and probably not permitted, as 
 a man's judges were his neighbours, many of whom had 
 probably been called in from time to time according to 
 the practice of the age to be witnesses to his contracts, 
 and could say from their own knowledge of his life 
 whether he were a person of integrity whose word was 
 to be believed. The Sheriff, and the Earl or the Alder- 
 man who presided, were persons of station in the county, 
 usually of good education and well skilled in knowledge 
 of the law; and the courts were held frequently, so 
 that there would probably be no considerable delay in 
 bringing causes to a hearing. 
 
 But speed in judicial affairs is not the great boon that 
 
The Anglo-Saxon Period 41 
 
 an unreflecting public is apt to regard it. Prcecipitatio 
 est noverca justitice. Haste is the step-mother of justice, 
 says Lord Coke, and he instances the Courts of TRAIL- 
 BASTON (quick as your stick), instituted by Edward I. in 
 order that justice might follow complaint as swiftly as 
 you could trail a club, but which, owing to numerous 
 errors and repeated appeals, came to an end by general 
 consent in the reign of Richard II. 1 And these Anglo- 
 Saxon tribunals must also have had the disadvantages 
 common to courts where justice is administered in local 
 centres, under local presidents, with local judges. Much 
 injustice, as Sir Matthew Hale 2 points out, may have 
 been done through the ignorance of the freeholders who 
 were judges, notwithstanding the advice of the Sheriff 
 and the Bishop, if indeed in all cases these persons were 
 competent to advise. The diversity of rulings in the 
 different courts must also have led to great uncertainty 
 in the law, each county establishing for itself certain 
 precedents conflicting with, or contradicting those of 
 another and, it may be, a neighbouring shire. We 
 know even now the inconvenience which arises from the 
 custom of the country as to the outgoing tenant, differ- 
 ing in agricultural matters widely between county and 
 county. And we have also the conflicting customs of 
 the country as to the devolution of land, where in most 
 counties the eldest son born in wedlock is the heir-at- 
 
 1 Institutes, vol. iv. p. 186. Reeve's History of English Law, 
 vol. ii. p. 169. 
 
 2 History of the Common Law, p. 169. Littleton's History of 
 Henri/ 11., vol. iii. pp. 207-209. 
 
42 The King's Peace 
 
 law, but in Kent and some parts of Sussex the custom of 
 kind prevails, by which the land is divided equally 
 between the sons ; and in parts of Surrey, Middlesex, 
 and some other counties, where the custom of borough- 
 english governs the succession, and there the youngest 
 son takes the land over the heads of his older brothers. 
 But, above all, in such local courts the presidents and 
 the judges being well known beforehand, solicitation and 
 bribery were encouraged and parties took sides, so that 
 he best succeeded who could make for himself most 
 friends and supporters among the thanes and the free- 
 holders. Men of great influence in the county could 
 thus easily overbear others of less importance and more 
 moderate fortune, and the only chance for a small man 
 lay in the possibility of an appeal: for an appeal lay 
 from the County Court direct to the King in every case 
 in which it could be shown that the appellant, after 
 repeated applications, had failed to get justice in the 
 courts below. 1 
 
 Such, however, as they were, with all their imperfec- 
 tions, these Anglo-Saxon courts commended themselves 
 to the good-will and the intelligence of the people. They 
 were homely, and their procedure, if crude, was simple 
 and intelligible. That a man should be tried upon his 
 general reputation was the accepted mode of trial for 
 
 1 Ordinances of Edgar, A.D. 959-975. Laics of Cnut, A.D. 1016- 
 1035. Ancient Laws and Institutes, vol. i. p. 385. Stubbs' Charters 
 pp. 70-72. An instance of an appeal from the County Court in 
 the reign of Ethelred is given in Falling's Order of the Coif, 
 p. 53. 
 
The Anglo-Saxon Period 43 
 
 many generations of Englishmen, and that his triers 
 should be his neighbours, with whom it was his business 
 to live on good terms, followed reasonably enough. 
 Equally reasonable and intelligible was it to them that 
 the kindred, or in their default the gild, should be an- 
 swerable for the misdeeds of any of their number ; for 
 no man lived among them of whom they could not give 
 account, and strangers were warned from their limits 
 unless they could warrant their life and occupation. If 
 the trial by ordeal is objected to as cruel and super- 
 stitious, it must be borne in mind that the word cruelty 
 represented different ideas in the Middle Ages and in the 
 Nineteenth Century : that no one on the continent of 
 Europe was then shocked by the infliction of torture in 
 pursuit of truth, and that superstition, the foster-brother 
 of ignorance, pervaded all classes and all nations. The 
 general effect of their criminal procedure was also to this 
 extent similar to our own, that although it may in some 
 cases have borne heavily on the innocent, yet it gave to 
 the guilty more chances of escape than the procedure of 
 any other country in the civilized world. Whether for 
 these or other reasons, certain it is that for many a year 
 after the Conquest, so long as a community of fair-haired 
 Anglo-Saxons existed in England, so long did they cry 
 aloud for a return to the antient and beneficent laws of 
 the Confessor. For more than a century after these laws 
 had ceased to have any possibility of operation, when 
 the local courts, no longer trusted to do justice as be- 
 tween the weak and the strong, had been forsaken for the 
 greater security of the Court Hall of the- King ; when 
 
44 The King's Peace 
 
 Justiciar, Justiciaries and Barons had taken the place of 
 the Alderman and his fellow hundredors; when the ordeal 
 had ceased to be practised and the Church was no longer 
 amenable to the Law people, who could only have known 
 this procedure by tradition, swore their monarchs to ob- 
 serve the laws of the Confessor, and still professed to 
 regard them as the perfection of justice and the embodi- 
 ment of mercy. And even down to the period of Edward 
 IV. the arms of the Confessor, side by side with the Lions 
 of England, were emblazoned on all the courts of West- 
 minster Hall. 
 
CHAPTER II. 
 
 CURIA REGIS. 
 
 (A.D. 1066-1268.) 
 
 Anglo-Saxon and Xorman Systems of Jurisprudence Curia Regis 
 The Chief Justiciar Law Terms Westminster Hall The 
 King's Exchequer The Exchequer Chamber Process of the 
 Exchequer Burning of the Tallies in 1834 The title of the 
 Exchequer Hearing of Causes Troubles of Richard de 
 Anesti Institution of Judges 1 Circuits Trial by Jury 
 The Great Assize Wager of Battle The Court Eolls 
 Royal Progresses Chief Justice of the Common Bench 
 Decline of the Chief Justiciar Position of the smaller Courts 
 The County Court The Rise of the Chancellor Thomas 
 a Becket His connection with Westminster Hall. 
 
 WHEN the Conqueror had by force of arms compelled 
 England to accept him as her monarch, and had, as the 
 result of his vigour, effected a momentary tranquillity, it 
 became necessary to formulate a scheme for administration 
 of the law, so as to satisfy his new subjects that justice 
 would be duly ineted out to them, and at the same time 
 to assure to his companions in arms and to the crowds 
 of Normans who flocked to England for gain or advance- 
 ment, a safe and secure abiding place for themselves and 
 their possessions. 
 
 The divergence between the Norman and the Anglo- 
 Saxon systems of jurisprudence was vast and manifest. 
 The former was founded on a system of centralization, 
 while the latter was based on a system of self-government. 
 In the former the Grand Justiciar, or Chief of the Law, 
 
 45 
 
The King's Peace 
 
 had in his hands all the power of the judicature ; in the 
 latter each community judged its own offences and tried its 
 own cases, with no right of appeal except to the clemency 
 of the Crown. It was impossible, therefore, to expect the 
 Normans to submit to the primitive and Teutonic system 
 approved by the English ; and at the same time it would 
 have been impossible to induce the English to accept in a 
 moment a procedure which was contrary to all their pre- 
 conceived notions of justice and law. And surmounting 
 all these considerations was the almost inevitable hope of 
 William, that in due time England and Normandy should 
 be but one kingdom, with one race of subjects, of whom 
 the Norman, having gained the supremacy, would retain 
 the guidance. With this object doubtless at heart, and 
 pressed by his difficult situation, he adopted the Norman 
 model, and superseding the Witenagemot of the Saxon 
 kings, instituted one Supreme Court and one supreme 
 officer of justice. He refrained, however, from interfering 
 with the action of the existing Anglo-Saxon tribunals, 
 except in so far as he withdrew from their cognizance 
 any criminal jurisdiction over the offences of the clergy. 
 The court thus constituted was called indifferently Curia 
 Regis, or Aula Regia, the King's Court, or the King's 
 Court Hall. It was attached to the king's person, was 
 held in the hall of his palace, followed him wherever 
 he went, and was the embodiment of justice administered 
 by the king himself. It was the only Royal Court as 
 distinguished from the English Courts, which were under 
 the Sheriffs of the counties, and it was furnished with all 
 the pomp and splendour which attached to the service of 
 
Curia Regis 47 
 
 the Norman dukes. It was a court of unlimited juris- 
 diction, although its primary object was the determination 
 of questions relating to the king and his affairs. It enter- 
 tained appeals from inferior courts, and questions of 
 importance between private individuals, having exclusive 
 jurisdiction in those cases where the king had granted to 
 certain of his subjects the privilege of suing and being 
 sued only in the Royal Court. It was presided over by 
 the Chief Justiciar^ a great officer of the State, who was 
 not only the chief magistrate, but the King's lieutenant 
 throughout his kingdom, and his Viceroy whenever he 
 departed the realm, The Justiciar's companions on the 
 Justice Seat were the Chancellor, who now began to 
 assume a definite position, and such of the barons, 
 ecclesiastics, and other learned persons as were from 
 tims to time summoned to his assistance. The difference 
 between the Witenagemot and the Aula Regia thus 
 became clear and pronounced. While Anglo-Saxon Eng- 
 land, represented by the thanes and prelates assembled 
 in the Witenagemot, with the actual presence of the 
 King in their midst, bound the Crown by its judgments, 
 and reversed his decrees 1 if not made in accordance with 
 their view of the law ; the Norman Aula Regia, on the 
 other hand, being the representative of the King, presided 
 over by the King's nominee, in the actual or constructive 
 presence of the King, bound the people by its judgments, 
 and took its inspiration directly or vicariously from the 
 
 1 As in the case of the monks of Worcester, when the Witen- 
 agemot over-ruled the king. Stubbs' Constitutional History, vol. i. 
 p. 147, 
 
48 The Kings Peace 
 
 Crown, which was thus only bound by decrees of its own 
 initiation. 
 
 William was a monarch of great splendour and display. 
 Three times in every year he " wore his crown," or, in 
 other words, he held a Court, when lavish hospitality 
 was dispensed, when all the great men of England were 
 summoned to meet him, when matters of state were dis- 
 cussed, and when justice was administered by the king 
 himself. These special occasions were at Christinas, at 
 Easter, and at Whitsuntide, and as there were sittings of 
 the Curia Regis after each of these festivals, they are 
 supposed to have been the origin of the law terms, 
 the fourth term being co-incident with the meeting of 
 the Sheriffs and others to render their accounts in 
 the Exchequer after Michaelmas Day. 
 
 In the appointment of his Viceroy, William sought for 
 a man of learning, of courage, and of devotion to himself. 
 In Odo, Bishop of Bayeux, his half-brother, he found all 
 those qualities, and made him his first Justiciar without 
 regarding certain other qualities of his, which would in 
 after years have suggested a disqualification for the 
 post. He was, however, of a respectable learning, having 
 been trained for the Church, and holding the position of 
 a Norman bishop. He was of undoubted courage, as his 
 conduct at the battle of Hastings, when he led the Nor- 
 man cavalry, and in his previous campaigns against the 
 King of France, undoubtedly testified ; and his devotion 
 to William was unquestionable, as in addition to family 
 ties, his own personal interests were bound up with those 
 of the Conqueror. By Odo, therefore, and by his assis- 
 
Curia Regis 49 
 
 tants, G-eoffry of Coutauce and William Fitz Osborne, 
 justice was administered during the reign of the Con- 
 queror in the Curia Regis which followed the king, at 
 Westminster, at Winchester, at Gloucester, at Windsor, 
 and at Salisbury. In what particular part of London 
 the Court sat at its first inception is not very certain, as 
 there was no building suitable for such purpose then in 
 existence, either in or near the capital. The old build- 
 ing, known as Edward the Confessor's Hall, which for- 
 merly stood in Old Palace Yard, even if it existed in the 
 time of the Conqueror, was too small for the grand hos- 
 pitality and display affected by the Norman kings. The 
 King's Palace was, however, at Westminster. The re- 
 building of the Abbey had been nearly if not quite com- 
 pleted by the Confessor, who had endowed it with special 
 privileges, had declared it the perpetual depository of 
 the crown and the regalia, the place for the coronation 
 of the sovereigns of England 1 and a perpetual sanctuary ; 
 and it is probable, therefore, that the Court during the 
 reign of the Conqueror, was actually held in the neigh- 
 bourhood of Westminster Hall. 
 
 On the accession of William Rufus steps were at once 
 taken to provide the King with a hall suitable for regal 
 hospitality and ceremonies, and for the more frequent sit- 
 tings of the Curia Regis. For this purpose the Red King 
 caused a building to be erected in immediate contiguity 
 to his own palace and the Abbey. At Whitsuntide, A.D. 
 1099, he wore his crown, and sat for the first time in the 
 
 1 Grails' Antiquities of St. Peter's, p. 5. London, 1711. 
 
 E 
 
50 The King's Peace 
 
 royal justice seat in Westminster Hall. 1 And in this 
 venerable building, which, though it has undergone 
 many changes, and has passed through the ordeals of fire, 
 of flood, and of renovation, is still the old hall of the 
 Norman Conquest, justice was administered with unde- 
 viating regularity, not only in times of peace and of 
 prosperity, but in years of pestilence, of anarchy, and of 
 civil war. 2 
 
 The building of this hall and of certain adjoining 
 houses, long since destroyed, had also become necessary, 
 not only for the requirements of civil and criminal 
 justice, but for the courts and offices suitable for the 
 due entertainment of the judges, the clerks and others 
 employed in the all-important duty of collecting 
 and auditing the royal revenue. This was effected 
 through the machinery of the King's Exchequer, itself 
 a component part of the Curia Regis. That there was, 
 long before the Conquest, an office answering to the de- 
 scription of an Exchequer, and a more or less efficient 
 audit of the royal accounts, may fairly be assumed. 
 Though of what nature it was, where it was located, or 
 by whom superintended, it is difficult to say, there being 
 no definite informaticn on the subject. It is believed 
 that there was a system of audit as early as the reign of 
 
 1 Madox, History of the Exchequer , vol. i. p. 9. Campbell's Lives 
 of the Chief Justices, vol. i. p. 15. 
 
 2 An interesting and learned architectural history of West- 
 minster Hall will be found in the report of Mr. Pearson, E.A., 
 to the Committee of the House of Commons which sat in 1885- 
 86. 
 
Curia Regis 5 
 
 Alfred, and that it was carried out through the officers 
 of the treasury, but here again we are involved in specu- 
 lation. It must also be borne in mind that owing to the 
 deficiency, or rather the non-circulation, of coin, pay- 
 ments were made in kind, a practice which continued 
 many years after the Conquest, various articles such as 
 bacon, and even hawks, being taken at an estimated 
 value. That there was a Treasurer under the Conqueror 
 is hardly open to question, nor can we doubt that he did 
 his best to get in the King's revenue, but information is 
 wanting as to how or where he exercised his functions. 
 The Exchequer, therefore, as an institution of the 
 country cannot be taken as precisely ascertained before 
 the time of William Rufus and the opening of West- 
 minster Hall. From this date, however, its practice and 
 duties appear to have been settled. The Court and 
 offices of the Exchequer were a part of the King's 
 Court. The name was Curia Regis de Scaccario, the 
 King's Court of the Exchequer, and its duties were to 
 receive the accounts of the Sheriffs and of all other 
 accountants and collectors for the Crown, to give ac- 
 quittances to those who paid, and to issue writs and 
 orders to enforce payment by those in default. The 
 subjects and the varieties of the claims were innumer- 
 able, and to assess these and decide between the demands 
 of the king and the excuses of the subject were among 
 the duties cast upon the supreme court of the realm. 
 The staff, which was necessarily administrative as well 
 as judicial, accordingly consisted in the first instance of 
 the Justiciar as President, the Chancellor as Moderator, 
 
52 77/6' King's Peace 
 
 the Treasurer as Chief of the office and claimant for the 
 Crown, the Chamberlains and various other barons, lay 
 and clerical, summoned by the king. Added to these 
 were the tellers, the assayers, the ushers, and many 
 others, who, with the judicial officers, sat at the usual 
 half-yearly terms and heard the cases brought before 
 them. Their house was situate on the northern side of 
 the Palace, and was two stories high, with cellars and 
 residences for the permanent clerks, together with some 
 description of lock-up for the temporary accommodation 
 of the prisoners of the Marshal. The official staff, who, 
 between one half-year and the next, made the necessary 
 computations, kept the tallies and other records, and were 
 responsible for the bullion, the gold and silver plate, the 
 jewels and other valuables of the Crown, sat in an apart- 
 ment on the ground floor, while the President, the Chan- 
 cellor, and the judicial barons occupied a court on the 
 floor above. This was a large room with a gallery 
 supported by pillars of chestnut wood, and was in 
 existence until 1821, * when it was pulled down. The 
 fittings of this court, which was known as the Exchequer 
 Chamber, and was used in after times for private 
 conferences of the justices, were somewhat primitive, 
 but well adapted for the rude process of accounting. 
 This process was rendered more laborious by the fact 
 that the only silver money in circulation was the penny, 
 or somewhat later the silver groat : the noble not having 
 
 ''r. /'earsonly Ileport. 
 
Sketch of the room adjoining Westminster Hall in which the 
 Barons of the Exchequer sat to transact the revenue business ; after- 
 wards the Exchequer Chamber. 
 
 See page 52. 
 

Curia Regis 53 
 
 been introduced into England till the initiation of a 
 gold coinage by Edward III. 
 
 In this room, therefore, sat the treasurer representing 
 the king, and here one after another the accountants came 
 before him, bringing their payments or offering their 
 excuses. The centre of the room was occupied by a 
 table with a cloth or carpet, scored across with lines in 
 chalk or paint like a chess- or draught-board. The table 
 was surrounded by a ledge sufficiently high to prevent 
 the coins or counters falling to the ground. Each space 
 had a numerical value counting from right to left, be- 
 ginning at the right with pence and ending at the left 
 with thousands of pounds. Around this board sat the 
 barons of the Exchequer. 1 At the head was the Justiciar, 
 as president of the court. To his left sat the Chancellor 
 and the Chamberlains. To his right were the Treasurer 
 with his clerk, and the Chancellor's clerk, afterwards 
 called the Chancellor of the Exchequer, with one or two 
 scribes to write up the rolls. At the side sat the Chamber- 
 lain's clerks with their counter-tallies, and the tellers who 
 added up the money and arranged the counters on the 
 board. At the bottom of the table opposite the Justiciar 
 or other presiding officer sat the Sheriffs or other account- 
 ants with their clerks, who brought their tallies, bullion, 
 and other mateiials for making out their account. There 
 were also present other barons of the Exchequer who had 
 been summoned by the King, the Marshal, the Ushers, 
 
 1 Dialogue de Scaccario, Madox, vol. ii. p. 264. Hall's An- 
 tiquities of the Exchequer, p. 115. See article in the Gentleman^ 
 Magazine, January, 1855. 
 
54 The King's Peace 
 
 and other necessary officers of the court. As the ac- 
 countant came to the table the amount of his indebted- 
 ness to the Crown was indicated by counters in the 
 several spaces. As he produced his bullion, his wooden 
 tallies, or his indentures of acquittance, the correspond- 
 ing counters were swept away, till the checking ended 
 either b} T his last payment balancing the last counter, 
 by a remnant of counters shewing him to be in so much a 
 debtor to the king, or by a surplus of money shewing the 
 Crown to be in so much a debtor to him. Thus, if a 
 sheriff came forward to account for a year's revenue of 
 say 1,000, counters were laid on the table representing 
 on various squares the sum to be paid. As he produced 
 his bags of silver pennies for say 500 they were counted 
 by the tellers, then weighed, and if any doubt suggested 
 itself as to their purity they were tested by the master 
 of assayes. On passing these tests they were swept into 
 the treasury, and counters corresponding to 500 were 
 removed from the table. He then produced his tallies 
 shewing the sum he had already paid on account, say 
 300, and on these being compared with the foils or 
 counter-tallies held by the exchequer clerks and found 
 correct, his tallies were allowed, and more counters repre- 
 senting 300 were removed from the table. He then 
 produced his indentures shewing how much he was 
 allowed for disbursements for provision for the King and 
 his servants and for other purposes. If these corre- 
 sponded with the entries on the rolls, they also were 
 allowed, and he was quit of his account, receiving a 
 tally with a notch cut clean across the face of the width 
 
Curia Regis 55 
 
 of a man's palm, representing the payment of 1,000. 
 Present at the counting was also the Marshal of the 
 Exchequer with his varlets, ready to arrest forthwith and 
 to commit to his prison any defaulter or misdemeanant. 
 The business of the court being concluded on the account, 
 the Chancellor in the early days, and the Chancellor of 
 the Exchequer at a later period, framed, with the assist- 
 ance of his clerks, the necessary writs and notices to 
 enable the barons in their respective districts to enforce 
 the claims of the Crown against defaulting debtors. 
 
 This rude and simple process, very much resembling 
 the disused procedure of the gaming tables at Homburg 
 or Baden-Baden, was the mode of calculation at the 
 Exchequer for many centuries. It lasted, with some 
 modifications, until the year 1834, when the accumula- 
 tion of tallies was so great that it was determined to 
 get rid of them and thus end the system and its 
 evidences. They were accordingly burnt in the old 
 Exchequer House by the side of Westminster Hall. 
 But the tallies made for themselves a funeral pyre of 
 magnificent proportions, for the flues, being overheated 
 by the unusual firing, set alight to the old combustible 
 Houses of Parliament which then occupied the palace of 
 the Norman kings, and burnt them to the ground. 
 
 The title " Exchequer " has given rise to much learned 
 argument, the common acceptation being that the name 
 is derived from the fact that the court was held in a room 
 with a chequered cloth and hence was called the Court 
 of Exchequer. And it does appear from a drawing of 
 the Court of Exchequer in the year 1808, that the centre 
 
56 The Kings Peace 
 
 of the court was occupied by a large square table with 
 a cloth of black and white squares resembling those of 
 a huge chess-board, although in a drawing hereafter 
 mentioned of the fifteenth century no such cloth is 
 depicted. I do not, however, consider it by any means 
 probable that a court originally constituted of the highest 
 authority in the kingdom, should take its name from the 
 pattern of a cloth which was probably not used for many 
 generations after the institution of the tribunal. The 
 word used is Scaccarium, for which there seem to be two 
 derivations : one, the game of chess ludus scaccarii, to 
 which the moving of the- counters on the one side as the 
 bullion and tallies are produced on the other, may have 
 some resemblance ; and the other, which appears to me 
 the more reasonable, from the German word schach, a 
 dummy or counter, signifying the mode of computation 
 by counters adopted in the treasury. 
 
 Matters thus proceeded for several generations, the 
 Curia Regis dispensing justice by the Justiciars, the 
 Chancellors and their assistants in the one department, 
 and dealing with questions of the revenue with the 
 barons in the other, until the great increase of business 
 in the time of Henry II. rendered other arrangements 
 necessary. It is stated by Madox in his history of the 
 Exchequer, 1 that causes were heard not only by the 
 Justiciars and other justices in the Curia Regis, but also 
 by the barons in the Court of Exchequer ; a course which 
 seems not improbable, inasmuch as many of the justices 
 
 1 Vol. i : . p. 73. 
 
Curia Regis 57 
 
 of the Curia were also barons of the Exchequer, and the 
 overflow of business in the one department may well have 
 been disposed of by the judges sitting in the other. In 
 the meantime, however, the complexion of the country 
 had undergone great and important changes. The Saxon 
 thane had throughout England been gradually supplanted 
 by the Norman baron. The mutuality and simplicity of 
 the old style had given way to the violence and rapacity 
 of the new comers, and the local courts, the courts of the 
 Wapentake, the County, and the Sheriff, had been over- 
 borne by the power and wealth of the Normans, so that 
 the English had but a scant measure of justice in their 
 own courts. And as they had a greater confidence in the 
 integrity and independence of the trained lawyers and 
 prelates of the Curia Regis than in the honesty and 
 steadfastness of their neighbours in the county, they 
 deserted the antient tribunals and flocked to the King's 
 Courts in all cases where life or property was in danger. 
 The King's Court accordingly became blocked with causes, 
 and was impotent to deal with the demands of the 
 country. A remarkably interesting and contemporaneous 
 picture of the delays and difficulties of the law in the 
 reign of Henry II. is to be found in a well-authenticated 
 MS. memorandum made by one Richard de Anesti, 
 setting out, in simple language, his struggles to obtain a 
 judgment as to his right to certain lands in the county 
 of Hertford. His uncle, William de Sackville, being pre- 
 contracted to one Albreda de Tregoz, afterwards married 
 Adeliza de Vere. The latter contract being declared 
 invalid on appeal by the Bishop of Winchester, he re- 
 
58 The King's Peace 
 
 turned to Albreda and lived with her till his death. 
 Leaving no issue by Albreda and dying intestate, Richard, 
 as heir at law of his uncle, claimed the land, which was 
 also claimed by Adeliza on behalf of a child, of whom, 
 she alleged, that William de Sackville was the father. 
 Richard relied for his case on the divorce granted nearly 
 thirty years before and acted on by all parties, the validity 
 of which, however, was disputed by Adeliza. He began 
 by sending to the king in Normandy for a writ, which 
 being obtained, he took to the Queen Elinor at Salisbury 
 to be sealed by her, as she held the Great Seal during the 
 king's absence. He then had a day appointed for his 
 cause to be heard before Richard de Luci, the Chief 
 Justiciar at Northampton, and he duly cited Adeliza de 
 Vere and her brother GeofFry. Arrived at Northampton 
 with his friends and witnesses, his cause was postponed 
 by de Luci to Southampton. The matter was then moved 
 into the Court of Archbishop Theobald, who ordered it to 
 be heard at Lambeth on the feast of St. Vincent, from 
 which date it was postponed to the feast of St. Perpetua, 
 and thence to the feast of St. Valentine at Maidstone. 
 After other adjournments he appeared with his friends, 
 his advocates, and his witnesses before the archbishop at 
 Lambeth, when he was again referred to Canterbury, and 
 thence to the King who was in Gascony, where he went 
 with his friends and helpers and found the King at 
 Auvilar. He then returned to Canterbury and followed 
 his suit in journeys between London, Canterbury, Win- 
 chester, Chichester, Salisbury, and Normandy. His case 
 then got before the Bishop of Chichester and the Abbot 
 
Curia Regis 59 
 
 of Westminster, who gave him days in London and at 
 Oxford, but his case was not heard. Delays and post- 
 ponements followed each other, and then his adversaries 
 appealed to Rome, where his claim to succeed his uncle 
 was confirmed. At length his influence at Court induced 
 the king to accept a fine of 100 marks of silver to hear 
 the case before himself and his Chief Justiciar, de Luci. 
 After protracted delays, during which he followed the 
 king's Court for weeks at Romsey, at Reading, at 
 Wallingford, and elsewhere, being unable to get a hearing 
 through the multiplicity and importance of the business 
 to be transacted, the king in person tried the case at 
 Woodstock, and confirmed de Anesti in his title to the 
 land. In this suit, which he tells us lasted six years, he 
 spent all his substance in journeys, in payments to his 
 friends, to his advocates, and to his witnesses, and in 
 gifts and fees to the queen, to the king's physician, and 
 to others, detailed particulars of which he gives in his 
 story. And he adds, that having been three years in 
 possession of his uncle's land, he still owes fifteen marks 
 to the King, and most of the money which he had bor- 
 rowed from Hakelot the Jew during the progress of his 
 case. 1 To meet this difficulty of procedure King Henry 
 II., who had formerly sat in the Curia Regis and thus 
 became personally acquainted with its requirements, 
 
 1 Miscellanies of the Treasury, No. . The MS. is believed by 
 Palgrave to be the writing of de Anesti himself, and to be of the 
 date A.D. 1177. See also Court Life under the Plantagenets, by 
 Hubert Hall, London, 1890, pp. 98, 201, 250. A portion of the 
 original MS. is reproduced at p. 101. 
 
6o 77/6- Kings Peace 
 
 in the sixteenth year of his reign (A.D. 1170) appointed 
 justices to perambulate the kingdom with regularity, and 
 not casually as theretofore, and to hear on the spot the 
 complaints of his subjects. The first of these, of whom we 
 have any record, are twelve justices whose names, beginning 
 with the Abbots of Canterbury and Chertsey, 1 are given 
 by Dugdale, who were sent to try causes in the counties 
 of Kent, Middlesex, Berks, Oxon, Bucks, and Bedford. 
 And here we have the first institution of circuits, which 
 from that time forward have been part and parcel of 
 our judicial procedure. In 1176, the number of Itinerant 
 Justices was increased to eighteen, and they were sent 
 into all the counties of England from Northumberland 
 to Cornwall. In 1179, at a Grand Council at Windsor, 
 England was divided into four parts, and to each part five 
 justices were allotted. They included in their number 
 six justices of the Curia Regis, and among these was 
 Ranulph de Glanvil, one of the fathers of our law. In 
 1181 Ranulph de Glanvil was appointed Chief Justiciar, 
 and five other justices were appointed "ad audiendum 
 clamores populi" to hear the suits of the people in the 
 Curia Regis. Certain justices of the Curia were also 
 appointed to act as barons in the King's Exchequer, and 
 they appear to have tried causes indifferently as justices 
 or barons. 
 
 There is also every reason to believe that, at whatever 
 time the practice may have orginated, trial by jury for 
 both civil and criminal causes was recognised and adopted 
 
 1 Chronica Series, fol. 2. 
 
Ciiria Regis 61 
 
 in the Curia Regis by the time of Henry II. Glanvil, in 
 his Treatise on the Laws and Customs of England^ 
 describing the practice in the Curia Regis, clearly 
 recognizes this mode of trial. The jury was not however 
 at that time limited to twelve, although that was even 
 then the usual number. Nor was unanimity required ; 
 but if the jurors disagreed, more jurors were added, 
 until twelve were found who agreed upon a verdict one 
 way or the other. 2 This mode of procedure is not al- 
 together unknown even in our days, where on grand 
 juries, on inquisitions before Coroners, and trials de luna- 
 tico inquirendo before Masters in Lunacy, jurors are 
 sworn to the number of twenty or more, but a verdict 
 by twelve is accepted. Juries were in the early times 
 selected from the county or the hundred by four knights 
 summoned for the purpose from each district. They 
 were liable to be tried for perverse verdicts by twenty- 
 four jurymen 3 selected in the same manner, and a single 
 juryman who disagreed with the eleven was fined. There 
 was also a distinction in the province of the jury in civil 
 and in criminal trials. In the former the jurors appear 
 to have answered questions put to them by the judges, 
 and thus to have decided issues as to the right to land ; 
 but in criminal cases they acted as grand jurors, and 
 declared whether or not they suspected the accused to be 
 
 1 Written about A.D. 1181. 
 
 2 Hale's History of Common Law, p. 348. 
 
 3 This practice, according to Bacon, seems to have been in 
 existence as late as 1492. See Life of Henry Vl'L ; Spedding, 
 vol. vi. p. 160. 
 
62 TJie King's Peace 
 
 guilty of the crime imputed to him. If they did not 
 suspect him, he was acquitted ; but if they did, he was 
 put to clear himself. This he did by compurgation if 
 charged with a trivial offence; or if the offence were 
 serious, then by the ordeal of water, if a rustic, or by the 
 ordeal of iron, if a freeholder or a person of higher rank. 
 In either case he might claim his right to be tried by the 
 duel, which was carried out, after what would appear to 
 be much delay, in the presence of a judge or some other 
 officer of the King. 1 
 
 About this time also, at the instigation of Ranulph de 
 Glanvil, the GREAT ASSIZE was instituted by Henry II. 
 The main object of this reform was to give each litigant 
 the option of referring himself and his case to the judg- 
 ment of the King's Justices, instead of appealing to the 
 ordeal of battle. The delays of the duel were thus 
 avoided, and the truth was ascertained by the oaths of 
 twelve lawful men, rather than by the doubtful evidence 
 to be obtained from the chance victory of a champion. 
 Various regulations were made to encourage this reference, 
 and it was amongst others expressly declared that any 
 tenant who insisting on a trial by duel had thus obtained 
 a judgment for his land, should always be bound to defend 
 it by battle, and never afterwards be permitted to try by 
 the Great Assize against any claimant who appealed to 
 the trial by battle. 
 
 This mode of trial seems to have originated in Scandi- 
 
 1 See Glanvil, Tractatus de Legibus, etc., by Beames, London, 
 1812. Selden Society's Works, vols. i. and ii. Pleas of the Crown 
 and Civil Actions, temp. John and Henry III. 
 
Curia Regis 63 
 
 navia, and to have continued, according to Selden, in his 
 History of the Duello, 1 until the Christian kings set 
 aside the wager of battle as cruel and unchristianlike, and 
 replaced it by the ordeal of fire or water, called God's 
 judgment, which accordingly continued to be used among 
 the Danes and also among the English. The ordeal of 
 battle was thus discontinued down to the period of the 
 Norman invasion, when the Conqueror reinstated it as a 
 mode of trial to which the Normans were accustomed, and 
 which was well suited to their military and violent habits. 
 This process of arriving at the truth was admitted in civil 
 as well as in criminal suits, and those interested in the 
 subject will find in Dugdale's Origines Juridic tales, 2 a 
 minute and interesting account of the exact procedure in 
 real actions or claims to land, and of the arms and defence 
 of each of the combatants, whether the parties fought by 
 their champions or in their own proper persons. He also 
 gives 3 a similarly detailed account of the mode of fighting 
 in criminal cases, the subject being apparently of great 
 interest to this antiquary, who was not only a dis- 
 tinguished scholar of the seventeenth century, but held 
 the post of Norroy King of Arms. 4 A short account of a 
 trial by battle is also given in Madox' History of the 
 Exchequer, 5 accompanied by a rough drawing of the 
 
 1 London, 1610, p. 38. 
 
 2 Fols. 65-74. 3 Fo i s . 75 _ 85 . 
 
 4 See also the Ordenaunce and Fourme of Fighting within the 
 Listes, by Thomas Duke of G-loster, Constable of England: 
 dedicated to Richard II. The Blacke Booke of the Admiralty by 
 Sir Travers Twiss, vol. i. p. 301. 
 
 5 Vol. ii. p. 551. Selden Society, vol. i. preface. 
 
64 TJic King's Peace 
 
 perioi of Henry III., showing sufficiently clearly the kind 
 of battle that was waged between persons of the lower 
 rank of life, in the thirteenth century. The actual entry 
 on the assize roll is in Latin, of which the following 
 translation is given by the Selden Society. 1 
 
 " Walter Bloweberme comes and appeals Haxno le Stare of 
 Winchester, by the same words (viz. of robbery) to wit that they 
 were . . . the Cross at Winchester, and there stole certain 
 clothes and other goods, whereof Hamo had as his share two coats 
 to wit, one of Irish cloth and another coat half of Abingdon 
 cloth and half of London burrell: and that he (Hamo) was along 
 with him (Walter) in committing the said larceny, he Walter 
 offers to deraign against him (Hamo) as the Court shall consider. 
 And Hamo comes and defends all of it, (and says) that he will 
 defend of his body, etc. Therefore it is considered that there be 
 battle between them. And the battle between them is struck. 
 And the said Hamo has been defeated. Therefore to judgment 
 against him, etc. He had no chattels." 
 
 Many a suit and many a crime were tried by the ordeal 
 of battle under this antient judicial system. Until a com- 
 paratively recent date, the law books contained decisions 
 of points arising on these contests, and a report is given 
 by Dyer 2 of the manner of and preparation for one of 
 these combats, in the time of Queen Elizabeth, in such 
 quaint detail, that I venture to reproduce it here : 
 
 " Paramour chose the trial by battle, and his champion was 
 one George Thorne; and the demandant's champion was one 
 Henry Nailer, a master of defence. And the Court awarded the 
 battle, and the champions were by mainprise and sworn to per- 
 form the battle at Tothill in Westminster, on the Monday next 
 
 1 Vol. i. p. xxix. 
 
 2 Lowe and another v. Paramour ; Dyer, vol. iii. fol. 301, 13 
 Eliz. (A.D. 1571). 
 
c 
 
 
 
 l-il. M-l 
 ife -;f'&i 
 
 3i , ^ 
 
 - s 
 
Reproduction of the Wager of Battle described in page 64. It 
 forms the heading of a roll, of which the record, of the battle between 
 Bloiceberme and Hamo le Stare is the first entry. 
 
 The original roll is at the Record Office. It bears no date, but 
 is of the period of Henry III. 
 
Curia Regis 65 
 
 after the Utas of the term, and the same day given to the parties, 
 at which day and place a list was made in an even and level 
 piece of ground, set out square sixty feet on each side due east 
 west, north, and south, and a place or seat for the judges of the 
 Bench was made without and above the lists, and covered with 
 the furniture of the same Bench in Westminster Hall, and a bar 
 made there for the serjeants-at-law. And about the tenth hour 
 of the same day three Justices of the Bench, Dyer, Weston, and 
 Harp jr, Welshe being absent on account of sickness, repaired to 
 the place in their robes of scarlet, with the appurtenances and 
 coifs also. And there, public proclamation being three times 
 made with an Oyes, the demandants first were solemnly called, 
 and did not come. After which the mainpernors" of the cham- 
 pion were called to produce the champion of the demandants first, 
 who came into the place apparelled in red sandals, over armour 
 of leather, bare-legged from the knee downward, and bare-headed, 
 and bare arms to the elbow, being brought in by the hand of a 
 knight, namely Sir Jerome Bowes, who carried a red baston of an 
 ell long tipped with horn, and a yeoman carrying a target made 
 of double leather ; and they brought in at the north side of the 
 lists, and went about the side of the lists until the middest of the 
 lists, and then came before the Justices with three solemn congies, 
 and there was he made to stand on the south side of the place, 
 being the right side of the Court ; and after that the other cham- 
 pion was brought in like manner at the south side of the lists, 
 with like congies, etc., by the hands of Sir Henry Cheney, knight, 
 etc., and was set on the north side of the bar; and two Serjeants l 
 being of counsel of each party in the midst between them. This 
 done the defendant was solemnly called again, and appeared not, 
 but made default, upon which default Barham, Serjeant for the 
 tenant, prayed the Court to record the nonsuit, which was done. 
 And then Dyer, Chief Justice, reciting the writ, count and issue, 
 joined upon battle and the oath of the champions to perform it, 
 and the fixing of the day and place, gave final judgment against 
 the demandants, and that the tenant should hold the land to him 
 and his heirs for ever, quit of the said demandants and their 
 h-.'irs for ever ; and the demandants and their pledges to prose- 
 cute in the Queen's mercy, etc. And then solemn proclamation 
 
 1 " In scarlet." 
 
66 The King's Peace 
 
 was made that the champions and all others there present (who 
 were by estimation about four thousand persons) should depart, 
 every man in the peace of God and the Queen. And they did BO 
 cum mayno clamore vivat Ileyina" 
 
 In a book containing reports of celebrated trials, 1 it is 
 stated that the Queen ordered that this wager of battle 
 should not take place, and compelled the parties to come 
 to terms, by which Paramour retained his land and Lowe 
 received a sum of money. But in order that Paramour's 
 title should be made secure, it was arranged that the per- 
 formance of a battle should be prepared, and that default 
 should be duly made. After which Naylor offered to the 
 Chief Justice to play Thorne half a dozen rounds for the 
 diversion of the judges and the spectators. Thorne, how- 
 ever who had much power but little skill, declined, 
 saying he came to fight and not to play. The Chief 
 Justice then commended Naylor for his courage and 
 broke up the court. 
 
 This ordeal or appeal of battle, though denounced by 
 the Church, discouraged by the Great Assize, and gradu- 
 ally repudiated by the English people, never ceased to be 
 the law of the land until the reign of King Greorge III. 
 It occurred in the year 1818 that one Richard Thornton 
 was tried at Warwick for the murder of Mary Ash ford, 
 and was there acquitted by the jury. The girl's brother, 
 William Ashford, stimulated by a local solicitor who was 
 convinced of Thornton's guilt, brought an appeal of mur- 
 der in the King's Bench to which the defendant Thornton 
 appeared, and throwing down his glove on the floor of the 
 
 1 London, 1715, p. 899. 
 
Curia Regis 67 
 
 court, declared he was not guilty of the murder, and 
 would defend the same by his body. After much learned 
 argument Lord Ellenborough, with the concurrence of his 
 brother justices, declared that trial by battle was in such 
 cases still the law of England and ordered a battle to be 
 fought, according to the antient rules, in the presence of 
 the judges of the King's Bench. Before, however, the 
 time for fighting arrived, Ashford, the appellant, cried 
 craven, and judgment was a second time given in favour 
 of Thornton. 1 An act 2 was then passed to abolish such 
 mode of trial for the future. 
 
 To Ranulph de Glanvil may also be attributed the en- 
 rolment of judicial proceedings in the Curia Regis, of 
 which the records come down to us from the reign of 
 Henry II. This work was continued and completed by 
 Hubert Walter when Chancellor to King John, who also 
 set on foot the Chancery rolls which commence in the 
 reign of that monarch, 3 and are since that period found to 
 be continuous. The early records of the Exchequer were 
 kept in the Red Book of the Exchequer, and the later 
 records in the Black Book of the Exchequer. Both these 
 volumes are still existent. The caligraphy of the former, 
 minute and exact in the commencement, becomes larger 
 and less exact in succeeding generations. The binding 
 and bosses are of great antiquity. 
 
 1 Ashford v. Thornton, 1 Barn. & Aid., 405 ; Campbell's Lives 
 of the Chief Justices, vol. iii. p. 171. 
 
 2 59 Geo. III., c. 46. 
 
 3 Selden Society, vol. i. p. 8. The Curia Regis Rolls in the 
 Record Office appear to be undated before the reign of Richard I. 
 
68 The Kings Peace 
 
 In 11 ( J6, under Richard I., there were numerous ap- 
 pointments of judges to the Curia Regis, including those 
 of Hubert Walter, Archbishop of Canterbury, the Bishops 
 of London and Rochester, and several laymen ; and 
 similar appointments continued to be made, both to the 
 Curia Regis and to the Justices Itinerant, until the 52nd 
 Henry III. (A,D. 12G8), when the system was again 
 altered. 
 
