THE LIBRARY - OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES GIFT OUTLINES OF LEGAL HISTOEY AECHER M. WHITE Of the Middle Temple and of the Midland Circuit BARRISTER-A T-LA W {Bar stow Law Scholar, Holder of the First Studentship, and First Lecture Prizeman of the Inns of Court ; First Equity Scholar, and First Common Law and Criminal Law Scholar of the Middle Temple, etc.) LONDON SWAN SONNENSCHEIN & CO., Lim. PATEENOSTER SQUARE, E.G. 1895 ABERDEEN UNIVERSITY PRESS. (by permission) TO SIR EDWARD CLARKE, Q.C., M.P. >fl pyf Ki '/a- PKEFACE. A COMPLETE history of the Enghsh Law has yet to be written. Such a work would fill more than one pon- derous volume, and would be beyond the reach of many who may find in the short sketch contained in these pages some help in getting an elementary knowledge of Legal History. Among the compulsory subjects for the Bar Final Examination Legal History is now included. From India and the Colonies comes a large and ever increas- ing number of students to the Inns of Court. For them it is especially difficult to become acquainted with the history of the Law which they come to study. With a clear knowledge upon this subject it would be easier for them to understand the lectures they attend and the books they read. In legal examinations at the Universities of Oxford and Cambridge and elsewhere a knowledge of Legal History is always of great value. There is not, however, any special book upon this subject. In attempting to supply the want which my ex- perience in preparing pupils for legal examinations has convinced me exists, I have followed a method of ex- position which I have always found most intelligible to my pupils. First, I briefly describe the outlines of the judicial system of the present day, so that the general know- ledge of the everyday legal life which is acquired partly PBEFACE. V by conversation and partly through newspapers and other desultory reading may become accurate and clear. The student will thus have acquired a settled and clear basis of knowledge from which to work and upon which he can build. He will then learn how the present state of things came to exist, the origin and evolution of the Courts. Next in order he will find the history of the lesser Courts dealt with, and obsolete Courts which once were of great importance described. The Saxon legal system is separately considered (Chap. IV.), as being the cradle of the English Law ; and the distinctions and changes between it and the Norman system will be evident after reading the follow- ing chapter (Chap. V.). A careful comparison of these two chapters after a previous acquaintance with the existing system and its evolution, gleaned from the preceding chapters, will enable the student to appreciate the respective influence of the Saxon period and the Norman period upon English Law. The last chapter is designed to contain a brief chronological summary of certain leading principles and matters in the law. Each topic is treated separ- ately, and traced from its origin through various periods and changes to the present day. It has been a general complaint to me by pupils that historical works deal with periods and therein of every legal topic that calls for notice in the period, with the result that to get a coherent account of any one topic reference must be made to many different chapters in a book and often to more than one book. The labour of collecting these scattered references and VI PREFACE. piecing them together into a connected account is too great lor the average student. My initial attempt to meet this difficulty has in- volved far greater labour than I anticipated ; and even now I am conscious that some of the topics may appear to be dealt with in a desultory manner. The dearth of accurate learning and precise statement upon many of these topics is remarkable. I have tried on the one hand to condense the in- formation supplied, and on the other not to be too terse, with the object of making it easier to understand and to remember. What is intended to be a sketch must not be taken as being exhaustive. The division of the last chapter into sections has merely been for convenience, and it has been impossible to treat the sections strictly and exclusively. It often happens that one topic might be considered under different sections, and that two or more topics are difficult of definite separation. The Appendices are chiefly the results of my labours when reading for my own examinations. The line between mere antiquarianism and legal history is very difficult to define with precision ; and I cannot hope that I have been more than only moderately successful in that respect. But the object of this work will have been obtained, if a perusal of it en- courages the student to seek further information as to the history of that indigenous system of Law which prescribes the legal rights and duties of half the civilised world, and which shares with the Boman Law a peculiar pre-eminence as a complete exposition of Law. My object is to interest the student in the dry PREFACE. Vll bones of past periods of legal evolution, to awaken and stimulate in him that intelligent curiosity which is the parent of all useful knowledge and of all intellectual progress. He will, I hope, be induced to refer from this book to the pages of Blackstone, a mine of historical learning, or to the excellent modern reproduction of Blackstone in Stephen's Comvientaries. For the history of the Common Law he must consult Keeves. For Equity and Early Law — Spence. And for Criminal Law the learned volumes of Stephen's History of the Criminal Laio, which every student should obtain and read, a work far more exciting and more interesting than any novel. Amongst other historical works to be con- sulted, I may mention Coke's Reports and his Institutes, the State Trials, particularly^ the Appendices to the volumes in the new series. Holmes' Essays on the Common Law, Digby's History of Beal Property, and the various Yorke Prize Essays, especially those by Scrutton and the one by Kerly. Two volumes of the great work of Pollock and Maitland on Legal History have appeared since this little book was written and when it had nearly passed through the press. They should prove a priceless store of accurate learning for the scholar, but will be perhaps too bulky for the ordinary student. I have endeavoured where necessary and practicable to add references to this work under the letters P. and M. ARCHER M. WHITE. 2 Essex. Court. Temple, May, 189.5. TABLE OF CONTENTS. CHAPTER I. The Principal Courts— page A Court, 1 Civil Courts, 3 Criminal Courts, 5 CHAPTER II. Their Histoky— The House of Lords, 8 The Privy Council, 12 The Court of Exchequer, 13 The Court of Common Pleas, 16 The Court of King's Bench, 18 The Court of Chancery, 20 The Court of Admiralty, 26 The Court of Divorce, 29 The Court of Probate, 30 The Court of Assize, 31 CHAPTER, III. Minor and Obsolete Courts — Ecclesiastical, 33 Coroners, 34 University, 35 Palatine, 36 Duchy of Lancaster, 37 Barmote, 38 Stannary, 38 City of London, 38 Commissioners of Sewers, 39 Star Chamber. 39 Forest, 41 High Court of Delegates, 42 High Commission, 42 Requests, 43 Chivalry, 44 Shepway, 45 Clerli of the Market, 45 Pie Poudre, 45 Policies of Assurance, 46 Marshalsea, 46 Palace, 46 King's Household, 47 Steward of the King's Household, 47 Welsh, 47 CONTENTS. IX CHAPTER IV. The Saxon Legal System— page Witangemote, 49 Shire Moot, 49 Hundred Moot, 50 Local Jurisdictions, 51 Frankpledge, 52 Ordeal, 53 Compurgation, 54 Oaths, 55 Secta, 55 Charters, 56 CHAPTER V. The Norman Legal System — Efl'ects of the Conquest, 58 Curia Regis, 59 County Court, 60 Sheriff's Toum, 61 Hundred Court, 61 Court Baron, 61 Court Leet, 62 Procedure, - - - 63 Writs, 64 Wager of Battle, 67 Grand Assize, 69 CHAPTER VI. Section I, Constitutional and General Matters, - - - 72 to 141 Aliens, 72 Allegiance, 74 Attainder, 75 Consuls, 75 Dispensing Power, 76 Domicil, 78 Extradition, 78 Fiction, 79 Franchise, 80 General Warrants, 81 Habeas Corpus, 82 Heresjv 86 Impeachmeiit, 87 Impressment, - - 89 Judges, 91 Jury, 94 Jurists, - - 98 Justices of the Peace, 99 Justiciar, 101 Kiug's Peace, 101 Language of the Law, 102 Liberty of the Press, 103 X CONTENTS. PAGE Martial Law, 110 Monopolies, Ill Miitiny Act, Ill Petition of Right, 113 Piracy, ----- 114 Poor Laws, 115 Praemunire, 118 Privateers, 119 Proclamations, 120 Purveyance, 121 Religious Liberty, 122 Reports, 126 Roman Law, 127 Sheriff, 129 Slavery, 131 Stipendiary Magistrates, 134 Terms, 135 Tithes, 135 Torture. 137 Treason', 137 Section IL Common Law and Equity, 142 to 194 Alieuation, 142 Assumpsit, 143 Bailment, - - 144 Bankruptcy, 146 Borough English, - - 147 Commons, - - - - 147 Consideration, 149 Conspiracy in Restraint of Trade, - 149 Corporations, 150 Costs, - - - 151 Debt, 152 Distress, 153 Divorce, - - 155 Ejectment, . . - 156 Employers' Liability, - 159 Entails, - - - 161 Forest Laws, 162 Game Laws, 163 Heriots, ----- 165 Inheritance, - - - 165 Interest, - 167 Leaseholds, 167 Livery of Seisin, 168 Manors, 169 Marriage, ----.-....- 170 Married Women, - 172 Merchant Law, 177 Mortgages, 179 Mortmain, - - - 180 Nisi Prius, 182 Pleadings, 183 Prescription, - - - 184 Primogeniture, 186 CONTENTS. XI PAfiE Tort, 187 Trover, - . . - 188 Uses, - - 189 Wardship, . - . - 190 Wills, 191 Section III. Criminal Law, - - 195 to 222 Appeal of Felonv, 195 Bail, . . .' 197 Benefit of Clergy, 197 Coinage, ------ 193 Confessions, - - - 199 Constables, 200 Deodaud, - - 201 False Imprisonment, -- 201 Felony, 203 Fines, 204 Forfeiture, 205 Gambling, 207 Homicide, - 207 Larceny, . . 209 Lunacy, 210 Mayhem, 213 Outlawry, 214 OwUng, 215 Peine fort et dure, 216 Police, 217 Prisons, 218 Rape, 219 Riot, 219 Va^a'ancy, 220 Witchcraft, - 221 APPENDICES. The Origin of Property in Laud, 225 The Gro^\1;h of Property in Land, 225 The Privileges of the Lords and of the Commons, 228 The Conflicts between the Lords and Commons, 227 Tlie Right of Parliament to Control Taxation, 228 Tlie Customs, 229 The Office of Secretary of State, 230 The GroNvth of Democracy, 230 The Growth of Law, 231 The Principal Saxon Courts, 233 Table of Principal Norman Courts, - - 234 Table of Principal Existintj Courts, 235 Tabic of Taxation, - ''- 236 LIST OF CASES. PAGE Abingdon, . . . . . . 106 Ackroyd v. Smithson, . . 26 Acton V. Blundell, . . . . 128 Ailesbury, . . . . . . 162 Alleyn, 134 Almon, 105 Anderson, . . . . • . 84 — V. Gorrie, . . . . 4, 94 Appleby r. Franklin, . . 188 Arnold, 210 Ascue, Anne, . . . . . . 137 Ashby V. White, . . 9, 81, 227 Ashford v. Thornton, . . 68, 196 Att.-Gen. v. Bradlaugh, . . 107 Audley, Lord, . . .. .. 11 B. Bacon, Sir F., 87 Baldry, 199 Banda and Kirwee Booty, . . 27 Bankers 113, 114 Barnardiston, . . . . . . 205 Barrow, . . . . . . 48 Bate, 72, 228, 229 Beal, 110 Beresford, Sir Simon, . . 10, 89 Berkeley, 89 Bigby V. Kennedy, . . . . 196 Blair, Sir Adam 11,89 Blundell v. Caterall, . . . . 98 Bolingbroke, . . . . . . 89 Bourgeoise, . . . . . . 73 Broadfoot, 90 Brownlow v. Michell, . .25, 88 Buckingham, 87, 92 Burgess v. Langley, . . . . 162 — V. Wheate, . . . . 26 Burnwater, Bushell, Butler V. Crouch, Byron, Lord, . . c. Calvin, . . Campbell v. Hall, Canadian Prisoners, . . Canterbury, Viscount, Cardigan, Lord, Carlisle, Carr, Carus Wilson, . . Castioni, Cavendish, Chancey, Sir William, Chavasse, Chesterfield r. Jansen, Chudleigh, Clarendon, Claxton V. Lylbourn, . , Cloete V. Keg., I Cobb V. G. W. R., . . Coggs V. Bernard, Commendams, Coppin, Courtney v. Glanville, Cowan V. Milbourne, . . ' Cree\'7, . . : " Creole," The, [ Cromwell, Lord, ' Crouch V. Credit Foncier, D. Dammaree, Danby, . . Darnel, David, Prince of Wales, PAGE 217 97 132 12 16, 72, 92 .. 121 .. 85 14, 114 12, 198 .. 107 .. 104 .. 85 ..79,85 .. 48 .. 120 .. 25 .. 189 ..88,92 68, 159 .. 94 .. 160 128, 143, 145 .. 92 .. 85 .. 25 .. 108 .. 106 .. 133 .. 75 179 . 140 . 88 . 83 .10,89 LIST OF CASES. Xlll De heretico comburendo, Delamere, Lord, De la Pole, Michael, — William, De libellis famosis, Derby, Earl of, Despencer, . . . . 74, Devonshire, Earl, Digby, Sir E.,.. Doe V. Acklam, Donaldson v. Beckett, Dred, Scott, . . 12 87 11 109 . 2, 23 75, 137 . 205 139 73 104 134 East India Co. v. Campbell, 79 Eaton, 107 Elibank v. Montolieu, . . 177 Eliot, Sir T., 48 Entick V. Carrington, 82, 100, 104, 230 Essex, Lord, . . . . . . 140 Eton College, 78 "Exchange," The, .. .. 138 Eyre, Governor, . . . . 110 Feargus O'Connor, Feather r. Reg., Felton, . . Fenvs^ick, Sir John, Fernandez, Ferrers, Lord, . . Pitz Harris, . . Fox, . . — V. Mackreth, Floyd, .. — V. Barker, Fraucklin, "Franconia," The, Frost, . . Gr. 109, . 110 . 114 92, 1.37 .11,75 .32, .36 12, 210 . 88 90, 200 . 26 10, 227 . 97 . 105 28 139, 140 " Gaetano The, Gaveston, Gee r. Pritchard, Gerbege, Sir John, Godden v. Hales, and " Maria," 179 137 232 1.37 77 Godfrey, Goodwin v. Robartes » ' • PACK 205 179 Graves, Lord, . . 12 Greenwood, . . • • . . 43 Griesley, 205 H. Hadfield, 210 211 Hallett, 232 Hampden, " Harmony," The, Harris, . . 205 ! '82 228 78 104 Harrison, 199 — V. Bush, 100 Hastings, Warren, Hathaway, Heath v. Ridley, Heaven v. Pender, 89 222 25 143 Hellyard, Herbert, Att.-G., 100 88 Heresy, Hilton V. Eckersley, Hopkins, Daisy, Home Tooke, . . 86 150 30 109 Howel, . . 100 Huggins V. Bambridg Hulme V. Tenant, e, 26 218 176 Hunne, . . 198 " Indian Chief," The, . . 78 Inglis V. the Trustees of the Sailors' Snug Harbour, 73, 74 Isaacson v. Durant, . . . .73, 74 Jefferies v. Boosey, . . . . 105 Jephson v. Riera, . . . . 2 Jenke, . . . . . . . . 84 K. Kemp V. Neville, . . . . 36 King V. Visct. Hertford, . . 145 Kingston, Duchess of, . . 12 Kinnymount, . . . . . . 107 Knight, 133 XiV LIST OF OASES. L. PAGE Lancaster, Earl of, . . . . 1 Latimer, Lord, .. ..11,87 Laud, 87 Lawrence, .. .. ... 79 Leach v. Money, . . . . 82 Lee, Sir J., , . . . . , 87 Leicester Forest, . . . . 163 Le Louis, . . . . . . 134 "Leon," The, 179 Libellis Famosis, . . . . 109 Lilburn, . . . . 41, 43, 97 Lincoln, Bishop of , . . . . 40 Lindo V. Rodney, . . . . 27 Lloyd V. Guibert, . . . . 179 London and Westminster Bank, 92 Longworth v. Yelverton, . . 55 Lovat, Lord, . . . . . . 89 Lowe and Kyme v. Paramour, 68 M. Macdonald, ^neas, . Madraso v. WiUes, Manwaring, . . " Maria," The, Marshal, The, . . Master v. Millar, Mawgridge, R. v. McNaghten, . . Melville, Lord, Messenger, ]\Iiddlesex, Earl, Midland Insurance Smith, . . Millar v. Taylor, Mist, Mitchell, .. 74 . . 134 .. 87 .. 27 . . 145 . . 179 . . 209 . 92, 211, 212 ..11,89 . . 140 .. 87 Co. V. . . 188 . . 104 .. 10 87, 111, 114 Natal, Bishop of, Nayler, Norfolk, Duke of, Norton, O'Brien, Smith, O'Connell, O'Connor, Feargus, Oxford, Earl of, Peacham, Penn r. Baltimore, — V. Read, Penry, . . Pigg V. Cayley, Pole, Michael de la, — William de la. Porter, Portland, Pressing Mariners, Priestly v. Fowler, Prince, Proclamations, Procter, Sir Stephen Prohibitions, . . Prynne, Pybus V. Smith, PAGE •2 Mogul S.S. Co. V. McGregor, 150 Mompesson, . . . . 87, 111 Monopolies, . . . . . . 163 Montagu v. Governor of Van Diemen's Land, . . . . 94 Morse v. Slue, . . . . 145 Mortimer, Roger, . . . . 137 Mure V. Kay, 79 N. Napper Tandy, R. V. R. r. ' R. r. R. V. I R. r. : R. r. i R. V. R. 1-. R. V. ' R. V. R. V. R. 1-. R. r. R. V. R. V. R. V. R. r. R. Allen, . . St. Asaph, Dean Beal, Bear, Bertrand, Boyes, Burdett, Butterfield, Castro, . . Cobbett, Collins, . . Coningsmark Cuthell, . . Despard, Drew, Duncan, Gallagher, .. 107 25, 137, 145 .. 200 .. 140 .. 10 .. 110 25, 88, 89 92, 138 .25,78 109 43 132 87 11 156 89 90 160 77 92 40 .66,92 41 26, 176 . . 7, 85 of, 105, 106 1 105 13 ,11,89 110 155 4 106 138 134 106 100 199 97 140 LIST OF CASES. XV PAGE R. V. Gordon, Lord G., . . 140 R. V. Gouge, 25 R. V. Hetherington, . . . . 107 R. V. Huggins, . . . . 137 R. V. Hunt, Ill R. V. Kendal, . . . . 13, 100 R. V. Leslie, 138 R. V. Marsh, 83 R. V. Mawbey, • . . . 160 R. V. Millis, 170 R. i;. Most, 110 R. V. Moxon, 107 R. V. Norwich, Bishop of, . . 77 R. V. Oneby, 209 R. V. Oxford, . . . . 13, 139 R. I'. Paine, 106 R. V. Parsons, . . . . 209 R. i;. Pinney, . . . . Ill, 220 R. V. Plummer, . . . . 209 R. V. Ramsay and Foote, 108, 232 R. v. Rowlands, . . . . 150 R. -V. Shipley, 106 R. V. Sullivan, . . . . 110 R. V. Thompson, . . . . 200 R. V. Williams, . . . . 107 R. V. Wilson, 85 R. r. Winterbotham, . . 109 R. V. Winton, . . . . 85 R. V. Woodward, . . . . 68 Rea, Lord, v. Ramsey, 68, 196 Reade v. Rochforth, . . . . 68 Redford v. Birley, . . . . Ill Reeves 109 Rennell v. Bishop of Lincoln, 135 Reresby, . . . . . . 134 Rigge V. Bell, 159 Rochford, Earl of 13 Rolle 228,230 Roop V. D'Avigdor, . . . . 188 Seymour, Lord, Shaftesbury, Lord, . . Shanley v. Harvey, . . Shepherd, Shirley v. Fagg, Skinner v. East India Co., Smith, Mary, . . Smith O'Brien, Smith V. Gould, Somers, Somerset, . . . . 11, Southcote, Stafford, Humphry, . . — Lord, Standish, Stanley, Stepney Election Petition, Stockdale v. Hansard, Stowel V. Zouch, Lord, Strafford, Strangeway, . . Stroud, Stroughborough v. Biggin, Suffolk, Duke of, Suffolk Witches, Sydney, Algernon, Symons v. DarknoU, Taltarum, Temperton v. Russell, Thomas v. Reg., — V. Sorrel, Thompson, Throckmorton, Sir W. Tobin V. Reg., TuUett V. Armstrong, Tutchin, Tynte v. Reg.,. . Tyrrel, PAGE .. 75 .. 95 .. 133 .. 188 ..9,227 10, 227 . . 221 . . 140 . . 132 .. 88 75, 133 .. 144 . . 91 . . 138 . . 198 . . 87 .. 73 .. 106 .. 98 ..87,92 . . 217 .. 92 .. 196 ..75,87 . . 222 ,. 138 .. 144 . 161 . 150 . 114 . 77 65,85 . 97 . 114 . 176 . 109 . 215 . 190 Sacheverell, . . . . 89, 109 Saekville, 92 Sadlers, The 21 Udal, Salomons v. Miller, . . . . 124 Santos V. lUige, . . . . 134 Sayre v. Rochford, Earl, . . 100 Searche, 100 Vane, Sir H., Segrave, . . . . 9, 10, 137 i Vaux, Lord, . . Seven Bishops, 13, 77, 109, 113 ' Viveash v. Becker, 43 102, 138 .. 12 .. 96 XVI LIST OF CASES. w. Williams, Bishop of Lincoli PAGE I, 40 PAGE Willis V. Gipps, . 94 Wallis V. Day, .. 134 Wilson V. Brett, . 143 Waricksliall, . . .. 199 Wolf Tone, . 110 Wason V. Walter, .. 106 Woodlife, . 145 Westby, .. 131 Woodcock V. Woodcock, . 23 Wharton, Duke of, . . .. 215 Woodfall, . 105 Wilkes V. Wood, .. 82 Wraynham, . . . 109 Williams, .. 205 Wright r. Fitzgerald, . 110 OUTLINES OF LEGAL HISTORY. CHAPTER I. THE PRINCIPAL COURTS. The legal system of England may broadly be considered under two heads : firstly, the system by which the laws are made ; secondly, the system by and mider which the laws are administered and given effect to. To deal effec- tively with the first would necessitate a history of our ancient customs, of our Parhament and its development, and of our Constitution and its growth • inquiries which, while well worth entering upon, are not within the scope of the present work. Here a less ambitious effort is made. It is sought in these pages to familiarise the student with the Courts by which the law as it exists is administered, with their origin and history, their titles, jurisdictions, proceedings and powers as these existed in ancient times, and as they have been gradually modified, rejected, or added to, in order to suit the requirements of the advancing civilisation and altered circum- stances of a great, a free, and a growing nation. A Court. A court may be defined as a place wherein law is judicially administered. Courts anciently were created by Act of Parliament, or by letters patent, or by prescription. It has, however, been decided that the king cannot himself constitute a new court, e.g. a court for administering martial law in time of peace (the Earl of Lancaster's case, 2 Inst. 48, tempore Edward II. Rex v. William Beal, 3 Mod. 124, tempore James II.). Further, it was held by all the 1 2 THE PEINCIPAL COURTS. judges (in Perrot's case 4 Inst. 86), in the reign of Elizabeth, that no court of equity should be created by letters patent, but only by Act of Parliament or prescription. The sove- reign may, however, grant a commission tenere placita, hearing them according to the common law, but not by way of extraordinary proceedings, e.g. in equity (the Earl of Derby's case, 12 Eep. 356). But these rules do not extend to newly conquered or ceded territory, for there the Crown may constitute a new court (Jephson v. Eiera, 3 Knapp, P. C. C. 130 ; the Bishop of Natal's case, 8 Moo. P. C. C. n. s. 115). The sovereign is himself theoretically present in all courts of law ; for the king is the fountain of justice, and originally the courts were all united under his personal supervision. However, it was long ago laid down in the case of Prohibi- tions (12 Eep. 63), tempore James I. that the king cannot try a matter himself, although he may sit in court while his judges try it. AU courts are either courts of record, or not of record. A court of record, being one whose proceedings are placed upon record for a testimony of its authority, is greater, and its dignity higher, than other courts. Its records are conclusive and cannot be impugned. A court of record may fine and imprison for contempt of its authority; and this power, if conferred upon a new juris- diction, creates it a court of record. Courts of record held pleas at common law, whether real, personal, or mixed actions ; and all pleas for debt or damages over forty shillings. Base courts, or the inferior courts, were not courts of record, and their jurisdiction used to be limited to forty shillings, e.g. a court baron. The courts may be divided into those of civil jurisdic- tion, and those of criminal jurisdiction ; that is, broadly speaking, the sphere of private law and the sphere of public law. THE PRINCIP.iL COURTS. 3 Civil Courts. First of the Civil Courts. House of Lords. The highest civil court is the House of Lords. Its jurisdiction is appellate vnth. reference to other courts. It has original judicial functions, as follov^s : — (1) To try peers for treason or felony. (2) To try impeachments. (3) In bills of attainder, but these are in the form of legis- lative enactments. These last two are almost obsolete, and all the above three are of a criminal nature. (4) To try petitions. (5) To try peerage claims. (6) To decide as to the representative peers of Scotland or Ireland. The last two, however, chiefly affect the constitution of the House itself. The House of Lords hears appeals both in common law and equity, also in matters of probate, admiralty and divorce. It also hears Irish and Scotch appeals. PriYy Council. The Privy Council, or speaking strictly, the Judicial Committee of the Privy Council, has an appellate jurisdiction in ecclesiastical matters, and also in matters (in- cluding admiralty) which come from India or the colonies by way of appeal to the sovereign in council. Next to these two courts in order comes the Supreme Court of Judicature ; this is divided into a Court of Appeal and the High Court. Court of Appeal. The Court of Appeal is usually divided for practical purposes into two portions : one hears the common law appeals, the other hears the equity appeals. Its members are five Lords Justices of Appeal, and the Master of the KoUs, who usually presides in one court. 4 THE PEmCIPAL COURTS. The Lord Chancellor is the president of the Com-t of Appeal, and the Lord Chief Justice of England and the President of the probate, divorce, and admiralty division are ex officio members of it, and sometimes sit there. ^ This court was created by the Judicature Acts, and has no history beyond the year 1873. High Court. The High Court of Justice was created at the same time, but its divisions represent the ancient courts of the kingdom. It is divided into the Chancery Division, the Queen's Bench Division, and the Probate, Divorce, and Admiralty Division. All the judges of the High Court are of equal rank, except the Lord Chief Justice, who presides over the Queen's Bench Division, and the President of the Probate, Divorce, and Admiralty Division. AH matters in the High Court are usually heard before one judge with or without a jury, and this is a trial before a judge of first instance. But in special cases two judges may sit together to hear a matter : — (1) Where they sit as a Divisional Court to hear appeals from justices in sessions, from revising barristers, from county courts, and other inferior jurisdictions. (2) Where a trial at bar is granted : but this is hardly ever allowed now ; it is in all cases a matter for the discre- tion of the Court (Anderson v. Gorrie, 10 Times, L. R. 383) ; the Tichborne case is a recent instance (Reg. v. Castro, L. R. 9, Q. B. 350). County Court. The only other civil court calling for mention is the County Court. This is a modern creation of statute, and is chiefly regulated by the County Courts Act, 1888. Its jurisdiction is of a limited nature in reference to value ; but includes common law, equity, probate. ^ Under the Judicature Act of 1891 (commonly called Finlay's Act) any ex-Lord Chancellor may sit in the Court of Appeal. THE PBINCIPAL COURTS. 5 administration, and, in some cases, admiralty matters. The jurisdiction is local, and confined to such matters as arise within the district of the particular court. There is a county court in every county, and in some populous centres, as London, there are county courts in specially divided districts. Each county court is presided over by a judge of inferior position to the High Court judges. The county courts as they exist at the present day only date from the year 1846. They weve created in order to supply the place of the ancient Sheriffs' County Court, and the Courts of Eequest or Conscience v^hich existed in various parts of the country. They are courts of record, and an appeal hes from them to a Divisional Court {supi'a, p. 4). Ceiminal Courts. Let us now consider the Courts of Criminal jurisdiction. House of Lords. Firstly, the House of Lords, as already pointed out, has a criminal jurisdiction, but this is at the present day rarely exercised. Queen's Bench. The Court of Queen's Bench upon the Crown side has an unlimited criminal jurisdiction, and it is the highest criminal court after the House of Lords ; but its jurisdiction is very seldom exercised, except in cases of mis- demeanours, such as criminal proceedings for libel. Although it is true that the old rule still holds good, that its jurisdiction is so great that it supersedes that of all other commissions when it comes into any county, as it did when it went to Oxford in 1665, yet this does not extend to London so as to affect the powers of the criminal courts held there. Crown Gases Reserved. The usual court of appeal in criminal matters is the Court for Crown Cases Eeserved. This court was created by 11 and 12 Vic. c. 78, for the hearing of any question of law which should be reserved for its consideration by the judge who tries the case in the first 6 THE PRINCIPAL COURTS. instance. The court is composed of all the common law judges, presided over by the Lord Chief Justice. Five judges form a quorum, of whom the Lord Chief Justice must be one. Assizes. The principal courts for criminal matters are the Assize Courts. These are held three or more times a year in every county, and are presided over by a special commissioner sent down by the sovereign, who is usually a judge of the High Court. The judge or commissioner of assize sits by virtue of various commissions : — (1) Of the peace, whereby he tries all crimes committed against the king's peace. (2) Of general gaol delivery, whereby he is commanded or entitled (according to the terms of the commission) to clear the gaol of all the prisoners who are there awaiting trial for any offence (see the Assizes Eelief Act, 1889). (3) Of oyer and terminer, whereby he is authorised to inquire, hear, and determine all treasons, felonies and misdemeanours. This originally was only granted in special cases to a particular person upon the express request of some indi vidua,!. (4) Of Nisi Prius, whereby he is authorised to decide upon all matters of a civil nature, unless before (nisi prius) he comes into the county they have been taken to the High Court for trial there. Under this clause of the commission, civil business is taken at the assizes, although no longer dependent upon the clause of nisi loriits (see the Common Law Procedure Act, 1852). The word assize is derived from the old commission of assize, for the meaning of which see post, p. 31. Central Criminal Court. The Central Criminal Court (created by 4 and 5 Will. IV. c. 36) is practically an assize court held for greater London, which embraces the whole of the county of London, and some portions of the adjoining counties. It is held once a month at the well-known building called the Old Bailey. THE PEINCIPAL COURTS. 7 It has (as have all assize courts) a large admiralty jurisdiction over offences committed at sea. This court is presided over by a judge of the High Court sitting as a special commissioner of oyer and terminer and general gaol delivery, but the lesser offences are tried by the Eecorder of London, or the Common Serjeant or the Judge of the City of London Court. Magistrates. Justices in sessions rank next in criminal matters. These sessions are Quarter sessions or Petty sessions. The court of the general quarter sessions of the peace is held quarterly, that is, four times a year ; thereat the magistrates of the county meet together, and decide the matters brought before them. Such sessions are held in every county. In boroughs quarter sessions are held in a similar manner before the borough magistrates presided over by a Eecorder. Their jurisdiction is limited (5 and 6 Vic. c. 38) to nearly all misdemeanours (not perjury) and the lesser felonies, generally speaking. The civil jurisdiction of quarter sessions is mainly appellate (e.g. rating, licensing, poor law, bastardy). The Chairman or Recorder has an absolute power and only consults the other magistrates when he chooses. Petty sessions are held by a smaller number of justices, two being the requisite number, with reference to a particular district of the county. Their jurisdiction is limited by statute to the lesser crimes, and is either exercised summarily when they deal and dispose of the matter finally themselves, or exercised in committing the prisoner to take his trial at the quarter sessions or at the assizes. The summary jurisdic- tion of justices in sessions is purely created by statute, and, except where authorised by statute, they have no jurisdiction. In certain populous centres the petty sessional courts are converted into Police Courts, each presided over by a Stipendiary Magistrate, who has the power of two justices, and these courts sit every day. CHAPTEE II. THEIR HISTORY. The House of Lobds. The House of Lords has a judicial power in virtue of its direct descent from the aula regis (curia regis) of the Norman times. And there seems but little doubt that the aula regis was connected, to some extent, with the Witangemote, which preceded it in Saxon times. The council (mote) of the wise men (witan) of the king who acted as a supreme court of appeal in the Saxon legal system from the Shire Courts (e.g. in the outlawry of Sweyn), seems to have been transmuted into a different form under the Nor- man domination, but retaining precisely the same power : the difference being that more authority was centred in the king, and the king became supreme ; whereas in the early Witangemote, his vote only ranked as one with the rest. The Norman king with his barons (baron means man), formed a council which both made the law, and enforced it. The king's men gradually increased in numbers, and their duties also increased. The council met one day to make the law, and on a different day to administer the law. The practice began under the Norman kings for special barons to attend to the administratiorL of the law ; and here we find the first germ of a regular court of law (see infra, the Court of Exchequer, p. 15). But, although the king and his council gradually delegated part of their authority to a regular court, they retained their original authority unimpaired. We find, therefore, that when (8) THEIR HISTORY. 9 the king's barons became peers, and changed into a House of Peers, and became a recognised part of the Constitution as the House of Lords, they still retained that power of ad- ministering the law which they had from the earliest times. This power of the Magnum Concilmvi Begni, or Commune Concilnmi Begni, must be carefully distinguished from that later growth the Select Council of the King, which came into being when the council of the barons grew too numerous to be constantly convoked with facility. As to this Select or Privy Council, Concilium Orclinarium, see infra, p. 12. Another explanation of the origin of the judicial jurisdic- tion of the House of Lords has been found in the feudal maxim, that the king is the fountain of justice, and that the power of the king to grant special commissions for special occasions grew by constant grants to his barons into an habitual delegation of his judicial power to them. The phrase, "the Court of Our Lady the Queen in Parliament," is the proper form even to this day. Another suggestion has been made, that it was the Select Council, or Co7iciliu7n Orclinarium, that alone had a judicial jurisdiction ; and that it was in consequence of this council sitting together with the Magnum Concilium, in order to form a House of Peers, that the jurisdiction was acquired by the House at large (3 Bl. Com. 66). The appellate jurisdiction of the Lords in equity was clearly recognised by 27 Eliz. c. 28, but it was called in question in 1675 in the case of Shirley v. Fagg (6 St. Tr. 1121) ; since then, however, it has been exercised by them without any question. Their jurisdiction in error, which had been settled in the first year of Henry VII. in common law matters, was decisively vindicated in the case of x\shby v. White (14 St. Tr. 695). Their claim for original jurisdiction (not appellate) between party and party was occasionally exercised, but it was finally 10 THEIE HISTORY. abandoned after the conflict that arose over Skinner v. Bast India Co. in 1668 (6 St. Tr. 709), although there were cases cited from the books where they had tried criminals for great public offences without complaint being made by the Lower House ; David's case in 1283 at Acton Burnell, Segrave's case, and Sir Simon Beresford's case, in the fom-th year of Edward III. (1 St. Tr. 54, 12 St. Tr. 1228). The House of Commons at one time exercised an original jurisdiction, which was renounced on the deposition of Edward II. in the first year of Henry IV. ; hence originated their right to hear petitions, and this in tm'n gave rise to the passing of Private Acts of Parliament. An unsuccessful attempt was made to revive their former right of original jm-isdiction in Floyde's case in 1621 (2 St. Tr. 1151). Cases like those of the printer Mist in 1721 are not instances of the exercise of judicial powers, but of punishment for contempt. The jurisdiction of the Lords to hear Scotch appeals was given by the Act of Union in 1707, the Scotch Parhament having heard appeals from the Scotch Courts since 1689. Irish appeals were always heard in the EngHsh House of Lords ; but in 1696, the Irish House of Lords claimed the right to hear them ; and on their raising another claim in 1719, an Act was passed to negative their supposed right. However, this right was allowed them in 1783, and was retained by them, until, in the year 1800, by the Act of Union, the appellate jurisdiction was finally transferred to the English House of Lords. The right of every member of the House of Lords to sit and vote upon an appeal was finally settled in O'Connell's case in 1844 (11 CI. and F. 155), when the rights of all the lords who were not law lords were waived, so far as voting upon any appeal was concerned. Appeals, therefore, are now only decided by such peers as are legally qualified to do so. THEIR HISTORY. 11 In 1873, the appellate jurisdiction of the House of Lords was aboHshed by the Judicature Act ; but the Act did not come into operation, it being suspended in 1875 ; and in 1876 the jurisdiction in appeal was restored to the House of Lords. By the Appellate Jurisdiction Act of 1876 (39 and 40 Vic. c. 59) the office of Lord of x\ppeal was created, and the Crown was authorised to appoint any person to that office with the rank of a peer during his life. Such person may continue to sit in the House of Lords, although he has ceased to exercise his judicial functions, by virtue of the Appellate Jurisdiction x\ct, 1887. In dom. proc, an abbreviation frequently met with in the old books, means in the House of Lords in domu procenmi. The criminal jurisdiction of the House of Lords may be traced to the same origin as its civil jurisdiction. The House exercised a criminal jurisdiction in bills of attainder during the period from 1450, William de la Pole's case (1 St. Tr. 271), to 1697, Sir John Fenwick's case (13 St. Tr. 537) ; also in hearing impeachments, from 1376, Lord Latimer's case, to 1806, Lord Melville's case (29 St. Tr. 549). Their special criminal powers were and still are to try peers for all treason and felonies ; and they may also try a commoner on impeachment for any offence ; see Sir Adam Blair's case in 1689 (12 St. Tr. 1207), and E. v. Boyes (1 B. and S. 311). All the peers must be summoned to attend when a trial takes place ; and on the hearing they sit in order of seniority, with the Lord High Steward presiding, who is usually appointed by the sovereign or elected by the peers them- selves. They give their verdict each upon his honour, and not upon his oath, beginning with the junior baron upwards; and the verdict is that of the majority. No challenge hes against any peer to incapacitate him from sitting ; see the Duke of Somerset's case in 1551 (1 St. Tr. 509), and Lord Audley's case in 1631 (3 St. Tr. 401). 12 THEIR HISTOEY. A peer is not entitled to waive his privilege of being tried by his peers, Lord Audley's case in 1631 (3 St. Tr. 401), Lord Graves' case in 1887 (4 St. Tr. n. s. 609), and this privilege extends to all peers, including Scotch and Irish. It does not include trials for misdemeanours, Lord Vaux's case (12 Eep. 93). Since the time of George II. the principal trials have been those of Lord Ferrers in 1760 (19 St. Tr. 885), for murder- ing his valet ; of Lord Byron in 1765 (19 St. Tr. 1177), for killing Mr. Chaworth in a duel ; of the Duchess of Kingston in 1776 (20 St. Tr. 355), for bigamy ; and of Lord Cardigan in 1811 (4 St. Tr. n. s. 602), for shooting at Captain Harvey Tuckett in a duel; which is the last case on record. The Court of the Lord High Steward is only held during a recess of Parhament when the House of Lords is not sitting. It is merely the House of Lords sitting under another name, and the authority of the Lord High Steward who presides is slightly different. He is called in the old books Seneschallus Angliae, and this office may possibly be a survival of the great office of the Chief Justiciar. The last instance of a trial before this court is Lord Delamere's case in 1686 (11 St. Tr. 509) before Jeffreys. The Pbivy Council. The judicial powers of the Privy Council arise from its ancient position as the Select Council, or Concilium Ordinarium, of the king [supra, p. 9). This early council may be said to have had its original jurisdiction dele- gated to it by the king, and it continued for a long period to administer the law in those cases which were not sufficiently important for trial by the House of Lords, but were too important for trial in the ordinary courts of justice (31 Hy. VI. c. 2). This council, first called the Privy Council at the time of Kichard II., exercised, under the name of the Star Chamber and the Court of Bequests, a wide jurisdiction in mediaeval THEIK HISTORY. 13 times (see jjost, pp. 39, 43). It also had an appellate jurisdic- tion from the king's courts when they were first estabhshed, and this was clearly settled by Henry II. in 1178. It attained great power during the minority of Eichard II., in fact practically a power co-extensive with the royal prerogative. Its jurisdiction and position were eventually settled by Statute 3 and 4 William IV. c. 41, and vested in the Judicial Committee of the Privy Council, which was created by that Act. It is entitled to hear any criminal matters from the colonies (E. v. Bertrand, L. E. 1 P. C. 520). Its ecclesiastical jmisdiction was taken over from the High Court of Delegates, which itself had been a sub-committee of the Privy Council (see p. 42). The judges are four paid Members of the Council (34 and 35 Vic. c. 91), the Lords of Appeal (39 and 40 Vic. c. 59), the Judges of the Court of x\ppeal being privy councillors (44 and 45 Vic. c. 3), and all privy councillors who have held high judicial office (50 and 51 Vic. c. 70). The power of a privy councillor to commit a person to prison was said to be Hmited to cases of high treason (E. v. Kendal, 12 St. Tr. 1359, Sayre v. Earl of Eochford, 20 St. Tr. 1286) ; and in aU cases the cause of commitment must be specified, so that a proper return may be made if need be to a \vrit of habeas corpus as was resolved by aU the judges in 1591. But this individual right was almost obsolete by the time of the case of the Seven Bishops in 1688. The right of the whole Privy Council collectively to commit has always been recognised (E. v. Oxford, 4 St. Tr. n. s. 497). Now a privy councillor is in the commission of the peace for every county. The Coukt of Exchequer. Of aU the comets now represented by the High Court of Justice the Court of Exchequer appears to be the oldest. The first offshoot or division of the ancient aula regis was a committee or court for managing the revenue of the king. 14 THEIK HISTORY. Here {in curia saccarii), in the time of Henry I. the reeve of every county came to make up his accounts with the king tw^ice a year. Its name was derived from the chequered cloth on the table where the money was received. The cloth was marked out in squares like a chess-board, and on these squares the counters were placed and the accounts reckoned up. The receipts were given by a " tally, " a long stick, on which different notches were cut to represent the sums paid : the stick was then divided down the middle, half of it being kept by the Exchequer, and the other half by the reeve. These wooden tallies accumulated in such numbers, that they were ultimately used as fuel at the Houses of Parliament, and, being carelessly used, the Houses got on fire and were burned down in 1834, whence originated the well-known case of Viscount Canterbury v. Att. Gen. (1 Phill. 306), Lord Canterbury as Speaker of the House of Commons having lost his property in the burning of his ofi&cial residence. This court was divided into two parts, the Administrative and the Judicial. The Administrative part was divided into the Account side and the Eeceipt side ; and in this part the matters expressly pertaining to the keeping of the king's accounts were settled. The Judicial part was also divided into two sides, the Equity side and the Common Law side. The equity side was the older. It was held before the Lord High Treasm'er, the Chancellor of the Exchequer (which ofiice was created temp. Henry III.), and other of the king's barons. No doubt, these two high offices were in an early stage combined in one individual (probably the Jus- ticiar). The proceedings in this court were by Enghsh bill {i.e. the complaint was in Enghsh not in Norman French), or by information filed on behalf of the Attorney-General. This com't was not abolished until 1841, when its juris- diction was transferred to the Court of Chancery. THEIE HISTOEY. 15 The common law side was first established by the aid of the fiction involved in the writ of quominus. The court, in order to augment its business (for its judges were paid in part by the fees of the various suitors, as indeed were all the judges), invented a method of hearing actions which had really nothing to do with the king's revenue. A party came forward and alleged that B. was indebted to him, or that he had some claim against B. which B. would not dis- charge, whereby he was unable to pay his own contribution to the king's revenue (quominus stifficiens existit). The court then compelled B. to appear before it, and once having got jurisdiction in this way it heard the matter and decided upon it. This encroachment was at first limited by the statute of Eutland (Eothlan, Ehudlan in Wales, the statute of the Exchequer 1282), 10 Edward I. c. 11, and then by 28 Edward I. c. 4 (articuli super cartas). The fiction of the writ of quominus was abolished by the united effect of 2 Will. IV. c. 39, and 2 Vic. c. 110, and thereafter almost all proceed- ings were commenced by a writ of summons (see p. 67). In the Exchequer Court sat as judges the barons of the king {supra, p. 8) ; and the judges of this court retained the honour- able appellation of Barons down to the passing of the Judi- cature Act in 1873, from which date the title was abolished. It was presided over by a Chief Baron. ^ A famous in- stance was Lord Lyndhurst, after he had actually held the office of Lord Chancellor. As a committee of the curia regis this court followed the king until the time of Eichard I., when it was fixed with the other courts at Westminster (but see p. 18). It was inferior in rank to the King's Bench and to the Coiurt of Common Pleas. Appeals from this court were originally to the Concilium Ordinarium (the select council of the king), and in later times to a committee thereof who were delegates appointed by the Crown (semble in admiralty and ecclesiastical appeals). ^ Anson (162) says the first one was in 1317. 