 In the meantime, however, dissatisfaction had arisen 
 with the proceedings of the Curia Regis itself. This 
 Court followed the King not only theoretically but 
 actually. Where the King went to hold a Court there 
 also went the Curia in both departments; the Curia 
 Regis with the Justiciar, the Chancellor and the Justices, 
 and the Exchequer with the Treasurer, the Chamberlain, 
 the officers and the treasure. And thus the King in his 
 progresses was accompanied not only by his great and 
 smaller officers of State, but by carts and wagons loaded 
 with bullion, 1 with gold and silver plate, with jewels, 
 and all the personal treasures of the King not deposited 
 in the Abbey or in the treasury at Winchester. Numer- 
 ous hanapcrs, or hampers of plaited rushes or straw, 
 formed part of the baggage, and held the writs, the 
 records, and the tallies necessary for carrying on the 
 business of the courts. And thither in the wake of the 
 King followed the suitors whose plaints waited deter- 
 mination in the King's Court. These perambulations of 
 the monarch reached their culminating point in the reign 
 
 1 Hall's Antiquities of the Exchequer. 
 
With Tallies &. Pa 
 
 (about" j Actual WL*) 
 
 TalU (actual 
 
 Face page 68. 
 
Sketch of a Hanaper in actual use in the XIV. century, with tallies 
 mid parchment rolls found within it. The original hanaper and 
 tallies are in the Record Office. This was the kind of hanaper 
 carried about with the royal luyyaye on the king's journeys through 
 the country. 
 
 See page 68. 
 
Curia Regis 69 
 
 of King John. When he was out of the kingdom, Arch- 
 bishop Hubert Walter acted as Chancellor and sat in the 
 King's place at Westminster. When he was at home, he 
 was in constant progress through the country, and in the 
 year 1211 it is said that he sat at no less than twenty-four 
 separate towns. 1 To all these resting-places the unhappy 
 suitors followed, or lost the chance of their causes being 
 tried. And accordingly it was provided, by the 17th 
 clause of Magna Carta, that for the future, common pleas, 
 or causes between party and party, as distinguished from 
 Crown and Revenue cases, should not follow the King in 
 his wanderings, but should be heard and determined in 
 some ascertained and well-known place. "Communia 
 placita non sequantur curiam nostram, sed teneantur 
 in aliqito loco certo." This ascertained place was West- 
 minster Hall, and the Court of Common Pleas retained 
 the name, down to its abolition as a separate jurisdiction 
 in 1875, of The Court of Common Pleas at Westminster. 
 
 Here then we have the origin of the COURT OF COMMON 
 PLEAS, for although that Court was not actually con- 
 stituted at the time of King John, nor was there any 
 prohibition against common pleas being heard by the 
 Curia and by the Exchequer, as had hitherto been the 
 practice, yet the provision of the Charter involved the 
 continued retention in London, or in the ascertained place 
 to be afterwards fixed, of a sufficient number of justices 
 and barons to compose a court for the hearing of the 
 subjects' causes. And thus it frequently happened that 
 
 1 Foss' Judges, vol. ii. p. 4. 
 
o The King's Peace 
 
 one division of the Curia was sitting at Westminster 
 while another division was travelling about the country, 
 either with or without the King, as the case might be ; 
 the Justiciar being sometimes with the judges in the 
 country and sometimes with the judges in London. 1 
 Numerous instances also occurred where, the Justiciar 
 being absent, questions of law were left for him to decide 
 on his arrival, or were sent to be discussed before him at 
 Westminster. One of the questions so reserved was 
 whether on proof of his ancestor's absence for twenty 
 years, an heir at law could enter upon the land of the 
 missing owner, and take possession of the freehold, on 
 the presumption that his ancestor was dead. 2 
 
 Henry III. confirmed the Charter of his father in this 
 as in other respects, and instituted a Court of Common 
 Bench with duly qualified justices to sit perpetually at 
 Westminster to hear causes between parties and to have 
 exclusive jurisdiction in regard to certain claims. It had 
 no criminal jurisdiction, did not follow the Sovereign in 
 his peregrinations, and gradually absorbed all the private 
 business of the country. In 1235, Thomas de Mule ton 3 
 was appointed Chief Justice of the Common Bench, being 
 the first Chief Justice of either of the Courts of Common 
 Law, and from this period personal actions gradually 
 ceased to be heard either in the Curia Regis or in the Ex- 
 chequer. To enforce this procedure Edward I., 4 after the 
 
 1 Set den Society, vol. 3 p. xviii. Foss' Judges, vol. ii. p. 1GO. 
 
 2 Selden Society, vol. 3, p. 79. 
 
 3 Dugtlale's Chronica Series, fol. 11, 4 28 Edward I., A.D. 1300, 
 
Curia Regis 71 
 
 abolition of the Curia, expressly declared that the hear- 
 ing of common pleas in the Exchequer or elsewhere out 
 of the Common Bench, was contrary to the provisions 
 of the Great Charter. 
 
 The natural dissatisfaction which was felt with the 
 Curia Regis rapidly extended to the appointment of Chief 
 Justiciar. The position of this great officer of State was 
 that of a politician and a soldier as well as, or perhaps 
 more than, that of a creator and administrator of the law. 
 Many statesmen of great eminence had held the post. 
 Odo of Bayeux was the first, Hubert de Burgh was 
 among the last. Henry, Duke of Normandy, afterwards 
 Henry the Second, during the later years of King Stephen, 
 was Chief Justiciar and sat regularly in the court. 
 Henry III. also sat in person and delivered a judgment, 
 which is reported. 1 Ranulph de Glanvil, and possibly 
 Henry de Bracton, also occupied the post of Chief 
 Justiciar. Latterly, however, the office had fallen into 
 less competent hands, and when the latter years of King 
 Henry III. showed the scandal of two Chief Justiciars, 
 one appointed by the king and one appointed by the 
 barons, professing to exercise judicial functions at one 
 and the same time as they were leading armies against 
 each other in the field, it was felt that the moment had 
 arrived when the office, with its inconsistent combina- 
 tion of statesman, soldier, lawgiver, and judge, should 
 be brought to an end. Philip Bassett and Hugh le 
 
 1 47 Henry III. Coram Iteye Rolls de tempto*e Ph. Bassett 
 Jitsticiarii A)iylice; Madox, vol. i. p. 100, 
 
72 The Kings Peace 
 
 Despencer were the two so contending, and after the 
 death of le Despencer on the field of Evesham, in 1265, 
 and the subsequent resignation of Bassett, the King's 
 nominee, the Curia Regis and the Chief Justiciar ceasod 
 to exist. 
 
 The Curia Regis had thus been the Royal Court of 
 England for a period of about 200 years. It sprang into 
 being when the object of the Conqueror was to establish 
 an autocratic power and to stifle the existing system of 
 self-government, and it came to an end when the combi- 
 nation of the Barons had curbed the power of the Crown, 
 and the growth of a National Parliament had re-asserted 
 in a modified form the antient rights of self-government. 
 From that time to the present the judicial has been 
 definitely severed from the military and executive power, 
 and succeeding Chief Justices have been lawyers and 
 lawyers alone. 
 
 At the same time that the Curia Regis was drawing to 
 an end as a judicial institution, the smaller courts of the 
 country had been insensibly changing. These Courts, 
 with their suitors, their voting and their popular judg- 
 ments, had gradually fallen under the control of the 
 Sheriff, the direct representative of the Crown, who not 
 only arranged the causes and put his own nominees on 
 the juries, but being the collector of revenue for the 
 Crown, conducted business with a primary regard to the 
 perception of fees so as to show a good balance in his 
 yearly account with the Exchequer. The vigour and 
 rapacity of the Norman Barons made them difficult 
 subjects either for law or for taxation, and the Anglo- 
 
Curia Regis 73 
 
 Saxon strain that now permeated the Norman body gave 
 an element of sturdy resolution to their character, so 
 that they, alike with the freeholders and the rest, kept 
 away from the local courts so long as it was possible to 
 do so. But though the smaller courts were gradually 
 losing their importance, the County Court still held on l 
 and flourished, and when the itinerant justices came their 
 rounds, directed specially to try causes in each county, 
 they sat in the County Courts. The freemen, the suitors, 
 and the parties, were summoned by the Sheriff to attend 
 the sittings of the King's Justice ; but the Anglo-Saxon 
 mode of trial still obtained, judgment was given as of old 
 by the voices of the suitors, and in cases of doubt and 
 difficulty the triple ordeal was still put in force. 
 
 The establishment, however, of the Curia Regis, the 
 gradual extension of its functions, the increase of busi- 
 ness, and the legal difficulties inseparable from the 
 system of tenure introduced by the Normans gave, year 
 by year, an enlarged importance and responsibility to the 
 office of the Chancellor. From a period very shortly 
 after the Conquest, the Chancellor was the King's prin- 
 cipal Chaplain and Confessor. He had the care of the 
 Royal Chapel and of the Chancery, 2 and thus became, in 
 a sense, the keeper of the King's conscience. He sat with 
 the Chief Justiciar in the Curia Regis, and occasional!}', 
 as it appears with certain other judges, hearing pleas of 
 the Crown at Westminster and elsewhere. 3 Whether 
 
 1 Stephen's Historu of the Criminal Law, vol. i. p. 77. Stubbs 1 
 Count. . Hint., vol. ii. 
 - Maclox, vol. i. p. 60. 3 Ibid., p. 61. Foss' Judges, vol. i. p, 198, 
 
74 The King's Peace 
 
 the Chancellor at this time heard criminal cases I know 
 not. He probably, being an ecclesiastic, retired when 
 any question of blood arose, and was thus never reckoned 
 among those judges who went on circuit to try the 
 criminals of the various counties. He also sat, as we 
 have seen, with the Justiciar and other barons as one of 
 the chief officers in the King's Exchequer, to assist in the 
 audit of the accounts of sheriffs and others, and to give 
 receipts or acquittances to the collectors of the revenue. 
 In this office he had as his staff a clerk and a scribe, the 
 former to assist him when he sat as the King's Chancellor 
 in the Exchequer, and the latter to transcribe the records 
 for preservation with other memoranda of the Great Seal. 
 In course of time, however, as the Chancellors duties 
 increased, from the charters becoming more numerous and 
 from the extension of, litigation necessitating a consider- 
 able addition to the forms and numbers of writs, and 
 greater care in their preparation, he gradually, 1 from 
 about the time of Richard I., gave up sitting as a baron 
 in the Exchequer, and ceased to take a direct interest in 
 revenue cases. About the reign of Henry III., his place 
 was permanently taken by his Chancery clerk, who then 
 became and was ever afterwards known as the Chancel- 
 lor of the Exchequer. 2 This official was not intrusted 
 with the discharge of judicial duties. His place was 
 simply in the Exchequer, and he moderated while he 
 supervised the due collection and the auditing of the 
 
 1 Maclox, vol. i. p. 195. 
 
 2 IJalTs Antiquities of the Ifacheqtier, p, 88. Crompfon, fol. 55, 
 
Cnria Regis 75 
 
 revenue of the Crown. This function he still con- 
 tinues to exercise, and we recognise in the Chancellor 
 of the Exchequer of to-day, not only the holder of one 
 of the most antient offices under the Crown, but the 
 member of the Cabinet specially charged with the care 
 of the royal and the national revenue, and the general 
 auditor and chief accountant of the United Kingdom. 
 
 Before the extinction of the Curia Regis, the King's 
 Chancellor appears as Cancettaritw AnyUm, and after- 
 wards as an independent judge. In addition to sitting 
 with the Chief Justiciar in the Curia Regis, he sat alone 
 to try such matters as came specially under his cognizance, 
 and gave up travelling about the country on judicial busi- 
 ness, except on those somewhat rare occasions when his 
 Sovereign required his personal attendance. 
 
 Of the early Chancellors after the Conquest the most 
 interesting, from the prominence and importance which 
 he gave to his office, was Thomas a Becket, who ad- 
 ministered the affairs of England as Chancellor for a 
 period of eight years, during which time he sat regularly 
 and heard causes in Westminster, in Kent, in Essex, in 
 Lincolnshire, in Shropshire, 1 and probably in many other 
 counties of England, of which, however, there are no 
 definite records. He describes his position at that time 
 as being that of the King's Chancellor, the second man 
 in England, without whose consent and advice no great 
 thing was set on foot or accomplished. 2 According to 
 the account of his secretary and chaplain, he was con- 
 
 : 
 
 1 Foss' Judges, vol. i. pp. 168, 198, 2 Selden's Discourse, etc, 
 
76 The King's Peace 
 
 stantly engaged in hearing causes, sometimes alone, but 
 usually in company with the Earl of Leicester and 
 Richard de Luci, whom tradition places among the most 
 eminent of the Chief Justiciars. And I entertain little 
 doubt that the general love and reverence in which he 
 appears to have been held by all classes of Englishmen 
 for many generations were due as much to his merciful 
 administration and his many reforms of the law, as to 
 the circumstances under which he met his death. He is 
 also closely associated with our judicial procedure by 
 means of his efforts in repairing and maintaining the 
 fabric of Westminster Hall, which, during the period 
 between the death of William Rufus and the accession of 
 Henry II., had fallen somewhat into decay. Mr. Pearson 
 in his report considers this matter, and is of opinion that 
 some traces of a Becket's work still remain on the walls 
 of the antient Hall. 
 
CHAPTER III. 
 
 FROM THE ACCESSION OF EDWARD I. TO THE DEATH OF 
 RICHARD III. 
 
 (A.D. 1272-1485.) 
 
 I. 
 
 The Courts of Common Law The Chief Justice of the King's 
 Bench The Chief Baron of the Exchequer Division of 
 business among the Courts The Common Bench Judges of 
 the Common Bench Appointment of Justices of the Peace- 
 Quarter Sessions of the Peace Permanence of the Judges- 
 Torture Opinions of successive Judges The Bar of England 
 The Order of the Coif Inns of Court Writers and Com- 
 mentators on the Common Law The Serjeants-at-Law 
 Their Privileges Their Duties to the Crown and the People 
 Counsellors-at-Law Classification under Richard II. 
 Courts re-organized by Edward I. The High Court of Ad- 
 miraltyThe Peace of the Seas The Black Book of the 
 Admiralty The Courts of the Cinque Ports Court of Shep- 
 W ay Courts of Trailbastoii Court of the Clerk of the 
 Market An article of Wolsey's Impeachment The Court of 
 Py powders. 
 
 THE accession of Edward I. found the Courts of King's 
 Bench, Common Bench and Exchequer sitting in West- 
 minster Hall. No Act of Parliament or royal edict had 
 abolished the Curia Regis, but it had come to an end, 
 like many another English institution, because it had 
 done its work and was no longer suitable to the times. 
 The Constitutions of Clarendon (A.D. 1165) had recog- 
 
;S The King's Peact 
 
 nised the Curia Regis as a tribunal of common resort, 1 
 where the Bishops sat with the Justiciars and the Barons 
 until cases of blood required them to depart. But since 
 then its jurisdiction as a Supreme Court had been much 
 impaired. The distribution of its business over the 
 country, through the appointment of itinerant justices, 
 who sat in their several counties as justices of the Curia 
 Regis, 2 had tended to this result, and at the same time 
 the prerogative of the Chief Justiciar had been gradually 
 encroached upon by the growing power of the Chancellor 
 as a lawyer and a statesman. Its end was gradual, and 
 the exact moment of its termination cannot be ascer- 
 tained, for it actually overlapped the new system. The 
 Justiciar and his colleagues held office for some years 
 after the description of the King's justices had been 
 changed from the general appellation of Justiciars to the 
 limited title they still hold of justices assigned to hold 
 pleas, coram rege, before the King. 
 
 The courts thus established, which from that time for- 
 ward for six hundred years, under the familiar title of 
 the Courts of Common Law, transacted the business of 
 the country, reflected the condition of the English people 
 at the period of their institution. The Normans, who had 
 invaded but not overrun the country, impressed upon its 
 surface their thoughts and traditions ; but the Norman 
 Inquisition had only emphasized the Anglo-Saxon practice 
 of open trial by freemen and neighbours. Inter- marriages 
 
 1 Stubbs' Count Uutionai Hixlory, vol. i. p. 503. 
 
 a Stephen's History of the Criminal Laiu, vol. i. p. 90, 
 
Division of the Conns 79 
 
 and territorial settlements had, also, by this time amal- 
 gamated the two races into one, so that there was no 
 longer any recognised distinction between Norman and 
 Anglo-Saxon, but all were equally English. And though 
 the Norman blood was thought the more noble, and those 
 families whose ancestors came over with the Conqueror 
 regarded themselves as of a more patrician class, yet the 
 great mass of the people were still of the Anglo-Saxon 
 strain, whose manners and customs still survived. 
 The language of the country was also in a state of 
 transition Latin was specially that of the learned, 
 English was that of the common people, while French 
 was gradually coming into use by all classes. The 
 polyglot jargon of the courts and the law books be- 
 longs to a later date. Thus though the Norman 
 system of Chief Justices and trained lawyers as Presi- 
 dents of courts was accepted as safe and satisfactory 
 in principle, yet the Anglo-Saxon method of local trials 
 and the judgment of neighbours remained undisturbed, 
 and was recognised as an essential feature of the new 
 procedure. As the county in the Anglo-Saxon times was 
 the unit for judicial administration, so also it remained 
 under the Normans. And as the shire-gemote, formerly 
 presided over by the Sheriff, who convened the suitors 
 and arranged the details of business, was held twice in 
 the year as the Supreme Court of the district for the 
 trial of causes and of criminals, so also under the new 
 system the county remained the unit, the Sheriff sum- 
 moned the jurors and witnesses and arranged the 
 business, and twice in the year the King's justices, super- 
 
So 77/6- J\ i tig's l\~ 
 
 seding the Sheriff in his office of President, visited each 
 county and tried all causes and offences arising within 
 its limits. Hither also came the witnesses and the 
 suitors, collected from the county, who judged the law 
 and the facts, and found their verdicts from their know- 
 ledge of the party's reputation, and of the circumstances 
 into which they had to inquire. 
 
 In the 52nd Henry III. (A.D. 12G8), Robert de Brus 
 (grandfather of Robert the Bruce, King of Scotland) 
 was appointed the first Chief Justice of the King's 
 Bench. He was a man of noble lineage and of good for- 
 tune, who was a lawyer by education and by profession . 
 He had acted for some years as a Justiciar, and had gone 
 several circuits. His position, however, as Chief Justice 
 was limited to the administration of justice : he was no 
 longer a statesman or a viceroy, and the salary, which 
 was 1,000 marks when the Chief of the Court was also 
 Chief Justiciar, was reduced to 100 marks when the office 
 was solely that of Chief Justice of the King's Bench. 1 
 In other words, 15,000 a year to the Chief Justiciar was 
 reduced to 1,500 a year to the Chief Justice. 
 
 The Courts accordingly sat as the King's Bench, the 
 King's Exchequer, and the Common Bench, otherwise 
 the Common Pleas. The King's Bench was presided 
 over by the Lord Chief Justice with certain puisne or 
 assistant judges, the Exchequer by the Lord Treasurer 
 with the Chancellor of the Exchequer and other barons, 
 and the Common Bench by the Chief Justice and other 
 
 1 Judycs, vol. ii. p. 155. 
 
THE COURT ov KING'S BENCH, TEMP. HENRY VI. 
 
 The Chief Justice and four Puisne Justices on the Bench) a jury 
 in the box, si.v prisoners at the 6ar, and one prisoner being 
 in chains. 
 
 From an illuminated MS. in the Inner 
 
 See page 123. 
 
Division of the Courts 8 1 
 
 justices from time to time appointed by the King. It 
 appears that for some time after the division of the Curia 
 into these three separate courts, the Exchequer continued 
 to try pleas between party and party, but in A.D. 1300 
 that court was ordered by Statute J to refrain from hear- 
 ing such causes as contrary to the Great Charter, and 
 to confine itself to matters touching the King's revenue. 
 Shortly afterwards, in 1303, William de Carleton, a jus- 
 tice of the Common Pleas, was appointed Chief Baron 
 of the Exchequer. 2 This office he held concurrently with 
 that of a puisne judge of the Common Bench, and was 
 the first person so appointed. From this date, as vacan- 
 cies in the office of Chief Baron from time to time 
 occurred, they were usually but not invariably filled 
 from the justices of the Common Bench. The justices 
 so appointed continued to hold the two offices of Justice 
 and Chief Baron, their duties at that period being in no 
 way inconsistent, as the barons could not try causes or 
 hear appeals, and the Common Bench had no jurisdiction 
 over affairs of the revenue. 
 
 The business was divided in the following manner. 
 The King's Bench had exclusive jurisdiction in all pleas 
 of the Crown, and in all appeals from inferior courts. 
 The Common Bench had exclusive jurisdiction in all real 
 actions or suits relating to land and in actions between 
 private persons to try private rights, while the juris- 
 diction of the Exchequer was limited to causes touching 
 the King's revenue with which it had exclusive power 
 
 1 28 Edward I. " Dugdale, Chronica Series, fol. 32. 
 
 G 
 
82 The King's Peace 
 
 to deal. All these judges went Circuit twice a year, 
 the barons of the Exchequer only trying cases on the 
 revenue side, and no baron being permitted to try a 
 prisoner or a civil cause unless he happened also to be 
 a justice of the Common Bench, when he tried prisoners 
 and causes in the latter capacity. The Assizes were held 
 in the County Courts, and those tribunals were for many 
 years after the end of the Curia Regis constituted as 
 before with bishops, abbots, earls, barons, knights and 
 freeholders of the county, the reeve and the burgesses of 
 each township in the county and all those who of old 
 were accustomed to be summoned to attend the business 
 of the court. Itinerant Justices were appointed from 
 time to time for some generations after the accession 
 of King Edward I., and they went circuits equally 
 with the justices of the Courts of Common Law. But 
 the practice was found to be inconvenient. All courts, 
 including those of the Itinerant Justices, were closed so 
 long as the King's Judges of either Bench held their 
 Justice Seat within the County. The Justices in Eyre 
 had accordingly an inferior position and less authority, 
 in public estimation, than the justices in the King's 
 Courts ; there were great complaints of the expense and 
 burthen cast upon the counties for the escort and enter- 
 tainment of these numerous justices, and in 1335 they 
 ceased to be appointed. 
 
 This division of the business of tho courts, which was 
 however much interfered with by various devices of tho 
 lawyers at a later period, had the inevitable result of 
 throwing the greater portion of the work upon the 
 
COURT OF COMMON BENCH, TEMP. HENRY VI. 
 
 The Chief Justice and six Puisne Justices on the Bench; five 
 Serjeants pleading. 
 
 From an illuminated MS. in the Inner Temple. 
 
 See page 123. 
 
ce page 83. 
 
 CO ORT oj ConrlON PLEAS 
 
Division of the Courts 83 
 
 Common Bench, which became, as it was called by 
 Sir Edward Coke, 1 " the lock and key of the Com- 
 mon Law," or, more familiarly by Sir Orlando Bridg- 
 man, " the Common Shop for Justice." 2 Crown cases 
 were limited in number, and the justices of the King's 
 Bench, after a time, were not only put into an easy 
 position as regarded the work they were called upon to 
 perform, but as in those days their principal source of 
 income was from the suitors' fees, they correspondingly 
 suffered in pocket. The Common Bench, on the other 
 hand, was always full of work, which rapidly increased, 
 with the result that whereas the justices of the King's 
 Bench seldom numbered more than three or four, those 
 of the Common Bench were frequently seven or eight 
 and sometimes amounted to as many as nine. Thus 
 under Edward I. there were at times four, five and six 
 justices of the Common Bench in addition to the Chief. 3 
 Under Edward II. the Court was ordered to sit in two 
 divisions by reason of the multitude of pleas. 4 Under 
 Richard II. and under Henry IV. there were three 
 justices of the King's Bench and five of the Common 
 Bench. 5 Under Henry V. there were four justices of the 
 King's Bench and six of the Common Bench, in addition 
 to the Chiefs. 6 Under Henry VI. and Edward IV. there 
 were four justices of the King's Bench and seven 7 and 
 at one time eight 8 of the Common Bench. The latter 
 
 1 Imtifodes, vol. iv. p. 78. 
 
 2 " Trial of Regicides," State Trials, vol. v. p. 993. 
 
 3 Foss' Judges, vol. iii. p. 22. 4 Ibid., p. 195. 
 > Ibid., vol. iv. pp. 21, 134. 
 
 Ibid., p. 190, 7 Ibid., p. 226. 8 Ibid., p. 390, 
 
S.j. The King's Peace 
 
 court had also this great advantage, that it sat always at 
 Westminster, while the King's Bench, the Exchequer, 
 and the Chancery were liable to follow the progresses of 
 the King. And although it soon became the practice to 
 dispense with the attendance of the judges and the 
 barons, unless the King had some special need for their 
 assistance, yet when he was located for an indefinite 
 period at some provincial town, and had there established 
 his Royal Court, the King's Bench and the Exchequer 
 with their clerks, their secretaries, their treasure and 
 their baggage moved from London in the wake of the 
 Sovereign. Thus from 1277 to 1282 the Law Courts 
 were at Shrewsbury, 1 while the King was fighting in 
 Wales, and from 1298 to 1305 they were at York, 2 while 
 the King was on his expeditions into Scotland. On the 
 latter of these occasions a square chequer board with the 
 necessary seats and fittings was erected in the yard of 
 York Castle for the use of the barons and the account- 
 ants of the Exchequer. 
 
 The decadence of the smaller courts in the various 
 counties and the scandals arising therefrom led to a new 
 departure in the administration of justice, and in the 
 reign of Edward III. (about 1327) Justices of the Peace 
 for each county were first appointed. In or about 1350 
 they were ordered to hold Sessions quarterly to try 
 breaches of the Statute of Labourers. 3 About 1359-GO 4 
 they were empowered to try crimes and misdemeanours 
 
 1 Foss 1 Judge*, vol. iii. p. 22. 2 Ibid., p. 12:?. 
 
 3 25 Edward JII, 4 24 Ethvan] Ill, 
 
Division of the Courts 85 
 
 committed in their county, and by a Statute of Edward 
 IV. 1 they were empowered to sit regularly in Quarter 
 Sassions for general business. 
 
 The immediate reason for the permanent establishment 
 of Quarter Sessions, as recited in the preamble to the 
 Statute, appears to have been the misconduct of the 
 sheriffs, who packed the juries, compelled the payment of 
 excessive fees, and by various extortionate devices held 
 unhappy suitors to ransom. And here again, the Anglo- 
 Saxon system of self-government seems to have been 
 recognised, by the removal of these trials from the Sheriff 
 or officer of the Crown to the resident gentry and land- 
 owners of the county. 
 
 The story of the Courts of Common Law from the 
 closure of the Curia Regis to the end of the civil wars is 
 a history rather of individual judges than of any substan- 
 tial changes in legal procedure. The courts sat uninter- 
 ruptedly through the whole period, for the sanguinary 
 strife of political parties seems to have had no deterrent 
 effect upon the course of litigation. With the exception 
 of a wholesale removal of judges, many of whom were 
 suspected of receiving bribes under Edward I., and of a 
 batch of judges who were dismissed shortly before the 
 deposition of Richard II. for alleged misconduct in their 
 office, of whom several were afterwards reinstated, there 
 was during this period but little interference with the 
 judicial bench. Daring the Wars of the Roses each 
 successful party appealed in turn for the support of 
 
 1 1 Edward IV. c. 2. Reeve's History, vol. iii. p. 9. 
 
86 The Kings Peace 
 
 peaceful citizens by testifying to their respect for and 
 confidence in the judges of the several courts who had, 
 notwithstanding the distractions of the times, quietly and 
 courageously discharged their duties. Thus Sir Thomas 
 Billing, who was appointed Chief Justice of the King's 
 Bench by Edward IV. in 14G5, was re-appointed by 
 Henry VI. on his return to power, and after the death of 
 King Henry remained Chief Justice under Edward IV. 
 Sir Edward Hussey, who was appointed to succeed Sir 
 Thomas Billing by Edward IV. in 1481, was re-appointed 
 by Edward V. in 1483, by Richard III. in the same year, 
 and by Henry VII. in 1486. The independence of the 
 judges during this period, with the courage of Sir Wil- 
 liam Gascoigne in the reign of Henry IV., and of Chief 
 Justice Markham in the reign of Edward IV. are among 
 the landmarks of English history. The tradition of Chief 
 Justice Gascoigne committing to prison the Prince of 
 Wales, afterwards Henry V., for a contempt committed in 
 the Court of King's Bench, has been investigated by Lord 
 Campbell, who gives the various authorities upon which 
 the story rests, and finds it to be substantially true. 1 
 And Sir John Markham, though not exhibiting his in- 
 dependence in a form so attractive to the historian or 
 the public, undoubtedly suffered for his courage and his 
 integrity, and was for many generations held up as an 
 example to his fellow-men. 
 
 These judges, like their predecessors, administered the 
 law with care and, according to the feeling of the times, 
 
 1 Lite* of Chief Justices, vol. i. p. 125. 
 
Division of the Courts 87 
 
 with mercy. In one special respect also they were far 
 in advance of the spirit of the age. For many genera- 
 tions, down even to the end of the seventeenth century, 
 every country in the known world had recourse to torture. 
 It was applied indiscriminately to extract confessions of 
 guilt or to obtain evidence incriminating suspected per- 
 sons. During the early period of the Norman supremacy, 
 when disaffection to the ruling class was dominant, in 
 times of rebellion and of civil war, when charges of trea- 
 son were scattered broadcast, and at other periods when, 
 owing to the general disturbance of the country, evidence 
 was rarely and with difficulty obtained against malefac- 
 tors, great temptation must have been felt to extract the 
 necessary proofs by means of torture. It was practised 
 for that purpose in France, in Germany, in Spain, in 
 Italy. If an Englishman crossed the water to Normandy, 
 he was liable to its application, and the Pope permitted 
 it in his own dominions. And if it was true that no 
 English statute expressly authorised the use of torture, it 
 was equally true that no statute expressly forbade it. 
 But notwithstanding this universal practice of the con- 
 tinent of Europe and the absence of any express prohibi- 
 tion, the judges of England never had recourse to it. 
 Glanvil, writing in the reign of Henry II. on the laws 
 and customs of England, on the procedure of the duel and 
 the practice of the Great Assize, while treating in detail 
 of all such' matters, makes no reference to the use of 
 torture as part of the judicial system. Fortescue, in the 
 reign of Henry VI., dealing with the laws and customs 
 of England as thoii established, praises those laws us 
 
88 The King's Peace 
 
 merciful and just, and condemns in strong and vigorous 
 language the resort which is had to the use of torture in 
 France, where he was then living, and points out with 
 good sense and much force the useless character of the 
 evidence thus obtained. At a later date Sir Edward Coke, 
 and under Charles I., Lord Chief Justice Richardson and 
 the whole bench of judges denounced its use, and declared, 
 in answer to questions from the Crown, that it was and 
 always had been unknown to the common law of England, 
 that the provisions of Magna Carta were inconsistent 
 with its ever having been recognised by the constitution 
 of the kingdom, and that no Englishman could by the 
 law of his country be put to the rack. And although 
 under the Tudors, under King James I., and possibly on 
 some occasions at an earlier date, torture was practised in 
 order to obtain evidence, yet it was done by extraordinary 
 tribunals, and not by the antient constitutional courts of 
 the country. Nor am I aware of any single instance, 
 even in the worst years of tyranny and prerogative, when 
 any man has been subjected to torture by order or assent 
 of the Court of Chancery or the Courts of Common Law, 1 
 
 1 The subject of torture as practised generally in Europe will 
 be found discussed with great keenness of investigation in a little 
 work entitled Superstition and Force, by H. C. Lea, Philadelphia, 
 1878. From the English point of view, see Fortexcne de Laudilm*, 
 etc., cap. 22; Countess of Shrewsbury's Case, 2 Mate Trial*, p. 
 773 ; Peacham's Case, ibid., p. 871 ; Felton's Case, 3 State Trial*, 
 p. 371 ; Elizabeth Cellier's Case, 7 State Trials, p. 1205 ; the argu- 
 ments in Governor Picton's Case before Lord Ellenborough , 30 
 Sffttfl. Trial*, p. 892; Stephen's Hixtory of the Criminal Law, vol. i. 
 p. 222; Lyttleton, Henry II., vol. iii. p. 312; Jardine, 1837. 
 
T/ie Serjeants-at-Law 89 
 
 or when confessions obtained by the rack have been used 
 for the conviction of accused persons. 
 
 During the period now under consideration the Bar, as 
 an element of judicial life, and as a permanent institution 
 of the country, first became fixed and ascertained. When 
 the practice of advocacy, hired or voluntary, was first 
 introduced into England it is impossible to determine. 
 Serjeant Pulling, in the " Order of the Coif," 1 wishes to 
 carry back the order of the Serjeants to the time of King 
 Alfred. Other writers of more moderate views have been 
 content with ascribing it to a somewhat later period. 
 That advocates were known in the Curia Regis under 
 certain terms and conditions I do not doubt ; but in regard 
 of any definite period when they may be said to have 
 been established, I prefer to stand on the clear and cer- 
 tain ground that the first official recognition of the counsel 
 or advocate authorised to represent his client in court is 
 to be found in the third year of King Edward I., 2 when 
 it was declared that, " if any Serjeant-counter do any 
 deceit or beguile the court, he shall be imprisoned for a 
 year and a day, and from henceforth not be heard to plead 
 in the court for any man." 
 
 Under the Anglo-Saxons every litigant, whether in 
 civil or criminal business, spoke for himself, except, as 
 I think, women or children, who, not being able to come 
 
 1 London, 1884: see the Address of Lord Keeper White? ork to 
 the 15 Serjeants in 1649, p. 231. 
 
 2 Statute of Westminster, I. cap. 29 : Foss 1 Judyes, vol. iii. p. 47. 
 Dugdale, in his Chronica Series, fol. 25, gives the 'names of the 
 first serjeants-at-law under date A.D. 1276. 
 
90 The King*s Peace 
 
 into court, were represented as best they might. 1 The 
 same right of representation accrued to women, children, 
 old men, and maimed persons, who were allowed to ap- 
 poar by their champions at the ordeal of battle, a privi- 
 lege afterwards extended generally to litigants in civil 
 causes. As far, however, as is known, there was origin- 
 ally no limitation or restriction upon the litigant as to 
 whom he should select as his representative ; nor was ex- 
 clusive audience in the courts, or admission to the lists as 
 champion, reserved for any class of the King's subjects. 
 There thus arose for the purposes of the duel a body of 
 bravos who, for sufficient payment, would undertake the 
 ordeal, and risk the chances of punishment in the event 
 of being vanquished. Accordingly some of the older 
 Corporations had in their midst a retained champion 
 who represented them, in defence of their rights, in any 
 litigation in which they might be involved. With the 
 growing discredit of the duel, to which the professional 
 champion greatly contributed, the extension of civil busi- 
 ness and the complications thence arising, more careful 
 and exclusive study was given to the science of the law, 
 and a body of persons, mostly, no doubt, of clerical train- 
 ing, devoted themselves to this pursuit. As early as the 
 time of Henry II. we hear from Glanvil, 2 writing in or 
 about 1181, of the nomination of certain persons as at- 
 torneys " to win or lose " for the party nominating them, 
 but the passage does not appear to me to indicate any 
 
 1 See, for an instance, ante, p. 16. 
 
 -' d'fttnvil, by Boames, p. 275, book xi. 
 
The Serjeants-at-Law 91 
 
 right or duty of advocacj^. Such nomination also in- 
 volved much delay, and the mandate required the King's 
 assent, in the absence of which the party was required 
 himself to be present in court. Some }^ears later about 
 A.D. 1207 ecclesiastics were forbidden to act as advo- 
 cates in secular courts, and accordingly those of the 
 clergy who had adopted the law as a profession, and were 
 unwilling to be deprived of their means of livelihood, 
 assumed a coiffure or close-fitting head-dress of linen or 
 silk to hide their bald patches ; and thus, according to Sir 
 Henry Spelman, 1 originated the Order of the Coif. The 
 fixture of a certain court for the trial of civil causes in 
 London also encouraged the calling or profession of ad- 
 vocacy, and led to the institution of the Inns of Court, 
 where students of the law could congregate as at a Uni- 
 versity, hear lectures on the Roman law and the laws of 
 their country, and prepare themselves for their future 
 duties. To these studies the great legal writers of the 
 period freely contributed ; and although doubts have been 
 expressed whether all or any of these jurists are actually 
 responsible for the whole of the works attributed to them, 
 yet such criticism is speculative, and ought not in all 
 fairness to deprive these antient benefactors of the credit 
 of those volumes of the law to which their names have 
 for centuries been appended. 
 
 Ranulph de Grlanvil had, in the twelfth century, 
 written our first legal treatise on the "Laws and Customs 
 of the Kingdom of England," and this had been extended 
 
 1 P. 171 ; see 3 Dyer 3016. 
 
92 77/6' King^s Peace 
 
 and annotated, as is supposed, by Hubert Walter, his 
 nephew and successor in the office of Chief Justiciar. 
 Henry de Bracton, a justice if not Chief Justiciar under 
 Henry III., wrote, on the laws and customs of England, a 
 work comprising five large octavo volumes as published 
 by the Commissioners of Public Records. The Mirror of 
 Justices, ascribed to Andrew Home, was written or anno- 
 tated by him in the reign of Edward I. John de Britton, 
 a justice of the King's Bench under Henry III. and 
 Edward I., wrote, by command of the latter king, a work 
 on the Common Law of England. Sir John Fortescue, 
 Chief Justice of the King's Bench under Henry VI., 
 wrote, during his enforced retirement in France, a treatise 
 in praise and explanation of the laws of England for the 
 instruction of his pupil, Prince Edward, eldest son of 
 Henry VI., who lost his life at the battle of Tewkesbury ; 
 and Sir Thomas Littleton, a justice of the Common 
 Bench under Edward IV., wrote the celebrated work on 
 the tenures of England, which was completed and re- 
 edited by Sir Edward Coke in the reign of King James I. 
 These great writers and profound jurists laid the founda- 
 tion of English law as recognised and practised at the 
 present day, and their works are still quoted in our courts 
 as undoubted authorities. 
 
 The Serjeants, who for some generations were the only 
 recognised pleaders in the King's Courts, were part and 
 parcel of the court itself. They held office under the 
 Crown, were appointed by patent, and had a monopoly 
 which was so far remunerative that they were required 
 to give feasts, rings, and presents upon their appointment. 
 
The Serjeants-at-Law 93 
 
 Their title, Scrvientes Domini Regis ad leyem, Our Lord 
 the King's servants at law, indicated the nature of their 
 calling, and has stereotyped the functions of an English 
 barrister at all times. And it is, I think, from a want 
 of due appreciation of this attitude that foreign judicial 
 writers have very signally failed to realize the actual 
 position of an English barrister towards the judges, the 
 clients, and the public. 1 The Bar, as represented in olden 
 times by the Serjeants, whether called narratores or 
 counters, formed a well-recognised part of the judicial 
 system. They could only plead in court after accom- 
 plishing certain studies and a certain period of probation. 
 They took the oath of office before entering on the prac- 
 tice of their profession. They were liable to be sent to 
 various circuits " to follow for the King," or, in other 
 words, to do the King's business in the country. They 
 had certain specified privileges, including a salary from 
 the Crown, and from the time at least of Henry V., in 
 accordance with the custom then existing, the judges of 
 the Common Law Courts could be selected only from their 
 ranks. 2 The Serjeant's oath bound him to serve the King 
 and his people, thus prescribing the divided allegiance 
 which the Bar has always borne. His duties involved 
 the avoidance of any deceit upon the court as represent- 
 
 1 De Franqueville, in his Systeme Judiciaire de la Grande 
 Bretagne, Paris, 1894, a work discussing our existing judicial 
 system with great fairness, and giving evidence of much re- 
 search, hardly does justice to the position of the English Bar in 
 its relations to the Judicial Bench and the public. 
 
 ? f'orlescue, chap. 1, 
 
94 The King's Peace 
 
 ing the King, nnd the giving of honest advice to tlio 
 people as represented by the suitor. Thus was every 
 serjeant made an assistant in the administration of jus- 
 tice, and there was required from him absolutely good 
 faith towards the judge and the client, owing no more 
 duty to the one than to the other. The education and 
 the associations of the judge and of the serjeant were one 
 and the same. Each was chosen from the same body of 
 trained lawyers, each wore the same distinctive coif, and 
 they addressed each other as " brothers " in public and 
 in private. 1 And as the Serjeants provided from their 
 numbers the judges of the courts, so also the judges in 
 their turn were replaced by the Serjeants when the former 
 were from any cause temporarily incapacitated for work. 
 This double position of the sergeant, sometimes a judge, 
 sometimes an advocate, is still continued in the case of 
 leading counsel, who, as Recorders, try criminals in one 
 town, and as counsel prosecute or defend them in another; 
 who sit at times with the Common Law judges as Com- 
 missioners of Assize on one circuit, and practise as ad- 
 vocates on the next. Added to this, the custom for the 
 rules of the Bar are no more than customary rules that 
 separates the counsel from the client in the course of 
 litigation by the intervention of an attorney or solicitor, 
 
 1 " Every Serjeant wears in Court a white silk coif, which is a 
 ba.lgo that they are graduates in law, and is the chief ensign of 
 habit with which Serjeants-at-law are distinguished at their 
 ovation. Neither shall a Judge or a Sorjeant-at-law take off the 
 said coif though he be in the Royal presence and talking with 
 the Kin^s Majesty." Fortescue, chap. 1. 
 
The Serjcants-at-Laiv 95 
 
 is a custom of very remote origin, and is calculated to 
 give the Bar an independence of judgment and of action 
 which could not be guaranteed if by any means the 
 counsel could be pecuniarily interested in the result of the 
 litigation. And upon the same footing stands the equally 
 immemorial custom which forbids a barrister to be the 
 salaried advocate of a company or a corporation, and thus 
 places him at the disposition of any of the people, who 
 can have his services without his judgment being warped 
 by a divided duty between them and their possible 
 opponent. These rules, though customary alone, are old 
 and settled like the customs of the Common Law, of 
 which Montaigne has said that, beginning with trembling 
 foot and placid mien, they have in time discovered an 
 aspect so tyrannical and severe that they forbid us even 
 to question them with an uplifted eyebrow, 
 
 Serjeants after a time becoming too few for the business 
 to be transacted, counsellors at law were admitted to 
 plead. The names of some eighty-eight of these coun- 
 sellors, many of whom were afterwards Serjeants and 
 judges, have been extracted from the cases tried in the 
 reign of Edward II., 1 and they give the first instance of 
 the employment of this class of advocate. The distinction 
 between Serjeants and counsel has existed ever since 
 that date, There have always been the leading counsel, 
 whether serjeant or king's counsel, holding his office by 
 patent, and the junior counsel who, without any patent 
 or official position, relies solely on his knowledge of law, 
 
 1 FOBS' Judges, vol. iii. p. 208. 
 
96 TJic King's Peace 
 
 and his skill in pleading and practice. This, almost the 
 present classification of the Bar, appears to have definitely 
 existed as far back as the time of Richard II., for that 
 monarch's poll-tax of 1378, has the following assess- 
 ments : ' 
 
 The Judges and chief Baron of the Exchequer . 100 sh. 
 Each Serjeant and " grant apprentice du loi " . 40 
 Other apprentices who pursue the law . . . 20 
 All other apprentices of less estate and attorneys Gsh. 8d. 
 