16 THEIE HISTOEY. In the year 1579 it appears that the appeals were direct to the House of Lords, when its common law jm:isdiction be- came more marked, and a qualified lawyer (Serjeant Shute) presided as a baron in the court. The ancient Court of Exchequer was merged in the Queen's Bench Division of the High Court of Justice by the joint effect of the Order in Council of 16th Dec. 1880 and the Judicature Act, 1881. The Court of Exchequer Chamber must be carefully dis- tinguished from the Court of Exchequer. It was divided into two heads : (1) a com-t of error ; (2) a court of debate. Firstly, as a court of error : this was created by 31 Ed. III. c. 12, to take error from the common law side of the Court of Exchequer ; and in it sat the Lord Chancellor, the Lord High Treasurer, and the judges of the King's Bench and Common Pleas. Another court was created in 1585 by 27 EHz. c. 28, to hear error from the King's Bench. Here sat the judges of the Common Pleas and the barons of the Exchequer. Both of these courts were merged into one court by 11 Geo. IV. and 1 Will. IV. c. 70, sec. 8; and this new court sat to hear error from the King's Bench, the Common Pleas, and the Exchequer ; the judges of two courts sitting to hear the questions which came from the third court. This court itself was abolished by the Judica- tm-e Act, 1873. The Exchequer Chamber as a court of debate existed for the purpose of arguing matters of great importance before judgment was given by the court below {e.g. Calvin's case). All the judges of the King's Bench sat here, and the Lord Chancellor had the right to preside. The Couet of Common Pleas. The Court of Common Pleas appears to have been the next in order of date, and it was first established as a separate court by the provision of Magna Charta, communia THEIE HISTORY. 17 Ijlacita non sequantur curiam nostram, sed teneantur in aliquo certo loco, "the Common Pleas shall not follow the king's court, but shall be held in a fixed place ". This place was settled at Westminster ; and we now see that the ancient council of the king was divided into three parts, — the third part which still remains to be considered being afterwards called the King's Bench {infra, p. 18). The fixing of the Common Pleas at Westminster was a happy event for the English law. It gave rise to a school of lawyers, and with them to an improvement in the law, and it was the first step towards delivering the law from the control of the ecclesiastics who followed the court of the king. To Westminster in due course the other courts gravitated, and at Westminster grew up the English law due in great part to this provision of the Great Charter. The common-law courts sat on one side of Westminster Hall and the equity courts sat on the other, and though near neighbours their jurisdiction was for a long while opposed to each other (see p. 25). The Common Pleas Court took all matters between subject and subject where the king was not a party. It was termed by Coke the lock and key of the common law. It was presided over by the Chief Justice of the Common Pleas. Error lay from the Common Pleas to the Cotu-t of King's Bench, and at a later period to the Exchequer Chamber. The wilts as to matters for the Court of Common Pleas were put into a hamper which hung outside the old court [in hanaperio), whereas the writs in matters in the King's Bench were placed in a little bag outside that court (in parva baga) ; hence the weU-known offices of the Hanaper and of the Petty Bag, now abohshed. This court was finally merged in the Queen's Bench Division of the High Court of Justice by the joint effect of the Order in Council of 16th Dec. 1880 and the Judicature Act, 1881. It was inferior in dignity to the Court of King's Bench. 2 18 THEIR HISTOEY. The Court of King's Bench. This court (now the Queen's Bench) was, as we have seen, the last survival of the C2ma regis, and it was here that the king continued to sit in person till a later period in history than in either of the other courts. It retained the name of ciiria regis until the time of Henry III. when it was called the King's Bench, and pleas were heard in banco regis. Its separate existence from the Council appears to have been recognised as early as the time of Henry II. in 1178. This court followed the king (28 Ed. I. c. 5, articuli super cartas), and all writs which were returnable into this court were returnable uhicunqtie ftierimus in Anglia (and this was the practice in the Court of Exchequer as well, but see p. 15). After Edward I.'s conquest of Scotland it sat on one occasion at Eoxburgh. It has been said by some that this court was fixed at Westminster by the articuli super cartas, 28 Edward I. c. 4 ; but it is quite certain that this court followed the king far later in history than that date, for we find it sitting at Oxford in the time of Charles I. when the king left London. And again, at the time of the great plague it is said that this court removed from London. This court in the time of the Commonwealth was known as the Upper Bench. It was presided over by the Chief Justice of the King's Bench. From this court error lay direct to the House of Lords, but at a subsequent period it lay first to the Ex- chequer Chamber {supra, p. 16), and then from that Chamber to the House of Lords. The jurisdiction of the King's Bench extended to all matters between the Crown and the subject. The court, however, contrived to extend its jurisdiction to matters between subject and subject by the use of the fictions involved in a bill of THEIR HISTORY. 19 Middlesex and a latitat thereon. As the court had jurisdiction over all trespasses, as being breaches of the king's peace, committed in Middlesex, or in whatever other county the coiu't might be sitting (cf. its criminal jurisdiction, p. 5), it assumed that the defendant had committed a trespass in Middlesex ; and so the sheriff of Middlesex was directed by a bill of Middlesex to take the defendant's body to answer the trespass, and also a plea of debt (or whatever the real cause of action was), at the suit of the plaintiff. This latter clause was called the ac etiam clause, and thereby the court ac- quired jurisdiction, provided the defendant was in Middlesex. But if he was not, and the sheriff made retm-n "he is not to be found in my bailiwick" (rion est inventus), then a writ issued from the king to the sheriff of the county where the defend- ant was, reciting the former proceedings, viz. the bill of Middlesex, the ac etiam clause, and the sheriff's return noii est inventus, and stating that the defendant "lurks (latitat) and runs about in your county," and ordering the sheriff to take the defendant's body to answer the matter. Where- on the sheriff arrested the defendant, and made return cein corpus, and handed him over to the custody of the marshal of the King's Bench, who put him in the prison of the court. Whereupon the defendant, being now in Middlesex and within the court's jurisdiction, was compelled to answer all matters whatsoever alleged against him. Thus by the writ of latitat the court's jurisdiction was extended to the whole realm. This cornet was superior in dignity to any of the common- law courts. By the Judicatm-e Acts it was created a Division of the High Court of Justice, and in it were merged the ancient Courts of the Exchequer and the Common Pleas, all the judges of which are now placed upon an equal footing as judges of the Queen's Bench Division, and presided over by the Lord Chief Justice of England. 20 THEIR HISTORY. The Court of Chanceky.i The Court of Chancery is not so ancient in its origin as the courts of common law, because the necessity for the existence of such a court only arose from the harshness of the principles of the common law, and the unyielding rigour with which they were administered. To supplant and correct this the king was accustomed to do equity on petition made to him, his jurisdiction arising from that nominal imperial authority assumed by the Saxon kings in imitation of the Eoman emperors, such petitions being first heard of in Saxon times. Equity, according to Grotius, may be taken to be the correction of that wherein the law, by reason of its universality, is deficient ; but this is hardly the meaning of the equity of the Plantagenet kings. The title of chancellor, which was introduced into England by Edward the Confessor, is of Norman origin. The king early delegated his power to his chancellor, and it was not only in virtue of this power that the chancellor acquired authority, but especially from the fact that he sealed all the writs which ran from the king into all his courts of law. As early as Henry II. 's reign he was regarded as a great judicial authority, and occasionally went circuit as a judge of assize. AU writs ran out of the Court of Chancery down to the present centm-y, and are still attested (tested) or witnessed by the lord chancellor. The writs de cursu, that is, the writ appropriate to the matter sued upon, were fixed and settled in form (cf. the legis actio of the Eoman law), and the chancellor was expressly forbidden, by the Provisions of Oxford in 1258, to frame any new writ without the consent of the king or council. But by 13 Edward I. c. 24, the Statute of Consimili Casu, the chancellor was directed to prepare new writs to suit new claims on the analogy of the ancient writs. 1 See Hallam, Middle Arjes, iv. note 192. THEIR HISTORY. 21 The growth of his jurisdiction was very gradual. His common-law j jurisdiction was at first restrained by several statutes in the time of Edward III., and, as he had no authority to summon a jury (a jury cannot even now be had in the Chancery Division), all issues of fact were sent for trial to the Coui't of King's Bench. This ordinary jurisdiction of the chancellor in common-law matters appears to have been estabUshed by 1389. It is more ancient than the equitable jurisdiction, for, indeed, the common-law side of the Chancery was the officina brevium, whence aU the original w^its were issued. AU proceedings on the common-law side of the Chancery Court were, by bill, in French or Latin until 4 Geo. II. c. 26. On this side of the court, too, were brought matters as to traverses of offices, monstrans de droit (i.e. where the facts had been established and the title of the subject and the crown appears by record, and the judgment of the court was required on a special case ; see the Sadlers case, 4 Eep. 54), the king's letters patent, and the like. The chancellor also exercised a criminal jurisdiction, especially in cases of perjury and to repress outrages. But this jurisdiction was gTadually abandoned, partly to the Star Chamber, partly to the common-law courts when they began to give suitable compensation, and partly because the com- munity became more settled. The causes, however, which gave rise to the Chancery Coiu't as exercising an extraordinary jurisdiction in matters outside the common law are to be found in the reign of Edward III. In his reign the court ceased to follow the king, as it formerly did (see articuli sujper cartas, 28 Ed. I. c. 5), and became fixed at Westminster. A general objection arose in the courts of law and through- out the country to the encroachments of the Chiu'ch of Eome, and connected therewith a general intolerance of the Eoman law, which was the law kno^vn and administered by the 22 THEIR HISTOEY. ecclesiastics. A code of laws arose in Chancery distinct from the common law, and based upon the wider jurisprudence of the Eoman law, e.g. the origin of uses in the Eoman fidei commissa aided by other analogies in the Eoman law. The chancellor, too, was no longer necessarily skilled in the common law, and merely called in to act in alleviation of the common law, but acted upon his own notions of right and worong, controlled by the Eoman law. His clerical capacity and training extended very widely the field of his jurisdiction in such matters as trusts and questions of fraud. The clerical origin of the chancellor, as confessor or private chaplain to the king, has seriously affected the whole of English law. As an ecclesiastic he was familiar Vv'ith the Canon Law (an ecclesiastical version of the later Eoman law of the Glossators), and he resorted to this law for the principles which he used in alleviation of the in- digenous common law. The influence of the Church once estabhshed over the law was never relaxed, and it survives in equity at the present day. It was not until the middle of the present century that the power of the Church in cases of marriage and of walls was swept away. The immediate advantages which the new equitable juris- diction had may be summarised as follows. It was not hampered by the forms of the king's writ, as it proceeded on complaint made by bill. It could enforce obedience against the most powerful men in the realm. It avoided the prejudices which prevailed in local tribunals. It admitted the evidence of the parties to the suit, and aided it bj^ bills for discovery and interrogatories, thereby acquiring great facihties for deahng with fraud. It is difficult to assign an exact date for the establishment of the extraordinary jurisdiction of the chancellor in equity; but by 1393 (17 Eicliard II. c. 6) his power was recognised. It is not, however, mentioned in any of the old writers, such THEIR HISTORY. 23 as Glanvill in the time of Henry II. or Bracton in Henry III. or Britton in Edward I. nor do we find in the treatises of Flambard or of Hengham any mention of this com't of equity. And yet, at the time of Edward IV. it was agreed by all the judges that " the Chancery Court with the King's Bench and Common Pleas and Exchequer are all courts of the king, and have been so time out of mind, none knoweth which is the most ancient " ; and Lord Hobart says, "the Chancery Court is equally a fundamental court with the common-law courts ". And again, in the Earl of Derby's case (12 Eep. 114), it was resolved that "the king cannot grant a commission to determine any matter of equity, he cannot substitute any new tribunal, for the matter ought to be determined in Chancery, whose jurisdiction therein is time out of mind, and has always been allowed by the law". The line of cleavage between the Chancery and the common-law courts, which afterwards developed into rivalry, had scarcely yet begun. For we find that in 1341 Sir Hobert Parnynge, the chancellor, in order to become thoroughly versed in the common law, sat in the Court of Common Pleas, and argued there in person (see 4 Inst. 79). The statute of 27 Edward III. St. 1, c. 3, was directed against applications in the nature of appeals from the common-law courts, not to the Court of Chancery, but to the Papal Court at Eome. It served nevertheless as a pretext for the foundation of Coke's quarrel with Ellesmere (see infra, p. 25). Costs in Chancery were secured by 17 Eichard II. c. 6, and by 15 Henry VI. c. 4, which required the giving of security to pay damages on commencing a suit or entering appearance. Gradually this grew into an absolute power to grant costs at the discretion of the court. In the fifteenth century the Chancery was a flourishing court. In the time of Elizabeth we find it still exercising a 24 THEIE HISTOEY. criminal jurisdiction (see "Woodcock v. Woodcock, Gary, 90, a case of perjury). The proceedings in this ancient court of equity were by petition or English bill, without any preliminary writ, and appearance was compelled by the writ of suhpoena. This writ of suhpcena existed certainly in the time of Edward II. It was well known under Chancellor Arundel in Ei chard II. 's reign, and it was j&nally improved and perfected by John de Waltham, master of the rolls. All that he appears to have done was to add to the old words, quibusdam certis de causis the fresh words, et hoc suh poena centum lihrarum nullatenus omittas. But this penalty was never enforced, because if the defendant did not appear his default was treated, accord- ing to the invariable custom, as a contempt of court, for which he was liable to be attached and imprisoned until he submitted. The Chancery, being the place where the records were kept, very early exercised the inseparable power of a court of record to fine and imprison for contempt. In matters at the suit of the Crown proceedings could be commenced by information filed by the attorney-general. In all matters in Chancery the parties themselves could be examined on oath, which was entirely unknown in the common-law courts until the present century. This power to examine on oath was derived from the Select Council (conciliimi ordinarium) of the king, of which this court was to some extent an offshoot (cf. the oath ex officio of the Court of High Commission). From the same source are derived the powers of Chancery with reference to discovery. The court was presided over by the lord chancellor and afterwards by his deputy, the master of the rolls, who sat to hear matters in the absence of the chancellor, but who was unable to sit in another court and hear matters while the chancellor was sitting. This was one of the principal reasons of the great delay in Chancery, which continued until THEIR HISTORY. 25 the procedure of the court became a scandal and a burden. In 1621 it is said there were arrears of 13,000 cases. In 1813 a vice-chancellor was appointed to assist in hearing causes ; and in 1841 two more vice-chancellors were added. The procedure of the court was reformed at length, though late, in the year 1833 ; and again, in 1842, when many useless officials of the court were abolished. In 1851, two lords justices of appeal in Chancery were appointed. In 1852, the Chancery Amendment Acts were passed; in 1860 the Consolidation Orders reorganised the procedure, and in 1873 the court was reconstituted by the Judicature Act and became a division of the High Court of Justice with the chancellor as its president ; the offices of vice-chancellor and of lord justice of appeal in Chancery being then abohshed. The first great chancellor who was a lawyer appears to be Sir Thomas More in the time of Heniy VIII., although there were some lawyers of repute in the time of Edward III., notably Sir Eobert Parnynge in 1341. Sir Nicholas Bacon, who held office in the time of Ehzabeth, consohdated the practice of the court. Lord Ellesmere, who became chancellor in 1596, vindi- cated the rights of his court against the common-law courts, which were led by Sir Edward Coke, the Chief Justice of the common pleas. The quarrel, which originated in the interference of Chancery in the case in the common- lav; court of Brownlow v. Michell in 1614 (Moore 842), was further accentuated by the Earl of Oxford's case in 1616 (2 "W. and T. 642) ; and by the cases of Courtney v. GlanviUe (Cro. Jac. 343), Heath v. Eidley (Cro. Jac. 335), and Eex v. Gouge. This led to the personal interference of the king, and James I. decided in favour of the courts of equity. Sir Francis Bacon, generally in error caUed Lord Bacon, drew up his famous Orders in Chancery, which regulated the procedm-e of the court for some time. Erom 1673 to 1682 Lord Nottingham presided, and settled the principles which 26 THEIR HISTORY. govern a large part of equity ; the statute of frauds, and the Duke of Norfolk's case (3 Ch. Ca. 1), setthng the principles of the law of entail and of perpetuity, are referable to him. From 1736 to 1756 Lord Hardwick continued to map out the field of equity, and extended his authority in Penn v. Baltimore (2 W, and T. 1047), and Chesterfield v. Jansen (1 W. and T. 624) ; but he was conspicuous for great delay in his judgments. In 1757 Lord Keeper Henley, afterwards Lord Northington, enunciated, in the well-known case of Burgess r. Wheate (1 Eden 177), the rights of the Crown in escheat. From 1778 to 1792 Lord Thurlow presided ; and to him we trace the doctrine of the separate estate of married women, in Hulme v. Tenant (1 Bro. C. C. 16). The restraint on anticipation annexed to that separate estate was first invented by him for Miss Watson's settlement and upheld in the case of Pybus v. Smith (3 Bro. C. C. 340). In his time was settled the doctrine of conversion, in Ackroyd v. Smithson (1 W. and T. 102), and the famous case of Fox V. Mackreth (1 W. and T. 141). From 1801 to 1827 Lord Eldon stereotj'ped the procedure of the court, and reduced its rules to a system little less rigorous than the common law. This was the period of the greatest delay in Chancery, which led eventually to the reform alluded to above. Conspicuous amongst the chancellors of the present cen- tury may be mentioned Lord St. Leonards (the great real property lawyer, Sugden), Lord Westbury, Lord Cairns, and Lord Selborne. The Admiralty Court. The Court of Admiralty is derived from the ancient Court of the Lord High Admiral of England. The latter court was THEIR HISTORY. 27 originally constituted in the time of Edward I. and re- constituted in the time of Edward III. It was, however, never a court of record. It was divided into three courts. The Instance Court, which was the ordinary court where all maritime matters were tried, and from this court appeal lay to the High Court of Delegates (see p. 42). The second court was the Prize Court ; but this was not a continuous court, being only created when occasion needed, as in time of war. The third was the Court of Appeal in Prize Matters. The jurisdiction of this ancient court of the Lord High Admiral was regulated by 13 Richard II. St. 1, c. 5, and by 15 Richard II. c. 3, and it extended to criminal as well as to civil matters. There was, however, no jury in this court, and it was always a source of complaint, until the time of Henry VIII. that crimes should be tried by a judge without a jury. By 28 Henry VIII. c. 15, the criminal procedm-e of the com't was made similar to that of other courts, and juries were allowed (see p. 114). The procedure of the Admiral's court and its laws were taken from those maritime codes which prevailed in mediaeval Europe, e.g. the laws of Oleron, the law^s of Trani, the laws of Wisby, the Rhodian law, and the famous code termed the consolato del mare. The jurisdiction of the Admiral's court in certain cases extended to booty of war taken upon land as well as upon sea (the case of the Banda and Kirwee booty, L. R. 1 Ad. and Ecc. 109). Its jurisdiction did not, however, extend to the cinque ports (see p. 45). The ancient Black Book of the Admiralty contains much information as to this court. The introductions to each volume by Sir Travers Twiss are full of interest. The jm'isdiction of the Court of Admiralty according to Lord Mansfield in Lindo v. Rodney (Doug. 591) is expressly limited to its powers as an Instance Court derived from a 28 THEIE HISTOKY. general commission under the great seal ; and it is only in time of war that it sits as a Prize Court under a special com- mission of the great seal, presided over by the lord high admiral. " The seat of judicial authority is local, the law is not local but international " ; Sir W. Scott in " The Maria," Paulsen (Tud. L. C. 889). All the world is party to a sentence in an Admiralty Court. The Prize Court sits as a court of inquest not to ascertain rights and duties, but to decide whether a capture is good by international law. This jurisdiction was confirmed by the Naval Prize Act of 1864 (27 and 28 Vic. c. 25). By the Judicature Act, 1891, s. 4, the High Court (Probate, Divorce, and Admiralty Division) is constituted a Prize Court within the meaning of the Naval Prize Act, 1864, with an appeal therefrom to the Judicial Committee of the Privy Council. The jmfisdiction of the Admiral's Court appears to have extended beyond the common-law courts, as it was resolved in "The Franconia" (E. r. Keyn, L. E. 2 Ex. D. 63), that whereas by the common law the jurisdiction of courts of oyer and terminer and gaol delivery is bounded by the low-water mark, except land-locked waters such as ports, havens, or arms of the sea ; the jurisdiction of the admiral extended over all persons on the high seas who were on British ships. And it was further held by a minority of the judges in that case that the admiral's jurisdiction extended for one marine league from low- water mark over all persons and all ships. This case was followed by the Territorial Waters Jmisdiction Act, 1878, whereby the jurisdiction of the Admiralty Court was con- fined to all offences by any ship or by any person committed within one marine league from low- water mark. Before any proceedings can be taken under the Act the certificate of a secretary of state or of a governor of a colony, as the case may be, is necessary, this does not include proceedings before a justice of the peace. This Act (41 and 42 Vic. c. 73) recites that the rightful jurisdiction of the Crown had always ex- THEIR HISTOEY. 29 tended over such portion of the seas adjacent to the coasts as was necessary for the defence thereof. A^'ice-Admiralty Courts were those held in the foreign dominions of the Crown, but they were aboHshed by the Colonial Courts Admiralty Act, 1890. The right of hearing appeals from the Admiralty Court v,'as between 1830 and 1810 taken from the Court of Dele- gates and vested in the Judicial Committee of the Privy Council. The criminal jurisdiction of the court is now exercised on the Crown side of the Queen's Bench, and by the central criminal court and the assize courts. The former civil jurisdiction of the court is now vested by the Judicature Act, 1873, in the Admiralty side of the Probate, Divorce, and Admiralty Division. Some of the County Courts have a Hmited civil jurisdiction in Admiralty matters. The Divorce Court. This court was created by statute in 1857 (20 and 21 Vic. c. 85, see Divorce, p. 155), and by the Judicature Act, 1873, became merged in the High Court of Justice. Up to that time in the history of this country the jmisdic- tion in matters of divorce was solely ecclesiastical ; and the Church which made the bond between man and woman, alone had the right of entertaining questions relating to the marri- age. However, for a divorce a vinculo matrimonii the parties were compelled to go to Parliament itself ; for nothing short of an Act of Parliament was sufficient, until the year 1857. All that the Ecclesiastical Courts could grant was a divorce a mensa et thoro, so far as regarded anything subsequent to the marriage. But the Ecclesiastical Court would, during the lifetime of the parties, decree a nullity of marriage for any canonical disability, the effect being to make the children bastards, and to place the parties in the position of persons who had never been married. 30 THEIE HISTORY. The Probate Court. This court was also established in 1857 (20 and 21 Vic. c. 77 ; 21 and 22 Vic. c. 95), and was afterwards by the Judicature Act, 1873, merged in the High Court of Justice. Until that date the jurisdiction with reference to wills was vested in the bishop of the diocese where the party had his principal property, or in the archbishop of the province, whether of Canterbury or of York. "It is uncertain," says Lyndwood, " at what precise date the Church acquired their jurisdiction in matters of wills and intestacies." ^ It is men- tioned in Magna Charta, and it was spoken of in 52 Henry III. as being then of great antiquity. It appears that the king, in virtue of being parens patria, claimed the right to the goods of all intestates, and pursued his right in the Shire Court, where the bishop presided with the earl. Subsequently the king granted or delegated his prerogative in this respect to the Church. It was thought that a spiritual person was a man of higher trust, and more likely to apply the dead man's goods for the benefit of his soul, than any other person. It followed that the person who had the administration of an intestate's goods acquired a right of investigating any circumstances which would deprive him of the benefit of administration, such as a testament made by the deceased person. A right of inquiry into the validity of testaments was thus gradually acquired by the Ordinary, as he was called, meaning the bishop, who had ordinary jurisdic- tion in jure propria et non per cleputationem. These wiUs were investigated by the chancellor of each bishop, sitting in the Consistory Court of the diocese, and after due inquiry were proved {prohatum, probate), and the same was testified under the bishop's seal. This right of the bishop never extended to real property ; ^ About the age of Glanvill. II. P. and M. 339. THEIE HISTORY. 31 for to that the king always succeeded in virtue of his feudal position as lord paramount ; and this prerogative he never granted or delegated to the Church. Therefore to this day the probate of a will deals conclusively only with personal property. The Assize Coukts. These ancient courts date from the time of Henry II. ; but the justices of assize established by Henry II. must not be confounded with the still more ancient justices itinerant or justices in eyre, who existed long before that time, and became obsolete in the time of Eichard II. (see the learned judgment of Willes, J. in ex parte Fernandez, 10 C. B. n. s. 42). The justices at the time of Henry II. went round the country for three distinct purposes. Firstly, for fiscal purposes once a year to collect the revenue ; and this was settled by the assize of Northampton in 1176, the execution of which was entrusted to six circuits. Secondly, for civil purposes ; which was regulated by Magna Charta, two judges being sent into each county four times a year to hold assizes of mort d'ancestor, novel disseisin, and darrein presentment.'^ With them sat four knights chosen by the County Court. In 1217 this was limited to once a year by the charter of Henry III. and afterwards it was restricted to once in every seven years up to the reign of Edward I. Thirdly, for criminal purposes ; this was based upon the Assize of Clarendon of 1166, whereby the judges were authorised to go into every county, and with the sheriff to try all prisoners presented by the jury of presentment; this assize contained minute instructions to the Justices and enacted that the trials were to be in full County Court. By the Statute of Westminster the Second (13 Ed. I. c. 1 Which, till then, were tried in curia regis. 32 THEIR HISTORY. 30) the judges of assize were reconstituted, and sent three times a year to try matters both criminal and civil in every county. Together with the judges sat two knights of the shire. The shire moot was summoned to meet the judges in its representative capacity, including the reeve and four men of each township and twelve burghers of each new borough. These judges of assize sat under three commis- sions. (1) Of assize, to try all matters relating to real property (see infra, p. 69). (2) Of nisi 2^rius, to try matters between subject and sub- ject. (8) Of general gaol dehvery, to try criminal matters. Originally there was a special writ {de bono et malo) issued for each prisoner. The kilhng of one of these justices of assize while in his place doing his office was made treason by 25 Edward III. c. 2. An Assize Court is one of the superior courts (Bacon's Abridgement, title " Court "), and as such can commit for con- tempt without any cause shown on the order or on the return to a habeas corpus [ex parte Fernandez, 10 C. B. n. s. 42). The Assize Courts with sHght changes in their jurisdiction have continued to the present day (see p. 6). CHAPTEE III. MINOR AND OBSOLETE COURTS. The Ecclesiastical Courts. In the Saxon times the Church united with the civil authority in administering the law as well as in making it. The bishop sat in the shire moot with the ealdorman. This unity was divorced by the Norman system, although revived by Henry I. for a short time. In 1179 there were three bishops amongst the judges. The ecclesiastical courts may be enumerated as follows : — The Archdeacon's Court is the lowest court ; it is held before his "official," and appeal lies, by 24 Henry VIII. c. 12, to the bishop of the diocese. Its jurisdiction is local. The Consistory Court of the bishop is presided over by his chancellor, from whence appeal lies to the archbishop of the province, by 24 Henry VIII. c. 12. The Provincial Court of the archbishop ; in the province of Canterbmy this is called the Court of Arches, and in the province of York the Chancery Com-t. The Court of Arches is presided over by the dean of the arches, so called because he sat in the church of St. Mary le Bow {Sancta Maria de Arcuhus). The Court of Pecuhars is part of the Com-t of Arches, and has jurisdiction over those peculiar parishes in the province of Canterbury which are not subject to any bishop. Appeal lay thence, by 25 Henry VIII. c. 19, to the king in chancery. From both Provincial courts appeal lay, by 25 Henry VIII. c. 19, to the Court of Delegates (see p. 42), but now the appeal is to the Judicial Committee of the Privy Council. Both these (33) 3 34 MINOE AND OBSOLETE COUKTS. provincial courts were remodelled by the Public Worship Eegulation Act, 1874, and united under one judge. The Prerogative Court was for trying testamentary cases where a deceased left bona notahilia in more than one diocese ; for in such cases the archbishop of the province by special prerogative claimed jurisdiction. Bo7ia notahilia were fixed in 1603 at £5. This court was swept away by 20 and 21 Vic. c. 77, and its jurisdiction vested in the Court of Probate. None of these ecclesiastical courts are courts of record. By 16 Charles I. c. 11, which abolished the Court of High Commission (see p. 42), all ecclesiastical courts were deprived of jurisdiction to inflict imprisonment or whipping or fine ; but the latter part of this Act was repealed after the Restoration (13 Charles II. c. 12), and hence it seems that an ordinary ecclesiastical court may still try matters of adultery, or fornication, and may enjoin penance, or may commit to prison for six months. (As to further ecclesiastical jurisdiction see under Probate Court, p. 30, and Divorce Court, p. 29.) The Coroner's Court. The coronator is so called because in ancient times his business principally was with pleas of the Crown. The office was instituted in Eichard I.'s reign, in 1194, when the coroner was ordered to be elected in every shire by the free- holders of the shire. This office was soon deprived of its principal dignities ; for by Magna Charta it was enacted that no coroner should hold pleas of the Crown, these being expressly reserved for the justices in eyre. The statute De officio coronatoris of 4 Edward I. stat. 2,^ laid down in detail the position and rights and duties of a coroner. According to " Mirrour " the coroner had jurisdiction in aU 1 Termed " apocryphal " in II. P. and M. 641, note 2. MINOR AND OBSOLETE COURTS. 35 felonies, which included cases of rape and arson ; and this was confirmed by Bracton, and by Fleta. By 3 Henry VII. c. 1 the coroner's fee on every corpse was fixed at thirteen shil- lings and fourpence, and if he made default in viewing a dead body he was to forfeit one hundred shilhngs to the king. The jurisdiction by which his court is best known, is when he sits to inquire upon any death in prison or any sudden death, but only siqjer visum corporis. This court is one of record. The Coroners' Act, 1887, now regulates the law upon the subject, and it repealed most of the old statutes, particularly those of Edward I. The Univeksity Courts. The University Courts of Oxford and Cambridge had civil jurisdiction over aU matters where a member or servant of a university was a party. The civil rights of the University Court at Oxford were secluded by a charter in 1244 (28 Henry III.), and in 14 Henry VIII. its jmisdiction was in- creased. The Cambridge charter of the third year of Elizabeth was confirmed by 13 Elizabeth, c. 29, as was also the Oxford charter of 14 Henry VIII. The procedure of the Vice-Chancellor's Court at Oxford, as it is usually called, is regulated by 25 and 26 Vic. c. 26, and that of Cambridge by 19 and 20 Vic. c. XVII. The criminal jurisdiction of the Court of the Lord High Steward of the University extends to all crimes whatsoever. The jm-isdiction of the Chancellor's Court is limited to misdemeanours. As to criminal jurisdiction at Oxford the earhest charter is 7th June, 2 Henry IV. as confirmed by 13 Ehzabeth, c. 29. No proceedings can be commenced until the grand jury of the county have presented a bill. Then the vice- chancellor intervenes, and a commission issues under 36 MINOE AND OBSOLETE COURTS. the great seal to appoint a high steward, who hears and determines the matter. To the high steward's court come a jury de medietatc ; half of freeholders and half of. matriculated persons who are the triers, and the sheriff of the county is bound to carry out the sentence. There are cases in the reigns of Elizabeth, James I., and Charles I. occurring in the high steward's court. At Cambridge, when any person not a member of the university is a party to any proceeding, criminal or civil, the university jurisdiction is ousted by 19 and 20 Vic. c. XVII. s. 18. The summary power of the university authorities to protect the morals of the students still exists, and a person, although not a member of the university, may be committed by them to their private prison, the Spinning House (Kemp v. Neville, 10 C. B. n. s. 23). The pro- cedure in such cases is exceptional to the ordinary course of law (re Daisy Hopkins, 61 L. J. Q. B. 240). The Palatine Couets. The counties palatine (a palatio, from the palace whence the lord exercised kingly power) were Chester, Durham, and Lancaster. Formerly Pembrokeshire was a county palatine, but it was abolished by 27 Henry VIII. c. 24. Hexhamshire, now merged in Northumberland, lost its position as a county palatine in 14 Elizabeth. The jurisdiction of the lord of a county palatine included the right to pardon all treasons and felonies. Writs and indictments ran in his name, and all process of execution. He appointed all justices, and this included the special commission to the judges of assize. These special privileges were finally abolished by the Judicature Act, 1873. The county palatine of Lancaster was created by Edward III. in 1351, in favour of the first Duke of Lancaster, Henry MINOR AND OBSOLETE COURTS. 37 Plantagenet. It had a Chancery Court, an Exchequer Court and a Court of Common Pleas ; there was also a criminal jurisdiction. The whole of its common-law jurisdiction was transferred by the Judicature Acts to the High Court of Justice ; and as to its Chancery jurisdiction which still exists see 13 and 14 Vic. c. 43, and 21 and 22 Vic. c. 27. The Duchy of Lancaster was united with the Crown in the person of Henry of Bolingbroke, Duke of Lancaster, afterwards Henry IV. ; but it was always kept distinct from the Crown as a separate estate personal to the sovereign. And this is still so by the effect of several Acts, particularly those passed on the attainder of Henry VI. when the duchy was forfeited to the Crown, and during the reign of Henry VII. It is now regulated by 18 and 19 Vic. c. 58. Chester and Durham existed from the Conquest as courts of the marches, Chester on the Welsh march and Durham on the Scotch march. The object of the creation of these courts was to keep inhabitants at home, in order that they might defend the border and resist incursions. This was attained by preventing the necessity for the absence of the inhabitants in seeking justice at the King's Court. Chester was united to the Crown by Henry III. By 11 Geo. IV. and 1 William IV. c. 70, the jurisdiction of its Palatine Court was abolished. Durham was for a long time subject to the Bishop of Durham, but it was vested in the Crown by 6 and 7 WilUam IV. c. 19, and 21 and 22 Vic. c. 45. Its common-law jurisdiction was transferred to the High Court of Justice by the Judicature Acts, but its Chancery jurisdiction still exists. The court is held by the chancellor of the bishop. The Court op the Duchy op Lancastee. The Com-t of the Duchy of Lancaster is to be distinguished from the Court of the County Palatine of Lancaster. It is not a coiirt of record. It has only Equity jurisdiction 38 MINOR AND OBSOLETE COURTS. as to lands holden of the Grown in the duchy. It is held before the vice-chancellor of the duchy. The territory of the duchy is not in the county of Lan- caster alone, but is distributed all over the kingdom. The chancellor of the duchy appoints all county court judges and justices of the peace within the duchy. The Barmotb Courts. The Barmote Courts exist in certain mining districts of the Duchy of Lancaster for settling matters relating to mines (14 and 15 Vic. c. 94). They are chiefly situated in the High Peak district of Derbyshire. The Stannary Court. This exists in Cornwall and Devon. It is a court of record, held before the vice- warden, with a jurisdiction over the tinners. No error could be taken thence to the King's Court, but there was an appeal to the higher court of the lord warden, and thence to the Privy Council of the Prince of Wales, as Duke of Cornwall, and thence to the king, which was afterwards changed to the Judicial Committee of the Privy Council (18 and 19 Vic. c. 32). In 33 Edward I. this court was firmly established, and was confirmed in 50 Edward III. and again much later by 16 Charles I. c. 15. By 9 and 10 Vic. c. 95, whereby County Courts were established, the local County Courts were given concurrent jurisdiction with the Stannary Court, which seriously lessened the importance of the latter. All the appellate jurisdiction of the lord warden was vested in the Court of Appeal by the Judicature Act, 1878. The City of London Courts. The ancient courts in London were the Sheriffs' Courts, from which error lay to the Court of Hustings (see p. 52) held before the lord mayor, thence to the king's judges MINOR AND OBSOLETE COURTS. 39 uuder special commission, and thence to the House of Lords. Courts of Bequest or Conscience were also held in London (see p. 44). The Mayor's Court of London is now regulated by 20 and 21 Vic. c. CLVII. The recorder of London presides here, or the common Serjeant. The City of London Court (formerly called the Sheriff's Court) is now presided over by a judge, and is practically one of the County Courts (30 and 31 Vic. c. 142, s. 35 ; 51 and 52 Vic. c. 43, s. 185). The Court of the Commissionebs of Sewers. This is a temporary court, created by commission under the great seal, under the statute 23 Henry VIII. c. 5. It is a court of record, and may fine and imprison for contempt. By 13 Elizabeth, c. 9, and 7 Anne, c. 10, its powers were further extended also by several statutes of the present reign, and finally by 24 and 25 Vic. c. 133. Commissioners of sewers were authorised for inland dis- tricts as well as for the seaboard. The laws and customs of Eomney Marsh, compiled by Henry de Bathe, tempore Henry III. contain the leading principles of all the laws as to sewers. The Star Chamber. The Star Chamber was an offshoot of the Concilium Ordinarium,, or Select Council of the king. The ancient Court of the Star Chamber appears merely to have been this Select Council, or a committee of it, sitting in the starred chamber. The name is variously derived from the gilt stars on the ceiling of the chamber where they met ; from the Jewish starra (Hebrew shetar, a covenant), or bonds deposited in a special room in the exchequer ofiice ; from punishing the crivxen stelUonatus, or cozenage ; from a Saxon word mean- ing to "steer" or "govern". Its power was (according to Anson, II. 28) the judicial power which is centred in the executive limited by no settled rules, and exercisable at the 40 MINOR AND OBSOLETE COURTS. discretion of the sovereign on the alleged grounds of the interests of government. This ancient court was not ex- pressly affected by the statute of 3 Henry VII. c. 1 (see the case of Sir Stephen Procter, 12 Eep. 118). By 3 Henry VII. c. 1 (extended by 21 Henry VIII. c. 20), a new Court of Star Chamber was erected, its object being to act as a supplementary criminal court in order to punish those crimes which could not be effectually dealt with by the ordi- nary courts, on account of the high position of the offender or of the wide spirit and nature of the offence, but which were not of sufficient importance to be proceeded against by impeachment or attainder. It has been termed a court of criminal equity, and its action has been compared to that of the Court of Chancery in supplementing the shortcomings of the common law. It took cognisance of maintenance, of giving liveries, of having an undue number of retainers, of embracery, of juries receiving money, of untrue demeanours of sheriffs in making false returns and in striking a prejudiced panel, of routs and of riots. It also had some civil juris- diction in maritime matters (alien merchants and prizes), in wills, and in corporation matters. It was for some time the hcensing authority over the press and over monopolies. It was presided over by the lord chancellor, and comprised the lord treasurer, the lord privy seal, the president of the council, certain high judicial officers, and a bishop. Obedience to its jurisdiction was compelled by a writ of suhposna, and this was enforced by attachment if necessaiy and committal to the Fleet Prison. If the party was con- tumacious and did not surrender, a proclamation of rebellion issued against him. It has been said by Hallam that in the time of Henry VIII. this new Court of Star Chamber gradually merged in the ancient court, and that all privy councillors had the right to sit there. MINOR AND OBSOLETE COURTS. 