 Edward I., aptly called the English Justinian, while 
 initiating beneficial reforms in the law, made little if 
 any substantial alteration in the procedure of the high 
 courts. He found it necessary, however, acting in the 
 spirit of devolution which then animated the law re- 
 formers, to erect or reorganize various courts which, 
 during his reign, came prominently forward. Among the 
 most important was the HIGH COURT OF ADMIRALTY 
 which, although its origin is usually attributed to 
 Edward III., was an antient court though acting under 
 somewhat different conditions in the reign of Edward I. 2 
 
 The first Admiralty Ordinance, of which we have a 
 record, was issued by Henry I., and dealt mainly with 
 the subject of wrecks ; 3 Richard I., under whom were 
 first published the sea laws of Oleron, so called from the 
 island of that name where they were promulgated, speaks 
 of the Court of Admiralty as being then a Court of Re- 
 
 1 Hot. Part., iii. 58. Foss : Jiidye*, vol. iv. p. 24. 
 
 2 An Admiralty cause tried in this reign is given by Cromp- 
 t<>n, fol. !)1, and accepted by Coke. List., vol. iv. p. 140. 
 
 3 Twiss' Black Book of the Admiralty, vol. i. p. xlvi. 
 
The High Court of Admiralty 97 
 
 cord. 1 John made an ordinance at Hastings, the premier 
 Cinque Port, that all vessels should lower their sails 
 on meeting the King's ships; 2 and Edward I. in council, 
 tried and decided, in 1285, 3 a question of maritime law 
 between the Ginque Ports and certain Grascony merchants 
 according to the principles afterwards laid down in the 
 Black Book. There appear during the following reigns to 
 be records of decisions of various commanders, relating 
 principally to the manning of the King's ships, and of 
 punishments inflicted on various offenders. But it is 
 doubtful how far the admiral of any particular fleet had 
 judicial power beyond his own particular command. 
 
 The first Admiralty Jurisdiction in somewhat of the 
 modern form, appears to have been committed to the 
 Lord Warden and Bailiffs of the Cinque Ports. These 
 important places provided the Navy of the West which 
 was in effect the Navy of England, for that of the North 
 was in the early days comparatively unimportant. The 
 first Admiral of England was Grervase Alard, Admiral 
 of the Navy of the Cinque Ports in the reign of Edward I. 
 To him and to the Lord Warden of the Ports, questions 
 of piracy and of maritime claims were submitted, a con- 
 current jurisdiction being exercised by the Chancellor 4 
 who, for many generations afterwards, notwithstand- 
 ing the erection of a High Court of Admiralty, dealt 
 with questions arising on the high seas involving the 
 rights of foreign nations, or charges of piracy to which 
 
 1 Twiss 1 Black Book of the Admiralty, p. xlvii. 
 
 2 Ibid., p. xlix. 3 Ibid., p. Ixx. ; Bymer's fcedera f 12, Edw. I. 
 4 Crompton, fol. 54. 
 
98 The King's Peace 
 
 our ancestors seem to have been much addicted. Ques- 
 tions of charter party, freight, or other contracts, were 
 dealt with by the itinerant justices, who assumed juris- 
 diction over all such matters when the ships of the parties 
 were within the territorial limits of a county. 
 
 When Edward III., after the battle of Sluys (A.D. 
 1340), obtained the sovereignty of the sea, he found it 
 necessary to extend that sovereignty by erecting a court 
 to keep the Peace of the Seas, as his Courts of Common 
 Law kept the King's peace on land. And accordingly 
 we find a memorandum issued by Edward III., requiring 
 that the Justiciaries should be consulted as to the proper 
 mode of proceeding, so as to secure the antient supremacy 
 of the Crown and the power of the Admiral's office over 
 the sea of England, so as " to maintain peace and justice 
 amongst the people of every nation passing through 
 the sea of England." l The result of this enquiry was, 
 that a High Court of Admiralty under the Lord High 
 Admiral of England was established, and that in the 
 reign of his successor, Richard II., 2 laws were passed 
 giving a distinct and statutory authority to the Court 
 of the Admiral, which from that time forward has exer- 
 cised its jurisdiction over all causes, matters, and persons 
 maritime. 3 Exclusive power was however reserved to 
 the Cinque Ports to try their own Admiralty cases in 
 
 1 tielden Society, vol. 6, p. xxxv. ; Black Book, Preface. 
 
 -' Stat. 13 and 15, Richard II. 
 
 3 A recent volume of the Selden Society (1894) gives a collec- 
 tion of pleas in the Admiralty from 1390 to 1404, and contains 
 much interesting matter on the early history of the Admiralty. 
 
Initial Letter of the Black Book of the Admiralty, described in 
 page 99. It is illuminated in gold and colours^ and is in the 
 custody of the President of the Probate, Divorce and Admiralty 
 Division of the High Court. 
 

The High Court of Admiralty 99 
 
 their own local Court, a jurisdiction which still exists in 
 the Lord Warden, who exercises it in the person of his 
 Admiralty Judge. 1 
 
 In order that the court thus constituted, with authority 
 to decide on international as well as on English rights, 
 should have before it a statement of definite principles 
 and a recognised practice to guide it in its deliberations, 
 there was prepared during the reign of Edward III. or 
 of Richard II. one of the oldest and most valuable of our 
 national muniments, the Black Book of the Admiralty. 
 This book, whose authenticity is vouched not only by its 
 internal evidence but by such eminent legal antiquaries 
 as Sir Leoline Jenkins, Prynne and Dr. Exton, was lost 
 in the beginning of the present century by the officials 
 in the Admiralty Registry, and Sir Travers Twiss, then 
 Queen's Advocate, was employed by the Government to 
 reconstruct it from a collection of the various copies 
 and extracts known to have been taken from the original 
 at Doctors' Commons. This work was successfully 
 accomplished, and what is an almost exact reproduc- 
 tion of the original was produced. A few years since, 
 not long after the completion of Sir Travers Twiss' 
 labours, the original was found to be still at Doctors' 
 Commons, and is now carefully preserved. It is a quarto 
 volume of about 260 pages in MS., written partly in 
 French and partly in Latin, and illuminated to a limited 
 extent, the first page having a coloured ship of war 
 very similar in design and equipment to that of the 
 
 Crompton, 99 ; Jeake's Charters of the Cinque Ports. 
 
ioo The Kings Peace 
 
 gold coins of the Plantagenets and the seals of the Cinque 
 Ports, It contains chapters (1) on the duties and privi- 
 leges of the Lord High Admiral ; (2) on how the Admiral 
 should conduct his court ; (3) on the crimes and punish- 
 ments of the Admiralty, with a transcript of the laws of 
 Oleron promulgated by Richard I. ; (4) an inquisition 
 taken at Queenborough in 1375, when forty-nine articles 
 or Sea laws were agreed upon " by eighteen persons most 
 famous for skill in sea- faring matters," 1 to be given 
 credit to as guides for the office of the Admiralty in 
 England. This is followed by some chapters on the prac- 
 tice of certain foreign courts. There is also in another 
 part of the book a treatise on the law and practice of the 
 duello signed by Thomas, Duke of Norfolk, who was Lord 
 High Admiral and Constable under Henry VIII., and 
 died in 1535. The book thus commenced at some time 
 during or after the reign of Edward III., was continued 
 under Henry IV., Henry V., Henry VI., and Edward IV., 
 who appointed the first judge of the Admiralty Court by 
 royal patent, in the person of Dr. William Lacy 2 in 1482. 
 A second book of apparently equal if not greater antiquity 
 bound in wood with metal bosses, which, so far as it is 
 perfect (the first half of the book having been cut away), 
 begins in 1535, contains, among other things, the oaths 
 to be taken by various Admiralty officials. 
 
 The Court appears originally to have sat at Orton Quay 
 and other spots near London Bridge, until it was con- 
 stituted a court for all England, when its sittings were 
 
 1 Extorts DicfKology, p. 124. 2 Selden Society, vol. vi. p. 65. 
 
The High Court of Admiralty 101 
 
 regularly held at Doctors' Commons. The trial of mari- 
 time criminals took place either by the Chancellor, or by 
 the Admiralty Court, where they were tried sometimes 
 by juries, sometimes by the judge alone. 1 The regular 
 records of the Court begin about 1524, but intermittent 
 records are to be found under the dates of Richard III. 
 and Henry IV., and there are numerous documents relat- 
 ing to the judgments and the jurisdiction of the Court 
 of Admiralty to be found scattered through the records 
 of other courts and offices. 
 
 A reproduction in copper of the oldest known seal of 
 the Court of Admiralty is given with the sixth volume of 
 the Selden Society's publications. The ship on this seal 
 resembles that in the Black Book, and is an almost exact 
 reproduction of the seal of the Hundred of Tenterden, 
 one of the limbs of the Cinque Ports, which bears the 
 Plantagenet badge, the star of Bethlehem opposed to a 
 crescent moon, and would probably have been granted 
 during their dynasty. The impression is attached to an 
 Admiralty warrant dated 1559 ; but the seal itself may, 
 from its appearance, have been struck at any time from 
 the reign of Edward III, to that of Henry VI. 
 
 The modern seal, used for appeals, is in silver, of the 
 date of George IV. Under the royal arms of Great Britain 
 and Hanover is a man-of-war in full sail, with the legend 
 Ab Edgare vindico, which may, I think, be rendered, 
 " From the time of King Edgar I claim the sovereignty 
 of the sea." 
 
 1 Selden Society, vol. vi. p. Ixv. 
 
 UNIVERSITY 
 
102 The Kings Peace 
 
 Following somewhat on the same lines was the re- 
 cognition or confirmation of the charters of the Cinque 
 Ports. The constitution of these ports into a confederacy 
 for the supply and maintenance of the Royal Navy was 
 due to Edward the Confessor, who first appointed a Lord 
 Warden with power and authority analogous to that 
 exercised during the Roman occupation by the official 
 known as the Count of the Saxon Shore. By his Royal 
 Charter King Edward I. confirmed the charter or other 
 grant of the Confessor and established on a firm footing 
 the various courts and the special jurisdiction exercised 
 by the barons of the Cinque Ports for many centuries. 
 Their courts had civil, criminal, equity and admiralty 
 jurisdiction, with no appeal beyond the Lord Warden in 
 Court of Shepway. 1 They owned no subjection to the 
 courts at Westminster whose writs of certiorari, man- 
 damus, and habeas corpus did not run within their terri- 
 tory, and having a chancery and a chancellor of their own, 
 they protested they were even beyond the control of the 
 Lord Chancellor. The last Charter of the Cinque Ports 
 is dated the 23rd December, 1668, and in it King Charles 
 II. recites various charters that he has seen, including 
 the charter dated the 6 Edward I, which is the earliest 
 mentioned as then in existence. This Charter, however, 
 recites and confirms the rights of the ports in respect of 
 their courts and otherwise during the reigns of the 
 
 1 The installation of Lord Palmerston as Lord Warden, pub- 
 lished in 1862 by Edward Knocker, Town Clerk of Dover, gives 
 an interesting account of the Antient Court of Shepway. 
 
Courts of Trailbaston 103 
 
 Confessor, of William the Conqueror, of Henry III., and 
 of each succeeding monarch, until his own time. 1 
 
 In an outbreak of lawlessness in the thirteenth century, 
 men congregating together in large numbers, whose ex- 
 ample the club-men of the seventeenth century seem to 
 have followed, arming themselves with bastons or staves, 
 beat and robbed unprotected cottagers and wayfarers. 
 To cope with this disorder the King appointed certain 
 judges of Trailbaston to visit the disturbed districts and 
 execute speedy justice on these offenders. The result 
 however was not satisfactory, and owing to numerous 
 complaints, and probably to the too speedy execution of 
 the judges' sentences, the scheme was after some years 
 abandoned, and no further commissions of Trailbaston 
 were issued. It is remarkable in regard to this title that 
 it is not known accurately whether the term Trailbaston 
 referred to the judge or to the malefactor. Coke 2 says, 
 the commission was of Trailbaston, that justice might be 
 dealt out as quickly as one could trail a club, and the 
 judges were so named in respect of the speed of their 
 procedure. On the other hand, the ordinance of 1305, 
 which erected these courts, refers to " transgressionibus 
 nominatis trattbaston" and a medieval ballad quoted 
 by de Franqueville, 3 and edited by Wright, speaks of 
 the trailbastouns being sent, some to prison and some to 
 
 1 These Charters with extended annotations are printed in 
 extenso in Jeakes' Charters of the Cinque Ports, published in 1728 
 at the desire, and mainly at the cost, of Chief Baron Gilbert. 
 Before that date Jeakes' work was much consulted in MS. 
 
 2 Imt., vol. iv. p. 186. 
 
 3 Systeme Jndiciaire de VAuyleterre, vol. i. p. 154, note. 
 
IO4 The Kings Peace 
 
 be hanged, and says, if chastisement had not been done 
 on h's ribalds ct hricimns, no man could dare to live en 
 mctsouns. These courts were perhaps, in addition to 
 their novelty as courts of speedy dispatch, the earliest 
 instance of a special commission issued to try a special 
 class of offence. And as we hear no more of Trail- 
 bastons after the reign of Richard II., it may safely be 
 inferred that whatever were their errors of procedure 
 the courts of Trailbaston accomplished the object for 
 which they were instituted. 
 
 An official called Clericus mercati liospitii regis, the 
 clerk of the market at the King's gate, represented an 
 honourable office pertinent to the antient custom of hold- 
 ing markets in the suburbs of the King's Court. This 
 clerk, in the early times, witnessed the parties' verbal 
 contracts. At a later date he adjudicated on the prices 
 of corn, bread, wine, and other commodities, which had 
 been fixed by the justices of the peace at their assize. 
 He enquired as to all weights and measures, and saw that 
 they were correct according to the standard of the Ex- 
 chequer at Westminster. He measured land according 
 to the standard, if any question of quantity arose, and he 
 had power to send bakers, brewers, and others, to the 
 pillory if in their dealings they offended against the 
 law. The King's clerk had a right to hold Courts for 
 the trial of weights and measures in every city, borough, 
 or town in the kingdom, subject to an appeal, if he were 
 guilty of extortion, to the Lord High Steward, who had 
 power to fine him for the first and second oifences, and to 
 commit him to the Tower for the third. 
 
The Clerk of the Market 105 
 
 An illuminated parchment, dated 12 Henry VII. (1497), 
 was formerly nailed to an oak table in the Exchequer, 
 but is now in private hands. It represents the King 
 supported by angels over the heads of three Barons of 
 the Exchequer. It gives in detail the various duties of 
 a clerk of the market, with drawings of the several 
 weights and measures. There are also representations 
 of six ermined commissioners appointed to sit judicially 
 on the assizes of bread, etc., including the Bishop of 
 Llaiidaff, the Steward, and the Comptroller of the House- 
 hold, and three other persons. It also gives a picture 
 of a victim found guilty of false weights impounded 
 in the pillory with his head through a post. 1 The clerk 
 of the King's market exercised his jurisdiction at least 
 as late as the time of Henry VIII., for we find that 
 one of the articles of impeachment against Wolsey was 
 that when the clerk had declared and stuck up the 
 prices of goods to be sold in the market of St. Alban's, 
 the Cardinal pulled down the notices of the King's clerk, 
 stuck up notices issued by his own clerk of the market, 
 and threatened to put the former in the stocks. 2 
 
 The Court of Pypowders, 3 or Curia pedis pulverizati, 
 was the court of the fair. It was held before the 
 steward or bailiff of the fair, who could hear on the 
 spot all questions arising between parties at the fair, 
 
 1 A drawing of this illumination is given in Vetuata Monu- 
 meitia, vol. i. London, 1746. The antient punishment of pillory 
 was to put the culprit's head through a pillar of wood. 
 
 - Coke, Institute, vol. iv. p. 272. Crompton, fol. 220-229. 
 
 3 Crompton, fol. 229-230. Cok^, Institute, vol. iv. p. 272. 
 
106 The Kings Peace 
 
 provided the faults complained of occurred in the fair 
 and in fair time, which was strictly prescribed by 
 custom or statute. The dusty-footed frequenters of the 
 fair, coming hot and angry from their quarrels to the 
 Steward's Court, gave it the name of Pypowders, other- 
 wise picds poudrds, or the Court of the dusty feet. The 
 times and places of holding fairs were regulated by a 
 statute of Edward III., who also directed they were not 
 to be held in churchyards. 
 
 II 
 
 The Chancellor The Master of the Eolls The Eolls House or 
 Domtis Conversorum Masters in Chancery The Chancel- 
 lor's Marble Chair and Table The Chancellor Sitting Alone 
 Definite Subjects for his Adjudication Equity and Com- 
 mon Law Results of this Period Robes of the Judges and 
 their Officers The Judges' Scarlet Court of Chancery 
 Court of King's Bench The Common Bench The Exchequer 
 Ordinance of 1635. 
 
 THE change of system which brought about the division 
 of the Curia into three courts, discharging separate and 
 independent functions, naturally exercised a correspond- 
 ing influence on the position and the duties of the Chan- 
 cellor. As the Chief Justiciar declined, the Chancellor 
 rose in importance, and from the reign of Henry III., 
 when the former finally disappeared from the scene, the 
 Chancellor ceased to be the second person in the kingdom 
 and became the first. He was the King's confidential 
 adviser, the chief minister of the law, was called Lord 
 Chancellor of England, and took precedence of all other 
 
The Chancellor 107 
 
 judges and officials. He was still selected from among 
 those having special relations with the Sovereign, and as 
 such, was almost invariably an ecclesiastic. His position 
 was thus, from an early date, distinct from that of the 
 Common Law judges ; a distinction which became more 
 pronounced from the fact that, while the Common Law 
 judges were in the course of time invariably and neces- 
 sarily serjeants-at-law before they took their seats as 
 judges, no such qualification was required for the Chan- 
 cellor or his deputy ; and from the creation of Serjeants in 
 the thirteenth century to the present day, no such qualifi- 
 cation has ever been required, nor has there, in fact, ever 
 been a Chancellor who was a serjeant-at-law, unless he 
 obtained that degree long before and entirely apart from 
 his appointment as Lord Chancellor. The most important, 
 however, as the most aiitient of the distinctions between 
 the Chancellor and the Common Law judges is to be found 
 in the tenure of their respective offices. While the latter 
 by custom, and now by law, hold their places so long as 
 they conduct themselves well in their office, the Chancel- 
 lor holds his office as a minister and not as a judge ; and 
 as such he is and always has been appointed and removed 
 at the pleasure of the Crown. 
 
 The Chancellor having secured for himself a position 
 in which he could hold an independent court, his right 
 to appoint deputies and assistants in case of need neces- 
 sarily accrued. We hear of a Vice-Chancellor (a gens 
 vice Cancellarii) as early as Henry II. who, in 1177, sent 
 Walter de Constantiis (V ice-Cane ellar cum- suum] and 
 Ranulph de Glanvil, one of his Justices, into Flanders on 
 
loS The Kin^s Peace 
 
 a diplomatic mission; 1 of another who was drowned, as 
 before mentioned, in the time of Richard I., and of certain 
 others mentioned by Lord Campbell. But such appoint- 
 ments were temporary and casual, and the recognised 
 office of Vice-Chancellor of England did not arise till the 
 reign of George III. (A.D. 1813), when, by virtue of an 
 Act of Parliament, 2 Sir Thomas Plumer, the then Attor- 
 ney General, was appointed the first Vice-Chancellor of 
 England. 
 
 The Master or Keeper of the Rolls, 3 and of the State 
 Papers connected with the suits and records, first, of the 
 Chancery and afterwards of the entire kingdom, was an 
 antient officer of this country. He first appears as an 
 official in the reign of Edward I. (A.D. 1295), 4 who 
 appointed Adam de Osgodby to this post. From that 
 date to the Commonwealth there was an unbroken series 
 of Chancery lawyers, mostly however ecclesiastics, fill- 
 ing the office of Keeper or Master of the Rolls. The 
 Master sat usually at his house in the Rolls Garden, 
 where he had a chapel, a residence, and certain con- 
 veniences for keeping the rolls. These were so called 
 from their consisting of parchments and papers rolled up 
 into bundles and so noted and put away. The Rolls 
 House was formerly a house for converts from the Jewish 
 
 1 Madox, vol. i. p. 77. 
 
 2 53 Geo. III., c. 24. Foss 1 Judges, vol. viii. p. 205. 
 
 3 He did not receive the title of Mayister ftotulorum, Master 
 of the Bolls, until 2 Henry VII., c. 20 (A.D. 1487). Before that 
 date he was always Gustos JRotulorum, Keeper of the Rolls. 
 
 4 Dugdale, Oriylnes JurifUi-iales, fol. 32. 
 
The Chancellor 109 
 
 to the Christian religion. It was built and endowed by 
 Henry III., and bore the name of Doinus Conversorum. 
 In the year 1290 the Jews were expatriated by Edward 
 I., and there remained no longer any Jews in England to 
 be converted or to enjoy King Henry's home and hospi- 
 tality. The house was then given to William Burstall, 1 
 Keeper of the Rolls, to be occupied by him for life, or so 
 long as he should remain in his office, and afterwards, in 
 consideration of the moneys he had expended in its 
 reparation, 2 it was ordered by Parliament that the said 
 house should remain for ever annexed to the office of 
 Keeper of the Rolls. 3 From this grant it has been 
 assumed that the Master of the Rolls himself had some 
 official or religious duty in regard to the conversion of 
 Jews to Christianity, an assumption which gave rise to 
 discussion when a very distinguished lawyer of the Jew- 
 ish faith was recently appointed to that post. Although, 
 however, the Master of the Rolls is ex-qfflcio trustee of 
 the Society for the conversion of the Jews, yet the 
 practice is of modern date and no proselytizing duties are 
 in any way incident to the tenure of the office. 
 
 Up to the reign of Henry VIII., the Master of the Rolls 
 only sat to hear causes and make orders in the absence of 
 the Chancellor, but, owing to the increase of business, Car- 
 dinal Wolsey as Chancellor appointed Cuthbert Tunstall 
 his Master of the Rolls to be an independent judge, with 
 power to sit daily, and to hear and adjudicate upon causes 
 
 1 Coke, 4^ Institute, p. 95. 2 1 Richard IF. 
 3 The present Bolls House has no historical interest. It was 
 built in 1717. 
 
no The Kings Peace 
 
 in equity. From that time forward the Master of the 
 Rolls (sitting until after the Restoration, usually in the 
 afternoon after the rising of the House of Commons) has 
 regularly presided at the Rolls, and heard motions and 
 causes. 1 Among other of his privileges he enjoyed the 
 distinction that, until 1875, 2 he was, although a judge, 
 not precluded by the tenure of his office from sitting in 
 Parliament, and on many occasions the Master of the 
 Rolls has not only sat in the House of Commons, but has 
 occupied the distinguished position of Speaker. 3 His pre- 
 cedence among the judges was next after the Lord Chief 
 Justice of the King's Bench, and before the Lord Chief 
 Justice of the Common Pleas. 
 
 Subordinate to the Master of the Rolls, but occupying a 
 very similar position, were the Masters in Chancery. Of 
 those, of whom there were twelve, the Master of the Rolls 
 was chief, and they together constituted a legal council 
 to advise the Chancellor in matters of law and equity. 4 
 They were usually selected from such of the Chancery 
 clerks as were best instructed in the practice of the office. 
 They lived in the Chancery House, and, in addition to 
 
 1 Crompton, fol. 42. Coke, 4.th Institute, 96. Reeve's History, 
 vol. iv. p. 369 ; Campbell's Lives of the Chancellors, vol. i. p. 506. 
 
 2 Judicature Act 1875, sec. 5. 
 
 3 Amongst others, Sir Thos. Phillips was Master of the Rolls 
 and Speaker under James I. ; William Lenthall, Speaker of the 
 Long Parliament, was, during the whole of that period, Master of 
 the Rolls ; and Henry Powles was Master of the Rolls and 
 Speaker in 1689. Sir John Romilly Avas M.P. for Devon port 
 while he held the office of Master of the Rolls. 
 
 4 " A Treatise of the Maisters of the Chauncerie." Margraves, 
 Law Tracts, p. 293. 
 
The Chancellor 1 1 1 
 
 their salaries and fees, were provided with their diet, 
 wine and venison, and with gowns (one furred and 
 one lined with taffetas), paid for by the Crown, and 
 constituting the robes or livery of the office. They 
 formed what was called " concilium regis incancellaria" 
 the King's Council in Chancery, and being assumed to be 
 more conversant with the law and practice of that Court 
 than the Chancellor himself, they sat with him in his 
 court and beside him on the woolsack in the House 
 of Lords, of which one of the Masters was usually the 
 Clerk, by right of his office. They were not, however, 
 permitted to address the House, and one of the Masters 
 having attempted to do so in 1576, they were after 
 that date banished from the woolsack. 1 They were 
 always ecclesiastics, and had a right, after certain ser- 
 vices, to be presented to one of the Chancellor's livings, 
 a right which they successfully asserted as against the 
 Chancellor himself in the reign of Henry V. 2 
 
 The Chancellor, from a remote period, at least as early 
 as Edward II., sat in Westminster Hall. His place was 
 at the upper end, where a flight of some six steps led to a 
 marble table, opposite the centre of which was a marble 
 chair affixed to the wall, " which marble chair," says 
 Dugdale, 3 writing in 1666, " to this day remaineth over 
 against the middle of the marble table." His seat of 
 justice, however, was altered as circumstances required. 
 He sat at times in the House of Lords and in Lincoln's Inn. 
 
 1 Margraves' Law Tracts, p. 283. 2 Foss' Judges t *\o\. iv. p. 189. 
 3 Orig. Jud., fol. 37. 
 
1 1 2 The Kings Peace 
 
 During the Commonwealth, Whitelock and his colleagues, 
 Keepers of the Great Seal, frequently used the Middle 
 Temple Hall, and for many years the marble table and 
 chair were covered up, and the end of the Great Hall was 
 divided between the Courts of Chancery and of the 
 King's Bench, the former sitting on the right, and the 
 latter on the left of the great window of the Hall. 
 
 And as his dignity and jurisdiction differed from those 
 of the Common Law judges, so did also his method 
 of dispensing justice. For while the judges sat in 
 numbers, he and his deputies sat alone, except on such 
 occasions as he summoned to his assistance one or two 
 of the Common Law judges to sit with him on the trial of 
 cases involving questions of Common Law. He was never 
 as Chancellor decorated with the collar of SS, and his 
 judgments were for many generations the outcome of 
 his own orderly and instructed mind, guided, no doubt, 
 by considerations of precedents and analogies, but doing 
 equity as he thought right, and relieving suitors from the 
 rigours of the Common Law. His equitable jurisdiction, 
 however, is of somewhat doubtful origin, and I think 
 it clear that at first he had no such jurisdiction, except 
 in cases where no remedy could be obtained at law. 
 A statute l of Edward III. gave the subject power to 
 resort to the Chancellor for an original writ, when, 
 according to existing forms at Common Law, justice 
 would be otherwise denied him, a provision necessarily 
 importing primarily a resort to the Courts of Common 
 
 1 36 Edw. III. 
 
The Chancellor 113 
 
 Law. By a statute of Henry VI. 1 it was provided that no 
 man should be called to answer in Chancery, where there 
 was a remedy at law. And although every Chancellor 
 in succession in and after the reign of Henry II. heard 
 causes and gave judgments, yet it does not appear, accord- 
 ing to Lord Coke, 2 that any actual reports of cases decided 
 by Chancellors sitting in Equity are to be found in the 
 books before the reign of King Henry VI., after which date 
 they are sufficiently numerous. Lord Campbell, 3 however, 
 is of opinion that the existence of the Chancellor's 
 equitable jurisdiction from the earliest period is clear and 
 indisputable. 
 
 Notwithstanding the somewhat flexible rule of the 
 Chancellor, there were certain definite grievances in 
 respect of which the subject had always a right of appeal 
 to his Court. These were, 
 
 (1) For relief in all cases of fraud or deceit, for 
 which there was no remedy at law. 
 
 (2) For relief against the effect of any accident 
 by which a man was deprived of what would other- 
 wise be his right, and to which the Common Law 
 could not help him. 
 
 (3) In regard to breaches of trust by trustees and 
 others, of which the law would not formerly take 
 cognizance. 
 
 To these was afterwards added 
 
 (4) The relief of mortgagors against rapacious 
 
 1 1 Henry VI. 2 Instil., vol. iv. p. 82. 
 3 Lives of the Chancellors, vol. i. p. 7. 
 
114 The King's Peace 
 
 mortgagees, who took advantage of their position to 
 foreclose their mortgages and ruin their unhappy 
 debtors. 
 
 As the subject might always appeal to the clemency 
 or equity of the Crown, so was the Chancellor's Court 
 always open. He was not called upon to regulate his 
 sittings by the duration of the terms which bound the 
 Courts of Common Law, but he sat with equal 
 authority in and out of term, in or out of vacation. He 
 could at any time issue a writ of habeas corpus when 
 a subject was imprisoned, and the Court of King's Bench 
 was not sitting to grant his release, or to inquire into the 
 cause of his committal. He granted, without regard to 
 time or place, writs of prohibition to check the excesses 
 of inferior courts, and injunctions to stay an impending 
 injury or damage to the applicant. He could issue a writ, 
 ne exeat regno, to prevent a would-be absconding debtor 
 leaving the kingdom, and he habitually issued writs 
 in furtherance of the process of the Common Law, or 
 Ecclesiastical Courts, when the judgments of such Courts 
 had, for certain reasons, become unenforceable without 
 his aid. He could also, by right of his office, issue writs 
 of scire facias to cancel letters patent granted by the 
 king, when such patents could be shown to be erroneous 
 or unjust. Thus, if the king granted two or more 
 patents to the same effect to two or more persons, the first 
 patentee had a right to call upon the Chancellor to cancel 
 the other patents as improvidently issued ; or when a 
 patent was granted on a false statement of facts, and 
 it thus appeared to have been obtained by fraud, or when 
 
The Chancellor 1 1 5 
 
 the king had granted a patent which he had by law 
 no power to grant, then also, ex dcbito justiticR (for 
 the sake of justice and right), the letters patent were 
 cancelled. This power, which dates back to a very 
 early period, has been suggested as the origin of the 
 name cancellarius, or canceller of the king's patents. 
 For it is said, that upon the patent being shown to be 
 bad in law, the Chancellor took the parchment and 
 cancelled it by drawing lines across it like bars of a 
 casement, or, as Coke says, 1 " like a lettice." An anec- 
 dote is told of Lord Chancellor Gardiner, in the reign 
 of Queen Marj', who in sight of the House of Lords 
 cutting away from a Bill certain clauses which had been 
 thrown out by the Commons, and not insisted on by 
 the Lords, made use of the expression, "Now do I rightly 
 the office of a Chancellor." 2 One would hardly accuse 
 Gardiner of a pun, but his words can scarcely be said 
 to give much authority to the contention. 
 
 Thus these two streams of Equity and Common Law, 
 flowing from the same fountain head, have been seen to 
 permeate the judicial fields from the Anglo-Saxons to the 
 Tudors. In the course of time they widened their banks 
 and the current flowed over more expanded ground, but 
 their course had continued to be parallel and not inter- 
 secting. If the Chancellor had obtained precedence over 
 the Chief Justice, it was because, in the ordinary course 
 of events, the man who is at once a lawyer, a priest and 
 
 1 4tk Institute, p. 88. 
 
 2 Lord's Journal, vol. i. p. 484. Campbell's Lives of i/te Chan- 
 cellors, vol. i. p. 2. 
 
Ii6 The King's Peace 
 
 a statesman would naturally supersede the man whose 
 special qualifications were those of a lawyer alone. But 
 the Chancellor's office and his position were gradually 
 magnified by the greater duties cast upon him, and it will 
 be found at a later period when the Chancellor became 
 the would-be director, if not the rival of the monarch, and 
 claimed not only to modify the rigours of the Common 
 Law, but to inquire into the decisions of the King's Bench 
 and Common Pleas, and to set aside their judgments in 
 respect of matters specially within their cognizance, that 
 the king and the people made common cause to destroy 
 the Chancellor who had interfered with the action of the 
 popular courts, which had always been regarded as com- 
 ponent parts of the antient laws and customs of the country. 
 No doubt the law they gave effect to was capricious ; but, 
 unlike that of their neighbours, it was not bloodthirsty, 
 and it recognised the right of the commonalty to come 
 freely to their open sittings and to take part as jurors 
 and assessors in the administration of justice. 
 
 This third period had according!}' seen the Curia Regis 
 finally abolished and the Common Law Courts of the 
 King's Bench and the Common Pleas instituted in its 
 place. The parliamentary protests 1 against the realm 
 being governed by men of the Church with a very undue 
 proportion of laymen bore its fruit in the Common Law, 
 if not in Chancery, and a race of lawyers now ad- 
 ministered justice in the highest places instead of 
 ecclesiastics or nobles, some fully, but most of them 
 
 1 Especially in 45 Edward III. ; see Coke, 4th Jnst., p. 78. 
 
Judicial Robes 1 1 7 
 
 imperfectly instructed in the laws and customs of Eng- 
 land. It propounded the irremovability of the King's 
 judges, except for misconduct in their office, and saw it 
 adopted in a general if not perhaps a universal practice, 
 though no statute or ordinance was passed to that effect. 
 It witnessed the final and complete establishment in the 
 Common Law Courts of trial by jury as a substitute for 
 all other modes of trial for civil and criminal pleas, and 
 the death by non-user of the ordeal of fire and water, for, 
 like the ordeal of battle, no statute or ordinance forbade 
 the courts to have recourse to the triple ordeal or any 
 other of the so-called judgments of Grod. It saw for the 
 first time the administration of the counties by Justices 
 of the Peace and the foundation of Courts of Quarter Ses- 
 sion. It witnessed the elevation of the Chancellor to the 
 position of an independent judge with a staff of trained 
 lawyers as his council and his assistants in his office. 
 It welcomed the perfect enrolment of decrees in all 
 judicial proceedings, and the establishment and regula- 
 tion of the Bar as a part of the judicial system. The law 
 itself, with its antient customs and recent statutes, was 
 then for the first time discussed and displayed by great 
 writers and jurists for the instruction of students in that 
 learned profession, and for the satisfaction of that growing 
 class of Englishmen to whom its immemorial customs and 
 sinuous ways were becoming day by day subjects of 
 greater interest and of more serious consideration. 
 
 It remains to say a few words on the robes of the 
 judges and the mode in which they sat in their various 
 courts. Whether the Chief Justiciar, the Chancellor, the 
 
1 1 8 The King's Peace 
 
 barons, and the other judges of the Curia Regis wore 
 any, and if any, what special robes, while administering 
 justice, it is impossible to say. I think it probable that 
 they had no special costume, each wearing the dress 
 applicable to his station in life. Grimbald's seal of the 
 time of Henry II., which gives, as is supposed, the first 
 example of judicial costume, depicts the judge in a robe of 
 some soft material fastened at the waist and open in front 
 from the knees downwards, having therefore no special 
 features to distinguish it from the robes of an ecclesiastic 
 or person of importance of that date. 1 From the institu- 
 tion of the courts of Common Law, however, we have some 
 certain records of the costume and appearance of the 
 judges. It was the custom of this period, a custom which 
 in fact continued to the time of the Stuarts, to provide 
 the judges, in addition to their salary, with diet and with 
 robes for use during their term of office. That the first 
 judicial colour was scarlet admits I think of little doubt. 
 It was the judicial colour throughout Europe in the 
 Middle Ages. The magistrates of Venice composing the 
 Council of Ten wore scarlet robes. The judges who tried 
 Savonarola, in 1495, appear from an old painting in 
 Florence to have been clothed in scarlet. And the dress 
 of such of the higher orders of the clergy as would have 
 occupied the position of judges in England was, in the 
 thirteenth and fourteenth centuries, usually scarlet. Dur- 
 
 1 An exemplification of this seal is given in Dugdale's Orirj., 
 fol. 100, and in Planche's History of Costumes, p. 426; Foss' 
 Judges, vol. i. p. 257, doubts whether Grimbald was ever a 
 Justice of the Curia, and thinks he was a Sheriff. 
 
Judicial Robes 1 19 
 
 ing these centuries the wealth and luxury of the priests 
 were common subjects of invective among the reformers, 
 whose disciples lampooned them freely in the songs and 
 poems of the time, the scarlet robes of the clergy being 
 particular objects of aversion. Examples of this are to 
 be found in the well-known Ploughman 's Complaint, 1 
 written about 1394, and many similar passages are to be 
 found in other writings published during that period in 
 hostility to the clergy, the monks and the friars. 
 
 In the time of Edward III. the judges of both benches 
 and the barons of the Exchequer had the same judicial 
 dress with no distinction between the chiefs and the 
 puisnes. 2 The cloth given them is described as pannum 
 curcum or curium. 3 If the latter, it would mean short 
 cloth as distinguished from long cloth, the size of which 
 was then regulated by statute. Curcum is not easy to 
 translate, but I think it may be derived from curcuma, 
 a plant which gives a saffron dye, which treated with 
 alkali produces a red colour. This is to some extent 
 
 1 See Political Poems and Songs from Edward III. to Richard 
 III., by T. Wright ; London, 1859. 
 
 " With cloth of gold both new and redde 
 
 With glitterande gold as greiie as gall." (p. 308.) 
 
 " Of scarlet and greiie gaie gounes 
 
 That mote be shape of the newe." (p. 332.) 
 
 2 Dugdale, Orig., fol. 98. Foss' Judges, vol. iii. p. 359. 
 
 3 Orlginalia Roll, 21 Edward III. rot. 66. It must be borne in 
 mind that c and t are so much alike in the writing of this period 
 that it is frequently very difficult to distinguish one letter from 
 the other. 
 
120 The Kings Peace 
 
 borne out by a reference in Dyer, 1 who, describing the 
 costumes of the judges and others at the trial by battle in 
 Tot-hill before referred to, 2 says, that in a battle waged in 
 the 29 Edward III. (A.D. 1355) the several "parties 
 appeared arrayed as here," special reference being made 
 to the judges in their scarlet robes. Unless this sug- 
 gestion is well founded there cannot be produced any 
 record or order showing that the judges' robes were 
 scarlet, otherwise than by custom, until the order of 1635 
 hereafter mentioned. With this cloth they had fine 
 linen silk for the summer, and miniver and other furs 
 for the winter. Under Richard II. the judges had green 
 cloth for the puisnes and the chief baron, with an addi- 
 tion of green taffetas for the two chief justices for their 
 summer robes. 3 In the time of Henry VI. they had two 
 sets of robes, one with fur at Christmas and one with 
 linen at Pentecost. 4 The summer robe was also of green 
 cloth or taffetas, as under Richard II., and the winter 
 robe was violet. On arriving, however, at the period of 
 Henry VI. and Edward IV., we have precise informa- 
 tion that the ordinary costume of the judges of the 
 Common Law Courts of both benches was scarlet cloth. 
 This is derived from a valuable illuminated MS. now in 
 the library of the Inner Temple, and undoubtedly of the 
 date of Henry VI. or Edward IV. This MS. formerly 
 belonged to Mr. Selby Lowndes, to whom it descended 
 
 1 Vol. iii., p. 301. 2 Ante, p. 64. 
 
 3 Dugdale, Orig., fol. 99. Foss' Judges, vol. iv. p. 19. 
 
 * Ibid., p. 226. 
 
Judicial Robes 121 
 
 from William Fleetwood, Recorder of London in the 
 time of Queen Elizabeth, and formed portion of a MS. 
 copy of an abridgment or digest of the laws which 
 internal evidence shows to have been of the fifteenth 
 century. It was reproduced by the Society of Anti- 
 quaries in I860, 1 and gives an authoritative record of the 
 costumes of the period worn in the Courts of Chancery, 
 of King's Bench, of Common Bench, and of Exchequer. 
 This information was not available either to Dugdale, 
 who wrote in 1666, or to Foss, who wrote in 1851. 2 
 
 Over the heads of the judges in each of the courts 
 appear the arms of Edward the Confessor, five doves or 
 martins surrounding a patonce cross, thus indicating that 
 even at that period, four centuries after the death of the 
 Confessor, the spirit of his just and equal laws was still 
 supposed to inspire the administration of justice. These 
 arms are accompanied by those of the reigning monarch, 
 the emblems of France and England having been borne 
 equally by Henry VI. and Edward IV., and by the arms of 
 England, three golden lions passant on a field of red. It 
 also appears that judges, clerks and Serjeants are closely 
 shaved, and that Serjeants, counsel and certain officers of 
 the court, but not the judges, wore parti-coloured gar- 
 ments. These were liveries, and were worn indifferently 
 by menial servants and by squires and gentry who 
 attached themselves to certain great families. From 
 
 1 Archceologia, vol. xxxix. p. 357. 
 
 - A coloured drawing of Judges in their robes in the time of 
 Queen Elizabeth given in Green's Short History, etc., vol. iv. 
 p. 996, seems to me to be fanciful and misleading. 
 
\22 The King's Peace 
 
 Edward III. to Henry VIII. numerous statutes were 
 passed to restrict the wearing of these parti-coloured 
 suits, but from all such statutes serjeants-at-law were 
 excluded, and they accordingly continued to wear these 
 gowns till the death of Queen Anne, when, according to 
 the late Chief Baron Pollock, the whole bar went into 
 mourning from which it has never emerged. 
 
 The first of these illuminations depicts the Court of 
 Chancery. The principal figure on the bench is supposed 
 to be the Chancellor, 1 who is robed in scarlet, with a 
 red velvet turban or cap commonly used at this period. 
 At his side is the Master of the Rolls, a tonsured ecclesi- 
 astic also in scarlet with no coif, holding a deed with 
 a large seal as to which he appears to be delivering 
 his judgment. On either side of the court are two 
 tonsured ecclesiastics in mustard-coloured robes, also 
 without coifs, making in all six persons on the judgment 
 seat. The latter are obviously Masters in Chancery, 
 whose duty it was to sit with the Chancellor, and who 
 had probably not yet received their solatium in the gift 
 of one of the Chancellor's livings. At the green table 
 under the Chancellor are the clerks making up the rolls, 
 while an officer of the Chancery is affixing the Great Seal 
 to a patent. Various writs already tested lie on the 
 table. Three Serjeants in parti-coloured robes and coifs 
 and two barristers appear to be addressing the court, 
 and five clerks or reporters in the back row are leisurely 
 
 1 He is thought to represent Richard Neville, Earl of Salisbury 
 (A.D. 1454), one of the very few laymen who held the post of 
 Chancellor during the early period. 
 
Couttof Cbaucerj 
 
 Face page 122, 
 
THE COURT OF CHANCERY, TEMP. HENRY VI. 
 
 The Chancellor, tJie Master of the Rolls, and four Masters in 
 Chancery on the Bench. 
 
 From an illuminated MS. in the Inner Temple. 
 
 See page 122. 
 
Judicial Robes 123 
 
 taking notes. The faces in this as in the other illumina- 
 tions appear to be portraits, but it is fruitless to attempt 
 any identification of the parties represented. 
 