41 The punishments inflicted by the Star Chamber were heavy fines, as in the case of Williams, Bishop of Lincoln, and in the case of Leighton, for writing Sioii's Plea against Prelacy ; or the pillory and cutting off the ears and branding, as in Prynne's case for his Histriomastix ; or whipping, as in Lilburn's case, and, indeed, any sentence but death. This court was swept away in 1641 by the Long Parlia- ment, 16 Chai-les I. c. 10. The Fokest Couhts. The object of the jurisdiction and powers of these ancient but now obsolete courts was to punish all injuries to the king's venison (deer), vert (greensward), or covert (where the deer lodged). There were four in each forest, carefully graduated in jurisdiction and dignity. We begin with the least. 1. The Court of Attachments or Woodmote, held before the verderers of the forest once in every forty days (1 Henry III. c. 8, carta da foresta). It had no power to convict, but only to inquire. 2. The Court of Eegard or Sui-vey of Dogs, held every thiid year, for cutting the claws of dogs, i.e. mastiffs, they being the only dogs allowed within a forest, as they were necessary for the defence of a man's house, 3. The Court of Sweinmote, held three times a year. The reeve and four men from every township in the forest were the jury. The verderers were the judges. This court might convict on presentment from the Court of Attachments (34 Edward I. c. 1), but it could not give judgment. It could inquire and convict on its own motion. 4. The Court of Justice Seat, held every third year. It alone of these four counts was a court of record, and could fine and imprison. Error lay from it to the King's Bench. It was held before the chief justice in eyre. It gave judgment 42 MINOE AND OBSOLETE COURTS. on the convictions of the Swainmote, and had an original jurisdiction in all matters arising within the forest. The last effectual occasion of holding this court was in the reign of Charles I. before the Earl of Holland. One was held in the time of Charles II. before the Earl of Oxford, but merely as a matter of form, and it has never been used since. The High Coukt of Delegates. This court was an offshoot of the Concilium Ordinarium, or Select Council of the King, and it appears to have arisen under 25 Henry VIII. c. 19, when a special commission was granted to certain members of the Council for hearing appeals in ecclesiastical and in admiralty matters. The supreme ecclesiastical authority was in the earliest times vested in the Witangemote, and subsequently in the king, assisted by his council. About 1151 we first hear of appeals being taken to Rome ; and although this was expressly forbidden by the Constitutions of Clarendon in 1164, the Pope, having once got a jurisdiction, steadilj' main- tained it, in spite of constant opposition, until the reign of Kenry VIII. (for details see Praemunire, p. 118, and cp. Eeligious Liberty, p. 122). The schism then between the English Church and Eome led to the abolition of all the Pope's appellate jurisdiction in ecclesiastical matters. It was to supply the vacancy thereby occasioned that the High Court of Delegates was created. This court continued to exist, and the commissioners continued to act as delegates of appeals until 1833, when they were replaced by the Judicial Committee of the Pri^y Council, who took over their jurisdiction by virtue of 2 and 3 WiUiam IV. c. 92. The Court of High Commission. This court was established in 1583 by virtue of the Act of Supremacy of 1559 (1 Elizabeth, c. 1). It was composed of MINOR AND OBSOLETE COURTS. 43 forty-four commissioners, twelve of whom were bishops ; three formed a quorum, and of these one must be a bishop. Its powers to inquire into all matters affecting religion were of the widest possible nature. Its authority "to inquire by all other means they could devise" led to the famous oath ex officio. This was a series of questions, based on the canon law, addressed to the accused, which he was compelled to answer on his oath ; and it was said in Lilburn's case that this was to make one accuse him- self, if he be bound to speak the truth in any matter objected against him. It was indeed opposed to the whole doctrine of the English law, which is expressed in the maxim nemo tenetur ipsum culpare. This oath was also adopted and used in the Star Chamber, and it may be compared to the oath on the voir dire at common law. The trials of Udal, of Barrow, of Greenwood, and of Penry in connection with the Martin Marprelate tracts, soon showed how far this court was prepared to go. It imprisoned for adultery (Sir William Chancey's case, 12 Eep. 82). Its authority was, however, doubted by all the judges, and Coke C. J. refused to sit as a member of the court (12 Eep. 88). It was at length abolished by the Long Parliament by 16 Charles I. c. 11, and with it the oath ex officio. (As to this Act see p. 34, Ecclesiastical Courts.) An attempt was made by James II. to revive this court under the name of the Court of Commissioners for Ecclesias- tical Causes ; but the attempt was short-lived, and it was declared illegal by the Bill of Rights in 1689. The Court of Requests. The Coui't of Requests appears to have been a minor court of equity, and was an offshoot from the Select Council of the King. It probably originated in 1390 by an Order in council requiring the lords of the council to meet at an early hour to 44 MINOR AND OBSOLETE COURTS. examine the petitions of the humbler people, the lord keeper of the privy seal presiding. In 2 Henry VI. there was a direction to the clerk of the council to take care that the poorest suitor's bill should be heard first every day the council sat, and that the king's serjeant should give his assistance gratis to such suitor. Hence come the modern rules as to sueing in forma pauperis. In 9 Henry VII. it appears that there were masters of requests, and the court was used as a Court of Conscience by the poorer classes. In 1598 it was decided in the Common Pleas "that the Court of Bequests or Whitehall was no court that had any power of judicature". It was abolished by the same statute as the Star Chamber (16 Charles I. c. 10). Courts of Eequest were estabhshed in London in Henry VIII.'s reign, and confirmed by 3 James I. c. 15, and again by 14 Geo. II. c. 10. Their jurisdiction was limited to matters of debt under 40s., and they were presided over by two aldermen and four commoners. They sat twice a week. They were afterwards extended throughout England by various statutes in the time of George II. and George III. But they gradually fell into disuse, their jurisdiction being limited to trivial sums and to small districts. They were abohshed by 9 and 10 Vic. c. 95, and their place was taken by the newly erected County Courts. The Coukt of Chivalry. This was held by the lord high constable and the earl marshal of England. Under 13 Eichard II. c. 2, it had juris- diction over all contracts and matters relating to war within the realm and without it. From this court appeal lay to the king in person. It was not a court of record, and could not fine or imprison. It became obsolete after the office of lord MINOR AND OBSOLETE COURTS. 45 high constable was extinguished in the Duke of Buckingham under Henry VIII. The Court of Chivalry had also an extensive criminal juris- diction over aU pleas of hfe and Hmb. The Coukt of Shepway. This was the coiirt of the lord warden of the cinque ports, Dover, Sandwich, Eomney, Hastings, and Hythe, to which were added Winchelsea and Eye. It was a court of record, from which error lay to the King's Bench. It took appeals from the sub-courts of the cinque ports. This court and all these sub-courts became practically unimportant after the passing of 18 and 19 Vic. c. 48, and 20 and 21 Vic. c. 1. The Couet of the Clekk of the Market. This is a coui't incident to every fair and market in the kingdom. It was probably the criminal side of the Court of Pie Poudre. Its jurisdiction extended to all matters and misdemeanours done in the market, but it principally dealt with weights and measures. By the Weights and Measures Act, 1878, these matters were assigned to the summaxy jurisdiction of magistrates. This court is now obsolete. The Court of Pie Poudre. The Court of Pie Poudre, curia pedis piclverizati, was incident to every fair and market in the kingdom, and the owner of the market was the judge by his steward. It decided all civil matters arising in that market, but not in any preceding market. It was a court of record, and error lay from it to the courts at Westminster (Cro. Eliz. 773). Its proceedings were regulated by 17 Edward IV. c. 2. 46 MINOR AND OBSOLETE COURTS. Its name is said to be derived, according to Coke, from the fact that justice was done there as fast as dust could fall from the foot; according to Blackstone, from "pied puldreaux," a pedlar, referring to the petty chapmen who resorted to the market. This court is now obsolete. The Court of Policies op Assurance. The Court of Policies of Assurance was erected by virtue of 43 Elizabeth, c. 12, and was further extended by 13 and 14 Charles II. c. 23. Its jurisdiction was Hmited to London and to assurance of merchandise at the suit of the assured. It has now become obsolete, and the above-mentioned statutes are expressly repealed by 26 and 27 Vic. c. 125. The Court of Mabshalsea. The Court of Marshalsea was held before the steward and the marshal of the royal palace to decide debts, contracts, and covenants, between the king's domestics, and all trespasses where one party was a domestic of the king. It was originally part of the aula regis. By 13 Eichard II. c. 3, its jurisdiction was extended for twelve miles round the king's palace. It was a court of record, and formerly error lay from it to Parliament only ; but the law was altered by 5 Edward III. c. 2, and 10 Edward III. c. 3, whereby error lay to the King's Bench. This court followed the king. It was aboUshed by 12 and 13 Vic. c. 101, s. 13. The Palace Court. The Palace Court was created by letters patent in 6 Charles I. It was presided over by the steward of the household and the marshal, with a jurisdiction twelve miles round the palace, as to all personal actions between all parties. It was held once a week, to supplement the dis- MINOB AND OBSOLETE COURTS. 47 used Court of Marshalsea. It was a court of record, and error lay from it to the King's Bench. It was abolished by 12 and 13 Vic. c. 101, s. 13. The Coubt op the King's Household. The Court of the King's Household was created by 3 Henry VII. c. 14, to inquire into matters of felony arising within the king's household, and with reference to the death of the king or any great officer of the household. The jury were to be twelve sad men (discreet persons) of the house- hold, and the trial was according to common law. This court is now obsolete. The Court of the Stewabd of the King's Household. The Court of the Steward of the King's Household was estabhshed by 33 Henry VIII. c. 12. Its proceedings were by grand jury and petty jury, as at common law. It inquired into all shedding of blood within the precincts of the palace. It was practically done away with by 9 Geo. IV. c. 31, and is now obsolete. The Welsh Courts. The Statute of Wales, 12 Edward I. feudally annexed Wales to England in 1284, but it was not until 1536 that Wales was thoroughly united with England by 27 Henry VIII. c. 26. The ordinary jurisdiction of the king's courts did not extend to Wales, nor did the justices of assize visit there. But all prerogative writs ran there, as did process of execu- tion. Subsequently by 34 and 35 Henry VIII. c. 26, the courts of Great Session were established in Wales. 48 MINOE AND OBSOLETE COURTS. These courts had jiudsdiction over all matters civil and criminal which arose within Wales. They were courts of record, and error lay from them to the Court of King's Bench at Westminster. In 1830 these courts were swept away, and, by 1 William IV. c. 70, the ordinary assizes were ordered to be held there as elsewhere throughout the realm, and still continue to be so held. By the same statute of 34 and 35 Henry VIII. c. 26, the Sheriff's County Court, the Hundred Court, and the Court Baron were introduced into Wales, and their subsequent history there is the same as that of the similar courts in England (see Cap. V.). CHAPTEE IV. THE SAXON LEGAL SYSTEM. The forces that combined to produce the Anglo-Saxon Court may be summarised under two heads. Firstly, the Church, which was a most important factor with its centralising and governing power. Secondly, the growth of the kingly authority, which may be traced in the various petty king- doms being dominated by one Bretwalda and afterwards united under one king. The administration of the Anglo- Saxon Com-t was also influenced by the power acquired by the Crown to appoint a shire reeve and by the local interest which the Crown obtained through the gradual conversion of the folcland into the terra regis. The administrative system during the Saxon times may be divided into three principal courts : — (1) The Witangemote. (2) The Shire Court. (3) The Hundred Court. The Witangemote. — The Witangemote in its judicial capa- city heard appeals from the lower courts in all matters civil and criminal, and it undoubtedly had an original jurisdiction which extended to all matters. This latter was chiefly exercised in criminal matters, as, for instance, the outlawry of the Godwin family. The Witangemote was originally a popular assembly, but at a later period it appears to have been practically restricted to the leading men of the kingdom. ^ The Shire Moot. — The next court was the Shire Moot, or ^ For a full account see Sfcubbs, Select Charters, p. 11. (49) 4 50 THE SAXON LEGAL SYSTEM. Scirgemot or Folcgemot, a general assembly of all the people of the shire. It met twice a year, and was presided over by the bishop as representing the spiritual law, and the eal- dorman (scirman) who represented the secular law. The court of the scirman is referred to in the Laws of Ina, a.d. 690. Its decisions were carried into execution by the reeve of the shire, as indeed to this day the sheriff continues to be the executive officer with reference to crimes in his own county. It was attended by the leading men in the shire, and by the reeve and four men from every township, together with the priest. These all together constituted the suitors of the court, and originally were the judges, until their power was gradually deputed to the president of the court, as to the law, and to a committee of twelve, as to the facts. In this committee of twelve we find one germ of trial by jury. The twelve senior thegns of the shire acted as a jm:y of pre- sentment, and declared before the court the transactions of the county. Its jurisdiction extended to every matter which arose within the shire, except matters of State concern, which went straight to the king. It also had an appellate jurisdic- tion from the Hundred Court ; indeed, unless the Shire Court failed to do justice, there was no appeal to the Witan. The Hundred Moot. — The lower court was the Hundred Moot, held in every district or wapentake of the county. It met once in every month (see the Laws of Edward, a.d. 920). It had a jurisdiction over all matters, civil and criminal, arising within its limits. All the thegns of the hundred attended, together with the reeve and four men and the priest from each township, these all together constituted the suitors, and they acted as judges. Gradually, however, their duties were deputed to a standing committee of twelve for convenience ; and here we find one germ of trial by jury. THE SAXON LEGAL SYSTEM. 51 The court was presided over by the hundredman or hundi-edsealdor (cf. the Scandinavian Thunginus or Thing- man). This court was the most ancient court of all (cf. the malhis of the Franks, the centeni of the Germans). The king's reeve attended the court tvdce a year to secure the wite or fine for offences against the king's peace. \\q find a similar visitation for the county in the Norman time under the name of the Sheriff's Tourn (see p. 61). The origin of the Hundred Court is variously accounted for as follows. (1) Military (cf. Wapentake, weapon take). (2) A primitive subdivision of one hundi'ed hides among one hundred families. (3) An association of one hundred persons to keep the peace and the law (cf . Tithing). It was therefore originally based upon some personal relation which existed between the inhabitants of a particular locality. It after- wards changed to a territorial meaning, and was regarded as a subdivision of the shire. Local Jurisdictions. Subordinate to these were several local jmisdictions. The tun or township {vicus or maegth) was governed by its tungemot,^ presided over by the tun gerefa. The same assem- bly is seen under another name in the burh, with its burh- gemot, which met thrice a year, and was presided over by the wic gerefa, and in places by the sea by the port gerefa (hence the modern Portsoken). The soc or soke was a private and a limited jurisdiction granted by the king to his gesith (sithe, sokena), which gave him the rights of infangthef or jurisdiction over any of his own men who committed a theft, and utfangthef or juris- diction over any stranger thief taken in his franchise. Doubt- less this jurisdiction grew into that of the hlaford over his private lordship, and subsequently into the Court Baron of feudal times. ^ It had no judicial functions, I. P. and M. 19. 52 THE SAXON LEGAL SYSTEM. Special jurisdictions existed in some places, e.g. in the City of London, which was governed by its Court of the Hus-thing (cf. the modern Hustings at election times, and see p. 38). This court was presided over by the bishop and the port reeve (see the charter of William the Conqueror to WilHam the bishop and Godfrey the port reeve). Each ward of the City of London met in the Wardmoot, corre- sponding to the Hundred Court, and was presided over by its ealdorman (now represented by the alderman). The local responsibihty for the administration of the law was upon the tithing, or in special cases upon the maegth, and in trading towns upon the guild. The gild (wergild, see p. 56), or payment which was exacted on account of every man who broke the laws, was paid by the body responsible for his actions. Frankpledge. — Originally every landless man had to have some lord who would be responsible for him, and this was enacted in the laws of Athelstan and Edgar. Possession of land was a security for good behaviour. By Canute's law every man who wished to be entitled to "lad" or "wehr" must belong to a hundred and a tithing. The responsibility involved in frankpledge (free pledge) soon came to supplant the earlier system. Every man was bound to be a member of a frithborh (tenmannetale) or peace security. Each frithborh had at its head a borhsman or borhsealdor. The law of Edward the Confessor which introduced the frithborh seems to have confused the personal element with the territorial element. The system of frankpledge was one which grew from the early idea that an accused person, in order to avoid the summary vengeance of the person wronged, must undertake to stand his trial and must find bail for his appearance thereat. The next step was to throw the responsibihty for the appearance of the accused upon his relations, who had to be sureties for him, and if necessary to pay any com- THE SAXON LEGAL SYSTEM. 53 position or fines to which he became liable. This was followed by compelling convicted persons, or persons who had been presented as suspected persons by the jury of presentment, to give securities for their future good behaviour : hence the modern "binding over by recognisances to keep the peace". Finally, we see the full system of tithings in working order, to one of which every man must belong, and thereby give a perpetual security for his good behaviour. The Saxon procedure began by a personal summons to the court (cf. the Eoman in jus vocatio), for the Writ was a Norman introduction. The courts were not the King's Court, but meetings of the freemen of the country assembled together to settle their own affairs. The forms of trial in the Saxon courts were fourfold : — Ordeal. — (1) By the ordeal of God (Dei judicium). This might be by fire, which was usual for persons of rank, and might be performed by deputy. The ordeal was to take up in the naked hand a heavy piece of red-hot iron, or to walk blindfold with bare feet over red-hot ploughshares placed at irregular distances, and if in either case the person did it unscathed he was held innocent. ^ It might also be by water, which was usual for in- ferior people, and might be done by deputy. It consisted in plunging the naked arm up to the elbow in boiling water, when to be hurt was to be guilty ; or in throwing the accused into water, when if he sank he was innocent, if he floated he was guilty. This last became a common method of trying suspected witches. It might also be by the corsnaed or accursed morsel, ^ See Meymott Tichy's Legal Mcdecine, p. 455 ; a hand which is naturally damp or which has been slightly moistened may be safely passed into a stream of molten iron as it flows from the furnace. The ordeal of the hot iron may thus be explained, although it is to be feared that the more guilty the person the more likely he was to escape. 