 In the King's Bench are five judges x in scarlet, wear- 
 ing coifs. To the right of the judges a jury is being 
 sworn by an usher clad in a parti-coloured robe. Facing 
 the judges a prisoner, chained by the feet, is holding up 
 his affidavit hand and pleading to an indictment. He is 
 in custody of a gaoler in a mustard-coloured jacket with a 
 short sword and a long staff, and is supported on either 
 side by a serjeant retained for his defence. Two tip- 
 staffs, one in blue and one in mustard colour, armed with 
 staves, have charge of a gang of prisoners of woe-begone 
 aspect, each chained by one leg to the floor. Clerks at 
 the table are making up the rolls. 
 
 In the Common Bench are seven 2 judges in scarlet 
 with coifs. Under these are the officers of the court, and 
 facing them is a defendant in his shirt with bare legs in 
 custody of the tipstaff. Five Serjeants appear in parti- 
 coloured gowns or coifs. There are no counsel and there 
 is no jury. All the officers, except the gaoler, are in 
 parti-coloured robes, the latter is dressed like his fellow 
 in the King's Bench. 
 
 In the Exchequer the Chief Baron appears in a scarlet 
 
 1 If the date of these illuminations is correctly assumed at or 
 about 1450, then Sir John Fortescue would have been Chief 
 Justice of the King's Bench, as he occupied that post from 1442 
 to 1461. 
 
 2 There were seven judges in the Common Pleas at the begin- 
 ning and at the end of this reign. Foss, vol. iv. p. 231. 
 
I2 4 The Kings Peace 
 
 gown and in a turban somewhat similar to that of the 
 Chancellor. With him on the bench are four barons in 
 mustard-coloured robes, two with turbans of saffron on 
 their heads and two wearing a kind of yellow coif, and 
 holding their turbans in their hands. Under them, seated 
 at a green table, without, however any chess-board 
 squares, are the officials of the Exchequer, one of whom, 
 a teller in a mustard robe, is counting the golden nobles 
 produced by the accountant. A man stands near the 
 table holding up a bag of silver pieces, and chests of 
 treasure are on the floor. At one end of the court is 
 a lock-up or cage for defaulters, of whom two are seen 
 through the bars. Three Serjeants in coifs, and two 
 counsel in parti-coloured robes appear to be taking part in 
 the proceedings. 1 In each court the judges sit on a raised 
 bench far above the heads of the officers and the general 
 public. And it is said that on the rare occasions in which 
 the King in person attended the court, a seat was provided 
 for him above the heads of the judges, who proceeded to 
 hear motions and make orders as in his absence. Their 
 hours according to JFortescue were, in the fifteenth cen- 
 tury, from 8 to 11 a.m., after which hour the courts were 
 closed, the judges retired to study the law and to prepare 
 
 1 In a sketch of the Court of Exchequer in Ireland, published 
 in the Gentleman's Magazine, vol. xliii. p. 3, under date Henri* us 
 del gra., which is believed to be Henry IV., a person, supposed to 
 be either the Chief Baron or the Chancellor of the Exchequer, is 
 attired similarly to the barons in the English illuminations, with 
 the same description of turban. The table has red and white 
 squares and the teller or treasurer is counting gold nobles from 
 an accountant's bag. 
 
curt 
 
 j Q A cpet^ er jr ce pogt i 24 . 
 
THE COURT OF EXCHEQUER, TEMP. HENRY VI. 
 
 The Chief Baron and four Barony of the Exchequer OH tin- 
 Bench. 
 
 From an illuminated MS. in the Inner Temple. 
 
 See page 123. 
 
Judicial Robes 125 
 
 themselves for the work of the morrow, and the suitors 
 went to St. Paul's to consult the Serjeants whom they 
 found each beside his own pillar in the nave, or to the 
 Inns of Court to see those of their counsel who were not 
 yet called to the degree of the coif. 
 
 An ordinance * made by the judges on the 4th June, 
 1635, finally settled the colours and the changes of the 
 judges' robes, and its directions were with slight modifi- 
 cations still observed by the judges until they left West- 
 minster Hall for their new habitation in the Strand. By 
 that ordinance the black and the violet gowns with various 
 furs are to be worn at certain specified dates, but in the 
 Criminal Courts, when the judges are trjdng prisoners or 
 charging the Grand Jury, on all Sundays, Saints' days 
 and holidays, when they go officially to St. Paul's, to 
 Westminster Abbey, or to any other church, when they 
 swear in the Lord Mayor of London, or dine with the High 
 Sheriff, or when they attend the Sovereign in the House 
 of Lords, they are to wear their scarlet gowns, thus re- 
 cognising scarlet as the antient and honourable colour 
 and badge of their high office. The green robe introduced 
 by Richard II. seems by the seventeenth century to have 
 gone altogether out of use. 
 
 The judges sat in Westminster Hall, which, after 
 having been flooded and burned in 1263, and again burned 
 in 1299, was repaired by Edward III., and finally recon- 
 structed into somewhat of its present condition by the 
 munificence of Richard II. The walls were raised two 
 
 Dugdale's Oriy., fol. 101. 
 
126 The King's Peace 
 
 feet and re-cased, new windows were inserted, and a porch 
 and towers were erected at the north end. Buttresses 
 were bnilt to strengthen the walls, and the magnificent 
 chestnut roof now existing was then added. The hall 
 itself was decorated, and the niches filled with statues of 
 which three only have been preserved, and are now in the 
 custody of the Architectural Museum. William of Wyke- 
 ham, founder of Winchester College and of New College, 
 Oxford, was the Chancellor who undertook the restora- 
 tion, and Geoffry Chaucer the poet, himself bred to the 
 law at the Inner Temple, acted as clerk of the works. 
 
CHAPTER IV. 
 
 THE COURTS OF THE FOREST. 
 
 The Forest Laws Dooms of Canute Primarii Medial Thanes 
 Tithing Men Trial of Forest Causes Lawing of Dogs 
 The Confessor The Conqueror The New Forest No Forest 
 Law of the Conqueror known to exist Position of Freeholders 
 and Husbandmen Extent of Forest Land under the Norman 
 Kings Forest Map The Definition of a Forest A Chase 
 A Park A Warren Beasts of the Forest Birds of the 
 Forest Vert The Purlieu Extortions, Exactions and Im- 
 positions Gibbett Laws Judges of the Forest Chief 
 Justices of the Forests Verderers Agistators Foresters 
 Regarders The Woodmote The Swanimote Survey of 
 Dogs Court of the Chief Justice Purprestures Assarts 
 Jurisdiction of the Chief Justice Henry I. Stephen 
 Henry II. Assisa de Foresta Fines Magna Carta Carta 
 de Foresta of Henry III. Edward I. The Clergy Edward 
 III. Richard II.-Henry IV. Henry VII. Henry VIII. 
 Elizabeth and James I. Charles I. Revives the Justice Seat 
 A sinecure Office after the Restoration Abolished in 1817 
 
 THE cruelty and the oppression of the Forest Laws, the 
 vast area over which they exercised their sway, and the 
 hatred engendered by the fierceness of their administra- 
 tion played so important a part in the early history of 
 our country that no sketch of English Courts of Justice 
 should fail to give some account of the inception and 
 progress of the Forest Courts. 
 
 Hunting and sporting have ever formed, part of the 
 recreation if not the business of mankind, and from the 
 
 127 
 
128 The King's Peace 
 
 most remote periods rulers and monarchs have claimed 
 them as royal pastimes, and have arrogated to themselves 
 the right of controlling them by their edicts and their 
 ordinances. Much doubt has arisen how and when laws 
 regulating the forests of England or declaring the rights 
 of the Sovereign and the privilege of the people origin- 
 ated. Without entering into a discussion which would 
 perhaps be of purely antiquarian interest, it may suffice 
 to say that, so far as I have been able to ascertain, the 
 first ordinance or edict on this subject is to be found in 
 the reign of Canute (A.D. 1016). In what is termed the 
 " Dooms," otherwise the Laws of Canute, under cap. 81, 
 the following passage occurs : 
 
 " I will that every one be entitled to his hunting 
 in wood and in field in his own possession. And let 
 every one forego my hunting : take notice where I 
 will have it untrespassed on under penalty of full 
 ' wite ' " (fine). 1 
 
 The accuracy of this passage is however seriously im- 
 pugned by modern writers, and Sir Edward Coke in refer- 
 ring to it expresses a doubt whether this or a supposed 
 copy in somewhat similar language, but substituting the 
 word plain for ivood, represents the real ordinance, or 
 whether in fact they are not both the products of writers 
 of a later date, who have ascribed to Canute what they 
 believe from tradition and not from knowledge to have 
 
 1 " Dooms of Cnut," Ancient Laws and Institutes, vol. i. p. 421. 
 Man wood, Treatise of the Laws of the Forest] London, 1598. / 'l r 
 Pseudo-Cnuts Conatitutiones de Foresta von Liebermann Halle, A. S. 
 Max Nieraeyer, 1894. 
 
The Courts of the Forest 1 29 
 
 been the law in his day. The question is, however, fairly 
 dealt with by the investigation and report of the Com- 
 missioners of Public Records, who in 1840, under the 
 orders of the late King William IV., printed the antient 
 laws and institutes of England secular and ecclesiastical, 
 and are satisfied that the Ordinance or Doom, as given 
 above, was in substance issued by the Danish King. 
 These Dooms were followed by Const itutiones de Foresta 1 
 (Constitutions of the Forest) promulgated by the same 
 monarch. By them he appointed from the Thanes four 
 chiefs of each forest called primarii who were to do 
 justice, 2 under whom were four Mediocris-, Medial Thanes, 
 or " yoongmen," who undertook the care of vert and 
 venison but did not meddle with the adminstration of 
 justice. 3 Subordinate to each of these, again, were two 
 smaller men, called Tithing men, to whom were committed 
 the nightly care of the vert and venison and other servile 
 duties, but who, if theretofore slaves, became free on 
 being appointed to this office in the forest. 4 All com- 
 plaints against the "yoongmen" and the tithing men 
 were heard and disposed of by the primarii, and com- 
 plaints against these latter were heard and dealt with by 
 the King in person. 5 
 
 Four times a year forest causes were to be tried, and 
 the triple ordeal was to be practised ; but the ordeal of 
 fire was not to be had recourse to, unless the truth could 
 
 1 Ancient Laws and Institutes, vol. i. p. 426. See also Hallam's 
 Middle Ages, vol. ii. p. 361, as to these divisions of the people. 
 
 2 Sac. 1. 3 Sees. 2, 3. 4 Sees. 4, 5. 5 Sec. 10. 
 
 K 
 
130 TJie King's Peace 
 
 not otherwise be ascertained. 1 If any man used violence 
 towards a Primarius of the forest, he was, if a freeman, 
 to lose his freedom and all his goods ; if a villain, to lose 
 his right hand ; and if either repeated the offence, the 
 penalty was death. 2 If any were caught offending in the 
 forest, he was to pay a penalty according to the nature 
 and the gravity of the offence. 3 A distinction however 
 was drawn between offences against the venison and 
 those against the vert, the latter being regarded as of 
 small account ; also as between offences against beasts 
 of the forest and royal beasts, and the penalty was 
 varied as it affected freemen or slaves, masters or 
 servants, known or unknown people. 4 A scale of fines 
 was also tabulated for the punishment of those who 
 hunted beasts or stags, and it was provided that if a 
 freeman hunted a royal stag he should be imprisoned 
 for a year ; if he was not a freeman, then for two years ; 
 but if he were a slave, then to be outlawed. 5 If, how- 
 ever, he killed a royal stag, then the freeman lost his 
 freedom, the unfreeman or ceorl lost his liberty, and the 
 slave lost his life. 6 Bishops, abbots and barons were not 
 to be indicted for venison unless they killed royal 
 beasts, when they were subject to a fine at the King's 
 pleasure. 7 Then followed an enumeration of beasts 
 of the forest which might be killed without penalty, 
 and it was expressly declared that a wild boar (aper), 
 though a beast of the forest, had never been held to be an 
 
 1 Sec. 11. 2 Sees. 15, 16. 3 Sec. 20. 4 Sec. 21. 
 
 5 Sec. 24. 6 Sec. 25. 7 Sec. 26. 
 
The Courts of the Forest 1 3 1 
 
 animal of venison. 1 Greyhounds were not to be kept by 
 the " yoongmen " unless genuiscissio (hamstringing) had 
 been performed in the presence of a primarius, or unless 
 they were kept ten miles from a forest. If kept within 
 from ten to seven miles of the limit, the owner paid one 
 solidus per mile ; if within seven miles, the dog was for- 
 feited and the owner paid ten solidi. 2 But velteres or 
 langeran (a small breed of harriers, hunting by scent) 
 and ramhundts (lap-dogs) could be kept as being of no 
 danger to the deer. 3 
 
 There is some reason to suppose that the Confessor 
 issued or gave his sanction to a Forest Law, probably 
 that of Canute, but no trustworthy evidence is at this 
 time available, although there is a record in Camden's 
 History of Britain, of his having appointed a guardian of 
 the forest of the hundred of Chelmer and Dauncing, in 
 Essex. 4 During the reign of the Confessor, therefore the 
 Game Laws were, according to the rude sentiment of the 
 
 1 Sec. 27. 2 Sec. 31. 3 Sec. 32, Manwood, fol. 8. 
 
 4 Camden, fol. 310. The text is set out in Crompton, fol. 147, 
 who speaks of the original being in the Exchequer. If genuine, 
 it is curious, among other reasons, for indicating the beasts and 
 the vermin that passed under the grant. It is as follows : 
 
 " Iche Edward King 
 Have geven of my Forrest the keeping 
 Of the hundred of Chelmer and Dauncing 
 To Eandolph Peperking and to his Kynlyng, 
 With Hart and Hinde, Doe and Bucke, 
 Hare and Foxe, Cat and Brocke, 
 Wyldfowle with his flocke, 
 Partridge, Fezant Hen and Fezant Cocke, 
 With greene and wilde Stub and Stocke. 
 
132 The King's Peace 
 
 period, neither cruel nor irksome. Every man was at 
 liberty to hunt on his own land. Penalties for trespass 
 were moderate ; and, so far as is known, the administra- 
 tion of the forest law was not a subject of complaint from 
 any class of the community. Under the Conqueror, how- 
 ever, the position of affairs was grievously altered. Ab- 
 solute and exclusive right was claimed for the King in all 
 existing forests. This claim was pushed to the extent of 
 prohibiting the presence in any forest of any members of 
 the community, except those licensed by the King or his 
 officers. And looking upon the hunting of big game as 
 a royal prerogative, to which all private rights must give 
 way, he proceeded to create the New Forest under circum- 
 stances which will ever attach a blot to his name and 
 reputation. According to Camden, the Conqueror caused 
 
 To keepen and two yeoman by all their might, 
 
 Both by day and eke by night, 
 
 And hounds for to hould 
 
 Good, swift and boulde. 
 
 Foure greyhounds and six Baches, 
 
 For Hare and Foxe and Wyld Cattes ; 
 
 And, therefore, yche made him my Booke; 
 
 Witnesse the Bishop of Wolftone, 
 
 And booke y learned many one, 
 
 And Sweyne of Essex our brother, 
 
 And tekyn him many other ; 
 
 And our steward Howelyn 
 
 That besought me for him. 
 
 Gel graunt f uit signe evesque crosses de or : car avant venus 
 des Normans en Englit: les charters fuer signez ave crosses d'ore 
 et auters signes et apres lour ven, fuit use de sealer ave cere : et 
 totum fuis escrie." 
 
The Courts of the Forest 133 
 
 towns, villages, and sacred edifices over some 17,000 acres 
 of a thriving part of England to be devastated, and their 
 occupants to be scattered far and wide, in order to trans- 
 form the antient wood of Yten into the New Forest. 
 Churches and buildings were thrown down, thirty-six 
 ecclesiastical houses were rooted up, and the people 
 exterminated. Fiercer than a tempest or a whirlwind, 
 his edict swept over the land, turning a fruitful and 
 populated plain into a howling wilderness. "He loved 
 the high game " it was said, " as if he were their father"; 
 and for their sakes he denuded the land of both God and 
 man, and made it a home and a sanctuary for wild beasts. 1 
 This act of sacrilege and spoliation roused against him the 
 hatred of all England, noble, cleric and ceorl, and was the 
 precursor or the proximate cause of those Forest Laws 
 and Courts which, for centuries, held an unenviable no- 
 toriety in Europe, and were the cause of endless disputes 
 between the Crown and the subject. Nor did the clergy 
 of the period fail to call attention to the consequences of 
 his crime. Richard, his second son, and William Rufus, 
 his son and successor, both died in the New Forest ; the 
 former from a fever produced by the pestilential air of 
 the woods, and the latter from the arrow of Sir Walter 
 Tyrrell. The Conqueror's end was not less suggestive, 
 for he met his death through his horse falling among the 
 
 1 Lappenberg : England under the Anglo-Norman Kings, p. 214. 
 Historical Inquiries Concerning Forests, etc. P. Lewis, London, 
 1811, goes with, great detail into the history of the New Forest, 
 and gives names of hundreds, villages and churphes in the time 
 of the Confessor. 
 
134 The King's Peace 
 
 burning ruins of a religious house, which he had fired after 
 the capture of Mantes. And so strong and permanent 
 was the effect of this crime of devastation that, though 
 succeeding monarchs, in the exercise of their real or 
 assumed prerogative, added to and extended the borders 
 of existing forests, no one, until the reign of Henry VIII., 
 ever made the attempt to construct a forest where none 
 had formerly stood. And when this latter monarch 
 attempted, but with small success, to create a forest at 
 Hampton Court, he proceeded by way of Parliament, 1 
 obtaining an Act to authorize his so doing, after agreeing 
 with and compensating the owners of lands that he pro- 
 posed to take. 
 
 That the Conqueror issued an Ordinance of the Forest, 
 as stated in the Anglo-Saxon Chronicle, admits of little 
 doubt, though the text of no such document is extant. 
 Nor is it doubtful that such law was cruel, unjust, and 
 oppressive. It was formerly the habit in granting char- 
 ters which were renewed from reign to reign, sometimes 
 with modifications, and sometimes without, to recite in 
 the later charter the text of the former, which was then 
 lost or destroyed as of little value. The Charters of the 
 Cinque Ports, 2 commencing with the Confessor and ending 
 with Charles II., are an instance of this practice ; and we 
 are thus enabled, by consideration of the recitals in the 
 repealing Acts of Henry III. and Edward I., to arrive 
 at the substance of the ordinance of the Conqueror. 
 
 1 Co. Imt., vol. iv. p. 300, 31. Henry VIII. cap. 5. 
 
 2 Jeake's Charters of the Cinque Ports ; London, 1728. 
 
The Courts of the Forest 135 
 
 In the Laws and Customs of King William, setting out 
 his intended mode of governing England, the Conqueror 
 who, inspired by his clergy, objected to capital punish- 
 ment, except for offences touching his own person and 
 authority, declared that no one should henceforth be 
 killed or hanged for any fault, but that his eyes should 
 be put out, and his foot, hand or other limb be cut 
 off, so that his dismembered body might remain so long 
 as he lived an evidence of his guilt. 1 This statute or 
 ordinance, it will be observed, makes no special reference 
 to the forest ; nor does this or any other ordinance of the 
 Conqueror, so far as is known, declare in terms how 
 offenders in the forest are to be punished. But judging 
 from the contents of later charters which declare that 
 this punishment shall not be inflicted on any man for 
 offences in the forest, it would appear that the character 
 of such offence (quantitatem delicti) was held to be in the 
 highest degree penal, and that life and limb were, in fact, 
 freely taken by the Conqueror and his sons from those 
 unhappy persons who were by accident or intention 
 offenders against the Laws of the Forest. This agrees 
 with the accounts of the early historians, and with the 
 traditions which have been handed down to us from the 
 earliest ages of the Norman occupation. Thus, therefore, 
 not only were the landowners of England held liable to be 
 
 1 " Interdico etiam ne quis occidatur aut suspendatur pro aliqua 
 culpa, sed eruantur oculi, et abscidantur pedes, vel testiculi vel 
 manus, ita quod truncus remaneat vivus in signum prodicionis 
 et nequicioe suse : secundum enim quantitatem delicti debet pena 
 maleficis infligi." Ancient Laws, etc., vol. i. p. 494. 
 
136 The King's Peace 
 
 despoiled of their lands at the King's pleasure, but the 
 freeman and the peasant were excluded from thousands 
 of acres of fertile soil. They gazed upon desolate 
 pastures where their cattle were forbidden to feed ; upon 
 fruits, vegetables, and herbs which they dared not gather ; 
 upon well-stocked rivers which they were unable to fish ; 
 and they lived under a constant fear of fine, imprison- 
 ment, and mutilation. Their lives and their properties 
 were subject to increasing exactions, and themselves were 
 obnoxious to the wanton charges of the officers of the 
 forest, who made their presentments as accusers, and 
 then tried them as judges. For, as the common people 
 were kept out of the woods, so was the Common Law 
 kept out of the courts, which had their laws to themselves 
 and their own executive to enforce them. 
 
 The exact extent of the forest land under the Norman 
 kings is difficult if not impossible of ascertainment. No 
 forest map contemporaneous or subsequent is known to 
 exist, and information on the subject is only to be ob- 
 tained from a laborious search among old records, fines 
 and transfers of land. In order to give at a glance some 
 idea of the quantity of forest land at this period, I have 
 sketched very roughly a map of England, showing in 
 black the large tracts subject to the Forest laws. Neces- 
 sarily it is little more than an estimate. It does not 
 include the smaller forests, chases, parks and warrens 
 which existed in all parts of the country and were sub- 
 ject to this oppressive jurisdiction. Nor is it to be re- 
 garded as more than approximately delineating the limits 
 of the several forests. Of these, including the New 
 
A Sketch Map of England, about the time of Magna Carfa, 
 showing roughly, in black, the forest land of England. Wales was 
 not then subject to the English crown. 
 
 See page 137. 
 

 
 iiaffe 137. 
 
The Courts of the Forest 137 
 
 Forest, there were in all sixty-nine, 1 but the actual wood- 
 land area only comprised to a small extent the quantity 
 of lands subject to the Forest as contrasted with those 
 subject to the Common Law. From the best information 
 that can be obtained it would appear that considerably 
 more than one-third of the whole of England was before 
 the signing of Magna Carta subject to the Forest law, 
 and under the jurisdiction of the Chief Justice of the 
 Forest. There was hardly a county in England where 
 some forest or chase did not exist, and apart from various 
 woods or forests whole counties were in many instances 
 subject to the Forest Laws. Mr. Pearson, 2 who has very 
 carefully inquired into the subject, has given a list of 
 counties, forests and chases, subject to the Forest law 
 when forest rights were extended to their utmost limit, 
 vouching his accuracy in each instance by referring to 
 entries in original and in many cases contemporaneous 
 documents, and I have availed myself of much of the 
 information which he has collected in the map that I 
 have prepared. From this it appears that the entire 
 counties of Cornwall, Devon, Essex, Rutland, Leicester, 
 Northampton, Huntingdon and Lancaster, were then 
 subject to Forest law. A huge area of forest land swept 
 across the Midlands from the Wash on the east to Wales 
 on the west. A vast tract of forest land stretched from 
 Stafford to Worcester, and from the Wrekin to the Trent, 
 including woods in the counties of Stafford, Worcester 
 
 1 Manwood, fol. 70. 
 
 2 Historical Maps of England dwing the first Thirteen Centuries ; 
 London, 1869. 
 
138 The King's Peace 
 
 and Salop. A dense forest with occasional clearings 
 stretched from the Tyne to the Tees. The county of 
 York, which suffered much from the Conqueror's devasta- 
 tion, is known to have contained numerous forests, and 
 the Record Society of the North Riding are of opinion 
 that at least the whole of the eastern division of the 
 Riding was formerly under the Forest law. 1 Many of the 
 Yorkshire forests are now untraceable, but similar in- 
 quiries to those lately undertaken into the history and 
 customs of the Forest of Pickering may in time bring to 
 light many forgotten features of the county. The New 
 Forest inclosed a great part of the county of Hants, and 
 the wood of Andred afforested long districts in the north 
 of Sussex, in Surrey, and in Kent. The forests of Epping 
 and Hainault bordered on London, and afforested the whole 
 of Essex and a portion of Middlesex. This then was the 
 vast territory subject to the exceptional treatment of the 
 Forest law ; a law which gave rise to armed resistance, 
 which was a stimulating element in the struggle that 
 brought about the great charter of our liberties, and 
 which was from time to time, as the Crown or the people 
 had the upper hand, enforced or minimised by charters 
 and confirmations, by ordinances and assises. 
 
 Before proceeding further it will be well to consider 
 what was the nature and legal definition of a FOREST 
 and its dependencies, what were the beasts and birds 
 which came within the protection of its laws and what 
 were the offences contra pacem foresti, against the peace 
 
 1 North Riding Record Society, vol. i., N.S. (1894). 
 
The Courts of the Forest \ 39 
 
 of the forest and the quietude of the beasts that roamed 
 therein. " And seeing," says Lord Coke, with a quaint 
 touch of humour, " that we are to treat of matters of 
 game and hunting, let us (to the end that we may pro- 
 ceed the more cheerfully) recreate ourselves with the 
 excellent description of Dido's doe of the forest with a 
 deadly arrow sticken in her." To which the old editor 
 appends a note, " like to an evil conscience in the false 
 and furious officer of the Forest," adding, as if in fear 
 of the Star Chamber, " if any such there be." l A forest, 
 in the old English a buck-holt or deer park, now said to 
 be derived from foris, out of doors, is described by an 
 Elizabethan authority, as " a safe abiding place for wild 
 beasts who belong to the woods, not however to all woods, 
 but to those which are suitable for such purpose ; and 
 thus in the word forest the letter e is changed into the 
 letter o, as if one said foresta, or ferarum statio. And a 
 forest is not to be found in every county, but only in 
 woody places where are great covers and fruitful 
 pastures." 2 The antiquity and locality of these old 
 
 1 4:th InsL, p. 288. The passage is thus rendered by Dryden, 
 jEneid, Bk. IV. :- 
 
 " So, when the watchful shepherd from the blind, 
 Wounds with a random shaft the careless hind, 
 Distracted with her pain, she flies the woods, 
 Bounds o'er the lawn, and seeks the silent floods 
 With fruitless care ; for still the fatal dart 
 Sticks in her side, and rankles in her heart." 
 
 2 ISauthoritie et jurisdiction des Courts de la majestie de la Roygne, 
 per It. Crompton. del milieu Temple, Esquire, Apprentice del Ley ; 
 London, 1594. Black letter, fol. 146. The learned ^author quotes 
 this passage, which 1 have translated, from Treherne. 
 
140 The King's Peace 
 
 forests are now beyond recall. It was said of our Courts 
 of Justice in the time of Edward IV., that they were all 
 so old that no one could tell which was the oldest, and 
 similarly of the forests Lord Coke says, 1 " the forests in 
 England (being in number sixty-nine), except the New 
 Forest in Hampshire, erected by William the Conqueror, 
 as a Conqueror, and Hampton Court Forest by Henry 
 VIII., b} r authority of Parliament, are so antient as no 
 record or history doth make any mention of their erec- 
 tions or beginnings." And, indeed, according to the 
 oldest description of our island it appears to have been 
 originally one huge forest containing a considerable area 
 of cultivated land, which increased in size and fertility 
 generation by generation, until in the present day the 
 face of nature is entirely changed, and we dwell in a 
 luxuriant pasture, dotted only here and there with the 
 remains of a primaeval forest. A forest accordingly was 
 the personal and peculiar privilege of the King, 2 to 
 whom alone pertained the right of appointing a Justice 
 Seat or a Chief Justice, the existence of which was the 
 insignia of a royal domain. Being his in such ample 
 possession, he could grant to any person the whole or 
 any portion of his forest, either absolutely or with such 
 restrictions and limitations as he might think fit. 
 
 A forest, however, in the hands of a subject became a 
 CHASE which, except by special order of the King, was 
 subject to the jurisdiction of the Common Law 3 and its 
 judges, and was not under the Forest Law. It had no 
 
 i 4tk Ins!., p. 318. Manwood, fol. 72. 8 Coke, 4A Irut., p. 314. 
 
The Courts of the Forest 141 
 
 Court of its own, and matters affecting the chase and its 
 owner's rights were disposed of in the Court of the Hun- 
 dred or of the County and not by the judges of the 
 Forest. No one therefore was the owner of a forest but 
 the King, who provided for its administration and ap- 
 pointed its officers. 
 
 A PARK, unlike a chase which was always open, was 
 an enclosed space for game or beasts, and might be held 
 either by a grant from the King, or by prescription, which 
 presumed the existence of a grant issued at some long 
 antecedent period, but then lost or mislaid. It was, how- 
 ever, held subject to this condition, that if the wall or 
 paling by which it was surrounded were broken down so 
 that the beasts could pass through, the park, if in a forest, 
 was forfeited to the Crown and could only be resumed by 
 a new grant from the King after such payment as could 
 be obtained from the owner of the land. 1 
 
 A WARREN which might, like a park, be constituted 
 either by a grant from the King or by prescription, was 
 land devoted to hold pheasants, partridges, rabbits and 
 hares, but no wild beasts or vermin. This was also sub- 
 ject to the Common Law, having no court of its own. 
 
 The right of showing a title by prescription, or by 
 ownership beyond the memory of man, was always re- 
 cognised from the earliest date, but subject to this no 
 one could have a park, a chase, or a warren, even on 
 his oivn freehold land except by grant of the King. 
 For the privilege of making chases, parks and warrens 
 
 1 Crompton, fols. 150-157. 
 
142 The King's Peace 
 
 pertained solely to the King, and any infraction of this 
 privilege was followed by the forfeiture of the land so 
 afforested or parked, together with grievous pains and 
 penalties. 
 
 The BEASTS OF THE FOREST were divided into two 
 classes, those fit and those unfit for human food, the 
 former of which were called by the generic name of 
 VENISON, or venatio. These included the hart and the 
 hind and their progeny, hares, male and female, rabbits, 
 sanglier, viz. wild boars and their progeny, and wild 
 bulls. Of the latter class (not being venison) were 
 wolves, male and female, foxes, martens, wild cats, 
 squirrels, and wild bears. Fortescue, however, writing 
 in the fifteenth century, says there were no wolves, or 
 bears, or lions in England at that time, so that the sheep 
 could lie out at night in their folds without shepherds. 1 
 Crompton, 2 writing in the sixteenth century, says there 
 were no wild bears in the time of Edward III., and Coke 
 does not mention them at all. Wild elks are also 
 mentioned in a statute of Henry VIII. 3 though not by 
 Coke. Wild goats, though beasts of the chase, are said by 
 Coke not to be beasts of the forest 4 ; nor otters, 5 which 
 being amphibious were not easily classified. Crompton 
 however declares that wild goats were beasts of the 
 forest, and gives an instance where a man was indicted 
 under the Forest law for a wild goat, and the indictment 
 was held good. 6 
 
 1 Fortescue de Laudibus, etc., ch. 29. 2 Fol. 171. 
 
 3 33 Henry VIII. 4 4th Inst., p. 317. 5 Ibid., p. 316. 
 
 6 Fols. 157, 178, 198. The term used is capreolus, which is said 
 sometimes to be a roebuck, and sometimes to be a wild goat. 
 
The Courts of tJie Forest [43 
 
 Of BIRDS, the hawk with its progeny seems to have 
 been the only privileged bird, and even that was not privi- 
 leged at Common Law, but was made a bird of the forest 
 and subject to its laws by operation of the statute. 1 A 
 protection was also granted to herons by reason I sup- 
 pose of their providing sport for the hawks. 
 
 The soil of the forest and its produce was known as 
 VERT (green), and was of three sorts: (1) Hautboys, or 
 trees, such as oaks, beeches, etc., which served for shelter 
 and browse for the beasts, and trees which provided food 
 for man and beast, such as apples, pears, nuts, and the 
 like ; (2) Arbor escentes, or shrubs, which provided food 
 and shelter, such as blackthorn, hawthorn, etc.; and (3) 
 herbce, herbage, such as gorse, heather, and the like, used 
 for shelter for the smaller game. 
 
 Round each of the King's forests was a belt of land 
 of varying width, called the purlieu. It was not the land 
 of the King but was that of his tenants or of other land- 
 owners. Upon this land the guardians of the forest had 
 a right at all times to enter to drive back into the forest 
 any game that might have escaped therefrom. In this 
 land, according to the Common Law as laid down by 
 Coke, 2 every owner had the right to hunt at his plea- 
 sure, a right also declared in various charters, but one 
 which the Norman kings disregarded, holding that such 
 external hunting disturbed the peaceful occupation of the 
 forest by the big game located therein. In addition to the 
 purlieu appurtenant to the forests existing at the Con- 
 
 1 Crompton, fol.171. 2 4t/i Inst., p. 303. 
 
144 The King's Peace 
 
 quest, when lands afforested by Henry II., by Richard I., 
 or by John, were disafforested by Henry III., those lands 
 did not revest absolutely in their former owners, but 
 became the purlieu of the forest of which they had 
 recently formed part, and the purlieu man, as he is called 
 in the old reports, was subject to all the various exactions 
 and restrictions attaching to an original purlieu. 1 
 
 In order that the epithets bestowed upon the courts 
 and the customs of the forest may not seem to have been 
 mere words of abuse or disloyalty, it will be right to 
 mention some, though by no means all, of the interdictions 
 and impositions put upon the country by the kings and 
 their lessees. These were not all imposed simultaneously, 
 having been added to from time to time, but they repre- 
 sent in substance the condition of the Forest Laws from 
 Richard I. to Henry VII. And although, as already ex- 
 plained, no one could have a forest and a judge of the 
 forest, except the King and his direct donee, yet other 
 lords of chases, of parks, and of warrens, were not slow to 
 adopt the practice of the Crown, charging fees and fines 
 and exacting services, alleging such quasi-forest rights to 
 be reasonable customs at Common Law, acquired by pre- 
 scription and by constant use beyond the memory of man. 
 
 No man was entitled to hunt in the forest without the 
 King's licence, which was rarely granted, and when 
 granted was subject to heavy payment. 
 
 A special warrant, to be obtained only from the king or 
 his officers, was required for a man to pasture his goats, 
 
 1 Coke, 4th Inst., p. 303. Crompton, fol. 153. 
 
Tlie Courts of the Forest 145 
 
 his sheep, or his swine, within the limits of the forest, or 
 to cut heath, whins, or turf. 1 
 
 No brewer or baker could brew or bake 8 within the 
 forest, and if any white tanner or bleacher were found in 
 the forest he was removed and fined, " because they are 
 the common dressers of the skins of stolen deer." 3 
 
 When a forest was bounded on any side by a river, no 
 one could fish that river without warrant. 4 
 
 No man could build a house within the limits of a 
 forest, though on his own freehold, nor even a hedge four 
 feet high. 5 
 
 No man, woman, or child, without warrant from the 
 King or his officers, could pick nuts in a forest, nor take 
 honey from a hollow tree without being liable to fine and 
 imprisonment. 6 
 
 If a man cut wood in a forest, and carried it away in a 
 cart, the cart and horses were forfeited, and the man was 
 fined ; or if he carried boughs on a horse, the horse was 
 forfeited, and the man was fined. 7 
 
 If a man had a horse pasturing in the forest, either 
 with licence or without, and he came by night to take out 
 his horse, he was liable to be imprisoned, and then to be 
 bound over in sureties to be of good behaviour for the 
 future, as it was declared to be against the laws of the 
 forest that any one should under any circumstances enter 
 a forest by night and thereby disturb the peace of the 
 beasts. 8 
 
 Crompton, fol. 196. 8 Ibid., fol. 195. Ibid., fol. 190. 
 
 * Ibid., fol. 199. 5 Ibid., fol. 189. fl Ibid., fol. 183. 
 
 ^ Ibid., fol. 190. 8 Ibid., fol. 189. 
 
146 The King's Peace 
 
 A like punishment was due to any man against whom 
 it could be said that he entered a forest with intent to 
 chase the game, although in fact he did nothing. And a 
 man might be indicted and punished as a common male- 
 factor of venison, though he was not guilty of any overt 
 act. 1 
 
 If a hue and cry after malefactors were raised by the 
 foresters or other officers of the forest, and it were not 
 pursued and followed with effect, the whole township 
 was fined. 2 
 
 The lord of a forest could enter any man's woods 
 within the purlieu of the forest and cut down his brush- 
 wood for the deer in winter. 3 He had also this preroga- 
 tive, that at such times as he should be disposed to hunt 
 within the forest, every man must be ready to hold a 
 greyhound for the taking of wild beasts, in such places as 
 might be appointed, or in default to be fined. 4 
 
 An habitual method of extortion by the officers of the 
 forest was to allege that certain duties or services had to 
 be performed, according to the custom of the forest, by 
 certain persons, and then to take money for the release 
 of these services. The moneys so paid were called quit- 
 tances, and they were exacted in release of the following 
 among other alleged obligations of the denizens of the 
 forest: 
 
 Escapes. 5 When cattle had accidentally wandered into 
 the forest and were alleged by the officers to have become 
 
 1 Crompton, fol. 191. Ibid., fol. 190. 3 Ibid., fol. 193. 
 * Ibid., fol. 197. * Ibid., fol. 197. 
 
The Courts of the Forest 147 
 
 forfeited by reason of their trespass, for the owners to be 
 free of such forfeiture. 
 
 Footegeld. 1 When a freeholder had dogs for his own 
 protection, not lawed as required in the case of mastiffs. 
 
 Tristris. 2 To be free of holding greyhounds when the 
 lord was hunting. 
 
 Allgelds. 3 To be free of the alleged duties of gathering 
 sheaves of corn, collecting lambs, shearing sheep, and 
 carrying wood for the use of the foresters and at their 
 order. This was an illegal exaction for which certain 
 foresters of Yorkshire were convicted and fined. 
 
 Woodgeld.* To be free of the alleged duty of gathering 
 wood for the use of the officers of the forest. 
 
 Horngeld.* To be free of gathering up the horns of 
 boasts. 
 
 Buckstall. 6 To be free of making a corall for the 
 beasts and rounding them up. 
 
 Chimagium. 7 To be free of paying toll for passing 
 through the forest. 
 
 Scoto. 8 To be free of providing meat and drink for the 
 officers of the forest when required by them to do so. 
 This was also declared an illegal exaction by 25 Edward 
 III. c. 7, but it appears nevertheless to have been con- 
 tinued by the foresters like the claim for gathering corn 
 and wool. Certain forests also had customs of their own, 
 and among others the forest of Halifax had what was 
 
 1 Crompton, fol. 194. 5 Ibid., p. 305. 
 
 2 Coke, 4th Inst., p. 305. 6 Hid., p. 306. 
 
 3 Crompton, fol. 194. ^ Hid.] p. 306. 
 * Coke, th Inst., p. 305. B Ibid., p. 306. 
 
148 The King's Peace 
 
 termed the gibbet right, viz. the power to hang any 
 thief found in the forest, a right which found its declara- 
 tion in the seal of the forest so late as the year 1662. 1 
 
 To enforce the King's prerogative, and to secure the 
 due payment of all rents and dues, judges of the forest 
 were appointed by the Normans, superseding the former 
 judges and keepers, with power to hold courts, to try 
 offenders against the laws of the forest, to settle the 
 limits of the forest and the purlieu, and to hear and 
 determine claims made by those of the King's subjects 
 who alleged that their rights had been invaded. Two 
 of these officers, one for lands North, and one for lands 
 South of the Trent, were accordingly nominated. Each 
 was called a CHIEF JUSTICE OF THE FOREST, and being a 
 high officer of state, was, until the reign of Henry VIII., 
 appointed by the King's writ. 2 Subordinate to the Chief 
 Justice, and holding quasi-judicial courts, were the Ver- 
 derers (viridarii), who were chief officers of the forest. 
 Their duties were primarily in regard to the vert, but 
 they also held Courts of Inquiry, made presentments to 
 the Chief Justice, and issued attachments or committals 
 to prison in default of bail in all cases of transgression 
 in the forest, either by hunting or stealing game, or by 
 taking of vert, or otherwise. Of these Verderers there 
 were commonly four in each forest. They were elected 
 like coroners, by the freeholders of the forest and the 
 purlieu, on a writ issued by the King. 3 
 
 1 This seal, of which an example is attached to a grant now in 
 the British Museum, is reproduced as an illustration. 
 
 2 Coke, 4th Institute, p. 290. 3 Crompton, fol. 160. 4 Edward IV. 
 
SEALS OF THE KOHKST. 
 
 Face imge 148. 
 
1. The Seal of Henry Ratdiff, Earl of Sussex, Chief Justice of all 
 the Forests, Chaces, and Warrens of Queen Mary," citra Trent ram," 
 circ., 1553. (Brit. Mus., xxxvi. 161.) 
 
 2. The Seal of Sir Giles Dawlmey, Knt., and Sir Reginald Bray, 
 Knt., Justices in Eyre, ".citra Trent/tarn^ 12 Henry \ 7 IL (14! >7 . 
 (Brit. Mus., add. ch. 22,399.) 
 
 3. The Seal of Sir Thomas Lovell. Kut., Justice In Eyre, " eitra 
 Trentam," 4 Henry VIII. (1513). (Brit, Mus.. add. ch. 8.404.) 
 
 4. Seal of the Corporation of Halifax. TP. R. Yorks, illustrating 
 the " Gibbet Law " of the Forest of ffardwiek, co-extensive icitJt the 
 parish of Halifax, 1662. (Brit. Mus., xlix. 136.) 
 
The Courts of the Forest 149 
 
 The Agistators, or agisters, who managed the agistment, 
 or hiring out of portions of the forest for the feeding of 
 cattle, were also usually four in number. 1 
 
 Forestarii, the foresters or woodwards, were charged 
 with watching the forest and attaching and presenting 
 all who interfered with the King's beasts or his birds, 
 or who trespassed on his vert. They were appointed by 
 patent, and had no judicial or quasi-judicial position; but, 
 owing to their duties as gamekeepers and informers, they 
 were special objects of aversion by the English com- 
 monalty. Their number seems to have been unlimited 
 either by custom or by ordinance. These Verderers and 
 foresters held their offices under the Crown, and were 
 paid, not by salary, but by fees, fines, and services, which 
 they were authorized by custom, or otherwise, to levy on 
 or exact from the woodland population. That they did 
 levy fees and fines and exact services to an extortionate 
 extent, and hold accused persons unreasonably to ransom, 
 appears sufficiently from the declaration that when a Ver- 
 derer or a Forester is found guilty of such an offence, 
 either by the Swanimote or the King's Justices, he shall 
 suffer fine and imprisonment, with full restitution to the 
 party injured. 2 
 
 The Rcgarders were appointed as surveyors over the 
 other ministers of the forest. The office was created by 
 Henry II., and was in the gift of the King. Not more 
 than twelve of these could however be appointed for any 
 forest. Their chief dut}' was to survey the forests, and to 
 
 1 Coke, 4th Institute, p. 293. 2 Crompton, fol. 155. 
 
150 The King's Peace 
 
 take care that all encroachments, assarts and crimes 
 of vert or venison were duly presented to the Chief 
 Justice. 1 
 
 The Verderers held every forty days a court, called 
 a WOODMOTE, at which presentments were made, the 
 Foresters made their charges, and the accused were either 
 released or held to bail ; if taken in the fact, by recog- 
 nizance of sureties ; if only charged on suspicion, by re- 
 cognizance of their goods. This, however, was only 
 a Court of Inquiry and Report, and when cases were 
 thought to be serious they were sent forward. 
 