54 THE SAXON LEGAL SYSTEM. which, after being duly consecrated (perhaps as part of the sacramental bread), was swallowed by the accused, and if it stuck in his throat he was held guilty ; see the instance of Earl Godwin in Edward the Confessor's reign, for his com- plicity in the murder of the king's brother, Alfred (cf. the Jewish water of jealousy. Numbers v.). In the Scandinavian law ordeal was extensively practised, under the various forms of hot irons, hot water, and going under an arch of sods. The ordeal was used by the Hindus (see Institutes of Nar- ada) in jfive ways : the balance, fire, water, poison, or the sacred libation ; but only to supply the deficiencies of evi- dence in cases where there was not otherwise sufficient proof (cf. the medicine man of African tribes, and the Calabar bean). Ordeal was discontinued in England in consequence of a decree of the Lateran Council in 1215. Compurgation. — (2) By compurgation, where eleven i persons came forward and swore that they believed the oath which the accused had sworn. This was afterwards called " wager of law," and the accused was sworn de fidelitate, 'whilst the compurgators or oath helpers were sworn de credulitate. An elaborate system existed to ascertain the value of each man's oath according to his social position. No man was required to wage his law until the plaintiff had established a prima facie case against him, this being according to the provision of Magna Charta. Such a case was established by bringing into court the transaction v/itnesses {secta). All Declarations in actions at law (the modern Statement of Claim) concluded inde j^roducit sectavh (and thereupon he brings suit). This formula continued to be used long after the secta had become obsolete, which hap- pened tempore Edward III. Its survival may be traced in the common pledgees of the plaintiff, John Doe and Eichard Eoe. ^ Varied from three to seventy-two. II. P, and IM. 598. THE SAXON LEGAL SYSTEM. 55 Wager of law was generally used in matters of simple contract, such as debt, or in detinue. To avoid wager of law the action of assumpsit (p. 143) was substituted for the action of debt, and the action of trover and conversion (p. 188) was substituted for the action of detinue. Wager of law was not allowed in a specialty contract. The last case of wager of law appears to be in 1824, King V. WiUiams (2 B. and C. 638) ; and it was abolished in 1838 by 3 and 4 William IV. c. 42, s. 13. Oaths. — An oath was originally only taken as a method of binding a contract, the Deity being invoked as a party to the contract (cf. the Babylonian contract law). By the Athenian Law the offer of an oath was usually con- clusive, though in some cases a counter oath was allowed. The Mosaic Law, in cases of bailment of cattle, allowed the bailee to clear himself from liability for injury to the cattle by taking an oath. In the Scandinavian Law there was a regular system of legal oaths. In the French Law at the present day it exists as the " serment decisoire ". In Scotland, the system of oaths, as a method of clearing a person, was allowed (see Longworth v. Yelverton L. E., 1. H. L. Sc. 218, in 1867). The use of the oath was common in the Eoman Law, e.g. the actio sacraynenti. From this source it came into the canon law, and hence we derive the canonical pur- gation of the clergy when accused of crime. It was early estabhshed in the Saxon Law as a method of clearing a party accused, under the above-mentioned name of Compurgation. The modern history of oaths, in their various applications, as the oath of allegiance, parliamentary oaths, ofKcial oaths, judicial oaths by witnesses, jurymen, and the like, is too ex- tensive to be dealt with here. Some information thereon wiU be found under these respective sub-heads (cf. p. 43). Secta. — (3) The third method of trial was by the secta, first mentioned in Athelstan's time, circa 930. They were 56 THE SAXON LEGAL SYSTEM. the regular appointed witnesses in a special locality, before whom every transaction in the district must be done ; and when they came forward and said that they had seen a thing done, it was such strong evidence that it could only be met by Compurgation (see the Laws of Edgar, circa 960, cf. 'Bentha.ra's preappointed evidence). Gradually, however, the practice grew up of allowing the defendant to wage his law in answer to the charge, and this became a fixed custom (see p. 54). This method of trial afterwards changed into proof, or trial ^cr testes.'^ Charters. — (4) The fourth method of trial was by charters, or wi'itings under seal. Great respect was paid to a seal. If a man had deUberately set his seal to a thing and said he was bound, he was held to be bound, and was not allowed to go behind his deed (cf. Estoppel by deed). The matters of which the Saxon law took cognisance were limited by the absence of modern subjects of property. The questions which most frequently came before the Courts concerned treason, murder, contempt of court by fighting, debt, and wills of Bocland. The prosecution had first to estabhsh a case and produce witnesses, hence come the common pledgees for prosecution, John Doe and Eichard Eoe (cf. p. 54). The system of punishment was graduated from death for "morth" or "secret killing," to wite a mere fine paid to the king. The amount of punishment was fixed in cases of the taking of life by the wergild, which was the honour price or blood money placed upon every man's head accord- ing to his social position, greater or less ; and the law strictly enforced it, nisi cum eo 2)acit talio esto (see the Eoman Law of the Twelve Tables). The same system of valuation is ^ For its ultimate fate see II. P. and M. 636. THE SAXON LEGAL SYSTEM. 57 found in the Scotch assythement, in the Swedish kinbote, in the GaeUc eric or enachlan, in the Frankish coirp dire, in the Mohammedan decut and in the dia mentioned in the Koran. But for bodily injuries the proportion (bot) was much less. The chief characteristics of the Saxon laws were, according to Blackstone, as follows : (1) The gemots. (2) The popular election of magistrates. (3) The hereditary descent of the Crown. (4) The rarity of capital punishment. (5) The prevalence of customs, e.g. heriots. (6) Forfeiture for treason, but no escheat or attaint. (7) No primogeniture. (8) The importance of the shire com-ts. (9) The methods of trial by ordeal and wager. CHAPTEE V. THE NORMAN LEGAL SYSTEM. The effects of the Norman Conquest may be summed up under the following heads : — (1) The Witangemote became the Curia Begis, composed of the king's vassals or barons ("baron" means "man"), in- cluding the bishops, meeting thrice yearly. This ceased rempore Stephen, and changed into the Commune Concilium. (2) The feudal tenure was introduced, and all other tenures assimilated thereto. This gave rise to the doctrine of Primo- geniture. (3) The folkland became fixed as the terra regis. (4) The royal revenue was derived mainly from feudal aids and incidents. (5) The king became the source of all jurisdiction, and consequent thereon came the rise of the king's courts and the limitation of the jurisdiction of the shire courts. (6) The judicial system was re-organised; the spiritual and civil courts were separated. (7) The Norman language was used in all legal proceed- ings. (8) The tenants in capite were nearly all Normans ; new titles were introduced; duke (dux), and count or viscount (vice-comes). (9) The officers of the government were all Normans, and principally ecclesiastics. Hence the influence of the canon law upon the early English law. (10) The king's writ was introduced. (58) THE NORMAN LEGAL SYSTEM. 59 The Norman system of administration of justice was partly imported from their own land and framed in pursu- ance of their own customs, and partly adopted from the ancient Saxon system. The inferior courts were based upon Saxon models ; indeed, they were practically a continuation of the Saxon courts, e.g. the Hundred Court and the Shire Court. The other courts were the Courts of the King, and based upon the feudal system, e.g. the Court of the Lord of the Manor (the Court Baron). Curia Re^is. — The great original court of the Normans was the Curia Begis. This is merely a general designation to cover our ignorance of the particular branches (if any) of that com't, and of its various offices. It is, however, clear that from what is termed the Curia Begis sprang all those superior courts which now exist in this country. The House of Lords came from it, considered as the Magnum Concilium, or Goynmune Concilium Begni. The Privy Council came from it, considered as the Coiwiliioiii Ordinarium, or Select Council. The Exchequer, the Common Pleas, and the King's Bench (strictly called the Curia Begis), all grew from the judicial side of this ancient conception. The Court of Chancery alone, which was not of Norman origin, is not directly attributable to the Curia Begis. We may therefore indicate the Norman courts as follows : — The King in Council as the supreme appellate head, in the Curia Begis, or in the Concilium Ordinarium, sitting as a committee of the Curia Begis. The House of Lords, and the Courts of Exchequer, Common Pleas, and King's Bench (as to all of which see pp. 8 to 19). The Assize Courts (see p. 31). The jurisdiction of the Bishops, exercised in matters of Probate and Divorce (see pp. 29, 30). The Court of the Lord High Admiral was scarcely a Norman introduction (see p. 26). 60 THE NOEMAN LEGAL SYSTEM. The inferior courts may be shortly described as follows : — The County Court, The County Court was the Court of the Sheriff, and repre- sents the ancient Shire Court of the Saxons. Its jurisdiction was of a similar nature to that of the Coui't Baron. Under 6 Edward I. c. 8 (the Statute of Gloucester), it had a juris- diction exclusive of the superior courts, where the amount was under 40s. ; and this was confirmed by 43 Elizabeth, c. 6, whereby a party bringing an action in the superior courts under 40s. was punished in costs : hence come the modern rules upon this subject. By the special writ of justicles all personal actions to any amount, and most real actions, could be tried in the County Court. It was held every month (2 Edward VI. c. 25); and it was presided over by the sheriff; the judges of the court being all ^ the freeholders of the county. In early times the bishop attended, and the ealdorman or the first earl in the county. It was the most democratic court in the country .^ Here, m pleno coniitatii, were held all popular elections of the knights of the shire (as the members of Parliament for a county were called), of the coroner, and of verderers. Here, too, aU Acts of Parliament were pubhshed, and all outlawi-ies proclaimed. But the gradual effect of the feudal system, which was forcibly developed by the Norman Conquest, led to a separa- tion of the Church from the Civil Courts, and prevented the bishop from sitting in the County Court (Constitutions of Clarendon, 1164). Then the earl also ceased to attend, and the cornet gradually waned though it continued to exist until 1846. The same writs lay to remove matters to the higher courts, ^ All did not attend. The burden of suit passed with special lands. I. P. and M. 524, 527, 529. - Juries of twelve attended from each hundred, borough, and some manors. II. P. and M. 642. THE NORMAN LEGAL SYSTEM. 61 as in the case of the Court Baron and of the Hundred Court. Its jurisdiction was affected by the same statutes as that of the Court Baron, and with the same results. It is now entirely replaced by the modern County Court. The Shebifp's Touen. This was a visitation or tourn of the sheriff to hold a court leet of the county (held originally in each hundred, I. P. and M. 546). It bore the same relation to the Court Leet as the Sheriff's County Court did to the Court Baron. It was practically the criminal side of the Sheriff's County Court. It was a court of record, and was held twice a year. It is now obsolete. The Hundred Coubt. This was a survival of the ancient Saxon Hundred Court. It is a larger Court Baron, held for a hundi'ed instead of for a manor, and is therefore larger only in point of territory. It was not a court of record, but it had the same jurisdiction in common law as the Court Baron, and was governed by the same vnrits and rules. It has also been affected by the same statutes, and with the same result, as the Court Baron. The Hundi-ed Court of Salford stiU exists, and is a court of record, similar in all respects to a modern County Court (9 and 10 Vic. c. CXXVI). The Coubt Barox. The Court Baron is a court incident to every manor in the kingdom. It is divided into two ^ parts. (1) The Customary Court of the Copyholders, where the transactions relating to property in the manor were per- formed, such as surrenders and admittances. (2) The other division of the court is the Common Law Court of the Freeholders (called "barons," hence the " Court 1 Originally one only. I. P. and M. 581. 62 THE NOEMAN LEGAL SYSTEM. Baron"), held every three weeks, to determine all personal matters under 40s., and all questions as to lands within the manor by writ of right. The steward of the manor sat as registrar and not as judge, being only the lord's deputy. If there are not left two tenants^ at least to make a jury or homage the court fails, and with it the manor. It was not a court of record ; and so proceedings on a writ of right could be removed from it to the County Court by a precept from the sheriff, called a tolt, because it takes away (tollit) the plaint from Court Baron to the County Court. Other proceedings were removed by a \viit of j^one, because the sheriff was ordered to put {ijone) the plaint in the higher court (originally this writ was used to remove proceedings from the County Court to the superior Court of the King) ; or by a writ of accedas ad curiam; or, after judgment, by a writ of false judgment to the courts at West- minster. The matter might be removed before it w^as heard by a writ of q;uia dominus remisit curiam, because the lord remitted his court to the king. The jurisdiction of this court as to land was practically abolished by 3 and 4 William IV. c. 27, which swept away nearly all real actions, and by 23 and 24 Vic. c. 126. By virtue of these statutes nearly all matters relating to land were to be heard in the superior courts. Its jurisdiction in personal actions was affected by 9 and 10 Vic. c. 95, whereby county courts were established ; and by the County Courts Act, 1867 (30 and 31 Vic. c. 142), this jurisdiction of the Court Baron was practically entirely taken away. The Court Leet. The Court Leet (or View of Frankpledge) was held twice a year before the steward of the leet in a particular district, e.g. a hundred or a manor. It was a court of record. Its juris- diction was originally to take a view of aU the frankpledges 1 Doubted by I. P. and M. 580. THE NOEMAX LEGAL SYSTEM. 63 in the district (see p. 52). It could present by jury for all crimes and could punish trivial misdemeanours . By 52 Henry III. c. 10 (the Statute of Marlbridge), the greater men were released from the necessity of attendance ; and by 1 Edward IV. c. 2, much of its jurisdiction was given to the Court of Quarter Sessions. Now, both the Sheriff's Tourn and the Court Leet are prac- tically obsolete. The Court Leet, however, still exists in some manors as a criminal side of the Court Baron. It is held before the steward of the manor with reference to trivial offences. Procedure. — The establishment of the king's com'ts led to the growth of a system of procedure, which differed alto- gether from the Saxon system, and which was greatly assisted in its inception by the settled forms of the king's writs. New methods of trial were introduced, being brought over by the conquering Normans as part of the customs of their own country (e.g. Wager of Battle), or being due to the inventive genius and the powers of adaptation of the clerical lawyers (e.g. the Grand Assize). It has been abeady pointed out that the tendency of the feudal system, strongly and rapidly developed by the Norman Conquest, was to centrahse power and the administration of justice in the hands of the king. From this som'ce came the maxim that the king is the fountain of justice, and that therefore the king can do no wrong. In virtue of this maxim, the King's Court, besides its original jurisdiction in all matters affecting the king, also had jm'isdiction in matters between subject and subject in the following cases : — (1) Where the parties were tenants holding directly from the king. (2) Where the lord in whose jurisdiction the parties lived held no court. 64 THE NOKMAN LEGAL SYSTEM. (3) Where the lord gave his permission {q^da dominus re- misit curiam suarii). Writs. — The leading principle of the Norman procedure was undoubtedly the king's writ. It replaced the ancient summons by the party injui-ed to the accused. The Court of Common Pleas had no jurisdiction without the king's writ. In the lesser courts, however, as in the Court Baron or the Sheriff's County Court, there was no original writ, but a plaint only, and the judge in such courts was bound by common right to administer justice without a special mandate from the king. The writ was enforced by the king's deputy, the sheriff, backed by all the powers of the Crown. Hence the claim of the king to be recompensed for his trouble and expense in maintaining the necessary officers to enforce his orders. Fui'ther, a writ was not a matter of right, but an act of grace from the king, and had to be paid for. This custom of payment developed into the open sale of ^^Tits, and was finally met by the famous clause of Magna Charta, nulli vendemus nulli negabi?rms aut differemus reckim autjusticiam. We can trace the survival of it at the present day in the shape of court fees and stamps. A writ in its primitive form does not appear to have had any connection with a particular suit, but was a general direction to do right. All writs were anciently original writs, that is, \^T.'its which passed under the gi'eat seal, and they were issued out of Chancery (the chancellor's office, he being secretary to the king), where was kept a register of the original writs. This was the office of the Crown in Chancery, and was the common-law side of the Chancery Court (see p. 20). It is now represented by the Central Office. An original writ is a mandatory letter from the king on parchment, sealed with his gi'eat seal, directing the sheriff of a county to command the wrong-doer to do justice to the complainant, or to appear in court to answer the charge THE NOEMAN LEGAL SYSTEM. 65 against him, concluding, "and have you there this writ". The sheriff thereon makes his return into the Court of Common Pleas, together with the writ itself {e.g. in a case of a writ of capias ad satisfaciendum the sheriff returns cepi corpus, and the writ with it ; the latter is especially neces- sary in cases of habeas corpus, see in re Thompson, Reg. v. Woodward, 5 Times L. E. 565, 540, 601). Original writs were either optional or peremptory. The optional writ was called a praecip>e, because it was in the form of a " command " to the defendant to redress the injury or stand the suit, giving him his choice. The peremptory writ was called a writ si fecerit te securum, because "if the plaintiff gave security " to the sheriff to prosecute his suit (the pledges of the prosecution John Doe and Eichard Eoe, see p. 54), the sheriff compelled the defendant to appear in court, vnthout giving him any option. If the defendant could not appear he might put in essoins (essonium) or excuses for not taking a step in the suit. All original writs were tested or witnessed in the king's own name: "witness ourself at Westminster," or wherever the Chancery Court might be, for in early days it followed the king (see p. 21) ; and now they are tested by the lord chancellor. The ancient v^its were known as the writs de cursu, and they were fixed in form, and every cause of action had to be fitted to one of these forms (cf. the Eoman legis actio). The clerks who prepared these writs were called the cursitors. The chancellor was expressly forbidden by the Provisions of Oxford in 1258 to frame any new writ without the consent of the king or the council. In due course the difficulty arose of accommodating new claims to the old forms ;i and so, by 13 Edward I. c. 24 (the statute in consimili casu), a new writ was directed to be issued for any new case which could not be met by the old forms. ^ For which see Beames' edition of Glanvill. 6 66 THE NOEMAN LEGAIi SYSTEM. This statute, according to Coke, was only declaratory of the common law. After this we find in the books numerous writs of trespass upon the case, that is, the special facts of a particular case put in a special form of writ, framed on analogy to the old writ of trespass. All writs were generally termed "process ". Mesne process included all writs intermediate between the original writ and final execution, i.e. between original process and final process. Writs may also be divided into writs patent and writs close : the latter being writs of a private matter, not fit for the pubHc to see, and therefore shut up or closed and fastened with the king's privy seal. A writ patent is, of course, an open letter. Prerogative writs are of a special natm^e. They are not directed to the sheriff or to any ministerial officer, but to the party himself of whom complaint is made (as in the case of mandamus, habeas corpus, and the like). They are issued by the Crown in virtue of its extraordinary power, as anciently the supreme judge of the kingdom, whereby it immediately interposes in urgent cases to prevent the doing or continuance of wrong to one of its subjects. They arose partly from the urgency of the case, partly from the de- ficiency of the common law. Prerogative writs are now subjected to certain established rules ; for the Crown's prerogative itself is not above the law. (See the Case of Prohibitions, 12 Kep. 83, where Coke, C. J. quotes with approval from Bracton, Quod rex non debet esse sub homine sed sub Deo et lege.) Writs of entry were possessory actions, and issued merely to recover the possession of land, and did not settle the right of property as a real action did.