 The principal court of the Verderers was called the 
 SWANIMOTE or Court of the Ministers of the Forest, from 
 the Saxon word sicain, a minister, and mote, or gemote, 
 a Court. In it the Verderers were the judges, the court 
 being summoned and presided over by the Steward of the 
 Forest. At this court, which had a qualified judicial 
 power, viz. to convict and attach offenders, and to send 
 them for trial before the Chief Justice, but not to punish 
 them, the foresters made their presentments and charges, 
 and brought to trial offenders whom they had attached. 
 The freeholders also, and others within the limits of the 
 forest, were bound by law to attend these courts, and 
 to serve on inquests and juries when their attendance 
 was required. The Verderers sat in Swanimote, accord- 
 ing to custom and ordinance, thrice in every year, the 
 
 1 Various forms of enquiry of and direction to the Regarders, 
 and form of questions to be put to the Swanimote of the Forest 
 of Sherwood, in the reigns of Edward III. and of Henry VIII., 
 are set out in Crompton, fols. 171, 181, 201. 
 
The Courts of the Forest \ 5 I 
 
 first time fifteen days before Michaelmas, the second 
 about the feast of St. Martin, and the third before the 
 feast of St. John the Baptist. And their court was ap- 
 purtenant to a Forest and to no other place ; in the same 
 way, as we shall hereafter see, that a Clerk's Court was 
 appurtenant to a market, and a Court of Pypowder to a 
 fair. It appears, however, that although they had no 
 power of inflicting punishments, yet when a verdict as to 
 a trespass in vert or venison was found by the Verderers 
 and returned to the Chief Justice, the latter proceeded at 
 once to pass sentence on the convict, and would not allow 
 the propriety of the Verderer's verdict to be in any way 
 impeached. 1 
 
 A court was also held once in every three years for the 
 SURVEY OF DOGS. By Norman custom, any man who 
 was entitled to live in a forest, was also permitted for his 
 protection to keep mastiffs ; but to prevent the mastiff 
 following his natural inclination and hunting the big 
 game, he was, under the rule of the Conqueror and his 
 sons, expeditated, i.e. the claws and the ball of each 
 forefoot were cut out, so that the mutilated beast could 
 serve at the best but as a poor protection against the 
 beasts and the thieves of the forest. 2 And once in every 
 three years the Regarders of the Forest examined all 
 dogs, and reported those whose feet were not duly lawed. 
 This cruelty to dumb and faithful beasts was to some 
 
 1 Coke, 4th Institute, p. 290. 
 
 2 Lord Coke says the word mastiff is derived from the words 
 maes and teef, because he was a dog whose presence amazed the 
 thief. 4th Institute, p. 308. 
 
The King's Peace 
 
 extent mitigated by the Statute of 9 Henry III. (Carta de 
 Foresta), by which it was declared * that the expedi- 
 tation or lawing of dogs should for the future consist 
 only of cutting the claws to the flesh of the forepaw 
 and not interfering with the ball of the foot. 
 
 Causes being thus prepared, they went before the 
 COURT OF THE CHIEF JUSTICE who, however, sat only 
 once in three years. Before his arrival it was the duty 
 of the guardian to perambulate the forest and to ascer- 
 tain who had made encroachments in the forest called 
 purprestures, and who had grubbed and brought into 
 cultivation any land in or adjoining the forest, called 
 assarts, without the King's licence. These offenders were 
 summoned and presented before the Chief Justice, who 
 also decided, not according to Common but according to 
 Forest law, what punishments were to be inflicted and 
 what penalties paid. He also settled, by the same law, 
 any claims to franchises, parks, warrens and vineyards 
 in the forest, as also all claims of the Hundred, all claims 
 to the goods of felons found in the forest, and any other 
 question that might arise between the King and his sub- 
 jects, or between any private persons within the limits 
 of the forest. He also passed sentence on transgressors 
 who had been tried and convicted by the Verderers, and 
 in other respects performed all the duties of a Justice 
 in Eyre. 2 Forty days' notice was given of the holding 
 of the Chief Justice's Court and the Sheriff or Vicomte 
 of the county duly summoned 3 all archbishops, bishops, 
 
 1 Sec. 6. 2 Coke, 4th Institute, p. 290. 
 
 3 Crompton, fol. 149. A form of summons is set out. 
 
The Courts of the Forest 153 
 
 abbots, barons, and freemen, who had holdings within 
 the limits of the forest, together with four men and 
 a foreman (prepositus), from every village within the 
 bounds, and twelve good and lawful men of every 
 borough within the said bounds, who were accustomed 
 to be summoned, to attend the court and try the pleas 
 of the forest. Notice was also given to all persons 
 attached for vert or venison, or who claimed any fran- 
 chise in the forest, to attend in person and make their 
 defences or claims at a certain time and place ; and at 
 such time and place, once in every three years, all 
 persons having claims to franchises in the forest were 
 compelled to appear in person or by attorney, and make 
 their claims, or their rights would be declared forfeit, and 
 their lands, franchises, and rights would be seized into 
 the hands of the King. 1 
 
 The jurisdiction of the Chief Justice of the Forest was 
 however, strictly limited to the forest, and to what were 
 called the pleas of the forest, viz. r questions as to trespass, 
 hunting, encroachments and the like. If a felony or a 
 misdemeanour (called transgressio) were committed in the 
 forest, the Common Law judges had the trial of it, and it 
 accordingly went to the County Court or to the judges of 
 assize when they came their circuits. In the same way 
 if a Verderer were dismissed on a false charge and the 
 forest judge would not reinstate him, he had a right to 
 appeal to the Chancellor for a writ to enquire into his loss 
 of office, and to reinstate him if his removal were obtained 
 
 j 
 
 1 Crompton, fol. 153. 
 
154 The King's Peace 
 
 by falsehood or by fraud. 1 At a later period the Chief 
 Justice of the Forest, if a difficult question of law arose 
 before him, could send it for the opinion of the judges of 
 the King's Bench. 2 The Common Law judges, however, 
 had no power to grant bail in forest cases, 3 as that was a 
 matter peculiarly within the province of the Chief Justice 
 and the officers of the forest, and the accused had there- 
 fore to get himself admitted to bail by the Verderers or by 
 the S \vanimote, or to remain in prison till the Chief Justice 
 came on his triennial visit. Rents and fines thus enforced, 
 or voluntarily paid to the officers, were handed over to the 
 sheriff of the county in which the forest was situate, who 
 paid them into the royal chest each Michaelmas when he 
 carried in his balance and settled his accounts with the 
 Crown in the Exchequer. 4 
 
 Courts thus constituted, with officers dependent, not 
 upon a salary but upon the income they could secure from 
 alleged transgressors, afforded many opportunities for 
 oppression and extortion, while the long periods that 
 lapsed between the sittings of the Chief Justice, during 
 which time many of the offenders of the forest were kept 
 in prison, or grievously afflicted in their estates by the 
 difficulty of finding sureties, made the position of the 
 denizens of a forest almost insupportable. And so matters 
 continued under the Conqueror and William Rufus, and 
 also under Henry I : for although that King gave a 
 Charter of Liberties to his subjects at his coronation, yet 
 
 1 Crompton, fol. 196. 2 Hid., fol. 160. 3 Ibid., fol. 156. 
 4 Hall's Antiquities of the Exchequer, p. 141. 
 
The Courts of the Forest 1 5 5 
 
 in regard to his forests his only declaration was, that 
 by the common consent of his Barons he held them as 
 his father held them. 1 His further general declaration 
 that he would observe the laws of the Confessor, may 
 perhaps have for a time quieted their apprehension in 
 this respect. But like his father he loved the high game, 
 and had a private menagerie in his park at Woodstock, 
 comprising wild beasts from foreign parts, such as lions, 
 leopards, lynxes, camels and porcupine. 2 And in order 
 that he might feast his eyes on big game also, when in 
 Normandy, he had a similar menagerie constructed at 
 Caen, near the church where his father was buried. 
 
 Stephen hunted and held pleas of the forest at Bramp- 
 ton near Huntingdon, in the first year of his reign, 3 but 
 afterwards spent his time in domestic brawls, and accord- 
 ingly the first Statute of the forest after the Conquest is 
 to be found A.D. 1184, issued by Henry II., called Assisa 
 de Foresta. 4 This somewhat modified the severity of the 
 law, but otherwise it provided that if any one transgressed 
 and was convicted, he should suffer the full penalty that 
 was inflicted in the time of Henry I. A clause, 5 illustra- 
 tive of the period, and of the King's determination that 
 all Englishmen whether eccleciastics or laymen should be 
 equally subject to the law, provided that no cleric should 
 transgress in the matter of the King's venison or hunt in 
 
 1 Stubbs' Charters, p. 93. 
 
 2 Lappeiiberg, Anglo-Norman Kings, p. 355. Gesta Stepliani, 
 p. 87. William of Malmesbury, p. 638. 
 
 3 Madox, History of the Exchequer, vol. i. p. 13. 
 
 4 Stubbs' Charters, p. 150. 5 Cl. 9. 
 
156 The King's Peace 
 
 his forests, and all foresters were warned that if they 
 found any clergy so transgressing they should not 
 hesitate to lay hands on them, hold them, and attach 
 them in prison, for which his ordinance would be a 
 sufficient warrant. It was further declared, by sec. 12, 
 that if any one were convicted of transgressing in the 
 forest, sureties for good behaviour should bs taken after 
 the first and second offences ; but after the third offenca 
 nothing short of the body of the offender would satisfy 
 justice. By clause 13, every boy of the age of twelve 
 years, within the forest, and every cleric holding by a lay 
 tenure, was required to swear pacem venationis (the peace 
 of the venison) viz., to obey the laws of the forest. By 
 clause 14, the lawing of mastiffs was to take place when- 
 ever they were within the peace of the forest. By clause 
 15, no tanner or bleacher was to live in the forest ; and by 
 clause 16, any one was rendered liable to imprisonment 
 for a year, to be followed by the giving of sureties for 
 good conduct, who hunted by night either in the forest or 
 in any other place where wild beasts were accustomed to 
 roam. His Chief Justices of the forest were Alan de 
 Nevil and Thomas Fitz-Bernard. 1 
 
 Over how long a period life was taken and mutilation 
 practised as a punishment for forest offences does not 
 clearly appear. I am disposed, however, to believe that it 
 ceased during or soon after the time of Henry II. In the 
 early part of this reign there appear amongst the returns 
 to the Exchequer, small sums, being the value of the goods 
 
 1 Madox, vol. i. pp. 125, 185. 
 
The Courts of the Forest 157 
 
 of persons who suffered by judgment of the water for 
 forest offences. 1 But they do not appear to extend beyond 
 this period, and although the declaration by statute, that 
 no one should lose life or limb for such offences, was 
 not actually published until A.D. 1217, yet the reign of 
 Henry II. was one of mercy, as compared with that of 
 his predecessors. And if it be urged that, had the taking 
 of life and limb ceased about that time, there would have 
 been no need for the express stipulation in the Carta de 
 Foresta, that such punishment was not according to law, 
 I would reply that the continued exaction and extortion of 
 the officers of the forest would fully justify the action of 
 the barons who might reasonably suspect that, unless for 
 some such charter as that promised by John and granted 
 by Henry III., a temporary suspension of their opposition 
 might induce in tyrannical rulers or grasping servants a 
 recurrence of the old and hateful proceedings. 
 
 The fines, however, during this period, were frequent 
 and excessive. From a list of amercements paid into 
 the Exchequer during the reign of king Henry II., 
 collected by Madox from the pipe roll, 2 it appears that 
 in the 22nd year of this sovereign, Henry de Brus and 
 70 others were fined iu sums rising to 100 each, in 
 regard of forest offences in Yorkshire ; Henry de Nonart 
 and 50 others were fined 30 marks for similar offences 
 in Devonshire ; Robert Carter and 30 others, 10 marks 
 for the same in Shropshire ; about 60 persons for North- 
 amptonshire ; 30 persons, in 50 marks, for Herefordshire ; 
 
 1 Madox. vol. ii. p. 131. 2 lbid. } vol. i. p. 541. 
 
158 The King's Peace 
 
 60 persons, in 50 marks, or Nottinghamshire ; 40 persons 
 in 50 and under, for Worcestershire ; 40 persons, in 50 
 marks, for Wiltshire ; 50 persons, in 50 marks, for Essex ; 
 40 persons for Hampshire, and similarly for other 
 counties. In Northumberland also, men were fined 22s. 
 4d. each, for not cutting the feet of their dogs. 1 
 
 Richard I. and John, both of whom like their Norman 
 relations, were great hunters, pressed the laws and 
 gradually enlarged the borders of their forests. And 
 thus it occurred that clauses for the amelioration of the 
 laws and customs of the forests found their way into 
 Magna Carta. 2 " All forests which were afforested in our 
 time," it was declared, " shall be forthwith disafforested." 
 u All bad customs of forests and warrens, and of foresters 
 and warreners, sheriffs and their servants, shall be forth- 
 with enquired into in each county by twelve sworn 
 knights of the county, to be chosen by the good and 
 lawful men of the county, who are to report within forty 
 days." To effect this enquiry, an order was issued by 
 the King on the same day to elect twelve knights 3 of the 
 shire and to make the neccessary enquiry into u pravis 
 consuetudinibus" the wicked customs. But it seems 
 easier to persuade a king to sign a charter against his 
 will, than to induce him and his successors to carry it 
 loyally into effect. No forest charter was ever granted 
 
 1 Madox, vol. i. p. 559. 
 
 2 Stubbs Charters, p. 294. 
 
 3 By the report of these knights, after their perambulation, the 
 County of Lancaster was in great part disafforested (Pearson's 
 Historical Maps). 
 
The Courts of the Forest 159 
 
 by king John, 1 and although Henry III. issued the famous 
 Carta de Foresta with a view of carrying out the promises 
 of his father, yet, as Lord Coke observes, this very 
 charter on which the lives and liberties of the woodland 
 population depended, was confirmed, and re-enacted, and 
 ordered to be put in execution, no less than thirty times 
 between the death of John and that of Henry V. 2 
 
 Carta de Foresta, 3 the Great Charter of the wood- 
 land population, nobles, barons, freemen, and slaves, 
 loyally granted by Henry III. (A.D. 1217), in the third 
 year of his reign, contained the following among other 
 provisions. All forest lands made by Henry II. were to 
 be viewed, and if he had made forests to any one's hurt, 
 they were to be disafforested. 4 All forests made by King 
 Richard and by King John were to be disafforested. 5 
 The lawing of dogs was to be by cutting their claws 
 only. 6 The Court of Swanimote was only to be held 
 thrice yearly, 7 a practice having apparently crept in of 
 holding it oftener. No one was to lose life or limb for 
 venison ; but if he were caught and convicted of taking 
 venison, he was to be heavily fined (grievously payned), 
 if he had the money to pay his fine. If he had not 
 the money, he was to lie in prison for a year and a 
 day, and if by a year and a day he could find sureties, he 
 should go out of prison ; but if not, he should abjure 
 
 1 Hugh de Neville was Chief Justice of the forests under King 
 John. Dugdale, Orig., fol. 9. 
 
 2 4th Inst., p. 303. 
 
 8 The Great Abbrydgement, fol. 117. Stubbs' Charters, p. 347. 
 4 Clause 1. 5 Clause 3. 6 Clause 5. ^ Clause 8. 
 
160 The King's Peace 
 
 the realm of England. 1 Clause 11 provided that every 
 archbishop, bishop, earl, or baron, coming up by the 
 King's command, if he passed through a forest, might 
 take a beast or two, and the same in returning. But he 
 was to do so in sight of the Forester if he were present ; 
 if he was absent, he was " to blow for him, lest it should 
 seem to be done by stealth." This right to hunt on 
 the way to and from attendance on the King was, at 
 a later date, extended to all lords of Parliament and 
 knights of the shire on their way to and from the meeting 
 of Parliament. 2 
 
 Edward I., in 1297, 3 confirmed " the Charter, made by 
 the common consent of all the realm in the time of 
 Henry III., to be kept in every point without breach." 
 In the Ordinatio Forestce (A.D. 1305) 4 he expressed his 
 sympathy with the sufferers under the Forest Laws, and 
 he also made some further inquiries as to purprestures, 
 or alleged encroachments. 5 
 
 No reference is made in these later Charters to the 
 clause in the Assisa de Foresta relating to the clergy. 
 That all orders of the clergy were hunters, and that the 
 inferior orders probably produced many a Friar Tuck, is, 
 I think, established by the clauses I have extracted, and 
 by the reports of many old cases in which the clergy are 
 concerned. There seems always, however, to have been 
 some scruple of conscience with the reverend gentlemen, 
 by reason of the early canons which categorically forbade 
 
 1 Clause 10. Crompton, fol. 168. Coke, 4th Inst., 305. 
 Confirmatio Cartarum, Nov., 1297. Stubbs' Charters, p. 486. 
 4 33 Edward L, Stat. 5. 8 Britton, by Kelham, p. 101. 
 
TJie Courts of the Forest 161 
 
 it. Thus, by the Liber Pcenitentialis of Theodore, 1 a 
 clericus who hunted, was ordered to do penance for a 
 year ; a deacon, for two years ; a priest, for three years. 
 By the Liber Poenitentialis of Egbert, 2 a cleric who 
 hunted was to abstain from meat for twelve months ; a 
 deacon, for two years ; a priest, for three years ; a bishop, 
 for seven years. By the canons of King Edgar 3 (cl. 64), 
 it is said : " We enjoin that a priest be not a hunter, nor 
 a hawker, nor a dicer, but apply to his books as becomes 
 his order." Lord Coke, however, who, besides being a 
 great lawyer, was also a considerable theologian, justifies 
 the hunting of the clergy on what seems to us now to be a 
 ground somewhat inconsistent with the canon. " Albeit," 
 he says, " spiritual persons are prohibited by the Canon 
 Law to hunt, yet, by the Common Law, of the land they 
 may for their recreation, to make them the fitter for the 
 performance of their duty and office, use the recreation 
 of hunting. . . . And at this day, and time out of mind 
 the king hath had, after the death of every archbishop or 
 bishop, mutam suam canum, his kennel of hounds, or a 
 composition for the same." 4 But, as he afterwards adds, 
 if the Common Law gives a priest the right to hunt, 
 no Canon Law can be heard against it. 
 
 Edward III. added to the forest penalties by making it 
 a felony, with benefit of clergy, to steal in the forest 
 any man's long-winged hawk, or to find and conceal one. 5 
 The former was a stealing at Common Law, but the 
 
 1 C. xxxii. sec. 4. 2 Ancient Laws and Institutes, vol. ii. p. 215. 
 3 Ibid., vol. ii. p. 259. 4 4th Insl., p. 308. 5 57 Edward III. 
 
 M 
 
1 62 The Kings Peace 
 
 latter was a now crime created by the statute, contrary 
 to the clear and well-approved doctrine that there is 
 no legal ownership in wild game, which becomes the 
 property of the finder or the killer on his own ground. 
 
 Richard II., in a law of the Forest, 1 had a curious 
 reference to gentlemen's game. He instituted a pro- 
 perty qualification whereby no layman, not having land 
 of the value of forty shillings per annum, nor any clerk 
 not having 10 per annum revenue, should have or 
 keep any greyhounds, etc., to destroy deer, etc., or any 
 other gentleman's game, under a penalty of a year's 
 imprisonment, followed by giving of sureties for good 
 behaviour. 
 
 In 1376, during the reign of Henry IV., the commoners 
 of Hertfordshire appealed against the evil customs of the 
 officers of the Forest of Ewyastone, who confiscated their 
 beasts that wandered into the forest. To this the king 
 replied that the good old laws of the forest were to 
 be observed, and the contrary to be forbidden by a writ 
 under the Privy Seal. A truly royal answer, says Coke, 
 and worthy of the Plantagenet. 2 
 
 During the wars of the roses no forest legislation took 
 place. The woods became the home of runaways and out- 
 laws, and foresters and commoners did much as the} r 
 liked till the restoration of peace under Henry VII., one 
 of whose first acts after ascending the throne was to 
 deal with these laws. By this time, however, the hunting 
 of big game, which after all is typical rather of the 
 
 1 13 Eichard II., c. 13. 8 Coke, 4th Inxt., p. 318. 
 
The Courts of the Forest 163 
 
 unlettered savage than of the educated Christian, had 
 given place to other pursuits. Archery had taken its 
 place as a popular recreation, without disappearing alto- 
 gether as a science of military warfare. Jousts, tourna- 
 ments, and fighting at the barriers, demanding strength 
 of limb, courage, and dash, were recreations of the gentry, 
 while quarter-staff, wrestling, football, and bear-baiting, 
 had taken their place as amusements of the people. 
 Kings and " gentlemen " still hunted the deer ; but the 
 big game, the bear, the wild bull, the wild boar, and the 
 elk, except in special preserves, had disappeared, and the 
 pressure of the forest laws was lifted from the people as 
 the reason for their existence gradually died out. By the 
 beginning of the seventeenth century, the " high game " 
 of the Conqueror was a memory of the past, and in the 
 course of that period M. de Beaumont, in his dispatches to 
 Louis XIV., while speaking of the savagery of the English 
 in regard of their civil wars and their cruel punishments, 
 ascribes it to the absence of wild beasts from the country. 
 In this, he suggests, they have the disadvantage of the 
 inhabitants of other countries, who, by the pursuit of 
 wild beasts, can give vent to their evil passions ; while 
 the English, having exterminated all their wild beasts, 
 can only indulge their savage instincts by pursuing and 
 slaying one another. 
 
 Henry VII., however, 1 who could hardly be regarded as 
 a sportsman, legislated against the killing of game by 
 means of a stalking-horse, a most unsportsmanlike pro- 
 
 1 1 Henry VII., c. 7 ; 19 Henry VII., c. 11. 
 
1 64 The King's Peace 
 
 ceeding, which well deserved to be forbidden, and he 
 empowered justices of the peace for the first time to hear 
 and determine many matters connected with the forests 
 and their game. 
 
 Henry VIII., as before stated, tried to create a forest at 
 Hampton Court by authority of Parliament. Philip and 
 Mary had a Forest Law, but more for the purpose of 
 preventing the meeting of conspirators than to preserve 
 sport, 1 and references to justices of the peace trying 
 forest cases occur again. Elizabeth 2 and James 3 had 
 statutes as to foresting, and again justices of the peace 
 are given jurisdiction. These two monarchs also them- 
 selves made ravages on the royal forests : Elizabeth, to 
 find timber for her ships, and James, to provide timber 
 for sale. The latter also increased the property qualifica- 
 tion for would-be hunters. 4 But the forest laws had then 
 almost ceased to operate, for Manwood, in the preface to 
 his work on the forests, gives as his chief reason for 
 embarking on the investigation, that so few know the 
 laws of the forests, and yet so many fall into danger 
 thereof, " as they are grown clean out of knowledge in 
 most places in England." 
 
 Sir Edward Coke, writing his Institutes in the reign of 
 Charles I., and discoursing learnedly and sportingly on 
 the pursuit of game, speaks of the Chief Justice of the 
 Forest as a great official, whose authority and dignity 
 were then known and recognised. But the duties of this 
 
 1 Crompton, fol. 158. 3 1 Jac. I., c. 27. 
 
 2 23 Elizabeth, c. 10. 4 3 Jac. I., c. 13. 
 
The Courts of the Forest 165 
 
 great official had almost become nominal until King 
 Charles I., in one of his inspirations of madness, revived 
 this most odious of all jurisdictions, and sent out his 
 Chief Justices of the Forest to make raids on the forests 
 and the freeholders. Proceedings for incroachment by 
 building on and cultivating what was alleged to be 
 forest land in the forests of Dean and Waltham, were 
 instituted and tried at the Justice Seat before the Chief 
 Justice of the Forest. Verdicts were found for the 
 Crown and fines of 12,000, 35,000, and 98,000, which 
 it was found impossible to collect, were inflicted, farms 
 and ironworks long in use were confiscated to the king, 1 
 and a territory of many thousands of acres was declared 
 to be beyond the protection of the Common Law, and 
 subject only to that of the Forest. 
 
 This, however, was followed by an Act of 1640, 2 by 
 which it was declared that all forests should be held to 
 ba disafforested where no Justice Seat, Swanimote, or 
 Court of Attachment had been holden for sixty years 
 next before the first year of King Charles' reign. And 
 here we have the last of the Chief Justice as an effec- 
 tive minister ; for Dugdale, writing in 1666, and giving 
 an account of the Law Courts and legal institutions of 
 the country, makes no mention of any Court of the Justices 
 of the Forest as then in existence. 
 
 By Charles II. 3 the property qualification for pursuit 
 of game was still further extended, and William and 
 
 1 Gardiner, Personal Government, vol. ii. pp. 73, '172, 182. 
 
 2 16 Car. I., c. 16. 22, 23 Car. II., c. 25. 
 
1 66 The Kings Peace 
 
 Mary l introduced the pillory, with imprisonment, for 
 offenders against their Game Laws. Justices of the 
 Peace were empowered to try all such offences ; and by 
 the time of Queen Anne, the Chief Justice of the Forest 
 and his Courts had ceased to exist, or even to be had in 
 remembrance, except for the purpose of supplying sine- 
 cure offices, with respectable stipends, in the gift of the 
 Crown. 2 In 1817, an Act of Parliament, 3 reciting that 
 the duties of the Chief Justices of the Forests north and 
 south of the Trent, had in a great measure ceased through 
 the disafforesting of many of the great forests and the 
 inclosure of others, and that, nevertheless, these officers 
 were in receipt of considerable emoluments, abolished the 
 offices of Chief Justice of the Forest after the determin- 
 ation of the then existing interests, and transferred their 
 jurisdiction to the Chief Commissioner of H.M. Woods 
 and Forests without any additional stipend. 
 
 1 3, 4 W. & M., c. 10. 
 
 2 In 1811 the Chief Justice of the Forest was in receipt of a 
 salary of 3,466 13s. 4d. per annum. P. Lewis, Historical En- 
 quiries, etc., p. 20. 
 
 3 57 Geo. III., c. 61. 
 
CHAPTER V. 
 
 FROM THE ACCESSION OF HENRY VII. TO THE RESTORATION 
 OF MONARCHY. 
 
 (A.D. 1485-1660.) 
 
 I. 
 
 Henry VII. The Star Chamber The Back The Privy Council 
 The Exchequer Chamber Collar of S S. Its supposed 
 Origin Bestowed on the Offices of Chief Justice and Chief 
 Baron Suits in Forma Pauperis Cardinal Wolsey as Chan- 
 cellorThe Chancellor's Mace and Bag Court of Wards 
 and Liveries Court of Requests High Commission Court 
 Westminster Hall under Edward VI. The Courts in the 
 time of Queen Mary Sir Nicholas Throckmorton and the 
 j ur y Revival of Business under Queen Elizabeth Bacon, 
 the first Queen's Counsel Barons promoted to Equality with 
 Judges of King's Bench and Common Pleas Cursitor Barons. 
 
 HENRY VII. after the battle of Bosworth Field found 
 himself in the position of a sovereign with a kingdom 
 much divided in affection between the conflicting claims 
 of the Yorkist and the Lancastrian families, but on the 
 whole, sincerely desirous of tranquillity, and willing to 
 accept the union of the two roses, in Henry of Lancaster 
 and Elizabeth of York, as a sufficient guarantee of a 
 durable peace. One natural result of the intestine con- 
 flicts which had distracted the country for many years, was 
 that, during such period, certain families became for the 
 moment great and powerful, surrounding themselves with 
 partizans and retainers whom they kept in their pay and 
 
 167 
 
168 The King's Peace 
 
 could summon at their need. The general spirit of la\v- 
 lessness which was the product of the times led persons, 
 though possessed of some means and position, to attach 
 themselves for support and protection to one or other of 
 the great houses ; so that there was hardly a man under 
 the rank of a noble who did not wear the livery or token 
 of some titled and powerful clan. The great nobles thus 
 assumed the character almost of independent rulers, and 
 when two or three combined against the Crown, it was 
 with much difficulty that they were reduced into sub- 
 jection. Attempts had been made in previous years to 
 mitigate the danger, by reducing the number of retainers 
 permitted to each nobleman, and by forbidding the gift 
 of liveries. These usually took the form of parti-coloured 
 garments with which the histories and the costumes of 
 the middle ages have made us sufficiently familiar. A 
 continuance of such a condition of society was obviously 
 inconsistent with the preservation of public peace and 
 private security, and accordingly the King, after the im- 
 mediate flush of his victory, obtained from Parliament an 
 Act dealing with these evils. His success in this respect 
 was owing in a great measure to his own power, to the 
 temporary exhaustion of the rival factions, and to the 
 general desire of all parties for the passing of any such 
 laws as would ensure to the country for the present, at all 
 events, a freedom from intestine commotions. In the 
 absence of those favourable conditions it is not probable 
 that such extended powers would have been conferred 
 upon him. 
 
 The theory of the King's personal presence and partici- 
 
The Star Chamber 169 
 
 pation in the administration of justice is recognised in 
 every scheme of monarchical government. And thus, 
 although the Curia Regis, or Court of the King's Justice 
 Hall, came to an end in the reign of Henry III., and its 
 duties were thereafter discharged by various courts and 
 judges, yet the spirit and the practice of the regal 
 participation in the ordering of justice still subsisted. 
 The King no longer sat as supreme Justiciar in either of 
 the Common Law Courts or even in the Court of Chan- 
 cery, yet his Royal prerogative of personally doing justice 
 was still exercised in the Curia Regis in Camera, or 
 Court of the King in private Council ; a court, afterwards 
 unfavourably known as the STAR CHAMBER, or Camera 
 Stellata, from the fact that the roof of the chamber in 
 which the King's Council sat at Westminster was orna- 
 mented with golden stars. This Court, the origin of 
 which is somewhat obscure, was formerly composed of the 
 King, when he chose to sit, which he probably did fre- 
 quently in the early days, the Lords of the King's Privy 
 Council, the Chancellor, the Treasurer, and the Chief 
 Justices. Its earliest records now extant date from the time 
 of Edward III. ; it was then called Camera Stellata^ was 
 held by prescriptive right, and as Camden says, vetustate 
 antiquissima, dignitate honor atissima, in age most an- 
 tient, in dignity most honourable. During the early period 
 it sat but seldom, three reasons for which are given 
 by Coke. 2 First, that cases of sufficient magnitude to 
 warrant its intervention rarely occurred ; secondly, that 
 
 1 Close Roll, 29 Edw. III. 2 i nst ^ vo i. j v< p> 61< 
 
1 70 The King's Peace 
 
 it dealt with no cases that other courts could sufficiently 
 punish ; and thirdly, that it was not expedient unduly 
 to withdraw the Privy Councillors and the Chief Justices 
 from their daily avocations. 
 
 Of the cases civil and criminal recorded, some by Coke 
 and some by Crornpton, 1 those before the accession of 
 Henry VII. answer to the description given to them in 
 the Institutes, and appear to have been matters which the 
 Courts of Chancery and of Common Law could not very 
 satisfactorily have dealt with. It exercised, like all other 
 courts, the power of fine and imprisonment, but did not 
 touch either life or limb. To a Court thus established, 
 exercising its functions with the moderation and reserve 
 which distinguished its proceedings till the end of the 
 civil wars, no great objection could be taken. But upon 
 this jurisdiction, which still survives in the prerogative 
 of mercy inseparable from the Crown, a court was con- 
 stituted, or rather, I should say, was reconstituted by 
 Henry VII., of which the results were disastrous, not 
 only to the country, but also to the Crown. 
 
 It is not, I think, to be imputed to the King, that in re- 
 creating this Court of Star Chamber, or in converting an 
 antient common law into a statutory tribunal, he neces- 
 sarily contemplated any interference with the action of 
 the Common Law Courts, or any attack upon the liberties 
 of his subjects. I am disposed to think that he resorted 
 to the Court of Star Chamber as being the only existing 
 
 1 Fol. 29, De Court de Starre CJiamber and matters avant le 
 Counsell le Roy. 
 
The Star Chamber 171 
 
 court sufficiently honourable, and at the same time suffi- 
 ciently powerful, to deal with the great and masterful 
 interests which would thus become subject to its orders. 
 Its institution is dealt with in terms of characteristic 
 difference by the two great lawyers of the Elizabethan 
 era. Sir Edward Coke 1 speaks of it as a high and 
 honourable court " which ought to be kept within the 
 proper limits." Lord Bacon 2 describes it as " one of the 
 sagest and noblest institutions of the kingdom," and says 
 that the Act 3 which confirmed its authority was princi- 
 pally aimed at the suppression of force and the two chief 
 supports of force, combination of multitudes and main- 
 tenance or headship of great persons. 
 
 The Court, thus constituted for the first time by Statute, 
 provided that the Chancellor, to whom was afterwards 
 added the Master of the Rolls (who attended frequently 
 in the reigns of Elizabeth and James I.), the Treasurer, 
 the Keeper of the Privy Seal, or any two of them, with a 
 Bishop, and a Lord of the Privy Council, and the two Chief 
 Justices, or two Common Law Judges in their absence, 
 should hear complaints of unlawful maintenance, giving 
 of liveries, retainers, riots and unlawful assemblies, 
 and complaints against sheriffs, with power to call the 
 accused parties before them and to examine them, and, if 
 found guilty, to punish them according to due form of law. 
 The act was, however, according to Sir Edward Coke, only 
 declaratory of the procedure of the antient court, in 
 
 f., vol. iv. p. 60. 2 Spedding, vol! vi. p. S5. 
 
 3 3 Hen. VII., c. 1. 
 
172 The King's Peace 
 
 which the information, now ordered to be laid before the 
 Chancellor, was formerly directed to be laid before the 
 king himself. In one respect, however, he points out that 
 it was introductory of a new law, inasmuch as it em- 
 powered the court to examine the defendant upon oath, on 
 interrogatories or otherwise, according to discretion, and 
 thus opened up a procedure entirely unknown before that 
 period. 1 Its jurisdiction, though not extending to sen- 
 tences of death or loss of limb, did, however, in addition 
 to fine and imprisonment, extend to the infliction of pil- 
 lory, whipping, and in cases of great enormity, such as 
 slander of Queen Elizabeth, 2 cutting off the ears. 
 
 The Chancellor, now grown great in his office, was the 
 president of the court, which was held at Westminster, 
 as nearly as can be ascertained on the site now occupied 
 by the Speaker's house, in a large room on the river side 
 of the buildings. Its days of sitting were every Wednes- 
 day and Friday in term, unless either was the first or 
 last day of term; but it sat after term to finish cases 
 already begun. It appears to have commenced business 
 at eleven o'clock, as we hear from Cavendish, 3 that 
 Wolsey, when Chancellor, sat in the Court of Chancery 
 till eleven, when the court rose, and that he then left to 
 preside in the Star Chamber. 
 
 The jurisdiction of examining defendants, thus newly 
 conferred upon the court, though probably not inserted 
 by Parliament with any view of increasing the powers 
 then vested in the Crown, was held not only to authorize 
 
 1 Inst., vol. iv. p. 62. 2 23 Eliz., cap. 3. 
 
 3 Life of Wolsey \ Foss' Judges, vol. v. p. 261. 
 
TJie Star Chamber 173 
 
 the examination of such persons by vivd voce questions or 
 by written interrogatories, but also to enforce answers 
 where the parties were reluctant, or to obtain further and 
 better answers when those already given were not satis- 
 factory to King and Council. For this purpose it was 
 held that recourse might be had to the system of exami- 
 nations practised abroad, and thus the rack was adminis- 
 tered in England with at least a semblance of legality. I 
 am not able to say who was the first unhappy person to 
 suffer under this system of violence and oppression ; but 
 the last, as far as is known, was Peacham, to whom the 
 rack was administered in 1614, under the orders of the 
 Star Chamber, in the presence of Lord Bacon, when 
 Attorney-General 1 
 
 Nor was it by this practice alone that the Court of Star 
 Chamber became hateful to the people, for it had an ele- 
 ment of procedure which should be foreign to all courts, 
 and which stamped it as a pronounced respecter of persons. 
 For although it assumed the right to put defendants to 
 the rack, it held itself incompetent to administer torture 
 to any person of the rank of nobility. 8 The high-handed 
 transactions of this court, with its excessive fines and 
 immoderate imprisonments, are, however, matters of 
 general history, and it was abolished by the Long Parlia- 
 ment in 1642. 3 
 
 The original jurisdiction of the PRIVY COUNCIL to 
 
 1 State Trials, vol. ii. p. 872. Peacock's case (1619-20) was 
 later; but it is doubtful if he was ever submitted to the rack. 
 Spedd ing's Bacon, vol. xiv. p. 78. 
 
 8 State Trials, vol. ii. p. 773. 3 Stat. 15, Car. L, c. 10. 
 
174 The King's Peace 
 
 summon parties before them and take their depositions 
 before either sending them for trial before the Common 
 Law Judges, or remitting them for further examination 
 before a justice of the peace, was not dealt with by the 
 Long Parliament. It was resorted to on numerous occa- 
 sions by the Commonwealth, and exists even at the 
 present day, when it is beyond doubt that the Secretary 
 of State may arrest a supposed criminal, and bring him 
 before the Privy Council for examination, without any 
 intervention of a justice of the peace. This course was 
 actually pursued in the case of Oxford, who attempted the 
 life of Her Majesty in 1840. 1 
 
 The early difficulties of King Henry's reign were not 
 confined to the treatment of his subjects ; but as the king 
 had himself been outlawed by Richard III., and as many 
 of his staunchest supporters were in the same condition, 
 though they were then sitting in his first parliament, he 
 was much troubled as to the possible legal position of 
 himself and his friends, and the constitutional method of 
 avoiding future misfortunes. He accordingly referred 
 the whole matter to the Common Law judges, who, under 
 the presidency of Sir William Hussey, Chief Justice of 
 the King's Bench, met in the EXCHEQUER CHAMBER, 2 and 
 delivered their judgment, that while in the case of a 
 king, the succession to the throne purges all antecedent 
 disabilities ; yet that, in the case of a subject, an Act of 
 Parliament is required to reverse an attainder. This 
 
 1 Reg. v. Oxford, 9 Car. and P. 525. 
 
 2 Bacon's Life of Henry VII. Spedding, vol. vi. p. 37. 
 
The Collar of SS 175 
 
 opinion has always been recognised as sound in law, and 
 decisive of the points then raised for their determination. 
 
 This Court had then become known and recognised as 
 the Council-chamber of the judges, where they met to- 
 gether when they were consulted by the King, when in 
 the case of an equality of votes in their particular court 
 the judges of both benches came together and gave their 
 opinions, or when they set aside the judgments of inferior 
 courts, 1 including those of the Court of Exchequer, in 
 which event, however, the Treasurer and the Chancellor 
 sat with the other judges. 2 From this time forward, 
 therefore, the Exchequer Chamber, which was strength- 
 ened by the addition of the barons of the Exchequer, 
 when the latter under Queen Elizabeth became Common 
 Law judges, continued till the year 1875 to be the Court 
 of Appeal from the Common Law Courts, and for the 
 hearing of writs of error. 
 
 At or about this time the chiefs of the King's Bench, 
 the Common Pleas, and the Exchequer were decorated by 
 the Sovereign with the Collar of SS., which has ever 
 since remained the insignia of their high office. There is 
 a well-recognised legal tradition to this effect, and like 
 many other legal traditions, it will bear the test of 
 examination. The origin and the history of this collar 
 have given rise to much learned discussion. 3 The letter 
 
 1 Bacon, Spedding, vol. vi. p. 37. 2 Coke, InsL, vol. iv. p. 62. 
 
 3 See Notes and Queries, Series 1, vol. ii.; Series 4, vols. ii., ix., x.; 
 Series 6, vols. ii., iii. Planche, Dictionary of Costume, p. 126. 
 Gentleman's Magazine, vol. xvii. p. 478; vol. xviii. p. 353, 595. 
 Retrospective Review, vol. i. p. 302 ; vol. ii. pp. 156, 504. Foss' 
 Judges, vol. vii. p. 17. Dugdale, Orig. Jud., fol. 102. 
 
176 The Kings Peace 
 
 S on the chain is accounted for in various ways. It is 
 suggested to represent Souvenir, as used by John of Gaunt; 
 or Soverayne, as used by Henry IV. ; or Sencschallus, 
 the Steward of the Household ; or Sanctus, Sanctus, Sanc- 
 tuSj of the Salisbury Liturgy. Some antiquaries, wishing 
 to find a connection between the emblem on the collar and 
 the course of justice, suggest that it should be attributed 
 to S. Simplicius, a Roman advocate of great piety, who for 
 his religious opinions was drowned in the Tiber. What- 
 ever may be the accuracy of the former suggestions, and 
 they are all supported by cogent reasons, the theory of 
 the beatified barrister is beyond my acceptance. The 
 collar itself was not one of personal dignity, like that of 
 the Order of the Garter or of the Bath, given by the 
 sovereign and worn by the knight till his death, but was 
 a badge or insignia of livery attached to certain offices en- 
 titling the holders to wear the collar so long only as they 
 retained the several offices to which the dignity was appur- 
 tenant. This custom, which required the Chief Justice if 
 promoted to the office of Chancellor, to which the collar 
 was not appurtenant, to resign its use, finds a familiar 
 instance in the portraits of Sir Edward Littleton, which 
 show him with the collar of SS when painted as Chief 
 Justice, and without it in his portraits as Chancellor. 
 
 The badge or livery of SS appears to have originated 
 with John of Gaunt, " time-honoured Lancaster," whose 
 coat of arms in the window opposite his tomb in old 
 St. Paul's was encircled by this collar. 1 It did not, 
 
 1 A copy of this window, taken by C. Nicholas, Lancaster Herald . 
 
1. Tracing from a window in Old St. Paul's, opposite the tomb 
 of John of Gaunt, showing the collar of SS. 
 
 2. A Sketch from the Monument of Gower, the poet, in S. Saviour's, 
 Southivark, showing the collar of SS. 
 
 3. Engraving of Richard III., 'with the Yorkist collar of suns 
 and roses. 
 
 See page 176. 
 
Face pwje 177 
 
The Collar of SS 177 
 
 however, at that time, present the gorgeous appear- 
 ance we now recognise, for it was then made of leather 
 with golden S's sewn upon it. It was worn on some 
 occasions by Richard II. out of respect to his uncle, and 
 was adopted by Henry IV. 1 (grandson of John of Gaunt) 
 as one of his badges. It thus became the token, badge 
 or livery of the Lancastrians, as distinguished from 
 a collar of roses and suns 2 adopted by the Yorkists. 
 Henry V. continued to use the collar of SS, and it is 
 said that he gave to each gentleman who fought in 
 armour at the battle of Agincourt, the right to wear it. 
 Henry VI. undoubtedly used it, and his portrait, which 
 represents him bearing the collar of SS, is in the National 
 Portrait Gallery. Henry VII., after his accession, re- 
 sumed the collar with the addition of the portcullis being 
 the badge of the Beaufort family. A Tudor rose or 
 other ornament was also worn as a pendant in the place 
 of the hart or the swan used by Richard II. and Henry 
 IV. 3 It was also made entirely of silver or golden links. 
 The only instance, however, in which it is suggested 
 that a judge wore this collar before the reign of Henry 
 VII., is that of Sir Richard Newton, who died in 1449, 
 and was Chief Justice of the Common Bench under 
 
 before the fire of London, is preserved among the Lansdown 
 MSS. at the British Museum. 
 
 1 He ordered a gold collar with S's and jewels at a cost of 
 385 6s. 8d. money of that day. Issue Roll, 8 Henry IV., Devon's 
 Issues of the Exchequer, 305. 
 
 2 See Planche's Dictionary of Costume, p. 124. 
 
 8 One of the earliest specimens of the collar is t9 be found on 
 the effigy of the poet Gower in St. Saviour's, Southwark. He 
 died in 1408. 
 
 N 
 
178 The King's Peace 
 
 Henry VI. A monument, supposed to be that of the 
 Chief Justice and his wife, is in the parish church of 
 Yatton, Somerset. The monument, according to a draw- 
 ing in the British Museum, shows a figure with a coif 
 and with bare feet, somewhat resembling an ecclesiastic, 
 but wearing a short sword and what appears to be a 
 bottle suspended at the right side. The robe is long, of 
 a pattern which may be either legal or ecclesiastical, 
 with a tippet and what may be a collar of SS or of any 
 other device. His wife lies beside him. The drawing 
 has an endorsement that the figure is thought to be that 
 of one of the Newton family, formerly a warrior and 
 afterwards a religious. 
 
 In Collinson's History of Somerset, 1 the tombs are 
 described, but no mention is made of any collar. The 
 design would seem to be of the fifteenth century, but even 
 this is not without doubt. Lady Newton, the Judge's 
 widow, died in 1475, in the reign of Edward IV., when 
 the collar of SS was not in vogue, and the inscription 
 on the marble is effaced. If, therefore, as is possible, 
 the monument was erected at a later period by some 
 member of the family, the ornament may well have been 
 then added. Whatever may be the explanation, the 
 appearance of this collar on the effigy of a judge in the 
 fifteenth century is quite unique. The next judge in 
 order of date whose effigy shows the collar is Sir Thomas 
 More, whose portrait, painted by Holbein in 1527, 2 shows 
 
 1 Bath, 1741, vol. iii. ; " Yatton. 1 ' 
 
 * In the possession of Louis Huth. See Tudor Catalogue, No. 
 
The Collar of SS 179 
 
 him in black velvet with the collar of SS and the port- 
 cullis, and with the Tudor rose as a pendant. Sir Thomas 
 More, however, was not Lord Chancellor at the time this 
 portrait was painted. His appointment as Chancellor 
 was not made till October, 1529, after the fall of Wolsey. 
 But, in 1527, he was a Privy Councillor, Chancellor 
 of the Exchequer, and sub-Treasurer of the Royal House- 
 hold, in either of which offices he would have been 
 entitled to wear the collar of SS. Except therefore for 
 the doubtful case of Sir Richard Newton no effigy of any 
 judge on glass, in marble, in brass, or in picture, can be 
 found which bears the collar before the time of Henry 
 VII, The effigies of Sir John Cockayne, Chief Baron, 
 under Henry IV. ; 1 of Sir William Grascoigne, 2 the cele- 
 brated Chief Justice under Henry IV. and Henry V. ; 
 of Sir William Hawkford 3 and Sir John Fortescue, Chief 
 Justices under Henry VI. ; and of Sir John Billing, 4 Chief 
 Justice under Edward IV., in Wappenham Church, 
 Northampton, still exist. They were all distinguished 
 judges and none of their effigies show any trace of the 
 collar of SS. Edward IV. and Richard III., being 
 Yorkists, made no use of the collar of SS, and none of 
 the Chiefs under Henry VII. have left either portraits or 
 sepulchral monuments to throw any light on the question. 
 
 94. Dictionary of National Biography ; Hans Holbein, vol. xxvii. 
 p. 108. 
 
 1 Dudgale, Orig. Jud., fol. 100. 2 Planche, p. 427. 
 
 3 Foss' Judges, vol. iv. p. 325. 
 
 4 Baker's Northampton, p. 730. Bridge's Northampton, Wap- 
 penham. 
 
The King's Peace 
 
 The first judge, accordingly, who icithout doubt appears 
 with this decoration, is Sir Richard Lyster, Chief Baron 
 in 1529, and Chief Justice of the King's Bench in 1545. 
 He died in 1554, and was buried at St. Michael's Church, 
 Southampton, where his monument shows him wearing 
 the collar of SS with his judicial robes. 1 From this 
 period the chiefs of the three courts invariably appear 
 upon their tombs or in their portraits decorated with 
 the collar of SS. This, it may fairly be said, carries the 
 date no further back than the reign of Henry VIII. 
 But that monarch was no great admirer of the Common 
 Law judges. He preferred, at least after the death- of 
 Wolsey, to do his business through the Privy Council, 
 the Court of Star Chamber, and the High Court of Parlia- 
 ment. Henry VII., on the other hand, conducted matters 
 in the Star Chamber as if it were a Court of Common 
 Law, and kept well within legal bounds. He owed 
 much to his lawyers, advised with them frequently, and 
 attended in person at the Serjeant's feasts. 2 He made 
 many valuable reforms in the law, in the direction of 
 public liberty and convenience, and many minor improve- 
 ments in the procedure. Among others he gave to poor 
 litigants the privilege of suing in forma pauperis, 
 thus relieving them of the payment of any fees, and 
 entitling them to have attorneys and counsel provided 
 for them free of cost. Thinking it better, as he is 
 reported to have said, that poor men should thus be 
 enabled to bring vexatious actions than that their poverty 
 
 1 Foss' Judges, vol. v. p. 307. 
 
 2 Bacon: Spedding, vol. vi. p. 158. 
 
Contemporary Portrait of Sir Edward Coke, by Simon van de 
 Pass, an engraver, who was born at Utrecht in 1591, came to England 
 about 1613, and died at Copenhagen about 1644. The portrait 
 shoics the golden collar of SS, with the portcidlis and the Tudor 
 rose. The ring suspended from the neck by a string is a personal 
 ornament in no icay connected ivith the collar. 
 
Cx YiLitum, ( clarc ) tuian fcumtar- cum. incident , ar 
 
 (jitot 0r ivp n*c : 
 -, d 
 
 
 quonam 
 
 ciui tncTiti rcris in&Lsc 
 
 Face page 181. 
 
The Collar of SS 181 
 
 should disable them to sue for their just rights. 1 An 
 addition to the honour and dignity of the chiefs of the 
 three courts would thus more probably have come from 
 King Henry VII. than from either of his immediate 
 ancestors or successors. The collar of SS was still worn 
 by the chiefs of the three courts until their amalgama- 
 tion in the Supreme Court of Judicature in 1875. Each 
 chief, according to custom, provided his own collar, 
 except in the Common Pleas, where the collar followed 
 the office. Lord Coleridge, as the last Chief Justice of 
 the Common Pleas, thus succeeded to the collar worn by 
 Sir Edward Coke ; and in order that the memory of that 
 great judge and the insignia of his high office may still 
 be venerated, he has by his will entailed it as an heirloom 
 upon such of his heirs as shall succeed to the title of Lord 
 Coleridge. The present Lord Chief Justice of England, 
 upon those occasions when it is customary to wear the 
 collar of SS, appears in the antient scarlet of his office, 
 bearing the golden chain of his eminent predecessor, Sir 
 Alexander Cockburn, who entailed the Collar of the 
 Queen's Bench upon all holders of the office of Lord Chief 
 Justice. 
 
 The reign of Henry VIII. is filled with materials of 
 history, but for juridical as well as historical conveni- 
 ence it may be regarded as composed of two epochs, 
 divided by the fall of Wolsey. Up to that event, which 
 occurred in 1529, the king had interfered but little if at 
 all with the course of justice, interesting himself mainly 
 with foreign affairs, and carrying on the policy of his 
 
 1 Bacon : Spedding, vol. vi. p. 160. Stat. 3 Henry VII. , c. 8. 
 
[82 The Kings Peace 
 
 father. To Wolsey we owe the promotion of the Master 
 of the Rolls to be a permanent Chancery judge, who 
 took precedence, according to Sir Matthew Hale, between 
 the two Chief Justices. 1 He added splendour and dignity 
 to the office of Chancellor. He appeared in court with 
 ample retinue, preceded by officers bearing maces, and he 
 caused the Great Seal, which up to his time had modestly 
 reposed in a little white leather bag, to be borne before 
 him in a bag of crimson velvet, embroidered with the 
 arms and badges of England. 2 This, with some additions 
 of gold embroidery devised by James I., is the bag in 
 which the great seal is now customarily borne before 
 the Lord Chancellor of England. 
 
 Wolsey, who was one of the last of the clerical Chan- 
 cellors, 3 and who carried himself, not only in home and 
 foreign affairs, but also in Chancery, with the high hand 
 which for a time jumped with the inclinations of his ro} T al 
 master, sat assiduously at the hearing of suits, and in the 
 forty-four articles against him, four only refer to his con- 
 duct as Chancellor. In article 20 it is charged that on 
 divers occasions he had examined into matters that had 
 already been decided at Common Law, and had made 
 
 1 Hargrave's Tracts, p. 300. 
 
 2 An interesting account of his splendour as Chancellor is 
 given in Cavendish's Life of Wolsey, written in or about 1557. 
 See also some remarks on the bags provided for the Great Seal by 
 different monarchs. Foss, vol. v. p. 88. 
 
 8 His ecclesiastical successors were Goodrich, Bishop of Ely 
 under Edward VI. ; Gardiner, Bishop of Winchester, and Heath, 
 Archbishop of York under Mary ; and Williams, Dean of West- 
 minster under James I. This was the last clerical Chancellor. 
 
Cardinal Wolsey 183 
 
 some successful parties restore to the other side the fruits 
 of their judgments. By article 21 it is charged that he 
 granted injunctions without having the parties properly 
 before him : by article 26 that he not only issued injunc- 
 tions to stay proceedings at law, but sent for the Common 
 Law judges, and commanded them with threats to defer 
 any judgment in such suits ; and by article 31 that he 
 removed by writ of certiorari from the assize at York into 
 his own court certain indictments against his officers for 
 taking 5 per cent, as their fees on probates of wills. But 
 no suggestions of bribery, malversation, or partiality in 
 his court were made against him. No details of his 
 alleged misconduct in his office, such as are given of 
 other charges against him, are to be found in his im- 
 peachment; and considering the strenuous exertions of 
 the Court party to secure his ruin, I think it may fairly 
 be said that his thirteen years' tenure of the Chancellor- 
 ship was not stained by any moral blemish. 
 
 His ambition, however, was as unbounded as his power, 
 and there is little doubt that in looking down as he did 
 upon the Judges and the doctrines of the Common Law, 
 he brought the judgments of those courts before him, 
 inquired into the propriety of their decisions, and granted 
 injunctions to stay their execution in cases where he was 
 of opinion that they were excessive or unjust. This 
 course appears also to have been followed by his succes- 
 sor, Sir Thomas More, although the agreeable manners 
 and mild corrections of the latter seem to have reconciled 
 the judges to his interference with their tribunals. 1 
 1 Dictionary of National Biography, Thos. More. 
 
Tlic Kings Peace 
 
 Complaints, constant and well-founded, of the numerous 
 exactions and peculations of the officers who dealt with 
 the incomes and lands of the royal wards, especially in 
 the cases of Empson and Dudley under Henry VII., led 
 to the establishment of a Statutory Court 1 after the fall 
 of Wolsey, called the COURT OF THE KING'S WARDS. It 
 is more commonly known as the Court of Wards and 
 Liveries, by reason of the increased jurisdiction after- 
 wards conferred upon it. It was intended originally for 
 the relief of the subject; was a Court of Record, and 
 took over much of the business in this respect that was 
 formerly transacted by the barons of the Exchequer. The 
 chief officer of the court was the Lord Treasurer, who had 
 the assistance of the three chiefs, if he so desired, with 
 that of the King's Serjeant and the Attorney of the 
 court, together with Surveyors and other officers. 
 
 A painting by an unknown artist of the time of Queen 
 Elizabeth 2 shows Lord Burleigh sitting in the Court of 
 Wards with the mace beside him, surrounded by the 
 Surveyors and Attorneys of the court, while the Queen's 
 Serjeant, in scarlet robe, is in attendance, and two ser- 
 jeants in parti-coloured gowns are arguing. The court 
 failed, however, to give any satisfaction, as the whole 
 system of wardship and feudal tenures had become hate- 
 ful to the people, and after an attempt by James I. to 
 get rid of it by arrangement, 3 it was suppressed in 1646, 
 
 1 32 Henry VIII., c. 46. 
 
 2 In possession of the Duke of Richmond. It is engraved in 
 Vetusta Monumenta by the Society of Antiquaries. 
 
 3 Coke, Inst., vol. iv. p. 202. 
 
Tke Court of Wards 185 
 
 and ultimately abolished by Statute at the Restoration. 1 
 It was situated in Old Palace Yard, between the back 
 of Westminster Hall and the antient building known as 
 Edward the Confessor's Hall. A passage led to it from 
 the Court of Chancery, so that the Chancellor, if so dis- 
 posed, might either from his private room in Westminster 
 Hall or from the Court of Chancery, when sitting in the 
 Hall, pass directly to the Court of Wards. 
 
 A COURT OF REQUESTS which can best be described as 
 an emasculated Court of Chancery, holding perhaps the 
 same relation to that Court that the small debts Courts 
 held to the Common Pleas, was also established in this 
 reign. It was intended to be a relief to the Chancellor, 
 and as such it entertained certain appeals from the Court 
 of Admiralty. But it followed the fate of other courts of 
 the Tudors, and was abolished in 164 1. 2 It was held 
 near the Court of Wards in Old Palace Yard, and a stair- 
 case led directly from it to the Painted Chamber in the 
 House of Lords. 
 
 The COURT OF HIGH COMMISSION, originated by Henry 
 VIII. to hear appeals and to try heresy and other eccles- 
 iastical matters, disused under Philip and Mary and 
 erected by Elizabeth, was one of those unconstitutional 
 tribunals which, with the Star Chamber and the Court of 
 Requests, was swept away by the Long Parliament in 1641. 
 
 The policy of non-interference with the judges and 
 their courts continued under Edward VI., Mary, and 
 Elizabeth. Several Protestants holding office under 
 
 i 12 Car. II. 2 stat . 16 & 17j Car it c> 10> 
 
1 86 The King's Peace 
 
 Mary, and several Catholics, including Sir Edward Saun- 
 ders, the Lord Chief Justice, retaining their places under 
 Elizabeth. With the accession of Edward VI., however, 
 trade began to decrease, and litigation consequently 
 diminished, so that the courts were less frequented, and 
 Westminster Hall became as much a market for merchan- 
 dize as a temple for justice. Houses, formerly used by the 
 Exchequer officers and others, were let out to innkeepers, 
 who had taverns adjoining called Paradise, Purgatory, 
 and Hell. Stalls and shops were put up against the 
 sides of the Hall, and flags, taken in various campaigns 
 where our troops had been engaged, hung from the roof. 
 This occupation of the Hall, however, continued long after 
 the return of business. Under the Commonwealth there 
 were leading out of the Hall two refreshment houses 
 known as Heaven and Hell, referred to in Hudibras 1 and 
 Pepys' 2 description of Westminster Hall and his flirta- 
 tions with the shop-girls during the reign of Charles II. 
 are well known to all interested in the social England of 
 that period. 
 
 Bad, however, as was business under Edward VI., it 
 was worse during the reign of Queen Mary, so much so 
 indeed that in the year 1557, there was only one serjeant 
 (Bendlowes) and one counsellor (Foster) in attendance in 
 the Common Pleas and Queen's Bench respectively. It 
 is also stated by Stow, and it may to some extent account 
 for this desertion of the courts, that at the time of 
 Wyatt's rebellion there was so much fear of a general 
 
 1 Part iii. CLinto ii. v. 224. 2 Pepys, vol. i. p. 16. 
 
Queen Elizabeth's Bed-chamber, faying the Abbey, and communi- 
 cating with the Great Court and other rooms of the Officers of the 
 Exchequer. 
 
 See page 187. 
 
Face page 187. 
 
Legal Business 187 
 
 rising in London, that the Serjeants and counsel attend- 
 ing the courts " pleaded in harness." And certainly the 
 spectacle of two learned gentlemen, clad in plate armour, 
 with their swords and helmets beside them, arguing a 
 demurrer, was not one to encourage litigation. Mary's 
 reign was also distinguished by a flagrant interference 
 with the courts in the case of Sir Nicholas Throckmorton. 
 This gentleman being tried for high treason, was ac- 
 quitted by the unanimous verdict of the jury. For this 
 act of justice and independence they were brought be- 
 fore the Star Chamber, questioned, reprimanded, and 
 fined in various sums ranging from 60 to 2,000 each, 1 
 and imprisoned till payment. 
 
 No sooner, however, was Elizabeth on the throne than 
 the business of the courts at once revived. " The 
 spaniels came into the field," 3 as it was said, "when 
 there was plenty of game," and the roll of Serjeants and 
 of counsel rapidly increased. Westminster Hall and the 
 Courts of Law became places of common resort, the Queen, 
 habitually occupying the Palace of Westminster, had a 
 set of apartments adjoining the Hall with a spacious and 
 decorated bedroom facing the Abbey. She used the great 
 Court of Exchequer, from time to time, as a ball-room, 
 and the gallery as a chamber for music. The chestnut 
 pillars of the court were restored by her in 1570, when 
 the chief officers of state, Sir Nicholas Bacon, the Lord 
 Keeper; Dudley, Earl of Leicester, Master of the Horse; 
 William Cecil, Principal Secretary of the Queen; William 
 
 1 State Trials, vol. i. p. 864. 2 Foss, vol. v. p. 339. 
 
1 88 The King's Peace 
 
 Paulet, Marquis of Winchester, Treasurer of England ; 
 Walter Mildmay, Kt., Chancellor of the Exchequer; and 
 James Dyer, Kt., Chief Justice of the Bench, had their 
 names carved on the bases of the columns supporting the 
 gallery. 
 
 At the same time the Bar began again to flourish. The 
 Inns of Court frequented as in the days of Fortescue by 
 sons of country gentlemen, noblemen and squires, who re- 
 garded a certain training in those hospitia as part of a 
 liberal education, spent large sums in feasts and entertain- 
 ments, for which their members were assessed according to 
 their standing in the Inn. They patronised the players 
 and had plays frequently acted in the hall of their Inn. 
 They kept Christmas with great cheer and hospitality. 
 They entertained the sovereign and attended at Court, 
 taking part in masques, tournaments and barriers. The 
 number of Serjeants was gradually increased by appoint- 
 ment of the Crown, but the customary feasts and the gold 
 rings which etiquette required the Serjeants to give to the 
 judges and courtiers on these occasions became so heavy 
 a tax on their income that lawyers of position, who did 
 not aspire to be judges, frequently begged to be relieved 
 from the acceptance of this honourable degree. And 
 Bacon, who himself was never a serjeant-at-law, persuaded 
 the Queen to create a new rank, that of QUEEN'S COUNSEL, 
 and to nominate him the first of that honourable brother- 
 hood, a rank which was afterwards confirmed to him by 
 James I. 1 
 
 1 Spedding, vol. x. p. 78. 
 
The Barons of the Exchequer 189 
 
 The various devices described by Sir Matthew Hale ! 
 by which the King's Bench and the Common Pleas (as the 
 Court was then commonly called) endeavoured to attract 
 business to their own court and to drive it from their 
 neighbour by lowering costs and expediting causes, had 
 resulted in a considerable multiplication of suits in 
 both courts, while the abstraction from the Court of 
 Exchequer of the numerous cases relating to the king's 
 wards, widows and idiots, now disposed of by the 
 Treasurer in the Court of Wards and Liveries, left the 
 Exchequer comparatively unoccupied for a great part of 
 the year. The barons also, who had for many genera- 
 tions been, with the exception of the Chief baron, selected 
 from clerks in the Exchequer office, or other persons 
 without a sound legal training, now began to enter at 
 the Inns of Court, to engage in the study of the law, and 
 to qualify themselves for judicial posts. Some of the 
 barons had in this way become readers and benchers of 
 their Inn, 2 although I do not find that any had yet been 
 
 1 " A Discourse concerning the Courts, etc." ; Hargrave's Tracts, 
 p. 359. 
 
 2 The earliest instance I have found of a baron of the Exche- 
 quer holding office at the Inns of Court is that of Richard 
 Illingworth, a baron of the Exchequer, who was elected Governor 
 of Lincoln's Inn, 22 Henry VI. (A.D. 1444). Dugdale, Orig. Jud., 
 fol. 257. In 11 Edward IV. (A.D. 1472), Nicholas Statham, a 
 baron of the Exchequer, was elected Header of that Society. The 
 
 first baron holding office in the Inner Temple was Blagge, 
 
 Governor, 3 Henry VIII. (A.D. 1512). The first baron at Gray's 
 Inn was John Petyte, Reader, 9 Henry VIII. (A.D. 1518). The 
 first at the Middle Temple was Nicholas Lake, Reader, 26 Hemy 
 VIII. (A.D. 1535). 
 
T/te King's Peace 
 
 called to the degree of the coif, or become serjeants-at- 
 la\v. In view of this improved legal status of the barons 
 and of the increase of business in the two other courts, 
 the practice was adopted of appointing the barons to 
 the same duties as the justices, requiring them to be 
 Serjeants before their appointment, and sending them on 
 Circuit to act with the others in trying prisoners and 
 causes as well as the not very frequent matters which 
 arose touching the revenue. In 1579 Robert Shute l was 
 appointed second baron of the Exchequer with the same 
 rank and duties as the puisne judges of the other courts, 
 and from that date forwards each succeeding baron of 
 the Exchequer was a trained lawyer and received his 
 patent in similar form. 
 
 This elevation of the barons, however, to the same 
 rank as the justices necessitated the appointment of an 
 additional officer with special duties as regarded the 
 revenue. He was called a cursitor baron, was to be 
 present at the counting in the Exchequer, and to see 
 that the King's prerogative in fees and fines was duly 
 guarded. There was also committed to him the cere- 
 monial duty of notifying the sovereign's assent to the 
 election of the lord mayor and sheriffs, and of address- 
 ing the lord mayor when he came into the Exchequer 
 on each 9th of November to invite the Chief baron and 
 the rest of the Common Law judges to dinner at Guild- 
 hall. He was not necessarily, therefore, a trained lawyer. 
 His post was not judicial, his pay was much less thaii 
 
 1 Dugdale, Chronica Series, fol. 94. Foss, vol. v. p. 410. 
 
The Stuarts 19 1 
 
 that of the other barons, and his position was in all re- 
 spects inferior to that of the other judges of the three 
 courts. Little is recorded of the duties or the pro- 
 ceedings of these cursitor barons from the time of 
 Elizabeth to that of Victoria. The reformers of this 
 reign have abolished many sinecure offices, and the cur- 
 sitor barons having no longer any duties to perform, 
 were not reappointed after the year 1856. l Their only 
 surviving historical record is to be found in a pub- 
 lished collection of speeches by Baron Tomlins, a cursitor 
 under Charles I. and the Commonwealth. They are long, 
 and would now be considered in bad taste ; but they 
 probably were adapted to the period in which he lived, 
 and to the company whom he addressed. 2 
 
 II. 
 
 Treatment of the Judges by the Stuart Kings Sir Edward Coke 
 Felton's Case Constitution of the Courts on the King's 
 Death No Judges on his Trial Appointment of Judges 
 The Admiralty Arrears in Chancery Lord Chancellors 
 and Lord Keepers Projected Reform Interference with 
 Judges Baron Thorpe and Justice Newdigate Counsel 
 sent to the Tower Courts and Costumes of Judges Wigs 
 and Bands Judges in Parliment The Upper Bench Special 
 Commissions. 
 
 THE same method of dealing with offences against the 
 Crown through the medium of the Privy Council, the 
 Star Chamber and Parliament that had been adopted 
 
 1 Stat. 19, 20, Vic. c. 86. 
 
 2 A specimen of one of the speeches is given in Foss, vol. vi. 
 p. 27. The original is in the British Museum. 
 
1 92 The King's Peace 
 
 under the Tudor sovereigns was pursued during the 
 reigns of King James and King Charles, and no modi- 
 fication was made in the procedure or in the constitution 
 of the Courts of Common Law. King James, shortly 
 after his accession, sat in the King's Bench, but he was 
 not so far encouraged by the judges as to induce him 
 to try causes or to deliver judgments. The Chancellors, 
 holding their office during pleasure, continued as under 
 the Tudors, to be subservient to the Crown, and in great 
 measure responsible for the calamities that followed, a 
 responsibility from which it is impossible to exclude the 
 great name of Bacon. The personal interference, how- 
 ever, of the Sovereign with the duties of the judges, the 
 taking of what was described as their auricular con- 
 fessions, the giving of royal orders to postpone the hear- 
 ing and decision of suits, the reprimands dealt out to 
 them from time to time, and the payments extracted from 
 them on their appointments, reduced the position of the 
 Bench to almost its lowest degradation, and would per- 
 haps have affixed a permanent stigma upon it had it not 
 been for the courageous and patriotic resolution of not a 
 few of the judicial staff. 
 
 First and greatest among these was Sir Edward Coke, 
 Lord Chief Justice successively of the Common Pleas and 
 of the King's Bench, whose early intolerance of language 
 and demeanour, in some of the State prosecutions under 
 Queen Elizabeth and King James, has tended to obscure 
 the great services which, apart altogether from his legal 
 attainments, he afterwards rendered to his country, and 
 for which he has hardly received his full tribute of jus- 
 
The Stuarts 193 
 
 tice. Sir Randolph Crew, Chief Justice ol the King's 
 Bench, Chief Baron Walter and Chief Justice Heath of 
 the Common Pleas, whose places were at a later date 
 sacrificed to their independence, should also be mentioned 
 with respect. Mr. Gardiner 1 pays a high tribute to 
 the personal character, the honesty and the purity of the 
 judges under King Charles, but thinks that they were 
 bound too much by the strict letter of the law, without 
 considering what the result might be of giving present 
 effect to laws that had long, by common consent, fallen 
 into disuse. And he suggests that the King took advan- 
 tage of this habit of theirs in formulating the questions 
 he submitted for their determination. In support of this 
 view he takes the case of the forests, where for three 
 centuries people had lived, had reclaimed and cultivated 
 land, had erected mills, and had built villages and towns 
 with the knowledge and tacit assent of successive 
 sovereigns, and yet the judges held, in answer to the 
 King's request, that as there was no license and no dis- 
 afforesting by the King, the whole of these lands, villages 
 and towns were still subject to the Forest, and not to 
 the Common Law, and that the farms, lands and houses 
 reclaimed from the forests, and occupied by generations 
 of owners, were forfeit to the Crown as purprestures 
 or assarts. It may be that Mr. Gardiner is right in his 
 theory, and, if so, we ma} 7 find some compensation in this, 
 that if the genius of the age brought forth judges of ab- 
 struse and technical minds, it also enriched the time with 
 
 1 Personal Government^ vol. ii. pp. 71-77, 
 
194 The King's Peace 
 
 great antiquaries and archaeologists. For to that age we 
 owe Bacon, Coke, Selden the greatest of legal antiqua- 
 ries, Camden the historian, Prynne, Dugdale, Spelman, 
 Weever and his inimitable collection of funeral monu- 
 ments and antiquities, Sir Robert Cotton whose library 
 was the foundation of the British Museum, Jeake the 
 historian of the Cinque Ports, Hobbes author of the 
 Leviathan, Harvey the physician, and Sydenham the 
 father of medicine. 
 
 In one matter King Charles followed in the steps of 
 his ancestor, King Henry VII., for he called the judges 
 together in 1628 to inquire whether Felton, who had 
 murdered the Duke of Buckingham, and had confessed 
 his guilt, could be put upon the rack to compel him to 
 disclose the names of his supposed associates. They were 
 assembled in the Exchequer Chamber under Chief Justice 
 Richardson, of whom it was said that he paid 17,000 
 for his place, 1 and notwithstanding the King's expressed 
 desire that Felton should be racked, they made the de- 
 claration against the use of torture to which I have 
 already referred. Felton had also in terms expressed 
 penitence for his act, and his willingness that the hand 
 with which he dealt the blow should be struck off while 
 he was yet living. A further question was accordingly 
 submitted, whether it could not be held, as Felton had 
 given an implied consent to the striking off of his hand, 
 that such addition might lawfully be made to the sen- 
 tence to be passed upon him, and the judges were sig- 
 
 Foss' Judges^ vol. vi. p. 208. Walter Yonge's Diary, p. 07. 
 
The Courts under Charles I. 195 
 
 nificantly informed that if they were of opinion in the 
 affirmative, the King would not exert his prerogative to 
 prevent it. They replied, however, that the sentence for 
 Felton's offence being defined by law, they had no power 
 to add anything to it. 1 
 
 The quarrels of the King with the Long Parliament, 
 his flight from London, and the subsequent outbreak of 
 hostilities, threw the Courts of Law into comparative 
 disorganization. Sir Edward Littleton, the Chancellor, 
 joined the King at Oxford, taking with him the Great 
 Seal, which precluded for a time the issuing of writs. 
 Sir Robert Heath, re-appointed after his removal in 1634, 
 sat at Oxford as Lord Chief Justice, and followed his 
 master's fortunes to his death. The Parliament, on the 
 other hand, removed the Ship Money judges, and filled 
 their places after a time with Serjeants more in sympathy 
 with the Puritan cause. In the meantime the courts sat 
 regularly in Westminster Hall, sometimes constituted 
 by a single judge, sometimes by two, and struggled man- 
 fully with the increasing list of causes. The possibility 
 of holding circuits depended upon the locality of the 
 contending armies; but they were not wholly abandoned, 
 and in the west and south, where there was little fight- 
 ing, assizes were held with remarkable regularity. Early 
 in 1648 there was a full call of Serjeants by order of 
 Parliament, and from these Serjeants, chiefs were ap- 
 pointed to the various courts, Serjeant Rolle to the 
 King's Bench, Sir Oliver St. John to the Common Pleas, 
 and Serjeant Wilde to the Exchequer. 
 
 1 State Trials, vol. iii. p. 371. 
 
196 The King's Peace 
 
 At the death of King Charles (30th January, 1648-9), 
 all the Courts were fully manned. A chief and three 
 puisnes sat in each, exclusive of the King's Chief Justice 
 and Chancellor, who, as in the time of Henry VI., were 
 discharging nominal functions beyond the realm. But no 
 judge sat on this famous trial. A proposed commission 
 for the trial of the King contained the names of certain 
 judges, but the proposal was rejected by the Lords, and 
 the Court, over which Serjeant Bradshaw presided, was 
 composed exclusively of members of the House of Com- 
 mons. 
 
 It had long been held, as an established custom of the 
 Common Law, that the demise of the Crown determined 
 all judicial appointments, 1 and the first act of a new 
 sovereign had always been to appoint, usually to re- 
 appoint, the judicial staff. Acting on this principle, it 
 became necessary for the Commonwealth at once to fill 
 up the vacant offices. It was proposed to re-nominate 
 all the judges then sitting ; but before any steps could 
 be taken in this direction, a declaration was required 
 from Parliament that the fundamental laws of the coun- 
 try should be continued, and that the judges should 
 administer justice accordingly. 2 Upon this being passed, 
 in terms settled at a meeting of the judges, six of the 
 twelve, including the three chiefs, accepted re-appoint- 
 ment, and six puisnes were afterwards added. Of the 
 retiring judges, Baron Atkins accepted a judgeship in 
 
 1 The judges, being consulted by Queen Elizabeth, declared 
 this to be the case. Dyer, Rep., fol. 165. 
 
 2 Whitelock, vol. ii. p. 528. Scobell's Act*, etc., 9 Feb., 1648-9. 
 
The Courts under the Commonwealth 197 
 
 1650, and in 1653, Sir Matthew Hale, who, whether a 
 Puritan or a Royalist at heart, had been, while at the 
 bar, the foremost defender of cavaliers, and the trusted 
 adviser of King Charles in the times of his greatest 
 adversity, was appointed to the Common Bench. 
 
 The judges thus appointed went forthwith upon circuit, 
 and endeavoured by conciliatory charges and careful 
 methods to induce a respect for the law, and a confidence 
 in its administration by the executive. Their duties at 
 this time, as judges of assize, were multifarious, and 
 were not, as in the present day, confined to the trial 
 of prisoners and of causes. They had inherited from 
 their predecessors, from the earliest times, the duty of 
 administering upon appeal all the important affairs of the 
 county. They sat as magistrates, took informations, com- 
 mitted prisoners for trial, and admitted them to bail. 
 The repairs of roads, bridges, gaols and churches were 
 submitted for their adjudication. They heard appeals 
 from magistrates and from overseers of parishes on 
 questions of relief, in cases of poverty or of sickness. 
 Some of them went under the escort of troops when the 
 country was unquiet, and two of them, Baron Gates and 
 Baron Rigby, died at Croydon of the plague, which 
 attacked them in court. Most of the others also risked 
 a similar fate, while ordering the necessary precautions 
 to be taken in various counties and towns, where this 
 scourge was beginning to make itself felt. 
 
 Returning to London, they sat with regularity in their 
 several courts and discharged their duties both there and 
 on their circuits with intrepidity and integrity, not 
 
1 9 The King's Peace 
 
 scrupling to resign rather than comply with what they 
 regarded as contrary to law and they have as judges left 
 behind them a name which for probity and learning is not 
 surpassed by any bench of judges, at any period of our 
 national history. The name and the judgments of Chief 
 Justice Rolle still hold their place in our libraries, and 
 the encomiums passed upon him by the collected judges 
 of Charles II., to be found in the preface to his reports, 
 show him to have been a discreet, a learned and an 
 impartial judge. No fewer than nine of the Common- 
 wealth judges also held office under Charles II., and 
 were among the best of those that sat in his reign. 
 Sir Matthew Hale, Lord Chief Baron of the Exchequer 
 and Lord Chief Justice of the King's Bench, Sir Edward 
 Atkins, Sir John Archer, Sir Hugh Windham and 
 Sir Thomas Tyrrell, were among the most conspicuous 
 examples. 
 
 The successful warfare of the Commonwealth, more 
 especially upon the high seas, threw duties upon the 
 Court of the Admiralty which, for many years, it had 
 not been called upon to discharge. For this purpose 
 therefore the appointments to the Admiralty were of 
 great importance, both in regard of cases of prize and 
 of various contracts arising out of the extended maritime 
 commerce protected by our flag. Among the civilians 
 occupying seats on the Admiralty Bench were Dr. Ex ton 
 and Dr. Godolphin. They were both men of considerable 
 erudition, to whom the country is indebted for many 
 learned expositions of the maritime law. The Maritime 
 Dicoeologic of the former and the Orphan's Legacy of the 
 
The Courts under the Commonwealth 199 
 
 latter of these learned authors are among their numerous 
 works. 
 
 In the appellate jurisdiction of the Privy Council the 
 Protector on more than one occasion sat as President, 
 and according to the records of that body heard appeals 
 from Jersey and other parts. 1 He also acted as arbitra- 
 tor in a suit between the daughter and the legatees of 
 Sir Theodore Mayerne, the celebrated physican who at- 
 tended upon Charles I., and afterwards upon Cromwell, 
 and died leaving a large fortune which was the subject of 
 litigation. This, according to Whitelock, 2 he decided in 
 November, 1657, "very justly." Except in these two 
 instances he personally took no part in the trial of 
 causes, leaving all such matters to his Attorney General, 
 Edward Prideaux, who maintained the dignity and the 
 prestige of the former attorneys by wearing his hat 
 during the trials, being the only person who remained 
 covered in court except the judges. 
 
 The great difficulty of the Commonwealth, however, 
 appears to have been in the reform of the Court of 
 Chancery. Owing to the troubles of the previous reign, 
 and it may be to some extent to the inefficiency of the 
 Chancellors and their staff, the court was blocked with 
 arrears. It was said that 20,000 causes stood for judg- 
 ment in the Court of Chancery, many of them ten, twenty 
 or thirty years old, and that in some not less than 500 
 orders had been passed. 3 Vigorous attempts were accord- 
 
 1 Mercurius Pditicus, No. 385. - Memorials, vol. iv. p. 312. 
 3 Parliamentary History, vol. iii. p. 1412. 
 
200 The King's 
 
 ingly made to cope with these arrears. There had arisen 
 on occasions, certainly during the Tudors, some question 
 as to the relative position of the Chancellor and the 
 Keeper of the Great Seal. To dispel any doubt on this 
 head, an Act 1 had been passed in 1563, declaring that the 
 Keeper of the Great Seal always had by the Common Law 
 the same place and authority as if he were Lord Chan- 
 cellor of England. And Selden, when his friend Bacon 
 was about to be appointed, wrote a short but learned 
 treatise 2 to show that the Keeper of the Great Seal was 
 always, in effect, in the same position as the Chancellor. 
 There was however a substantial difference between a 
 Lord Keeper and a Lord Chancellor, which was not af- 
 fected by the statute. For although the Lord Keeper 
 and the Lord Chancellor were equally Speakers of the 
 House of Lords, yet the former, if not a peer, which in- 
 deed was not usual, had no power to sit as a peer, or to 
 participate in the debates, and he might accordingly 
 have to put the question of his own impeachment without 
 being able to say a word in his defence, while the Lord 
 Chancellor as a peer, which he usually was, could always, 
 according to the practice of the Lords, leave the Woolsack 
 and take part in the debates and votes of the House. At 
 a somewhat later date, Sir Robert Henley complained 
 that, being Lord Keeper and Speaker ot the House of 
 Lords, though not a peer, he had to put the question that 
 his judgments in the Court of Chancery be reversed on 
 
 1 Stat. 5 Eliz. c. 18. 
 
 2 A brief Discourse touching the office of Lord Chancellor of 
 England^ etc. 
 
T/ie Courts under the Commonwealth 201 
 
 appeal, without being permitted, before doing so, to 
 explain the grounds of his opinions or the reasons for his 
 judgments. 1 
 
 Under the Commonwealth, as under King Charles I. 
 and the Long Parliament, the Great Seal was put into 
 Commission, for there had been no Lord Chancellor since 
 the fall of Lord Bacon in 1621. The Keepers of the 
 Great Seal of the Commonwealth, by sitting as early as 
 7 a.m., and as late as 7 p.m. (an unheard of innovation 
 for those times), grappled with, and to some extent 
 reduced, the mass of arrears. Their attempt was not, 
 however, altogether successful, and Parliament tried to 
 effect by legislation what the industry and goodwill of 
 the Chancery judges had failed to accomplish. A well- 
 meaning but impracticable Ordinance 2 for dealing with 
 cases in Chancery was passed in August, 1654 ; but 
 beyond bringing about the retirement of Bulstrode 
 Whitelock, who refused to attempt its application, and 
 the threatened but unaccomplished resignation of the 
 Master of the Rolls, 3 no recognisable improvement was 
 made in that regard. 
 
 The Protector, however, was unable to keep his hands 
 altogether off the judges, and although the scruples of 
 Sir Matthew Hale and of Justice Atkins, as to the super- 
 seding of trial by jury in the various Commissions for 
 trying the royalists, were so far respected as to put no 
 
 1 Campbell's Lives of the Chancellors, vol. v. p. 186. 
 8 Scobell's Acts, fol. 324 ; and see Whitelock's Memorial*, vol 
 iv. pp. 191-207. 
 
 8 Whitelock, vol. iv. p. 206. 
 
2O2 77/t' Kings Peace 
 
 impediment in the way of their continuance in office, yet 
 the removal of Baron Thorpe and of Justice Newdigato 
 stands on a different footing. The actual reason of their 
 resignation is not very clear. Whitelock l says, " they 
 were put out of their places for not observing the Pro- 
 tector's pleasure in all his commands," but he gives no 
 particulars. The fact, so far as I have been able to ascer- 
 tain it, was, that these two judges, acting according to 
 their duty as committing magistrates as well as judges 
 of Assize, did not see in the conduct of certain royalists 
 in the North such overt acts as were necessary to estab- 
 lish a prima facie case of high treason. Their views 
 were reported to the Council in London, and shortly after 
 their return to Westminster, the resignations of these two 
 judges were tendered and accepted, and they returned as 
 Serjeants to their practice at the Bar. It was the only 
 case however of the removal or resignation of judges 
 under the Commonwealth for what may be described as 
 political reasons. An instance in which the Bar suffered 
 for freedom of speech is more clearly defined, and more 
 generally agreed upon. One, Cony, a Turkey merchant, 
 having refused to pay the import duty on certain Spanish 
 wines, had been committed to the custody of the Serjeant- 
 at-Arms by order of the Council of State. He thereupon 
 applied to the Upper Bench for a writ of habeas corpus, 
 calling upon the Serjeant-at-Arins to show why he was 
 held in custody, and why he should not be discharged. 
 His application was supported by Serjeant Maynnnl, 
 Serjeant Twisden, and Mr. Wadham Windham. Serjeant 
 1 Memorial*, vol. iv. p. 101. 
 
Judges and Counsel 203 
 
 Twisden, in the absence of Serjeant Maynard, argued 
 that the Protector had no power to levy any duties or 
 customs, and that according to law none were then 
 payable either by Cony or by any other person, thus 
 directly impeaching the validity of the orders of the then 
 executive, and claiming on behalf of the community the 
 right to refuse payment of all taxes and excise. 1 The 
 subject matter of this speech was brought before the 
 Council of State, who, drawing no distinction between 
 the counsel, and assuming that they all concurred in the 
 line adopted by Serjeant Twisden, sent the three learned 
 gentlemen to the Tower, from which they were only 
 released on humble petition and apology. This course, 
 though usually considered as high-handed and autocratic 
 as any action of the Stuarts, was not without its justifi- 
 cation in view of the state of the country, and the danger 
 likely to arise from the promulgation of doctrines subver- 
 sive of the first elements of settled government. The dis- 
 cussion, however, of this question touches on the domain 
 of politics, and as such is beyond the scope of this work. 
 In the matter of courts, of officers, and of costume, the 
 judges of the Commonwealth differed but little from their 
 predecessors, except that the King's Bench was called 
 the UPPER BENCH, a name by which it also seems to 
 have been occasionally known in previous reigns. The 
 keepers of the Great Seal wore a robe described by 
 Whitelock, the historian of the epoch, as " a handsome 
 velvet gown," closely resembling that worn by Lord 
 
 1 State Papery Domestic, 18th May, 1665. 
 
204 The King's Peace 
 
 Bacon iu the portrait in Lord Verulam's collection. The 
 Common Law judges wore their scarlet, as we know from 
 certain petitions presented to the Protector praying that 
 the judges who went Circuit in their scarlet, and were at 
 times escorted by a troop of horse, should no longer be 
 permitted to " affright the country with their blood-red 
 robes and their state and pomp." l And Chief Justice 
 Grlyn, as we know from his portrait, wore with his scarlet 
 gown the collar of SS. Serjeants wore their coifs and 
 striped gowns ; but the Bar, under the rank of serjeant, 
 wore their own hair trimmed in such device as was pre- 
 scribed by fashion and not forbidden by the regulations 
 of the Inn to which they belonged. The head-dress of 
 the judges, the Serjeants, and the Bar had from the very 
 earliest periods been fixed and determined. The judges 
 wore the coif and the velvet cap over their own hair, 
 with their beards and moustaches as they thought fit. 
 Serjeants wore the coif, while counsel wore " a serious 
 dress" of the costume of the period. Ruffs were in 
 fashion during Elizabeth and James I., when judges 
 and counsel wore them. These were supplanted by a 
 broad lace collar, which was in fashion under Charles I., 
 and by white linen bands under the Commonwealth. In 
 the reign of Charles II. the monarch and people of posi- 
 tion assumed the periwig, a fashion imported from 
 France, where it was patronized by Louis XIV., and 
 gradually left off wearing beards and moustaches. Some 
 of the judges, but not all, accordingly wore their judicial 
 
 State Papers addressed to Oliver Cromwell, fol. 99. 
 