^ Writs of entry were in the ^;er or in the j;er et cui or in the post. In the per, when the plaintiff alleged that the ' For a carefully graduated list of writs see II. P. and M. 74. THE NORMAN LEGAL SYSTEM. 67 defendant had come into possession through or by the original Avrong-doer. In the _per et cui, when it was alleged he had come in through or by a party to whom the original wrong-doer had leased the property. After two alienations or degrees the plaintiff was originally not allowed to proceed by writ of entry ; but, to punish his laches, he had to sue by the cumbrous writ of right. However, the Statute of Marl- bridge, 52 Henry III. c. 30, allowed the writ of entry after any number of alienations or degrees, the plaintiff merely alleging that the defendant had come into possession after (post) the original wrong-doer. This writ of entry, S7ir dis- seisin in the i^ost, became the common form. The ancient writ of assize of mort d' ancestor lay to deter- mine whether a plaintiff was heir to certain land. It only lay in the first degree ; for if the claim arose on the death of a grandparent the writ of ayle or de avo lay, if of a great- grandparent, the writ of befayle or de proavo. In all other degrees, including collateral, the writ of cosinage or de con- sanguineo was used. By 2 and 3 Wm. IV. c. 39, the whole system of writs was revised ; but it was not until the Common Law Procedure Acts of 1852, of 1854, and of 1860, that the modern ^vrit of summons was introduced instead of the original writ. This vn'it of summons is a letter in the queen's name to the defendant, commanding him to appear in court to answer the charge brought against him, within eight days of the service of the writ upon him. By the Judicature Acts vyrits were further amended, and an endorsement on the writ as to the nature of the plaintiff's claim was made necessary. Wager of Battle. This method of trial was introduced by the Normans, and is due to the feudal system. It was principally used in three cases, and gradually became confined to those cases only, viz. in the Court of Chivalry, in an appeal of felony, and in an 68 THE NORMAN LEGAL SYSTEM. action as to land by a writ of right. It was to obviate this method of trial in matters as to land that the Grand Assize (p. 69) was introduced. Wager of battle may be compared to the Holmgang of the Scandinavians. The first law as to judicial combat is the Law of Gundebald in 501, in the Burgundian code. One of the last cases of trial by battle joined in a civil matter was in 13 Elizabeth (Lowe and Kyme v. Paramour, Dy. 300 b.), but no fight actually took place, as the plaintiff made default. See this case for an account of the proceed- ings, and also 3 BLk. Com. 339. There was a case in Mary's reign (Beade v. Eochforth, Dy. 120 a.). There was another case of a writ of right in the county palatine of Durham in 1639 (Claxton v. Lylbourn, Cro. Car. 522), where an exception was taken to the champions, which was, however, quashed, and thereupon, presumably, the battle took place. In the Court of Chivalry there was a trial by battle in the reign of Charles I. (Lord Eea v. Eamsey, 3 St. Tr. 483). This right existed in criminal cases (by appeal for felony) down to the present century. In civil cases the parties were allowed to appear by proxy, and in a writ of right they must do so. In criminal matters, however, such as appeals for murder or manslaughter, each party must appear in person, but exceptions were made in favour of women, priests, infants, persons over sixty, the lame, the blind, peers of the realm on account of their dignity, citizens of London by special charter, because fighting was foreign to their education and employment, also if the accused was taken with the mainour, that is, taken with the article or weapon in his hands {main ceuvre). In these exceptional cases the party might counterplead the wager of battle, and appeal his adversary to put himself on the country. For an account of the proceedings in wager of battle in criminal cases, see 4 BLk. Com. 341. The last case was Ashford v. Thornton (1 B. and Aid. 405, see the THE NORMAN LEGAL SYSTEM. 69 learned arguments of Chitty and Tindal), in 1817, which led to the Act of 1819, whereby wager of battle in all cases was abolished (59 Geo. III. c. 46). The following is an abstract of a record with an award of battle : — Oxford to wit. The writ, Dominus remisit curiam (see p. 64). Count (that the plaintiff was seized of the lands). Esplees. Defence. Wager of battle. Eeplication. Joinder of battle. Gages given. Award of battle. Pledges. Continuance. Champions appear. Adjournment to the lists. Plaintiff non-suited for non-appearance. Final judgment for de- fendant. The Geand Assize. The Grand Assize was instituted by Henry II. about 1177, as a method of trial by the recognition of a jury, in order to obviate the old methods of Wager by Battle, and of Compurgation in questions relating to land. Assize is de- rived by Coke from assideo, referring to the assembling or sitting together of a jury. Assize is equivalent to statute or ordinance, a legislative act, e.g. the Assize of Clarendon ; or it may mean a form of trial, as the Assize of Novel Disseisin ; or again it may mean the court which holds such trial, the Assize Court ; or the jurors who sit upon the assize, e.g. the Grand Assize. The Grand Assize was a jury sworn to determine the right of seisin of land. It was obtained in the following way : The sheriff was directed by writ to summon fom* knights of the vicinage, who were sworn to elect twelve good men and true, and then the twelve and fom^ together (originally only the twelve, 11. P. and M. 618) sat as a jury to determine the question before them. It has been said that these four knights are the first germ of popular representation in the shire. The following is an abstract of a record of a trial by the Grand Assize : — 70 THE NORMAN LEGAL SYSTEM. Writ, Dominus remisit curiam. Count (A. claims seisin of the land). Esplees,^ inde inoducit sectam. Defence. Mise (B. puts himself upon the Grand Assize). Tender of the demi mark (B. tenders 6s. 8d. to the king, court fees). Summons of the knights. Eeturn. Election of jury. Venire facias. Jury sworn. Verdict for plaintiff. Judg- ment (that A. recover his seisin against B. ; and the said B. in mercy, etc.). In the reign of Henry II. four points are noticed by Blackstone : (1) the Constitutions of Clarendon ; (2) the justices of assize ; (3) the Grand Assize ; (4) the system of scutage. He states the reforms of Edward I. as follows ; (1) the limitation of the power of the ecclesiastical courts ; (2) and of the courts both superior and inferior ; (3) the amendment of the forest laws ; (4) no royal interference in private causes ; (5) the statute of quia emijtores as to the alienation of land ; (6) the wi-it of elegit as a method of exe- cution ; (7) the law as to advowsons ; (8) the mortmain acts ; (9) the statute de donis, and the laws as to estates tail ; (10) the law as to coroners ; (11) the settlement at a fixed figure of all fines ; (12) the setthng of the forms of writs and pleadings ; and (13) the growth of legal treatises. The work of Edward III.'s reign he thus enumerates : (1) the law of treason ; (2) the statute staple ; (3) the statute of praemwiire ; (4) the establishment of the law as to adminis- trators for distributing the personal property of intestates ; (5) the right of creating magistrates vested in the Crown, and not in the people ; (6) all law proceedings to be recorded in Latin and not in French. The effects of Henry VIII. 's reign he summarises as : (1) the ecclesiastical supremacy of the king; (2) the law as to 1 Exjilicare ; makes his seisin explicit by taking nominal fruits of the land. II. P. and M. 34. THE NORMAN LEGAL SYSTEM. 71 wills ; (3) the doctrine of uses ; (4) the attack on estates tail ; (5) the bankruptcy laws ; (6) the law as to recognisance on a statute staple ; (7) the uniform administration of justice. In the reign of Charles II. the era of good laws and bad government, he refers to : (1) the abolition of mili- tary tenures with all feudal incidents ; (2) the habeas corims act ; (3) the navigation laws ; (4) the triennial act ; (5) the acts as to non-conformity ; (6) the statute of frauds ; (7) the distribution of intestate estates ; (8) the law as to amendments and jeofails ; (9) the abolition of the writ, de heretico comburendo. CHAPTEE VI. SECTION I. CONSTITUTIONAL AND GENERAL MATTERS. Aliens.^ — Aliens by the common law were not allowed any civil rights in this country. They could hold no office, they could possess no land, but they were subject to criminal and other responsibilities, including higher rates of taxation. By Magna Charta foreign merchants were granted privi- leges ; and these were extended in 16 Henry III, and again in 31 Edward I. by the famous Carta Mercatoria, and by subsequent statutes in 5 Edward II. 2 Edward III. c. 9, and 14 Edward III. statute 2, c. 2, But by 32 Henry VIII. c. 16, they were forbidden to take any house upon lease. The Crown had an inherent common-law right to expel all aliens from the realm ; in 1575 occurred the last general expulsion of aliens from this country. In 1606 in Bates's case (2 St. Tr. 371), foreign merchants were sub- jected to impositions by the Crown. By 7 James I. c. 2, any person becoming natm^alised must take the oaths of allegiance and supremacy, and the sacrament before Parliament ; but this statute was frequently dispensed with in special cases. In 1608 in Calvin's case (2 St. Tr. 559), it was held that a person born in Scotland after the date of the union of the two Crowns was a natural born subject of the English Crown. On the American colonies becoming independent, all antenati in America ceased to be British subjects after the treaty of peace in 1783 (Doe v. Acklam, 2 B. and C. 779) ; according to American law, after the Declaration of Inde- pendence, 1776 (see Inghs v. The Trustees of the Sailors' 1 The cause of the law as to aliens was the loss of Normandy. I. P. and M. 444. (72) CONSTITUTIONAL AND GENERAL MATTERS. 73 Snug Harbour, 4 Peters 99). On the disunion of the crowns of Hanover and England in 1837, Hanoverians, even though born before 1837, became ahens (the Stepney election petition case or Isaacson v. Durant 17 Q.B.D. 54; contra 7 Eep. 27 b.). By the Act of Settlement in 1701 all aliens, although naturalised or made denizens, were excluded from the Privy Council, from Parliament, and all offices, and from taking any lands from the Crown, either directly to themselves, or through a trust upon others. By 7 Anne, c. 5, all foreign Protestants were naturalised ; but this Act was shortly afterwards repealed. In 1753 all foreign Jews were allowed to be naturahsed without the necessity of taking the sacrament. This was the famous Jew Bill of 26 George II. c. 26, which was so unpopular that it was speedily repealed. It was not until 1825 that the necessity of taking the sacrament as a preliminary to naturalisation was abrogated in all cases by 6 George IV. c. 67. The Alien Act of 1793 was passed to strengthen the hands of the Government against the hands of dangerous pohtical refugees ; and although subsequently relaxed when peace was restored, it was not finally repealed until 1826. In 1836 the compulsory registration of aliens was provided for. In 1844 Hutt's Naturalisation Act was passed (7 and 8 Vic. c. 66), which enabled an ahen to become naturalised by ob- taining a certificate from the home secretary and taking the oath of allegiance. Hitherto naturalisation could only be by Act of ParHament, but denization could be acquired by letters patent from the king. In 1870 came the Natm^ahsation Act (33 and 34 Vic. c. 14), which repealed Hutt's Act, and placed the law upon its present footing. An alien does not, under this Act, become a natural born subject ; he has merely all the rights of a natm'al born subject, and so his childi-en born abroad are ahens ; re Bourgeoise (41 Ch. D. 310). 74 CONSTITUTIONAL AND GENEEAL MATTERS. Allegiance. — The origin of the doctrine of allegiance is found in the feudal system, based upon the territorial re- lation of the vassal to his lord, and the consequent oath of fealty which was exacted from the vassal. It was afterwards extended to include all duties. The next step was in the time of Edward II. when the Despencers (1 St. Tr. 23) made an attempt to limit the doc- trine to the political capacity of the king. By Parliament it was, however, extended to the personal capacity of the king, as enunciated in the maxim nemo i^otest exuere patriam, (the case of iEneas Macdonald). It was under this maxim that the pressing of men from American ships in 1807 was partly justified (see p. 90). This doctrine prevailed down to the present time until the Naturalisation Act of 1870, which allowed a person to renounce his country by a declaration of alienage (33 Vic. c. 14, s. 4, and s. 6). Allegiance was settled as being due to the personal capacity of the king in Isaacson v. Durant (17 Q. B. D. 54). The doctrine of perpetual allegiance was not applied to Americans antenati before the treaty of peace in 1783 (Doe V. Acklam, 2 B. and C. 779 ; Ingiis v. The Trustees of the Sailors' Snug Harbour, 4 Peters 99). The right to elect as to allegiance must exist in all Revolutions. Allegiance may be dissolved by the mutual consent of the government and the governed. In ancient times the oath of allegiance was not necessarily confined to the king, it was due to the lord of the tenant's chief estate. The theory that all lands are holden of the king limited the application of the doctrine of allegiance to one person. The oath of fealty to a superior lord still remained. But this oath contained a saving clause in favour of any higher lord, while the oath of allegiance was contra omncs homines, with no saving clause. The modern oath of allegiance runs thus : I do swear hat I will be faithful and bear true allegiance to H. M. CONSTITUTIONAL AND GENERAL MATTERS. 75 Queen Victoria, her heirs and successors according to law, so help me God (31 and 32 Vic. c. 72, s. 2). Attainder. — A bill of attainder is a criminal proceeding by the High Court of Parliament. It is a legislative act, just the same as any other Act of Parliament. It is intro- duced in either the Lords or the Commons, and after passing both Houses, receives the royal assent. Its original object was to punish those who fled from justice, and it is based upon the same principles as a bill of pains and penalties. The first instance of its use w^as in 1321 in the case of the Despencers (1 St. Tr. 23), but this was merely to punish the accused. The first capital sentence by bill of attainder was in 1450, in Sufi'olk's case, and it continued to be used till 1697 in Sir John Fen wick's case (13 St. Tr. 537). In Lord Seymour's case (1 St. Tr. 483) and Lord Somer- set's case (1 St. Tr. 521), the following points are of interest. The Commons were not allowed to hear the accused person, but the witnesses who had given evidence before the Lords repeated their evidence before the Commons. The accused persons were not allowed to be confronted by the witnesses. The three lords against whom Somerset had conspired sat upon his trial. It was a general rule that the accused person was not heard in his defence (Lord Cromwell's case, 1 St. Tr. 434). The effect of attainder was to attaint the blood of the party, and thereby to render it impossible to trace relationship through him ; consequently, all his property was seized by the Crown, there being no one entitled to succeed to it by law. Any dignities of the accused were also lost in a similar way. All these consequences of attainder were abolished by the Felony Act, 1870, in a,ll judgments for treason or felony. A bill of attainder being an Act of Parliament could of course override the statute of 1870. Consuls. — The origin of consuls appears to date from the ninth centmy. The Mussulmans of Syria and Palestine 76 CONSTITUTIONAL AND GENERAL MATTERS. allowed them to the Frankish residents by virtue of the treaties of Charlemagne with the Sultan. In Egypt the merchants of Amalfi obtained the privilege of trading at Alexandria under their own consul. "We hear of the merchants of Tyre in the twelfth century before Christ being allowed three trading factories in Egypt, where they lived under their own laws. Consuls were recognised by the Laws of Trani in 1060. The ancient " Consolato (by the consuls) del mare" shows they were important officers at a very early period. Anciently in this country consuls were chosen by the merchants ; and this continued to be the case in the Levant under the original charter of the Levant Company in 1581, renewed in 1606, and in 1662, until it was abrogated by 6 Geo. IV. c. 23, and placed upon a modern footing by 6 and 7 Vic. c. 94, and several Orders in Council made thereunder. There are ancient instances of consuls, at Acre in 1190, at Barcelona in 1220, and at Ancona in 1397. Speaking gener- ally, at the present time a consul is not a judicial officer, but merely a mercantile official (Viveash v. Becker, 3 M. and S. 284), and he is allowed to trade. Consuls in Mohammedan countries have civil and criminal jurisdiction. All judicial powers of consuls depend upon treaty. Dispensing Power. — The dispensing power was a pre- rogative of the Crown to exempt a particular person from the penalties of the law. It was practically a pardon granted before an offence was committed. The Suspending Poioer was a prerogative of the Crown to suspend the effect of any law with regard to the whole nation. It originated in the doctrine of the popes, who made use of the clause now obstante in ordering a person to do an act, " notwithstanding any law of his own country to the con- trary". The history of both these powers may be taken together, for they were practically inseparable. The clause non obstante was used by Henry III. and again by Richard 11. and the use of it was allowed by the Parlia- CONSTITUTIONAL AND GENERAL MATTERS. 77 ment in 1391 to dispense with the Statute of Provisors (25 Ed. III. St. 4). The suspending power was exercised by Henry IV. In 23 Henry VI. c. 8, the dispensing power was questioned ; and it was clearly laid down in the case of non obstante (12 Rep. 18), at the time of Henry VII. that the king could dis- pense with a statute, or any offence which was created by a statute {malwn inohihitum), but not with any part of the common law {malum in se). In 1604 the opinion of the judges was clearly against the exercise of this power with reference to any penal statute (R. v. Bishop of Norwich, and The Prince's case in 1605, 8 Rep. 13). The suspending power was, however, used in 1662, as to the Navigation Laws, and as to the Van and Wheel Tax, and again, in 1672, by the Declaration of Indulgence. In 1674 came the case of Thomas v. Sorrel (Vaughan, 330), when the power of the Crown to dispense with a statute was, with certain exceptions, recognised, and the distinction was clearly drawn by Vaughan, C. J. between malum prohibitum and malum in se. In the reign of James II. it was expressly decided that the king could not suspend the common law (R. v. Beal, 3 Mod. 124). Then in 1686 came Godden v. Hales (11 St. Tr. 1165), where the absolute prerogative of the king to dispense with or suspend any law was upheld by the Court. But, shortly afterwards, in the famous case of the Seven Bishops (12 St. Tr. 183) in 1688, the suspending power was directly called in question. It was declared to be illegal by the Bill of Rights, as was also the dispensing power "as it had been assumed and exercised of late"; this saving clause being inserted to preserve the prerogative of pardon to the Crown. But another clause of the Bill of Rights expressly abolished the dispensing power as to any statute without any saviug clause at all. The dispensing power was discussed in 1815 in The Case of Eton College (Broom 503). 78 CONSTITUTIONAL AND GENERAL MATTERS. Domicil. — The history of domicil may be shortly sum- marised as follows. In the Eoman Law domicil was the foundation of jurisdiction : every person could be sued in the place of his domicil for all personal matters, as well as in the place of his origo (citizenship). Domicilium re et facto transfertur. It arises jure gentium, and not jiire civili. Hence a man could have more than one domicil. Personal law must be distinguished from domicil (Udny V. Udny, 1 H. L. Sc. 441). The growing importance of moveables as objects of property influenced the doctrine of domicil (see Story, Conflict of Laivs, sec, 45 a.). The doctrine of domicil was in a technical state when it was imported into the English law from the Roman law. In France the doctrine of domicil under the feudal influence regarded a man as entitled to justice from his seignem\ This domicil followed him abroad, and he could bring an action in France against a foreigner even tbough the obliga- tion was contracted abroad, on the ground that he was entitled to demand justice from his lord. In England the law of domicil as a foundation for jm*is- diction has depended more upon the presence of the de- fendant than upon the right of a vassal to require justice from his lord. By the Common Law, personal service within the jurisdiction alone was necessary to bring a defendant under the jurisdiction. In Chancery the jurisdiction de- pended upon the presence of the party within the jurisdiction provided any equity attached to him (Penn v. Baltimore, 2 W. and T. 1047). Domicil as a foundation for jurisdiction may be double for pm'poses of trade (" The Indian Chief," 3 Eob. 12). Domicil as a criterion of personal law must be carefully distinguished, for it must be single, and Time is the chief element to be considered in it (per Sir W. Scott, in "The Harmony," 2 Rob. 324). Extradition. — The right of a State to hand over any person found within its borders to another State is a high act of government, which arises from the reciprocity of CONSTITUTIONAL AND GENEEAL MATTERS. 