Robes of Judges and Counsel 205 
 
 robes with the periwig in place of the coif; and this 
 diversity of head-dress among the judges continued dur- 
 ing the reign of James II., when Sir Thomas Street, one 
 of the judges who was in office in 1688, still wore his 
 own hair with the coif and the black velvet cap. 1 The 
 Bar, being younger than the judges, took more generally to 
 the prevailing fashion, and wore first the long and then 
 the shore wig. In course of time, mainly under William 
 III., all classes of the community, including bishops and 
 clergy, wore the long or the short wig, judges and coun- 
 sel being included in the number ; and the Serjeants, to 
 indicate their status, wore a black patch on a white silk 
 ground, fastened on to their wigs as a substitute for the 
 black cap and the white coif. The lawyers, however, 
 who followed the public taste in assuming periwigs, 
 failed to follow it in leaving them off. The bishops, who 
 continued to wear their wigs long after the public had 
 ceased to do so, gave up the practice some fifty years 
 ago ; but judges and counsel have continued till to-day 
 the bands of the Commonwealth along with the head- 
 dress of the Restoration, which is no more any portion 
 of antient or traditionary legal costume than were the 
 ruffs of Queen Elizabeth or the lace collars of Charles 
 I. And thus it happens that, by a very perversity of 
 conservatism, that head-dress, which in the seventeenth 
 
 1 Foss, vol. vii. p. 17. In the highest Courts of Appeal, viz. 
 the House of Lords and the Privy Council, the judges now sit 
 without wigs or robes of office. The Lord Chancellor presiding 
 in the former, wears his robes as Speaker of the House of Lords 
 and not as judge. 
 
206 The King's Peace 
 
 century was worn alike by kings and by courtiers, by 
 clergymen and by soldiers, by Jeffreys on the bench, ami 
 by Titus Gates in the dock, has become in the nineteenth 
 century the distinct characteristic of the advocate and 
 the judge. King James I., interfering with the Inns of 
 Court, as with most other of his subjects' affairs, had 
 ordered that barristers were not to come to the hall of 
 their Inn with their cloaks, boots, swords, spurs or 
 daggers, showing that their ordinary habits were those 
 of the gentlemen of the period, and further that none 
 were to be admitted into the Society who were not 
 gentlemen by descent. These directions were repeated 
 by Charles I., and seem to have been very generally 
 followed, and it was not, I conceive, till the middle of 
 King Charles' reign, if not later, that counsel under the 
 rank of Serjeants, when employed in court, took to wear- 
 ing silk or stuff gowns, and thus became " gentlemen of 
 the long robe." 
 
 Upon the promulgation of the new Constitution and 
 the establishment of a Commonwealth " without a king 
 or a house of lords," the position of the judges towards 
 Parliament was materially changed, and they became 
 eligible for election as members of the legislature. 
 According to antient practice, the judges were regarded 
 as auxiliaries and assistants of the peers. At the com- 
 mencement of each Parliament, writs were issued under 
 the Great Seal, commanding the attendance of the judges 
 of the King's Bench and the Common Pleas, and such of 
 the barons of the Exchequer as were of the coif, together 
 with the Master of the Rolls, to attend the House of 
 
Judges in Parliament 207 
 
 Lords when the peers should require their presence or 
 their advice. When called in to assist the peers, they sat 
 either on the woolsack with the Chancellor, or on other 
 seats provided for them within the House. 1 They were 
 also required for other purposes, sometimes to consider 
 and advise on bills relating to real estate, and sometimes 
 to carry messages to the Commons : for as the formal 
 etiquette of Parliament required a message from the 
 Commons to be brought to the Lords by five members 
 of the Lower House, so the Lords in communicating 
 with the Commons sent their messages by the hands of 
 two of the judges. 2 These duties of the judges were 
 held, reasonably enough, to be inconsistent with their 
 being members of the House of Commons, and down to 
 the period of the Commonwealth, the Common Law 
 judges had never occupied that position. When, how- 
 ever, there was no longer a House of Lords, and the 
 duties and liabilities of the judges in relation to the 
 peers had ceased to exist, the reason for their exclusion 
 from the other House no longer operated to their preju- 
 dice, and accordingly, during the interregnum, several 
 of the Common Law judges were also members of 
 Parliament. Among them Lord Chief Justice Glyn, of 
 the Upper Bench, was also M.P. for Chester; Oliver 
 St. John, Lord Chief Justice of the Common Bench, was 
 M.P. for Totnes; Sir Matthew Hale, a justice of the 
 Common Bench, was M.P, for the county of Gloucester, 
 and Baron Hill, of the Exchequer, was M.P. for Bridport. 
 
 May's Parliamentary Practice, p. 236. - Ibid., p. 448. 
 
208 The Kings Peace 
 
 On the erection of a House of Lords by Cromwell, the 
 old practice revived, old precedents were followed, the 
 judges were reinstated as assistants to the peers, and 
 the respectful message from the Lords to the Commons, 
 in January, 1658, asking the latter to concur in fixing 
 a day for public fasting and humiliation, was brought 
 from the Painted Chamber by Justice Windham and 
 Baron Hill, two of the Common Law judges. 1 A further 
 message was sent by the Lords in the month of February 
 by the hands of Justices Windham and Newdigate. 2 
 
 In London the judges still sat at Westminster, but 
 the Courts of Chancery and of the Upper Bench were 
 removed from the end to the side of the Hall, so that the 
 four courts were on one side, the shops on the other, and 
 the end unoccupied. 3 Among the visitors to the Hall 
 during the early days of the Commonwealth it is re- 
 lated, though not perhaps upon very good authority, that 
 Charles II., in the disguise of a woman, after the battle 
 of Worcester, saw the judges sitting in their courts, and 
 the flags that Oliver had taken from the Scots. 4 
 
 They were all, Lord Keepers and judges alike, ap- 
 pointed for life during good behaviour ; they were for- 
 
 1 Mercurius Politicus, No. 399. 
 
 2 Ibid., No. 401. The custom of sending messages by the judges 
 has only recently been discontinued. The message in reference 
 to the Prince of Wales' Annuity, in 1863, was brought from the 
 Lords by two judges, as was also that in reference to Princess 
 Louise's Annuity in 1871. Messages are now brought by the 
 respective clerks of the two Houses. May's Parliamentary Prac- 
 tice, p. 450. 
 
 3 Whitelock, vol. iii. p. 383. 4 Jbid., vol. iii. p. 361. 
 
Special Commissions 209 
 
 bidden to take any fee, perquisite, or reward, and in 
 consideration of this they were given salaries of 1,000 1 
 per annum, charged on the customs revenue, and those 
 of them who went circuit were allowed to charge their 
 expenses, in addition to their salary. 
 
 Although impartial opinion gives credit to the judges 
 of this period for their conduct in the judicial office, yet 
 a prospect of return to the old constitutional methods was 
 undoubtedly received with acclamation by the people. 
 Many causes, most of them unconnected with judicial 
 procedure, contributed to this result. Among them, 
 however, must probably be reckoned the trial of cava- 
 liers by tribunals, constituted for the purpose by Special 
 Commission, where they were tried as if before the 
 House of Peers before a large number of commis- 
 sioners, presided over by a judge. The erection of this 
 class of tribunal, necessary perhaps at that period for 
 obtaining tranquillity in the State, is not without ap- 
 parent justification ; but although the commissioners 
 hardly convicted without sufficient evidence, yet their 
 proceedings were unpopular, and much sympathy was 
 shown for the accused, inasmuch as it was well known 
 that some of the judges had refused to sit on these 
 commissions or to try treasons without the intervention 
 of a jury. 
 
 The restoration of royalty was accordingly welcomed 
 with rapture. The bells that rang in the new system 
 were thought to ring out the servility and the corruption 
 
 1 Equal to about 5,000 a year of the present value of money. 
 
 P 
 
210 The Kings Peace 
 
 of the old, and to herald the advent of a race of judges 
 irremovable and incorruptible, discharging their func- 
 tions without regard to the wishes of the Crown. That 
 such was the ultimate result of the re-action against the 
 methods of the Tudors and of the Stuarts is undoubted; 
 but it was not accomplished without the judicial bench 
 passing through a phase of servility and corruption at 
 the end of the century, to which there had hitherto beeiD 
 no parallel, and which, happily for England, cannot 
 recur. 
 
CHAPTER VI. 
 
 FROM THE RESTORATION TO THE ERECTION OF THE 
 
 SUPREME COURT OF JUDICATURE. 
 
 (A.D. 1660-1873.) 
 
 Effect of the Commonwealth on Law and Procedure The 
 Restoration Policy of Retrogression Appointment of 
 Judges Removal of Judges The Rebuilding of London 
 Sir Matthew Hale King James II. Judges after the 
 Revolution Their Tenure of Office Their Integrity 
 Complaints of the Judicial System Mercantile Code estab- 
 lished by the Judges Partial Abolition of the Ecclesiastical 
 Courts The Court of Probate The Court of Divorce Pro- 
 posals for a Supreme Court Erection of a Supreme Court 
 of Judicature in 1873 The High Court of Justice and the 
 Court of Appeal Further Consolidation of the Courts 
 Suggested Fusion of Law and Equity Further Division of 
 the High Court The Chancellor and the Lord Chief Justice 
 The Royal Courts of Justice Former alterations in the 
 Courts The Removal from "Westminster to the Strand. 
 
 THE rule of the Protector was of too short a duration to 
 enable him to secure those ameliorations in the law and in 
 the practice of the courts, the accomplishment of which 
 was the ambition of himself and of the party who gave 
 him their support. Most of the reforms which he intro- 
 duced were just and well considered ; they have of late 
 years been received with general approval, and now form 
 part of our legal procedure. Had Cromwell lived another 
 fifteen or twenty years they would probably have be- 
 come recognised and established as the law of the land, 
 
 211 
 
2 i 2 The King's Peace 
 
 and the country would not have been compelled to suffer 
 under the old cumbrous system for another two hundred 
 years. As it was, these various beneficent alterations, 
 the reform of the Court of Chancery, the relief of un- 
 happy debtors from life-long imprisonment by means of a 
 sj'stem of discharge in Bankruptcy, the bringing of wills 
 and administrations from the Ecclesiastical tribunals to 
 the courts at Westminster, the introduction of the Eng- 
 lish language into pleadings and Courts of Justice, the 
 abolition of the complicated system of fines and re- 
 coveries, and the mitigation of punishments in criminal 
 cases, though embarked upon by the Protector, had been 
 so short a time either in operation or under discussion, 
 that the people of England had no sufficient opportunity 
 of considering their value ; nor had they anywhere 
 become accustomed to changes, which, at his death, had 
 not yet passed from the stage of innovations into that of 
 accepted doctrines of the law. 
 
 The effect of the legal improvements under the Com- 
 monwealth did however show itself, on the first blush of 
 the Restoration, in the many beneficent statutes then 
 enacted. But after the disbanding of the army and the 
 trial and execution of the regicides, the country gave 
 itself up so thoroughly to the acceptance of the new 
 King, that there seemed to be no reason, in prudence or in 
 policy, to revert even for good to the experience of the 
 last twenty years. There was a general spirit of make- 
 believe so as to get rid of the spectre of the Common- 
 wealth, and to conduct public affairs as if there had been 
 no interval between the death of the first Charles and the 
 
The Rebuilding of London 2 1 3 
 
 accession of the second. The first year of Charles II. 
 was called in all statutes and public documents the 
 twelfth year, the mace was altered from the Common- 
 wealth to the Stuart type, the courts were restored to 
 the end of Westminster Hall, and the English tongue 
 which had been introduced by the Long Parliament was 
 reconverted into the unknown tongue of the Anglo-Nor- 
 man French. But in the meantime many dangerous 
 innovations had gone never to return. The Court of 
 Star Chamber, the Court of Wards, and the Court of High 
 Commission had been abolished, and the Chief Justice of 
 the Forest, though a feeble effort was made after the 
 Restoration to reconstitute his office, 1 was no more heard 
 of, except as a pensioner on the civil list. Good and 
 learned men were appointed as judges ; they held their 
 office during good behaviour, and in the early part of 
 the reign there was no interference with their duties or 
 their opinions. During the latter period, however, their 
 patents were again drawn durante bene placito during 
 the King's good pleasure, and no less than nine, exclusive 
 of the Chancellors, were removed for causes more or less 
 political, the varying phases of the Popish Plot providing 
 in many instances the reasons for their dismissal. 
 
 The reign of Charles II. provides the first instance in 
 which the judges of the Common Law Courts consented 
 to take upon themselves public functions other than those 
 incident to the duties strictly pertaining to their office. 
 The circumstances were exceptional, and whatever 
 
 1 Stephen's History of the Criminal Law, vol. i. p. 138. 
 
214 The Kings Peace 
 
 opinion may be held as to the employment of judges 
 of late years on commission and inquiries, the judges 
 of the Restoration undoubtedly conferred an obligation 
 upon London and the country which should ever be 
 held in remembrance. The great fire of 166G, which 
 stamped out the plague, nearly stamped out London 
 with it. The extent of the devastation wrought by the 
 fire is described by Pepys, by Evelyn, and by Stowe. 
 One of the acts for the rebuilding of London declares 
 that " the City of London . . . was for the most part 
 burnt down and destroyed . . . and now lies buried 
 in its own ruins." And another recites that the greatest 
 part of the houses in the City of London, "and some in 
 the suburbs thereof, have been burnt ... by the late 
 dreadful and dismal fire," and the position of freeholders, 
 occupiers, lessees, and others liable to pay rents, and with- 
 out means to rebuild, or in many cases to identify the 
 boundaries of their property, was* pitiable in the ex- 
 treme. To remedy this distress, so far as was practic- 
 able, an Act 1 was passed in 1667 by which a special 
 court of judicature was established, consisting of the 
 judges of the King's Bench, the Common Pleas, and the 
 " Barons of the Coif of the Exchequer," for the time 
 being, or any three of them sitting together, with powers 
 of a most extensive character, to settle without charge 
 all disputes between landlords, tenants, proprietors, 
 occupiers, adjoining owners and others, so that their 
 various boundaries might be ascertained, and the re- 
 
 1 19 Car. II., c. 2. 
 
The Rebuilding of London 215 
 
 building of the City be proceeded with at once. Their 
 jurisdiction was summary and without appeal, except 
 where an order was made by less than seven judges, 
 when, upon the assent of the Lord Chief Justice and the 
 Lord Chief Baron, the matter might be reconsidered by 
 all the judges together. They could terminate leases, 
 could order new leases to be granted, with or without 
 condition as to payment, or otherwise ; could make 
 orders, notwithstanding the coverture, minority, or in- 
 capacity of the parties for or against whom such orders 
 were made ; and they proceeded, as directed by the Act, 
 without the formalities or technicalities of courts of law 
 or equity, sine forma et figura judicii. By a subse- 
 quent Act ! of the same session, rules and orders were 
 laid down for the rebuilding of the City. It contained 
 the well-known provision for building in brick or stone, 
 and embodied a modified form of betterment, 8 by which 
 those whose houses were improved in value, by new or 
 enlarged streets or thoroughfares, were to contribute, in 
 proportion to their advanced values, towards a fund to 
 be employed for the general rebuilding and improvement 
 of the City, and for the compensation of those whose 
 lands or houses had been compulsorily taken for that 
 purpose. 
 
 Acting under the authority of these and certain amend- 
 ing statutes, 3 the judges, most prominent among whom 
 
 1 19 Car. II., c. 3. 2 01. 26. 
 
 3 Stat. 19 Car. II., c. 2, limited the powers of the judges to 31 
 Dec.. 1668; Stat. 22 Car. II., c. 11, extended them to 29 Sept., 
 1071 ; Stat. 22 & 28, Car. II., c. 14, further extended them to 
 
2i6 The Kings Peace 
 
 were Sir Orlando Bridgman, Lord Chief Justice of the 
 Common Pleas, and Sir Matthew Hale, Lord Chief Baron 
 of the Exchequer, sat day by day at a court which they 
 erected in Cliffords Inn, and there they superintended 
 the rebuilding of the City. The work went on without 
 impediment or delay; the judgments of Sir Matthew 
 Hale and his colleagues were unreservedly accepted, and 
 within six years of the outbreak of the fire their duties 
 had determined, and London was rising again from its 
 ashes. 
 
 The Lord Mayor, Aldermen, and Commonalty of 
 London, recognising the obligations they were under 
 to the several judges who took part in the deliberations 
 and orders at Cliffords Inn, commissioned Nathaniel 
 Wright, a distinguished artist of the period, to paint 
 their portraits, and these are still on the walls of the 
 Council Chamber at Guildhall, with an inscription 
 recording the facts. Burnet, referring to the action 
 of the judges about the rebuilding of London, speaks 
 in the following terms of Sir Matthew Hale: 1 
 
 " Nor did his administration of justice lie only in that 
 court : he was one of the principal judges that sat in 
 Cliffords Inn, about settling the difference between land- 
 lord and tenant, after the dreadful fire of London he 
 being the first that offered his service to the City, for 
 
 29 Sept., 1672, when they expired. In consequence of a disastrous 
 fire at and about the Navy Office in January, 1673, the judica- 
 ture and power of the judges were revived, and continued in 
 operation till 25 July, 1675, 25 Car. II., c. 10. 
 1 Life of Sir Matthew Hale. 
 
Judges after the Revolution 217 
 
 accommodating all the differences that might have arisen 
 about the rebuilding of it in which he behaved him- 
 self to the satisfaction of all persons concerned, so that 
 the sudden and quiet building of the city, which is justly 
 to be reckoned one of the wonders of the age, is in no 
 small measure due to the great care which he and Sir 
 Orlando Bridgeman (then Lord Chief Justice of the 
 Common Pleas, afterwards Lord Keeper of the Great 
 Seal of England) used, and to the judgment they showed 
 in that affair ; since, without the rules then laid down, 
 there might have otherwise followed such an endless 
 train of vexatious suits, as might have been little less 
 chargeable than the fire itself had been. But without 
 detracting from the labours of the other judges, it must 
 be acknowledged that he was the most instrumental in 
 that great work ; for he first, by way of scheme, con- 
 trived the rules, upon which he and the rest proceeded 
 afterwards, in which his readiness at arithmetic and 
 his skill in architecture were of great use to him." 
 
 Under King James II. the storm which had destroyed 
 his father and imperilled the monarchy burst forth again. 
 The violence and irregularity of Scroggs, Jeffreys and 
 others of the Common Law judges of this reign, in mat- 
 ters touching the Crown and the prerogative, went far to 
 engender the second Revolution, which, shorter and less 
 bloody than that against Charles I., accomplished, by its 
 unanimity and moderation, the results for which the coun- 
 try had previously striven through years of bloodshed 
 and disorder. 
 
 From the accession of William and Mary to the year 
 
2i8 The King's Peace 
 
 1873 no change took place in the composition of the courts, 
 in the tenure of the judges, or in the character of their 
 duties and obligations. They held their office as under 
 the Commonwealth, and under the old custom of Eng- 
 land quamdiu sc benc gesscrint, during good behaviour, 
 and their removal even under this clause could only be 
 effected by the Crown, on the joint address of both Houses 
 of Parliament. 1 Their salaries were fixed and ascer- 
 tained. Lord Chief Justice Holt, one of our best chiefs 
 of the Common Law, succeeded Sir Robert Wright, one of 
 our worst, and from that time forward judges have fol- 
 lowed each other in quiet if not in monotonous succession ; 
 and no single instance has occurred, during the two 
 hundred years that have elapsed since the Revolution, in 
 which an English judge has been removed from his office, 
 or in which an address has been voted by either House 
 of Parliament with a view to his displacement. 
 
 The quiet hum-drum administration of the law by 
 judges, whose position removed them from the arena of 
 party strife and political warfare, and whose sole object 
 had been to deal out impartial justice alike between king 
 and subject and between man and man, accentuated, as 
 time went on, certain anomalies of our procedure and 
 certain irregularities of our system. That the develop- 
 ment of these defects in our procedure has been gradual 
 nnd slow is due to the careful action of the judges, who. 
 
 1 12 & 13 William III. c. 2. The only judge who has ever been 
 removed by the Crown on such resolutions was Sir Jonah Bar- 
 rington, Judge of the Court of Admiralty in Ireland, who was 
 dismissed in 1830. 
 
The Court of Probate 219 
 
 so far as the system would permit, have relieved these 
 anomalies and equalised these apparent inequalities. 
 The Common Law, which after all is very much what the 
 judges make or declare it, being founded on the dictates 
 of natural justice, has been adapted, so far as is practic- 
 able, to the changes of the time and the requirements of 
 the age, and a notable addition was made to that branch 
 of our law by the elaborate code of mercantile usages, 
 established by Lord Mansfield and his colleagues, aided 
 by special juries of the City of London. 
 
 In 1857, a new departure was made in the administra- 
 tion of justice. The outcry against the cost, the delay, 
 and the prolixity of proceedings in the Ecclesiastical 
 Courts, had attracted the attention of the public; a 
 Royal Commission had reported on the abuses of their 
 system, and bills were introduced into Parliament to 
 abolish their jurisdiction, except in so far as it might 
 be of a purely ecclesiastical character. They were ac- 
 cordingly divested of all power to entertain suits re- 
 lating to probate of wills, and grants of administrations, 
 to declare the validity of marriages, and to pronounce 
 divorces d mensa et thoro, and such jurisdiction was 
 conferred upon a new Court of Common Law which was 
 to sit in Westminister Hall, and to be held in two 
 divisions called respectively the COURT OF PROBATE 
 and the COURT FOR DIVORCE AND MATRIMONIAL CAUSES. 
 The great public advantage which accrued from the 
 first of these new tribunals was, that it enabled the 
 same court to adjudicate finally upon all questions 
 relating to the succession to real as well as to personal 
 
220 The King's Peace 
 
 estate. These the Ecclesiastical Courts were not com- 
 petent to entertain, for although they could by their 
 procedure bind the next of kin, and all persons claiming 
 to be interested in the personal estate, they had no power 
 to decide questions relating to the land or to bind the 
 heir, which could only be done by process at Common 
 Law. The result of this divided jurisdiction was, that 
 there might be a decision one way in the Ecclesiastical 
 Courts as to the personalty and another way at Common 
 Law as to the real estate, the validity of the same 
 document being in either case the subject of litiga- 
 tion ; a state of things which was neither creditable to 
 our legal procedure nor satisfactory to testators and 
 legatees. To effect the necessary change of jurisdiction 
 it was enacted that the right of succession to the goods 
 of a deceased person should no longer vest primarily in 
 the Bishop in whose diocese they might be found, but 
 that it should vest in the Queen, 1 who now has the 
 legal custody of all goods and chattels of a deceased 
 person from the hour of his death to the issuing of a 
 grant of administration to his next of kin, or of a probate 
 of his will to his executor. The position of the Church 
 as the heir of a deceased man's personal estate thus came 
 to an end. It had been for many centuries a beneficial 
 heirship, but as the power of the Church had diminished, 
 its interest in dead men's goods became of less and less 
 value, until the claims of the Church ceased to have any 
 operation, except for the perception of fees on grants of 
 
 1 20 & 21 Vic. c. 77. 
 
The Court for Divorce 221 
 
 probate or on letters of administration. The privilege 
 of issuing these grants, however, it still retained, and its 
 Courts and judges still tried the right of succession to 
 personal estate until the year 1857, when the powers it 
 had exercised for so many years passed away to the 
 Crown. The procedure was then adapted to modern 
 ideas, witnesses were examined viva voce in open court, 
 a concise form of pleading was introduced, and parties 
 could, upon application, have any disputed matters of fact 
 tried by a jury. 
 
 Questions as to the personal relations of husband and 
 wife had always been referred to the Ecclesiastical 
 tribunals, but the abuses of their procedure had affected 
 the trial of these causes to so great an extent that the 
 doors of justice were, in this respect, closed to all but 
 those of independent means. The power of granting 
 divorces enabling the divorced parties to marry again 
 had up to this period been retained in the hands of the 
 Legislature, where proceedings were taken by way of a 
 private Bill followed by a private Act. Here again, 
 however, the cost of carrying a Bill through both Houses 
 made the procuring of a statutory divorce, though 
 attainable by the rich, out of reach of the poor. And 
 accordingly in the same Session that Parliament dealt 
 with the succession to goods by instituting the Court 
 of Probate, it provided a speedy and comparatively in- 
 expensive mode of dealing with matrimonial troubles. 
 It constituted a Court for Divorce and Matrimonial 
 Causes in England, transferring to it all the jurisdic- 
 tion formerly exercised in matters matrimonial by the 
 
222 The King's Peace 
 
 spiritual courts, and conferring upon it, in addition, 
 power to grant divorces d vinculo matrimonii in certain 
 cases specified in the Statute. 1 
 
 There remained to the civilians, as the only remnant 
 of their secular jurisdiction, the right to try maritime 
 causes in the Court of Admiralty. Such privilege, how- 
 ever, could not long survive the recent innovations, and 
 in 1873 the High Court of Admiralty ceased to be an 
 independent tribunal, and its jurisdiction and authority 
 were transfered to the judges of the Supreme Court, of 
 which it then became, and has since remained, a com- 
 ponent part. 
 
 This reform of the antient ecclesiastical procedure, the 
 successful bringing of the new courts into line with the 
 old, and the rapid extension of business in Westminster 
 Hall, gave rise to a strong feeling among the lawyers and 
 the public, that the decentralization of our courts, with 
 the consequent limitation of the powers of each, had 
 grown to an extent which was detrimental to the suitor, 
 and amounted, in many cases, to a denial of justice. The 
 systems of Law and Equity it was said, with some truth, 
 had become so divergent that a man who might on the 
 same question rightly succeed at law, might also rightly 
 fail in equity. The fifteen judges of the Common Law 
 Courts were unable efficiently to help each other, and 
 numerous concurrent jurisdictions were a snare to the 
 litigant. The cost of procedure under our varying 
 systems was out of all proportion to the result attained, 
 
 1 20 & 21 Vic. c. 85. 
 
The Supreme Court of Judicature 223 
 
 and the law encouraged appeals which were numerous 
 and unsatisfactory. These evils, as it was thought, 
 might be remedied by combining our divided courts and 
 jurisdictions under one Supreme Court of Judicature. 
 " We must bring together," said Lord Selborne, 1 in 
 presenting his Bill to the House of Lords in February, 
 1873, " our many divided courts and divided jurisdictions 
 by erecting or rather re-erecting for after all there was 
 in the beginning of our constitutional system one Supreme 
 Court of Judicature a Supreme Court, which operating 
 under convenient arrangements, and with a sufficient 
 number of judges, shall exercise one single undivided 
 jurisdiction, and shall unite within itself all the jurisdic- 
 tions of all the separate superior Courts of Law and 
 Equity now in existence." His Lordship accordingly 
 took as his model the Curia Regis of the Norman Kings 
 as it existed before the division of the courts. Acting 
 on this principle, the High Court of Chancery, the Court 
 of Queen's Bench, the Court of Common Pleas at West- 
 minster, the Court of Exchequer, the Court of Admiralty, 
 together with the Courts of Probate and Divorce (erected 
 in 1858), and the Court of Bankruptcy, were by the 
 Statute 2 that was enacted in 1873, united and consoli- 
 dated into one Supreme Court of Judicature. 3 This 
 
 1 Hansard, vol. 214 p. 337. 
 
 2 The first Judicature Act was passed in 1873 to come into 
 operation in 1874. This not being practicable, its operation was 
 postponed till 1875. In that year the second Judicature Act was 
 passed, and in Michaelmas term of 1875, the judges took their 
 seats as members of the Supreme Court. 
 
 3 The Supreme Court of Judicature is, however, only a col- 
 
224 The King's Peace 
 
 was divided into two sections, the HIGH COURT OF 
 JUSTICE, being a Court of First Instance, with power to 
 hear appeals from Inferior Courts, and the COURT OF 
 APPEAL, having an exclusive appellate jurisdiction over 
 the High Court, and over certain other courts which it 
 was not then proposed to abolish. To the High Court 
 were committed all the powers of the Court of Chancery, 
 both in Equity and Common Law, of the Queen's Bench, 
 of the Common Pleas at Westminster, of the Court of 
 Exchequer as a Court of Revenue as well as a Court of 
 Common Law, of Courts of Assize erected from time to 
 time by Commissions from the Crown, and of the Court 
 of Admiralty. The original position of the Chancellor, 
 as a Common Law as well as an Equity Judge, and the 
 status of the Common Pleas, as constituted to sit in aliquo 
 loco certo, to wit Westminster, were thus formally and 
 legally recognised. All the powers and authorities then 
 consolidated and committed to the Supreme Court of 
 Judicature were held and exercised by the Supreme 
 Court of the Norman Kings before the increasing multi- 
 plication of causes, towards the end of the reign of King 
 Henry III., rendered a division of the courts and a re- 
 arrangement of the business necessary in the public 
 
 lective name for the judges composing the High Court and the 
 Court of Appeal. The only occasion when a Supreme Court is 
 constituted is when the judges meet together in council once a 
 year to frame a report to the Secretary of State, and to suggest 
 any improvements they may think right to bring before him. 
 It thus exercises one of the functions of the Exchequer Chamber 
 which was formerly the council room of the judges. 
 
The Supreme Court of Judicature 22$ 
 
 interest. All questions relating to the goods of a de- 
 ceased person, as distinct from his lands, were beyond 
 the jurisdiction of the Curia Regis, and were settled 
 by the Bishops in their Diocesan Courts. All questions 
 of marriage, of separation, and of alimony, or provision 
 for a wife, were tried in the Ecclesiastical Courts, and 
 Courts of Bankruptcy were not then invented. 
 
 Subsequent legislation, with the same object, has 
 abolished the Court of the Master of the Rolls and the 
 Courts of Common Pleas and Exchequer, leaving all the 
 Common Law and Equity business to be transacted by 
 the High Court, of which the Chief Justice of the 
 Queen's Bench, under the style of Lord Chief Justice of 
 England (a title which Bacon jealously scrupled to allow 
 to Coke), is the permanent president. 1 The High Court 
 sits in two divisions, of which the Chancellor is the head 
 of the Chancery, and the Lord Chief Justice, sitting 
 in the Queen's Bench Division with an ex officio right 
 to sit also in the Court of Appeal, is the head of the 
 Common Law. The Master of the Rollo, having no longer 
 a court of his own, but still holding his position as 
 second permanent judge, next after the Lord Chief 
 Justice of England, and before the chiefs of the Common 
 Pleas and Exchequer, so long as they remained, sits as 
 the head of one of the divisions of the Court of Appeal, 
 and is no longer of necessity a Chancery lawyer. 
 
 That much advantage has accrued to the public 
 
 1 " President" is a title with a Norman flavour, which iu\\, 
 for the first time, finds a place in the Courts of Chancery or of 
 fonimon La\v. 
 
226 The King's Peace 
 
 through this re-arrangement of business cannot, I think, 
 be denied. The pleading and the practice of the courts 
 have been assimilated and simplified, and the power 
 given to each court to deal completely in a single action 
 with all differences between the parties, has reduced the 
 cost and the delays of litigation. In one respect, how- 
 ever, upon which great stress was laid not only by lay- 
 men, but by the lawyers who were concerned in the 
 change, it seems to have been productive of but little 
 result. It was believed by some, and hoped by others, 
 that by the unification of the courts, by the assimilation 
 of procedure, and by making the judges interchangeable, 
 there might be accomplished, what is commonly known 
 as, the fusion of Law and Equity. And much reliance 
 was placed upon the argument that, as in all countries 
 but those deriving their legal constitution directly from 
 ourselves, no distinction exists between law and equity, 
 and one set of courts disposes of all questions that arise 
 in human affairs, so, in our country also, a similar 
 arrangement of courts would accomplish the like results. 
 A great distinction, however, is to be observed between 
 the judicial system of England and its children, and that 
 of other nations in Europe and their descendants. It is 
 to be found in this, that our law is greatly of a customary 
 character, that there is no statutory sanction in regard to 
 much of it, and that there is with us no such code or 
 corpus juris as exists in other countries, to which refer- 
 ence may be made for the decision of all disputed 
 questions, and outside of which are no legal rights or 
 obligations. Until, therefore, we find ourselves in the 
 
The Fusion of Law and Equity 227 
 
 same position as other nations in respect of this codifica- 
 tion of our law and procedure, this fusion will be as 
 impracticable as the fusion of oil and water. By shaking 
 the vessel which holds the liquids there may be produced 
 what appears to be a fusion of the two, but a few 
 moments of repose will show the two elements as clear 
 and as separate as before. And it is no disparagement 
 of our lawyers to say, that what Cromwell, supported by 
 his judges and his lawyers, all hot and in full cry to deal 
 with the Chancery and its equitable doctrines, was 
 unable to effect, they also, even in times of quiet and 
 good will, have failed to accomplish. The actual nomen- 
 clature of the courts recognised by the Judicature Acts 
 as the Chancery and the Queen's Bench Divisions, seemed 
 to point to the impracticability, for the present, at all 
 events, of any true amalgamation, and the experience of 
 twenty years has shown that this anticipation has been 
 well founded. To carry out this scheme of fusion, how- 
 ever, the description of the Chancery judges was altered. 
 They ceased to be Vice-Chancellors, and became justices 
 of the High Court, and as such were, in the first in- 
 stance, sent on circuit to try Common Law cases and 
 prisoners, taking their turns with the judges of the 
 Queen's Bench. But the practice was soon abandoned. 
 The Chancery judges remained in London trying their 
 causes, they reverted to the black silk gown of the Vice- 
 Chancellor, the Chancery Bar became once more composed 
 of lawyers who made equity and conveyancing their 
 special study, Chancery appeals were specially allocated 
 to one of the divisions of the Court of Appeal, and 
 
228 The Kings Peace 
 
 whether from their convenience of access, or from other 
 causes, the Equity judges have attracted to their courts 
 the greater portion of the work of the county. The 
 dividing line between the two jurisdictions, simplified 
 and improved in their course of procedure, has thus be- 
 come once more clear and accentuated, and there is every 
 indication that the present working of those courts is 
 satisfactory to the public and to all branches of the legal 
 profession. 
 
 Nor has it been altogether possible in other respects to 
 carry out in its entirety the original scheme of the pro- 
 moters of the measure. The division of the Supreme 
 Court, which was found necessary in the time of Edward 
 I., has been found equally necessary now, though it has 
 not been carried out in the same form as at that period. 
 The business of the Probate and Divorce Courts, though 
 removed from the control and procedure of the Ecclesi- 
 astical Courts, has been put into a separate Division, 
 together with the Court of Admiralty, which has been 
 equally removed from the control of the civilians. The 
 Court of Bankruptcy has a court with officers and offices 
 of its own. A separate Court sits for the trial of Railway 
 and Canal cases, and within the present year an attempt 
 has been made to erect a tribunal of commerce by the 
 constitution of a court for the special hearing and deter- 
 mining of mercantile cases, to be presided over by one of 
 our most eminent commercial lawyers. 
 
 One of the results of this alteration of our procedure, 
 has been to make some change in the relative positions of 
 the Lord Chancellor and the Lord Chief Justice. That 
 
The Chief Justice and the Chancellor 229 
 
 such a scheme as that of the Supreme Court should 
 require for its satisfactory development a lawyer and an 
 administrator, directly responsible to Parliament, would 
 seem to have been inevitable. And in the absence of 
 any Minister of Justice, who in other countries, without 
 being a judge, is by virtue of his office responsible for 
 the successful working of the machinery of the courts, 
 the Lord Chancellor, as the person most nearly approach- 
 ing to such an official, would also seem to be the person 
 indicated for the purpose. It is commonly said, and with 
 truth, that to combine the legislative, the judicial, and the 
 executive duties in one and the same person, would be to 
 create an autocracy fatal to our liberties and to our 
 constitution. And it is argued that the great success 
 of the English constitution is derived from the fact that 
 these three functions are always distinct and indepen- 
 dent. Thus the legislature which makes the laws, 
 leaves it to the Courts and the Executive to declare and 
 to enforce them ; the Courts construe and give effect to 
 the laws as they emerge from Parliament, without either 
 questioning or enforcing them, and the Executive, without 
 questioning the law or its construction by the judges, 
 carry out the orders they receive from Parliament or 
 from the Courts. The proposition must, however, be 
 received with this qualification, that such distinct author- 
 ities must act in accord, though independently, in carry- 
 ing out their respective duties or their conflicts, and the 
 consequent deadlock of justice will bring into existence a 
 state of anarchy, the actual antipodes of absolutism, and 
 probably the worse condition of the two. Of the possible 
 
230 TJie King's Peace 
 
 coincidence of the three powers in a single person, the 
 Chancellor is a standing and perhaps a solitary example. 
 As a peer, as Speaker of the House of Lords, and as a 
 member of the cabinet which originates legislation, he 
 represents the first of these functions ; as President of 
 the Court of Appeal, with a Common Law and a statutory 
 right of sitting as a judge of First Instance, if he so 
 desires, he represents the second ; and as the creator of 
 judges, and justices of the peace, with administrative 
 duties in regard to the Supreme Court and various others, 
 he represents the third. M. de Franqueville, a distin- 
 guished member of the Academy of France, to whom our 
 judicial system, in its various aspects, presents a study 
 of unceasing interest, speaks of the English Chancellor 
 as a living image of the Trinity, embodying in his own 
 person the three independent elements of government. 1 
 And it is, I think, to this combination of duties and 
 responsibilities in the Chancellor that we must look for the 
 future development and successful working of the Supreme 
 Court of Judicature. The Chancellor, under the Judica- 
 ture Acts, is President of the Court of Appeal, of the 
 High Court, and of the Chancery Division of the High 
 Court ; but he is seldom seen in the Court of Appeal, and 
 never, as far as I am aware, in the High Court. Many 
 years have passed since he sat as a judge of First In- 
 stance, or even as a judge of appeal in the Court of Chan- 
 cery, and the Acts specially provide (from an excess of 
 
 1 Systeme Judiciaire, vol. i. p. 42. " II est une image vivante de 
 la Trinite ; il est a la fois le centre, et le lien des trois grands 
 pouvoirs de 1'etat." 
 
The Chief Justice and the Chancellor 231 
 
 caution) that he is not a permanent judge of any of the 
 courts in which he sits, and that his appointment is not, 
 as that of the other judges, " during good behaviour." 
 Whenever he sits in any court he is entitled to pre- 
 side, a precedence to which the customary rights of his 
 office fully entitle him ; but I think that the days of the 
 Chancellor sitting in Equity, or even in Appeal, are rapidly 
 coming to a close, and that, except when a press of busi- 
 ness may demand his presence in the Court of Appeal, 
 the Chancellor will be found in future to confine his 
 duties to the House of Lords, and to the solution of the 
 many administrative questions relating to the judicature 
 of the country, that must constantly demand his attention. 
 The Lord Chief Justice, on the other hand, is advanced 
 in his position and responsibilities from that of Lord Chief 
 Justice of the Queen's Bench to that of the actual Lord 
 Chief Justice of England, yielding place only to the Chan- 
 cellor, if he should wish, on any occasion, to form part of 
 his court. He is a member of the Court of Appeal, where 
 he is President when sitting in the absence of the Lord 
 Chancellor, and he is the permanent President of the 
 Queen's Bench Division. He holds office during good 
 behaviour, and can only be removed by the Crown after a 
 joint address of both Houses of Parliament. He is thus 
 essentially the permanent chief of the judges. Becket, as 
 Chancellor, was the second man in the kingdom, the Chief 
 Justiciar being the first ; but the Justiciar was then the 
 legislator and minister, as well as the chief judge, and now 
 that the positions are reversed, the Chanpellor, as legis- 
 lator, Cabinet Minister, and administrator, takes prece- 
 
232 The Kings Peace 
 
 dence of the Chief Justice. The former more nearly re- 
 sembles the Minister of Justice of modern Europe, the 
 latter the Chief Justiciar of the Normans and the Plan- 
 tagenets. 
 
 Whether the effect of the Judicature Acts is to alter 
 the customary position of the Chancellor, to derogate 
 from his high and exceptional position, to make him one 
 of the judges, to bring him within the quaint but well- 
 recognised description of a Chief Justice, primus inter 
 pares, the first among equals, and thus to make him the 
 representative of their body, is more difficult to deter- 
 mine. It has been the subject of friendly discussion 
 between distinguished holders of the respective offices ; 
 but without taking sides in a matter which King Charles 
 would have said " appertaineth not to the common 
 people," it would appear, to the independent observer, 
 that the tenure, the power of appointments, and the 
 administrative duties of the Chancellor, though necessarily 
 pertinent to his high office, are inconsistent with his 
 position as a chief judge, co-equal and co-ordinate with 
 the others, and that if the intention of the statute was to 
 confer that position upon him, it was contrary to English 
 usage, if not unconstitutional. 
 
 The anticipated re-arrangement of business and aggre- 
 gation of the courts necessitated, according to public 
 opinion, the bringing together under the same roof of all 
 the courts composing the Supreme Court of Judicature. 
 Attempts had previously been made to deal with these 
 courts. The half open enclosures at the end of the hall, 
 within which the Courts of Chancery and King's Bench 
 
Sir John Soane's Plan of the Courts in and about Westminster 
 HaU, in 1795, before their demolition, showing the position of the 
 Court of Exchequer, the Court of Common Pleas, the inclosures for 
 the Courts of Chancery and King's Bench at the end of the Hall. 
 and the Court of Requests. Original in the Grace Collection in the 
 British Museum. 
 
Face page 233. 
 
Removal of the Courts 233 
 
 formerly sat, had, after the removal of the shops, been 
 hidden by a graceful Tudor screen, which, reaching nearly 
 to the chestnut roof, separated them from the turmoil 
 and bustle of the hall. The increase of business and the 
 want of further accommodation had, at a later date, led to 
 the courts being taken from inside the hall and located 
 in a building erected by Sir John Soane, in 1822, on the 
 western side overlooking the Abbey. To make way for 
 this building, various old houses, the great rooms and 
 the Court of the Exchequer, Queen Elizabeth's apart- 
 ments, and other historical memorials, were pulled down 
 and removed. The courts, then erected, survived the fire 
 of 1834 ; but they were felt to be unsuitable both from 
 their size, their situation, and their numbers for the new 
 experiment to be tried in our judicial procedure. After 
 a delay of some fifteen years, spent in discussion and 
 in building operations, the new temple of justice was 
 eventually completed in the year 1882. On the 4th 
 December of that year, Her Majesty opened the Royal 
 Courts of Justice, and the judges and barristers of the 
 day bade adieu for ever to their courts and their 
 chambers in Westminster Hall. Sir John Soane's courts 
 were then entirely removed. The old walls of the hall 
 showing the masonry of Rufus, Becket, Richard II., 
 Henry VII., and Elizabeth, with many masons' marks 
 identified with the period, were for a time exposed to 
 view, and then again closed up and preserved for the 
 contemplation of future generations. 
 
 Many familiar scenes have thus passed away. The 
 Exchequer Chamber, which was for centuries the Court 
 
234 The King's Peace 
 
 of Consultation, and afterwards a Court of Error for the 
 judges, has been replaced by the Court of Appeal, a more 
 stately and in many respects a more competent tribunal. 
 The modern method of raising the revenue of the sovereign 
 has abolished the special functions of the Court of the 
 Exchequer. The law terms of inconvenient shortness 
 have given way to law sittings of ever-increasing length. 
 The quarterly peregrinations of the Bench and the Bar 
 between the city of Westminster and the cifey of London 
 no longer recur. The Serjeants, who took part in the 
 administration of justice from the first recognition of 
 advocacy in our system are seen no more, and brotherly 
 compliments passing among the judges, and between them 
 and the Bar, are now meaningless expressions, as there are 
 no longer any " brothers of the coif." The judges at Nisi 
 Prius, discarding the black silk robe which they formerly 
 wore, have assumed the violet gown, which dates back to 
 the time of Edward I., and which, Dugdale says, they used 
 to wear when they sat at Nisi Prius in London or West- 
 minster. 1 The red casting hood, however, which was part 
 of their costume, has been abandoned for a red sash worn 
 somewhat unmeaningly over the shoulder. The arm-chair 
 of the Chancery judge has supplanted the padded and 
 cushioned bench, which gave the name and the style to the 
 King's and the Common Benches in Westminster Hall. 
 The quaint regulations, by which at certain periods the 
 junior Bar had precedence in the Queen's Bench, have 
 come to an end, the postman and the tubman have dis- 
 
 1 Orig. Jud., fol. 102. 
 
The Royal Courts of Justice 235 
 
 appeared from the Exchequer, Masters in Chancery have 
 been abolished, and the Prothonotary has gone from the 
 Common Pleas. These and many other amendments in 
 legal procedure have doubtless enured to the public good. 
 But while we may recognise this removal of the courts 
 from Westminster as a necessary and consequential 
 addition to Lord Selborne's scheme, yet we may be 
 pardoned the regret that it was not possible to carry 
 out the new system in the antient hall of justice. Look- 
 ing back over a period of nearly eight hundred years, 
 during which law and justice had their throne in West- 
 minster Hall, and mindful of the great scenes that those 
 walls have witnessed, the meeting of the early English 
 Parliaments, the Norman and the Plantagenet kings 
 in their pomp and splendour, occupying the judgment-seat 
 beside the great fathers of our law, the trial and deposi- 
 tion of King Richard, the trial and condemnation of King 
 Charles, and the impeachment of Warren Hastings, and 
 in view of the long line of honourable and learned lawyers 
 who have sat in the courts that occupied or environed the 
 antient hall, we, who are old enough to have practised in 
 Westminster Hall, but have not outlive! the respect for 
 immemorial traditions, or learned to despise the teaching 
 of antiquity, may at least have this satisfaction, that we 
 have trodden the floor of the Aula Regia, and have striven 
 to transplant its traditions and associations into the new 
 field of forensic labour. 
 
ADDENDA 
 
 A few words as to the works referred to in the pre- 
 ceding pages may not be out of place. " In quoting of 
 books," says Selden in his Table Talk, " quote such 
 authors as are usually read; others you may read for 
 your own satisfaction, but not name them. Quoting of 
 authors is mostly for matter-of-fact, and then I cite 
 them as I would a witness : sometimes for a free ex- 
 pression, and then I give the author his due, and give 
 myself praise for reading him." Acting on this good 
 worldly advice, I have referred to those authors that 
 are accessible to the student, and have done little more 
 than indicate the lines upon which he may pursue a 
 course of thorough and complete investigation into the 
 subject-matter of this sketch. The absence of codifica- 
 tion in our law involves an absence of precise information 
 as to the modifications in our procedure and our Courts 
 of Justice. Changes which are gradual and uneventful 
 make little impression on the time, and are seldom re- 
 corded in contemporaneous annals or histories of the 
 period. They are thus very difficult of ascertainment, 
 and the evidence frequently has to be gathered from a 
 mass of loose and undigested material. 
 
 237 
 
238 Addenda 
 
 Taking, therefore, Selden's advice on the quotation 
 of authors, I cite, in reference to the Anglo-Saxon period, 
 the following works : 
 
 The Ancient Laics and Institutes of England, com- 
 prising Laws enacted under the Anglo-Saxon Kings, 
 from JEthelbirht to Cnut the Laws called Edward the 
 Confessor's the Laws of William the Conqueror, and 
 those ascribed to Henry I. Edited by B. Thorpe, pub- 
 lished London, 1840. A book absolutely indispensable 
 to any student of the Anglo-Saxon period. 
 
 The Anglo-Saxon Chronicle, edited by Thorpe. Lon- 
 don, 1861. 
 
 Kemble's Codex Diplomaticus cevi Saxonici. London, 
 1839. (6 vols., 8vo.) Being a collection of Charters and 
 other documents of the Anglo-Saxon period. 
 
 Sir Henry Ellis' Introduction to Domesday Book. 
 London, 1833. 
 
 Anglo-Saxon Charters, published some in text, some 
 in reproduction by the Record Commissioners. 
 
 Stubbs 1 Select Charters, from the earliest date to 
 Edward I. Oxford, 1888. Many of these are, however, 
 taken from The Ancient Laws and Institutes. 
 
 The above may be said to be the evidences or wit- 
 nesses of the period. Of the writers, I quote Sir Francis 
 Palgrave's History of the Anglo-Saxons. London, 1837. 
 
 Lappenberg's History of the Anglo-Saxon Kings. 
 London, 1845. (2 vols.). Lappenberg's History of the 
 Anglo-Norman Kings. London, 1857. 
 
 Reeves' History of the English Law, from the time of 
 the Romans to the death of Elizabeth. London, 18GD. 
 
Addenda 239 
 
 (3 vols.) With notes by Finlason. A book of much re- 
 search, but over-loaded with the notes of the learned 
 editor, who holds strong views as to the place which 
 the Roman Civil Law held in our antient jurisprudence. 
 
 Stubbs' Constitutional History of England. Oxford, 
 1883. (3 vols.) Freeman'' s Norman Conquest. Vol. i. 
 Oxford, 1867. 
 
 Sir James Stephens'* History of the Criminal Law. 
 London, 1883. (3 vols.) 
 
 Pollock and Maitland's History of the English Law 
 before the time of Edward I. Cambridge, 1895. (2 
 vols.). 
 
 Essays in Anglo-Saxon Law. Boston, U.S. 1876. 
 These essays, by distinguished American writers, are a 
 most remarkable contribution to the history of this period. 
 
 Taking the next period, from the Norman Conquest to 
 the accession of Edward I., we have at the early part but 
 little information beyond the chroniclers and the judicial 
 rolls, which began about the time of Henry II. Added to 
 these is the work of Glanvil on the English Laics, a 
 copy of which, translated and edited by Beames, was 
 published in London, 1812. 
 
 Placita Anglo-Normanica : Law cases from William 
 I. to Richard I., by M. M. Bigelow, London, 1879, and 
 History of Procedure in England from the Norman 
 Conquest, by the same author. London, 1880. The 
 several publications of the Selden Society also bear upon 
 this period. 
 
 Dialogus de Scaccario, first published by Madox in 
 1708, and to be found in Stubbs' Charters, pp.' 168-248. 
 
240 Addenda 
 
 A work by Richard, Bishop of London, High Treasurer 
 in the reign of Henry II., and written in the Red Book 
 of the Exchequer. Over this period perhaps the most 
 valuable works are 'Madox's History and Antiquities of 
 the Exchequer of the Kings of England, from the 
 Norman Conquest to the end of the reign of Edward 
 II. London, 1708. (2 vols. 4to.) This gentleman, a 
 most laborious and exact writer and antiquary, was a 
 barrister of the Middle Temple, and made this subject 
 a life-long study, gaining his information from original 
 sources, and referring, in profuse and minute detail, to 
 the original writs, rolls and charters from which his 
 knowledge was obtained. 
 
 The History of the Life of King Henry II., and of the 
 age in which he lived, with a History of the Revolution 
 of England from the death of Edward the Confessor 
 to the birth of Henry II., by George, Lord Lyttleton, 
 London, 1767 (3 vols. 4to), is a book of almost as much 
 research and authority as that of Mr. Madox. 
 
 Freeman's Norman Conquest (6 vols.) with the Reign 
 of William Rufus. 1882. (2 vols.). 
 
 Pollock and Maitland's History ; Hubert HalVs An- 
 tiquities of the Exchequer, London, 1891. Court Life 
 under the Plantagenets, London, 1890, contains many 
 interesting extracts in the Appendix. 
 
 The public records also begin during this period, but 
 a life-time would not suffice for a proper study of the 
 wealth of historical and judicial lore to be found in 
 those pages. The introductions to the various series, 
 however, will repay the perusal of any student. 
 
Addenda 241 
 
 For the next period, to the eve of the Wars of the 
 Roses, materials are abundant. Bracton, published by the 
 Record Commissioners, edited by Sir Travers Twiss, Q.C., 
 1883 (3 vols.). The Mirror of Justices, written origin- 
 ally in the old French, long before the Conquest, and 
 many things added by Andrew Home, translated into 
 English, and published in London, 1768. 
 
 Fleta, seu Commentarius Juris Anglicani " sic 
 nuncupatus, sub Eduardo rege primo seu circa, annos 
 abhinc cccxl. ab anonymo conscriptus, atque e codice veteri 
 autore ipso aliquantulum recentiori nunc priinum typis 
 editus," by John Selden, London, 1647. 
 
 Sir John Fortescue on the Laws of England, written 
 in the reign of Henry VI. first published in London in 
 1537 : a book which gives the earliest detailed account 
 of the mode and time of the sittings of the judges in 
 their various courts. 
 
 John de Britton, edited by Kelham in 1762. 
 
 The Paston Letters, London, 1872 (3 vols.), extending 
 from 1422 to 1509, edited by James Gairdner, contain 
 numerous references to the litigation in the Paston family, 
 and throw light upon the social life of this period. 
 
 From the accession of Henry VII. materials are still 
 more abundant. We have Bacon's Life of Henry VII., 
 Cavendish 's Life of Wolsey, and the greatest of all works 
 on the history, the jurisdiction and the procedure of our 
 courts, the Institutes of Sir Edward Coke. The fourth 
 part, concerning the Jurisdiction of Courts, is that to 
 which reference is chiefly made. It was first published 
 in 1644, and was written by the Lord Chief Justice, after 
 his retirement from public affairs, at Stoke Pogis. 
 
 R 
 
242 Addenda 
 
 Origines Juriditiales, or Historical Memorials of the 
 English Laws, Courts of Justice, Form of Tryal, etc., 
 London, 1666, by Sir William Dugdale, who held various 
 offices, and was before his death Garter King-at-Arms, 
 is a book of great authority on all matters connected 
 with the Courts, the Judges, and other officers of Justice. 
 It contains what he calls Chronica Series or a complete 
 list of judges, so far as can be ascertained, from the Con- 
 quest to the reign of Charles II. In the reign of Elizabeth, 
 R. Crompton, of the Middle Temple, wrote his work on 
 The Authority and Jurisdiction of the Queen's Courts. It 
 was published in 1594, and went through many editions. 
 
 Among other books of this period, The Charters of the 
 Cinque Ports, by Samuel Jeake, Puritan town clerk of 
 Rye, is a valuable addition to our historical knowledge, as 
 giving in minute detail, after the manner of Madox in 
 his History of the Exchequer, an account of the antient 
 customs, jurisdiction and procedure of these old Admir- 
 alty Courts, from the time of the Confessor to that of 
 King Charles II. The book, which has been accepted as 
 an authority in the Courts and in Parliament, was for 
 long consulted in MS., having been written in 1678 ; but in 
 1728 it was published at the expense of Chief Baron 
 Gilbert, with the sanction of his brother judges. 
 
 During this period also, John Selden, Sir Henry 
 Spelman, Prynne, Sir Matthew Hale, Whitelocke, in his 
 Memorials of Public Affairs, published in 1682, and 
 numerous other lawyers and antiquaries contributed to 
 the legal literature of the age. And the full reports of 
 cases tried in the Courts add to our knowledge of their 
 constitution and procedure. 
 
Addenda 243 
 
 The general literature connected with this subject, in 
 addition to that already referred to, may be fairly said to 
 be comprised in the following : The State Trials (34 vols.) 
 which, extending from 1163 to 1820, give a chronological 
 history of the most important trials in our various 
 Courts. The earliest accounts given in these volumes are 
 hardly reports of the trials themselves, but are reprints of 
 more or less contemporaneous accounts, in pamphlets and 
 broadsheets, of what was generally believed to have been 
 the course of the trial there discussed. In the progress of 
 time, however, more accurate notes of the trials were 
 taken, and from about the time of James I. the reports 
 are probably fairly accurate. The Lives of the Norths, 
 London, 1826 (3 vols.), including that of Lord Keeper 
 Guildford ; The Antiquities of the Inns of Court, by 
 William Herbert. London, 1804; the various English 
 histories of the older type, together with Macaulay's 
 History, Hollands Constitutional History and his History 
 of the Middle Ages, and Green's History of the English 
 People, London, 1883 (4 vols.). 
 
 Fronde's History from the fall of Wolsey to the death of 
 Elizabeth, London (12 vols.), and James Raicson Gardner's 
 History from the Accession of James to the Protectorate, 
 London, 1863-1894 (14 vols.). Both Mr. Froude and Mr. 
 Gardner have dug into the bowels of the time for illustra- 
 tions of their work, and enter, as all such writers must, 
 into the action of the Courts and the Judges, under whom 
 wrongs were permitted and rights were secured. Lord 
 Campbell's Lives of the Chancellors, London, 1846 (7 vols.) 
 and his Lives of the Chief Justices, London, 1849 (3 vols.). 
 
244 Addenda 
 
 In these very amusing and instructive volumes Lord 
 Campbell, who held successively the offices of Lord Chief 
 Justice and Lord Chancellor, discusses most of the doubt- 
 ful questions that have been raised as to the growth and 
 authority of the Courts, and although his works have been 
 subjected to criticisms, and errors have been shown in 
 matters of minor consideration, yet they have survived 
 the carpings of the day, and are accepted as substantially 
 accurate in their historical details. But pre-eminent 
 above all others in this particular department of litera- 
 ture, is to be found the late Mr. Edward Foss, who made 
 the Lives of the Judges since the Norman Conquest the 
 study of his life, and after a preparation of many years, 
 and an exhaustive search through old records and county 
 histories, produced his Lives of the Judges, in 9 volumes. 
 The first volume was published in 1848, the last in 1864. 
 It is a work of great erudition and of ceaseless labour. 
 His sketches of the various reigns, his interpolations 
 of antiquarian lore and of quaint anecdotes, render his 
 book, though unattractive in title, yet thoroughly read- 
 able, not alone by students of the law and its professors, 
 but by all who take an interest in the progress of our 
 judicial life. 
 
 I also strongly recommend Le Systeme Judiciairc de 
 la Grande Bretagne, by Le Comte de Franqueville, a 
 member of the Institute, (2 vols.) Paris, 1893. 
 
 I have included in this sketch a chapter on the Courts 
 of the Forest. It is a subject of which the legal litera- 
 ture is not extensive. John Manwood, a member of 
 Lincoln's Inn, published in 1578 A Treatise on the Forest 
 
Addenda 245 
 
 Laws, which is the standard work on that department of 
 the law. It was, even at that time, very obscure, the 
 Crown not being too anxious to assert rights which might 
 give rise to contests, and the officers of the Forests, rest- 
 ing their position and their claims upon custom rather 
 than upon statute. Man wood describes the Forest Law as 
 being in his time gone "clean out of knowledge," as not 
 being contained in any existing treatise, but lying scat- 
 tered here and there in the year-books, or in antient 
 records stowed away and not accessible to the public. 
 His treatise however was admirably conceived and nearly 
 complete, and rapidly went through several editions. 
 Crompton, in his work on the jurisdiction and authority 
 of the Courts, devotes 120 pages of black letter to the 
 consideration of the forests, and sets out various writs 
 which were issued to enforce the process of these Courts. 
 These Elizabethan writers were followed by Sir Edward 
 Coke, who, in his 4/i Institute, goes at length into the 
 history and the jurisdiction of the Chief Justice and the 
 subordinate officers of the Forests, and a little book on 
 the Game Laws and Statutes, London, 1707, brings the 
 subject down to the time of Queen Anne. A Collection 
 of Picas of the Forest is, I understand, in course of 
 preparation, and will, I have little doubt, throw very 
 considerable light upon the law and the procedure of 
 these Courts. 
 
 Historical Enquiries concerning Forests, etc., by P. 
 Lewis, London, 1811, and Pearson's Historical Maps, 
 London, 1869, review the subject of the Forests from the 
 standpoint of the nineteenth century, while the disputed 
 
246 Addenda 
 
 Forest Law of Canute, together with those of the Con- 
 fessor and Henry I. are to be found in the Ancient Lairs 
 and Institutes. The Cart a de Forest a of Henry III., 
 which is the Great Charter of the Forest population, is 
 printed by Stubbs among his select Charters, along witli 
 other documents bearing upon this subject. 
 
INDEX 
 
 Adam de Osgodby : First 
 Keeper of the Eolls, 108. 
 
 Admiralty, v. Court of Admir- 
 alty. 
 
 Advocacy : xiv.-xv. ; Duties of 
 Advocates, 93-5. 
 
 Af/istators (agisters) : 149. 
 
 Alan de Nevil: Chief Justice 
 of the Forest, 156. 
 
 Alard, Gervase: Admiral of 
 England, 97. 
 
 Alderman : 6, 8, 9, 13, 15, 44. 
 
 Alfred, King : 1, 2. 
 
 Alhjelds : 147. 
 
 Anglo-Saxon Procedure : x.-xi., 
 11-44 ; compared with Ro- 
 man, xii.-xiii., 45-6. 
 
 Appeal, Court of, v. Court of 
 Appeal. 
 
 Arlores cei.tes (Forest shrubs) : 
 143. 
 
 Archer. Sir John : 198. 
 
 Assarts : 152. 
 
 Assisa de Foresta (Henry II.) : 
 155-6,160. 
 
 Assize, The Great : 62. 
 
 Athelstane : his search for 
 honest jurors, 10 (note). 
 
 Atkins, Sir Edward: 196, 198, 
 201. 
 
 Aula Reyia : v. Curia Regis. 
 
 Averton, the Soke of: fined, 
 24. 
 
 Bacon, Francis, Lord : the first 
 Q.C., 188; his robes, -jul. 
 
 Bacon, Sir Nicholas : 187. 
 Bailiffs of Cinque Ports: 97. 
 Bankruptcy, Court of, v. Court 
 
 of Bankruptcy. 
 Baron : original significance of 
 
 the term, 9. 
 
 Baron, v. Lord of the Manor. 
 Barons of the Cinque Ports : 9. 
 of the Curia Regis: their 
 
 robes, 118. 
 
 of the Exchequer : 9, 81-2, 
 189-91 : their robes, 119, 
 123-4. 
 Bassett, Philip : Chief Justiciar, 
 
 71-2. 
 
 Beaumont, M. de : 163. 
 Becket, Thomas a : Chancellor, 
 
 75-6, 231. 
 
 Bendlowes, Sergeant : 186. 
 Billinc:, Sir Thomas: Chief 
 
 Justice, 86, 179. 
 Black Book of the Admiralty : 
 
 99-100. 
 
 Borough-English : 42. 
 Bracton, Henry : on the Eng- 
 lish Common Law, 3. 
 Bradshaw, Serjeant : 196. 
 Bribery, opportunities of, in 
 
 Anglo-Saxon Period : 42. 
 Bridgman, Sir Orlando : 216. 
 Kuckstall'. 147. 
 Burh-geat-setl : 17. 
 Burleigh, Lord : in the Court 
 
 of Wards: 184. 
 Burstall, William: Keeper of 
 
 the Rolls, 109. 
 
 247 
 
248 
 
 Index 
 
 Caesar : on the Druids, 2. 
 
 Camera SteUata. v. Star Cham- 
 ber, 
 
 Canute: his Laws (Dooms'), 2, 
 l 128-31; trial in shire- 
 gemote in his reign, 16. 
 
 Carta de Foresta (Henry III.) : 
 159-60. 
 
 Cecil, William : 187. 
 
 Chancellor, Lord: 28-39, 47, 
 73-6, 106-8, 111-6, 172, 224 ; 
 his Jurisdiction in Piracy 
 and Maritime Cases, 97 ; his 
 Relation to Keeper of Great 
 Seal, 200 ; his Robes, 117-8, 
 122 ; his position compared 
 with that of the Lord Chief 
 Justice, 228-32. 
 
 Chancellor of the Exchequer : 
 53, 55, 74-5. 
 
 Chancery, Court of, v. Court of 
 Chancery, 
 
 Judges: 227-8. 
 Masters v. Masters in 
 Chancery. 
 
 Charles I. : Courts under, 194- 
 6; his Trial, 196; his Eaicls 
 on Forests and Freeholders, 
 164-5. 
 
 Charles II.: His Game Laws, 
 165 ; Judges under, 213-7 ; 
 Visit (alleged) to Westmin- 
 ter Hall in Disguise. 208. 
 
 " Chase " : its nature and legal 
 definition, 140-41. 
 
 Chaucer, Geoffrey : 126. 
 
 Chief Justice of the Common 
 Pleas : 70. 
 
 Chief Justice of the Forest : 148, 
 .152-4 ; under Charles I., 164- 
 5 ; last instance of, 165, 166. 
 of the King's Bench : 80 ; 
 his position compared 
 with that of the Chan- 
 cellor, 228-32. 
 Justiciar : 45, 73, 78, 80 ; 
 his robes, 117-8. 
 
 Chimagium : 147. 
 
 Cinque Ports : 97 ; Charters of, 
 102-3, 131. 
 
 Circuits: First institution of, 
 
 60. 
 Clericus mercati hospitii regis : 
 
 104. 
 
 Cockayne, Sir John : 179. 
 Coke, Sir Edward: 192-3; his 
 denouncement of Torture, 
 88. 
 Coleridge, Lord : his collar of 
 
 SS, 181. 
 
 Collar of SS, : 175-81> 204. 
 Commissioner of Woods and 
 
 Forests : 166. 
 Common Bench : 81-4. 
 Law : 2 sqq., 219. 
 Pleas : v. Court of Common 
 
 Pleas. 
 
 Commonwealth, The: Courts 
 and Judges under, 196-210 ; 
 its effect on law and pro- 
 cedure, 211-13. 
 Compurgators : 9, 20 ; origin of 
 
 25. 
 Concilium, Regis in CanceHaria : 
 
 111. 
 
 Constitutiones de Foresta (Can- 
 ute) : 129. 
 
 Constitutions of Clarendon : 77. 
 Costume : v. Robes. 
 Council of Ten (Venice) : their 
 
 robes, 118. 
 
 Counsellors at Law : 95. 
 "Counties": 6. 
 
 County Court : v. Court, County. 
 Court of Admiralty: 96-101, 
 222, 223, 228 ; Seals of, 101. 
 of Appeal: 224, 225, 230, 
 
 231, 234. 
 
 of Bankruptcy : 223, 228. 
 Burh-geat-Setl: 17. 
 of Chancery: 223, 230; 
 
 Judges of, 227-8. 
 of Clerk of the Market: 
 
 104. 
 
 of Common Bench : 70. 
 of Common Pleas: 69-70, 
 
 223, 225. 
 
 County : 10, 12-5, 1 7 ; 
 
 appeal from to King, 42. 
 
 for Divorce and Matri- 
 
Index 
 
 249 
 
 monial Causes, 219, 221- 
 
 2, 223. 
 Ecclesiastical : 219-20 ; 
 
 Royal Commission on. 
 
 219. 
 
 of Exchequer : 50-76, 223. 
 of Fairs : 105-6. 
 of the Forest : 127-66, 152- 
 
 4. 
 
 of High Commission : 185. 
 Hundred : 8-11, 17. 
 of Judicature, Supreme : 
 
 223-8 232. 
 
 of Justice, High : 224, 230. 
 Leete: v. Tri thing. 
 Manor: 6-8. 
 of Master of Rolls : 225. 
 for Mercantile Cases : 228. 
 of Probate : 219-21, 223. 
 of Probate and Divorce : 
 
 228. 
 
 of Pypowders : 105-0. 
 of Queen's Bench : 223, 231. 
 for Railway and Canal 
 
 Cases, 228. 
 of Requests : 185. 
 of Shepway : 102. 
 of Star Chamber : 169. 
 of Swanimote : 159; v. aho 
 
 Swanimote. 
 of Trail-Castan : 41 ; v. aho 
 
 Trailbanton. 
 of Verderers: v. Court of 
 
 Swanimote. 
 of Wapentake: 8-10. 
 of Wards and Liveries : 
 
 184-5. 
 
 of Witenagemot : 18. 
 Crew, Sir Randolph : 193. 
 Cromwell, Oliver: 199; v. aho 
 
 Commonwealth. 
 Curia Pedis Pulverizati: 105-6. 
 Regis : xv., 45-76, 72-5, 77- 
 
 8. 
 Regis in Camera : 169. 
 
 Danish Influence on English 
 
 Common Law : 2. 
 Divorce Court : v. Court of 
 
 Divorce, Court of Probate 
 and Divorce. 
 
 " Dogs, Survey of ": 151-2, 159. 
 
 Domesday Book, 34. 
 
 Domus Conuersorum : 109 ; al- 
 located to the Keeper of the 
 Rolls, 109. 
 
 Dooms of Canute : v. Canute. 
 
 Dudley, Earl of Leicester: 76, 
 187. 
 
 Dyer, Sir James: Chief Justice, 
 65-6, 188. 
 
 Ecclesiastical Courts : v. Court, 
 
 Ecclesiastical. 
 
 Edgar, King : his Forest Laws, 
 161 ; his recognition of the 
 Hundred Court, 8; Sove- 
 reignty of the Seas, 101. 
 Edward the Confessor: his 
 Laws, 2, 10; Forest Laws, 
 131-2 ; the Confessor's Hall, 
 Westminster: 49; his Seal, 
 32. 
 
 the Elder : his Laws. 12. 
 I. : his Ordinatio Jfor&tCB, 
 
 160. 
 
 III. : his Forest Laws, 161-2. 
 Egbert : his Liber Penitent ialis, 
 
 161. 
 
 Egelric, Bishop of Selsey : 14 ; 
 consulted on the Laws of Eng- 
 land, 15. 
 Ellesmere, Lord: on orgin of 
 
 Common Law, 2. 
 Emma, Motherof the Confessor : 
 
 her Trial, 22. 
 Equity: its Fusion with Law, 
 
 225-7. 
 
 F.xi-apes (in Forest Law) : 14i>-7. 
 Exchequer : Origin of the Term, 
 55-6. 
 
 Barons of the, v. Barons. 
 Chamber : 174-5, 233-4. 
 Court, v. Court of Exche- 
 quer. 
 
 Marshall of : 55. 
 Exchequer, Black Book of: 67. 
 
 Red Book of: 67. 
 Exton Dr. : 99, 198. 
 
250 
 
 Index 
 
 Fairs, Courts of, v. Court of 
 
 Fairs. 10.") 6. 
 
 Felton, Murderer of Bucking- 
 ham : 19 J -5. 
 Fines imposed under Forest 
 
 Laws : 156-8. 
 
 Fire of London (1666) : 214 ; 
 
 Statutes consequent on ,214-5. 
 
 Fitz- Bernard, Thomas : Chief 
 
 Justice of the Forests, 156. 
 Fleetwood, William: Recorder 
 
 of London, 121. 
 Footeyeld : 147. 
 
 " Forest " : its Nature and Legal 
 Definition, 138-40. 
 Beasts, 142; Birds, 143; 
 
 Soil, etc., 143. 
 Charters : signed with 
 
 Crosses of Gold, 33. 
 Court and Laws, v. Court 
 
 of the Forest. 
 
 Forests: English, 133, 137-8, 140. 
 Forestarii: 149. 
 Fortescue, Sir John : Chief 
 
 Justice, 92, 179. 
 Foster, Counsellor-at-Law : 186. 
 Frank-pledge: 15. 
 
 Game Laws, v. Court of the 
 Forest. 
 
 Gardiner, Lord Chancellor : 115. 
 
 Gascoigne, Sir William : Chief 
 Justice, 86, 179. 
 
 Gates, Baron: 19 <. 
 
 Gavelkind : 42. 
 
 Geoffrey de Coutance : 15. 
 
 Gibbet Eight (of Halifax For- 
 est): 148. 
 
 Glvn, Chief Justice : his Robes 
 and Collar of SS, 204, 207. 
 
 Godolphin, Dr. : 198-9. 
 
 Grimbald's Seal : 118. 
 
 Hale, Sir Matthew: Chief Jus- 
 tice, 197, 198, 201, 207, 216-7. 
 
 Hamo, Sheriff of Kent : presides 
 at trial between La n franc 
 and Odo, 14. 
 
 Hanapers : 68. 
 
 Hautboys (Forest Trees) : 143. 
 Hawford, Sir William : 17!'. 
 Head-dresses of Judges, etc. : 
 
 204-6. 
 
 Heath, Sir Robert : 193-191. 
 Henley, Sir Robert : 200-1. 
 1 Ii'iiry I. : his Charter of Liber- 
 ties and Forest Law, 154-5 ; 
 his Menageries, 155. 
 
 II. : his Forest Law, 155-6. 
 III. : his Carta de Foresta, 
 
 159-60. 
 IV. : his Forest Law, 162 ; 
 
 his Collar of SS, 177. 
 V.: his Collar of SS. 177. 
 VI. : his Collar of SS, 177. 
 VII. : his Game Laws, 
 163-4 ; his Collar of SS, 
 177. 
 VIII. : Great Abridgment oj 
 
 the Law in reign of, 17. 
 de Bracton : a Chief Justi- 
 
 ciar, 71, 92. 
 
 Duke of Normandy (after- 
 ward Henry II.) : as Chief 
 Justiciar, 71. 
 HerbcK (of Forests) : 143. 
 High Court of Justice, v. Court 
 
 of Justice. 
 
 Hill, Baron : 207, 208. 
 Holt, Chief-JusticR : 218. 
 Home, Andrew : 92. 
 Horngeld : 147. 
 Hubert de Burgh: as Chief 
 
 Justiciar, 71. 
 Hubert, Walter, Archbishop : 
 
 67, 68, 69, 92. 
 Hugh le Despencer : as Chief 
 
 Justiciar, 71, 72. 
 " Hundred " : 6. 
 
 Court, v. Court, Hundred. 
 Hussey, Sir Edward : 86. 
 
 Sir William: Chief Justice, 
 174. 
 
 Inns of Court : 91. 
 
 Itinerant Justices : 82, 98, 99 ; 
 
 First Permanent Institution 
 
 of, 60. 
 
In dex 
 
 251 
 
 James II. : Judges under, 217. 
 
 Jeffreys: Chief Justice, 20G. 
 
 Jenkins, Sir Looline : 99. 
 
 Jews : Expulsion of, from Eng- 
 land : 109. 
 
 John de Britton : 92. 
 
 John of Gaunt : his Collar of 
 SS, 176. 
 
 .Judges: their Position, under 
 Commonwealth, towards Par- 
 liament, 206-8 ; their Robes, 
 r. Robes. 
 
 Judicature Acts : Effect of, 232. 
 Supreme Court of, v. Court 
 of Judicature. 
 
 Justiciar, Chief : 47, 48, 51, 53, 
 71-72 ; Chancellor sits with 
 him, 73 ; his Prerogative en- 
 croached on by Chancellor: 
 78. 
 
 Jury : Trial by, 60-62. 
 
 Keeper of the Great Seal : 200 ; 
 his Robes, 203, 204. 
 
 of the Rolls, v. Master of 
 
 the Rolls. 
 Kent : Division of the County 
 
 into " Lathes," 11. 
 King's Bench : 81-84. 
 
 Court, v. Curia Regis. 
 Exchequer: 50. 
 
 Lanfranc, Archbishop, versus 
 
 Odo, 14-15. 
 
 Lathe Court, v. Trithing. 
 Leete Court, v. Trithing. 
 Leicester, Earl of : 76, 187. 
 Libri Pccnifetit iales (of Theodore 
 
 and of Egbert) : 161. 
 Littleton, Sir Edward : 195. 
 
 Sir Thomas: 92. 
 London: Fire of [1666], 214; 
 
 Rebuilding of, 214-217. 
 Lord of the Manor : 6-8. 
 Lowndes, Selby : 120. 
 Lvstt'r, Sir Richard : his Collar 
 
 "of SS : 180. 
 
 Manor Court, r. Court Manor. 
 Lord of the : (i 8, 
 
 Mansfield, Lord : 219. 
 
 Markham, Sir John : 86. 
 
 Marshall of the Exchequer : ;V>. 
 
 Master of the Rolls: 108-10, 
 225; made a permanent 
 Judge, 182; his Robes, 1_'J. 
 Court of, v. Court of Mas- 
 ter of Rolls. 
 
 Masters in Chancery: 110-11; 
 their Robes, 122. 
 
 Mayerne, Sir Theodore : 199. 
 
 Maynard, Serjeant : 202-3. 
 
 Mediocrit: 129. 
 
 Mildmay, Walter : 188. 
 
 Mirror of Justices, The : 92. 
 
 More, Sir Thomas: as Chan- 
 cellor, 183 : his Collar of SS. 
 179. 
 
 Murdrum (fine): 26-7. 
 
 Neville, Richard, Earl of Salis- 
 bury : 122 (note). 
 
 Newdigate, Justice : 202, 208. 
 
 Newton, Sir Richard : his Col- 
 lar of SS, 177-8, 17!). 
 
 Norman Law: compared with 
 Anglo-Saxon Law, 45-6. 
 
 Norwich : Leete Jurisdiction of, 
 11. 
 
 Gates, Titus : 206. 
 
 Oaths, Anglo-Saxon : in civil 
 
 cases, 8-9 ; in criminal cases. 
 
 19-20. 
 Odo, Bishop of Bayeux : 48, 49 : 
 
 as Chief Justiciar, 71. 
 Offa, King of the Mercians : 33. 
 Oleron, Sea-Laws of : 96. 
 Ordeal, Trial by : of Fire or 
 
 Water, xvi., 20-5, 43; of 
 
 Battle, 62-7; of Red-hot 
 
 Ploughshares, 22; of Offa 
 
 Execreta: 23. 
 Orton Quay : Original Seat of 
 
 Admiralty Court, 100. 
 Osgodby, Adam de : 108. 
 Oslac, Duke, of the South 
 
 Saxon: HH. ' 
 Oxford: his Arrest by 8viv- 
 
2 5 2 
 
 Index 
 
 tary of State and Trial before 
 Privy Council, 174. 
 
 Pannum Curcum (or Curium) : 
 
 119-20. 
 Paradise, Purgatory, and Hell 
 
 [taverns] : 186. 
 " Park " : its Nature and Legal 
 
 Definition, 141. 
 Parker, Chief Justice : on Trial 
 
 by Water, 25. 
 Paulet, William, Marquis of 
 
 Winchester: 187-8. 
 Peace of the Seas: 98. 
 Pepj's, Samuel : his Description 
 
 of Westminster Hall, 186. 
 Philip, Son of Wiard : 24. 
 Plouylunari's Complaint, The: 
 
 119. 
 Plumer, Sir Thomas : First- 
 
 Vice-Chancellor of England, 
 
 108. 
 
 Pollock, Chief Baron: 122. 
 Preston, Town of : Fined, 24. 
 Prideaux, Edward : Attorney- 
 General of Commonwealth, 
 
 199. 
 Primarii of the Forests : 129, 
 
 130. 
 
 Privy Council : 173-4. 
 Probate, Courts of, v. Court of 
 
 Probate ; Court of Probate 
 
 and Divorce. 
 Procedure, Case: Anglo-Saxon, 
 
 18, 19. 
 
 Criminal : Anglo-Saxon, 
 
 19, 20. 
 " Proving the Englishery " : 
 
 27. 
 
 Prynne: 99. 
 Purlieu (around Forests) : 143-4. 
 
 Man: 144. 
 Purpresturey : 152. 
 Pypowders, Court of, v. Court 
 
 of Pypowders. 
 
 Queen's Bench, r. Court of 
 Queen's Bench. 
 Counsel: 188. 
 
 Quittances (Forest) : 146. 
 
 Railway and Canal Cases 
 
 Court, v. Court of Bail- 
 ways, etc. 
 Ranulph de Glanvil: 60,91-2, 
 
 107-8 ; as Chief Justiciar, 
 
 71. 
 
 Recorders: 94, 
 Referendariux : 30. 
 Begarders : 149-50, 151-2. 
 Requests, Court of, v. Court of 
 
 Requests. 
 Richard I. : Loss of his Seal : 
 
 35-6. 
 
 II.: his Forest Law, 162 ; 
 
 his Collar of SS : 177. 
 de Anesti : 57-9. 
 de Luci: 70. 
 Richardson, Chief Justice : 
 
 194 ; his Denouncement of 
 
 Torture, 88. 
 Rigby, Baron : 197. 
 Robert de Brus. First Chief 
 
 Justice of the King's Bench : 
 
 80. 
 Robes, Judicial : xv., 117-26, 
 
 204-6, 234. 
 
 Roger Malus Catullus : 35. 
 Rolle, Serjeant : 195 ; Chief 
 
 Justice of Upper Bench, 
 
 198. 
 Roman Influence on English 
 
 Common Law : 2. 
 
 St. John, Sir Oliver: 195, 
 
 207. 
 
 Shire-gemote : 79. 
 Scoto: 147-8. 
 Seal, The Great, of England: 
 
 32-8. 
 Seals of Admiralty Court: 
 
 101. 
 
 of Forest Courts, 148. 
 Serjeants-at-Law : 89-96; their 
 
 Robes, 122-3, 124, 204. 
 Servientes Regis : 24. 
 
 Domini Reyis ad Leyein: 
 93. 
 
Index 
 
 253 
 
 Shepway, Court of, v. Court 
 
 of Shepway. 
 Sheriff: 6, 8, 12, 13, 15, 53, 79- 
 
 80. 
 
 Shire-reeve, v. Sheriff. 
 Shireeve's Turn, The: 15-17, 
 
 17-18. 
 
 "Shires": 6. 
 Ship Money Judges : 195. 
 Star Chamber : 167-74. 
 Statute of Labourers : 84. 
 Street, Sir Thomas : his robes, 
 
 etc., 205. 
 Supreme Court of Judicature, 
 
 v. Court of Judicature. 
 S\vanimote: 149, 150-1; Court 
 
 of, 159. 
 S within, Bishop of Winchester : 
 
 38-39. 
 
 Tallies : 54-55. 
 
 Teutonic Influence on English 
 
 Common Law : 2. 
 Thane: 6. 
 Theodore : his Liber Pceniten- 
 
 tialis, 161. 
 
 Thomas de Muleton : FirstChief 
 Justice of the Common 
 Bench, 70. 
 Thorpe, Baron : 202. 
 Throckmortoii. Sir Nicholas: 
 
 187. 
 
 Tithing Men : 125. 
 " Tithings " : 6. 
 
 Torture : Practice of, no part 
 
 of our Judicial System, 87-9. 
 
 Tourne de Vicomte: 18; v. also 
 
 Shireeve's Turn. 
 Trailbaston : 103, 104 ; Court of, 
 
 41. 
 Trithing, Court Leete and 
 
 Lathe Court : 11-12, 13. 
 Tristris: 147. 
 
 Tunstall, Cuthbert: First Inde- 
 pendent Judge at the Rolls, 
 109-10. 
 
 Twisden, Serjeant : 202, 2^3. 
 Twiss, Sir Travers : his Edition 
 of the Black Book of the 
 Admiralty, 99. 
 
 Tyrrell. Sir Thomas : 198. 
 Sir Walter: 133. 
 
 'Upper Bench": 203. 
 
 Verderers: 148; Court of, r. 
 
 Court of Swanimote. 
 Vert (Forest) : 143. 
 Vice-Chancellor: 35,107-8. 
 Viridarii: 148. 
 
 Walter, Chief Baron : 193. 
 Hubert: 67-68, 69,02. 
 de Constantiis : Agens Vice 
 
 Cancellarii, 107. 
 Waltham, Abbot of : Fined, 24. 
 Wapentake: 8-10. 
 Warden of Cinque Ports : 97. 
 Wards and Liveries, Court of, 
 
 v. Court of Wards, etc. 
 "Warren": its Nature and 
 
 Legal Definition, 141-2. 
 Weights and Measures : 104. 
 Wer, Wer-geld: 25-26. 
 Westminster Abbey : Charters 
 of [1065], 30-2. 
 
 Hall: 50, fc9, 187, 195, 208, 
 
 213, 219, 222, 233, 234. 
 Palace: 187. 
 Wilde, Serjeant : 195. 
 William the Conqueror: his 
 Forest Laws, 132-8. 
 
 and Mary : their Game 
 Laws, 165-6 ; Judges un- 
 der, 217-8. 
 de Carleton: First Chief 
 
 Baron, 81. 
 de Kilkenny : Chancellor, 
 
 36. 
 deLongchamp: Chancellor 
 
 and Viceroy, 35. 
 of Wykeham : Chancellor, 
 
 123. 
 Windham, Sir Hugh : 198, 208. 
 
 Wadham: 202. 
 Witches: Trial by Ordeal of 
 
 Water, 24-25. 
 Witenagemote: xv., 18, 46, 47. 
 
254 
 
 Index 
 
 Wolsey, Cardinal : 109. 17'J : as 
 
 Chancellor, 182-3. 
 Woodgeld: 147. 
 \roodmote: 150. 
 
 Woods and Forests, Com- 
 missioner of : 166. 
 
 Wright, Nathaniel: Portrait 
 Painter, 216. 
 
 Sir Robert : Chief Justice, 
 218. 
 
 Yoongmen : 129, 131. 
 
 Butler 4 Tanner, The Selwood Printiug Works. Frorne, and Londoj. 
 
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