79 nations and from the necessities of the particular case (Napper Tandy's case, 27 St. Tr. 1171). Extradition is, however, usually exercised under the provisions of a Treaty. It is analogous to the right to banish aliens which existed in our law. It was formerly held that the right of extradition existed at Common Law (see East India Co. v. Campbell, 1 Ves. Sen. 246 ; Mure v. Kay, 4 Taun. 34) ; but subsequent legisla- tion has entirely overthrown this theory, see the Acts of 1870 and 1873. The right of extradition exists for all indictable offences which fall under the Criminal Consolidation Acts of 1861, or are mentioned in the Schedules of the Acts of 1870 and 1873. The crime for which extradition is demanded must be proved to be a crime according to the laws of England. No extra- dition will be granted for political offences, i.e. such as are incidental to and form a part of political disturbances (re Castioni, 1891, 1 Q. B. 149). The person surrendered can only be tried for the offence for which he was extradited ; this provision was due to the dispute which arose out of Lawrence's case (13 Blatchford Circ. Ct. Eeps. 295). Herodotus says that when Pactyas fled to Cyme his surrender was refused. At Eome the Fecial college could make a surrender. Extradition probably existed among the Latin League. The Turks after Carlo witz, 1697, refused to sm-render a Hungarian. Fiction. — The use of fictions in the EngUsh law and in all other systems of law has been extensive. Fictions were hated by Bentham as a means for the production of judiciary law. He says : "A fiction of law is a wilful falsehood, its object being to steal legislative power by and for hands which could not or durst not openly claim it, and which, but for the delusion thus produced, could not exercise it ". Austin ascribes the use of fictions to the sheer imbecihty of the makers of the law. But the better view is that of Maine, who recognises that fiction is one of the agencies 80 CONSTITUTIONAL AND GENEEAL MATTEES. (the other two being equity and legislation), by which, in pro- gressive societies, positive law is brought into harmony with public opinion. In English law the fictions by which the Court of King's Bench and the Court of Exchequer established their juris- diction are well known (see pp. 15, 18). Again, we find in criminal law the husband and wife regarded as one for most purposes (see p. 173). The action for seduction given to the father of the girl is based upon the fiction of loss of service. Fiction is especially noticeable in the action of eject- ment (see p. 157). Also in the law as to prescription in pre- suming a lost grant. Constitutional law is full of legal fictions. Franchise. — A complete history of the franchise is some- what beyond the scope of this work, but it may be shortly summed up as follows. In counties originally every man who attended the shire court had a vote, except probably villeins (but this is uncertain). The writ^ was addressed to the shire reeve and the election was in pleno comitatu (p. 60). The first disabling statute was 8 Henry VI. c. 7, in 1430, which limited the franchise to forty- shilling freeholders in the county. In boroughs the franchise was by custom. The king sent writs to any borough as he liked, but he was compelled to send them to all counties. Over sixty Acts have been passed upon this subject. Their effect is shortly that the franchise is based upon (a) property, or (b) occupation, or (c) residence, and upon the four Acts of 1480, of 1832, of 1867, and of 1884. County. Act of 40s. Freehold 1430 and 1832. £50 Leasehold, twenty years, . 1832. £5 Freehold, ^ £5 Copyhold, I . 1867. £5 Leasehold, sixty years, J £10 Occupation, -v Household rated separate house, } . . 1884. £10 Lodger, twelve months, J > For the form of writ see Stubbs, Select Charters, 367. CONSTITUTIONAL AND GENERAL MATTERS. 81 Act of BOBOUGH. Freemen, birth, services, > 40s. Freehold, county of town, [ . . 1832. £10 Occupation, ) Houseliold rated separate house, ) ^ „„_ £10 Lodger, twelve months, | • ■^^^^• The ancient origin of the borough franchise is much dis- puted. It is variously ascribed to the quaUfications of residence, corporate office, incorporation, or tenure. (1) Eesidence. — This includes all resident householders paying scot and lot (this meant the payment of local rates and national taxes). This qualification varied in ditferent districts. In some places it included potwallers, "those who boiled their own pot". It was held in 1624 by a com- mittee of the House of Commons that, where there was no prescription to the contrary, this ancient common-law right should prevail. (2) Corporate Office. — This limited the qualification to members of the municipal magistracy. It was strenuously upheld by the Court divines under Charles II. and James II. especially in connection with the attacks upon corporations, by the writ of quo warranto. (3) Incorporation. — This gave the right to the freemen of an incorporated body. It was based upon a royal charter. It may be compared to the ancient gild. The freedom of the borough was obtained in many different ways. (4) Tenure. — This was an exclusive qualification for certain freeholders within the borough, otherwise known as burgesses. It existed in different forms throughout the country. It is derived from the ancient rights of the members of a village community as co-owners of the land. This doctrine was supported in 1704 by Holt, C. J. in Ashby V. White (14 St. Tr. 695).^ General Warrants. — General warrants to take up all parsons suspected of some offence, without particularising any ^ As to the franchise generally see IV. Hallam, Middle Ages, 319, note 172. 6 82 CONSTITUTIONAL AND GENERAL MATTERS. person, used to be issued by the secretaries of state from the time of Charles I. to the middle of the eighteenth century, especially with reference to seditious libels. They were allowed by 17 Geo. II. c. 5, for taking up vagrants, and they were used in searching for stolen goods. The Licensing Act as to the Press (13 and 14 Charles II. c. 33) expressly gave power to a secretary of state to issue a general warrant with reference to papers, but not as to persons, and it might be granted on mere suspicion. The construction of this Act was extended by the opinion of the twelve judges in Harris's case in 1679 (7 St. Tr. 926). The issuing of general warrants was one of the articles of impeachment against Scroggs, C. J. (8 St. Tr. 200). In Entick v. Carrington in 1765 (19 St. Tr. 1130) it was expressly held that general warrants to seize property were illegal, following the decision in Wilkes v. Wood (19 St. Tr. 1153) ; and in the same year in Leach v. Money (19 St. Tr. 1001), a general warrant with reference to persons was also held illegal. In these cases the precedents which were relied upon to support the warrants were acts of the Star Chamber, which were not recognised by the Court. Nor did the Court recognise the usage of the particular office (of secretary of state), although this went to establish the practice of using such general warrants, because it was contrary to the usage of all justices of the peace (see p. 100). These cases were followed by a resolution of the House of Commons in 1766 to the same effect. Habeas Corpus. — There are several vsrrits of habeas corpus designed in different forms and for different purposes. Habeas corpus ad respondendum, to bring a person to answer a matter in a superior court, he being in gaol under process of an inferior court. Ad satisfaciendum, to bring a person, against whom judgment in an inferior court has been given, before a superior court, in order to proceed with execution against him. Ad faciendum et recipiendicm (or cuvi causa), CONSTITUTIONAL AND GENEEAL MATTERS. 83 to remove all proceedings from an inferior to a superior court, when the party has been already arrested. Ad pro- sequenchmi, testificandum, to bring a prisoner to trial before the proper jurisdiction, or to bring a prisoner to give evidence. Imprisonment for debt being now almost entirely abolished, and an order by a judge or a secretary of state having generally the same effect in these matters as a habeas corpus, these forms of the writ are but little used. The important writ in the present day is the habeas corpus ad subjicieiuhnn. This famous writ was known long before the time of Charles II. and was a prerogative writ in the nature of a writ of mandamus. It existed probably before Magna Charta, and was, it is said, rehed upon to support the well-known provision : ^ nullus liber homo capiatur vel imprisonetur, aut dissaisiatur, aut utlagetur, aut exuletur, aut aliq^io modo destruatur, nee super eum ibimus, nee super eum mittemus, nisi per legale judicitim parium suorum vel per legem terrae; and the similar provisions contained in the statutes, 9 Henry III. c. 29, and 28 Edward III. c. 3, but according to II. P. and M. 591 it was part of the ordinary mesne process in a personal action. The writ is not always awarded ; for it may appear, on the applicant's own showing, that he is not entitled to it, e.g. that he has been properly convicted of a crime (R. v. Marah, 3 Bulstr. 27). This writ is enumerated by Coke among the remedies for false imprisonment (see p. 203). In 1627, in Darnel's case (3 St. Tr. 1), the effect of the writ was practically nullified by the judges holding that a return to it "detained by the special command of the king" was suf- ficient. This led to a conference between the two Houses of Parliament, and to a resolution of the Commons, and subsequently to an express statutory enactment against this practice, in the Petition of Right, 3 Charles I. c. 1. 1 Derived from the action of novel disseisin. I. P. and ]M. 125. 84 CONSTITUTIONAL AND GENERAL MATTERS. In spite of this the wiit was evaded in Sir John Eliot's case (3 St. Tr. 293), in 1629, by removing the prisoner to the Tower. By 16 Charles I. c. 10 (the Act abolishing the Star Chamber), it was enacted that the vsrrit should issue, although the commitment was by the Privy Council, or by the special command of the king, and additional securities were en- forced {e.g. as to examining the return). Notwithstanding this, Major Bernardi (13 St. Tr. 759) was imprisoned in 1696 for forty years by the order of the king in council, and no habeas corpus was allowed. The causes which gave rise to the great Act were the conduct of Lord Clarendon (as lord chancellor) in procuring the imprisonment of subjects in remote places and beyond the sea, and the agitation against the Court led by Lord Shaftesbury for personal motives. The inadequacy of the procedure to obtain the writ had been clearly shown in Jenkes' case, 1676 (6 St. Tr. 1189). In 1679 came the great Act of 31 Charles II. c. 2. The object of this Act was not to alter the writ, but to ac- celerate the procedure thereon, and to do away with capricious returns to the ^vrit, e.g. "detained by order of the king". The next step was the provision against excessive bail contained in the BiU of Eights (1 W. and M. sess. 2, c. 2) in 1689. In 1758 the House of Lords consulted the judges as to the applica- bility of the great Act to civil cases ; and it was clearly decided that it did not apply. Therefore the vn:it was further extended, by 56 George III. c. 100, to include matters other than crimes, but a criminal conviction was allowed to be an excuse for the actual production of the body. This last Act also allowed the truth of the return to be examined into, and it allowed that return to be made before a judge in vacation, although he had always had the power to issue the writ. Subsequently to Anderson's case (30 L. J. Q. B. 129) it was provided by 25 Vic. c. 20, that the writ should not run into any colony where there was a coui't which had itself the jurisdiction to issue it. CONSTITUTIONAL AND GENERAL MATTERS. 85 The writ runs into the Channel Islands (see Carus Wilson's case, 7 Q. B. 984). In 1839, in the Canadian prisoners' case (5 M. and W. 32) it was held that the truth of the retiu'n could be impugned by affidavit, and that the writ lies for any one within the jurisdiction (E. v. Allen, 30 L. J. Q. B. 38). The writ is always strictly enforced, and no officer of the Crown can refuse to obey it (see Thompson's case, 5 Times, L. K. 540, 565, 601 ; and E. v. Winton, 5 T. E. 89). As to its effect in extradition (p. 79) cases see re Coppin, (L. E. 2 Ch. Ap. 47); E. v. Wilson (3 Q. B. D. 42); re Castioni, 1891 (1 Q. B. 149). The form of the writ is as follows : — Victoria, etc. (heading). To (the gaoler) greeting. We command you that you have in the Queen's Bench Division of our High Court of Justice, at the Eoyal Courts of Justice, London, immediately after the receipt of this our writ, the body of A. B., being taken and detained under your custody as it is said, together with the day and cause of his being taken and detained, by whatsoever name he may be called therein, to undergo and receive all and singular such matters and things as our said Court shall then and there consider of concerning him in this behalf ; and have you there then this our writ. Witness . The Habeas Corpus Act has been suspended upon occa- sions of great necessity, but only temporarily, and never for more than a year. It was suspended in 1745, during the Scotch campaign of the Young Pretender ; and again in 1794 by 34 Geo. III. c. 54, w^hich Act was continued yearly until 1801, when an Indemnity Act (41 Geo. III. e. 66) was passed. An Indemnity Act is always passed after a suspension of the Habeas Corpus Act in order to protect all persons who have acted contrary to the latter statute. It was suspended in 1817, and again by 29 and 30 Vic. c. 1, in connection with the Fenian conspiracy (cf. False Imprisonment, p. 201). 86 CONSTITUTIONAL AND GENERAL MATTERS. Heresy. — According to Lyndwood, heresy was recognised as a spiritual offence by the canon law in the thirteenth and fourteenth centuries. But it is expressly referred to in the Assize of Clarendon in 1166. The first important event in the history of heresy was the conflict which centred round Wyclifle in 1360. Then came, in 1382, the forged statute of 2 Richard II. c. 5, which extended the jurisdiction of the Church by empowering a bishop to order the sheriff to arrest any one suspected of heresy, which shows that the Church had no independent power of arresting persons (see 12 Eep. 58). In 1400 came the illegal execution of Sautre (1 St. Tr. 163) by burning, for which there was no authority at common law or by statute. A vigorous attempt was made in 1401 by the pretended statute de hcretico comhurendo (2 Henry IV. c. 15) to support the jurisdiction of the Church, but the assent of the Commons was never given to this so-called Act. The Church's power against the Lollards in 1412 was further extended by 2 Henry V. c. 7, and it was not until 1535 that the statute of Henry VIII. declared what acts did not amount to heresy. The famous statute of the Six Articles in 1539 (31 Henry VIII. c. 14) restored the principles of the common law. This was followed by the establishment of the Court of High Commission. Then came, under the jurisdiction of this court, the burning of Bocher in 1550, of Legate in 1612, and of many others, all of which were illegal, there being no power at common law to order burning. The Church had no power to imprison for heresy, much less to burn (the case of Heresy, 12 Rep. 56); and therefore the writ de heretico comhurendo did not lie upon a trial before the bishop (the case of the writ de heretico comhurendo 12 Rep. 93). In this last case, however, the law officers of the Crown advised James I. that it would lie, contrary to the opinion of Coke, C. J. Finally, the writ de heretico comhurendo was, in 1677, CONSTITUTIONAL AND GENERAL MATTERS. 87 abolished by 29 and 30 Charles II. c. 9. (See Eeligious Liberty, p. 122 ; Blasphemous Libel, p. 107.) Impeachment. — Impeachment is an accusation by the Commons preferred to the House of Lords against some person for high crimes and misdemeanours. The lords are the judges of both law and fact. The earliest instance was in 1376, Lord Latimer's case; in 1377 was Sir John Lee's case ; and the next important case was Michael de la Pole (1 St. Tr. 89) in 1386. In 1449 came the Duke of Suffolk's case (1 St. Tr. 271) ; and it appears that then the Commons were anxious to be judges as well as accusers, and they therefore proceeded by way of attainder instead of impeach- ment against Suffolk. This method of trial lay dormant after Stanley's case (1 St. Tr. 277) in 1495 on account of the free use of attainder under the Tudors, until it was revived in 1621, when Mom- pesson (2 St. Tr. 1119) and Mitchell (2 St. Tr. 1131) were impeached for their share in monopolies. The Commons did not present any regular articles of impeachment against Mompesson. Sir Francis Bacon's (commonly called Lord Bacon's) case (2 St. Tr. 1087 — his title was then Viscount St. Albans) followed; and that of Cranfield, Earl of Middle- sex (2 St. Tr. 1184). In all these trials the accused was not allowed copies of the depositions of the witnesses against him nor the assistance of counsel. But in Middlesex's case, the lords resolved that in cases of misdemeanour copies of the depositions and the aid of counsel should be allowed. Common fame was held to be a ground for beginning an im- peachment, in Buckingham's case (2 St. Tr. 1267) in 1626. In Manwaring's case (3 St. Tr. 335) in 1628, the king immediately on conviction exercised his prerogative of pardon. The doctrine of cumulative treason was set up in Straf- ford's case (3 St. Tr. 1381) in 1640, and the opinion of the judges was requested on this point and was given practically in favour of the doctrine, but in Laud's case (4 St. Tr. 318) 88 CONSTITUTIONAL AND GENERAL MATTERS. in 1641, the judges declined to give an opinion on the same point. In 1667 Clarendon (6 St. Tr. 318) was impeached on a general charge of high treason, but the lords refused to entertain the charge; and a similar charge with a similar result occurred in Danby's case (11 St. Tr. 599) in 1679. In Danby's case, too, the question of the right of the bishops to sit and vote in a capital case was raised ; and it was decided by a resolution of the House of Lords that, in accordance with the Constitutions of Clarendon, 1164, the clergy had always claimed a privilege to be exempt from being present in a matter of shedding of blood. It was also decided that a prorogation or dissolution of Parliament did not alter the state of an impeachment; but this de- cision was reversed in 1685 to assist the popish lords to escape. This question was put to rest in 1791, when it was held in Warren Hastings' case that an impeachment was not abated by a prorogation or dissolution of Parlia- ment. Danby's case further decided the responsibility of a minister for his actions, although done under the express order of the king. Compare upon this point the declaration of Sir John Markham to Edward IV. (2 Inst. 186) ; Cavendish's case, temp. Elizabeth (Anderson, 152) ; Brownlow v. Michell (Moore, 842), and the efforts of Bacon in connection with the writ de rege inconsulto (7 Bacon, 683); the case of Attorney- General Herbert (4 St. Tr. 119) in Charles I.'s reign, and the case of Somers (14 St. Tr. 233) and of Oxford (15 St. Tr. 1045). In Danby's case also the king's right to grant a pardon in bar of an impeachment was disputed. This last great point was settled by Statute, 12 and 13 William III. c. 2 (the Act of Settlement), which confirmed this resolution, but left untouched the prerogative of the Crown to pardon after conviction. In 1681 the question arose in Fitz Harris's case (8 St. Tr. 223) whether a commoner could be impeached. The CONSTITUTIONAL AND GENEKAL MATTERS. 89 case of Sir Simon de Beresford, in 4 Edward III. (1 St. Tr. 54), was referred to, but that was on a criminal accusation by the king to the Court of Parliament, and so were the other cases of Berkeley (1 St. Tr. 55), of Segrave, and of David Prince of Wales, in 1283, at Acton Burnell. It was, however, subsequently decided that a commoner could be impeached, see the case of Sir Adam Blair (12 St. Tr. 1207), in 1689 (E. v. Boyes, 1 B. and S. 324). From 1690 impeachments were generally used as a weapon of party warfare ; as, for instance, the cases of Portland and Somers (14 St. Tr. 233), in 1701, for the Spanish Partition Treaties ; of Sacheverell, in 1710 ; and of Oxford (15 St. Tr. 1045), and Bolingbroke (15 St. Tr. 993), in 1715, in connec- tion with the peace of Utrecht. In Anne's reign the Lords decided that a charge of treason should be tried before they enter upon other charges. Lord Lovat's case (18 St. Tr. 529), in 1746, was a genuine impeachment for high treason, as was Warren Hastings' case in 1788. The last case on record is that of Lord Melville (29 St. Tr. 549), in 1805, which was on strictly party lines. Impressment. — The right of impressment has always been considered a prerogative of the Crown. It may be considered first with reference to the army, and secondly as to the navy. Impressment for the army was declared illegal by 1 Ed. III. St. 2, c. 5, and again by 25 Ed. III. st. 5, c. 8, confirmed by 4 Henry IV. c. 13. But in the Tudor period it was frequently made use of even for foreign service. By 4 and 5 Philip and Mary, c. 3, the right was expressly allowed to the Crown, and penalties were imposed upon those who absented themselves. At length it was abolished by the Long Parliament (16 Car. I. c. 28), "except in case of necessity of the sudden coming of strange enemies into the kingdom, or except they be otherwise bound by the tenure of their lands or possessions," following the words of 1 Ed. III. St. 2, c. 5. 90 CONSTITUTIONAL AND GENERAL MATTERS. A forced conscription was attempted in 1704 and in 1707. By 4 Anne, c. 10, the parish officers were allowed to press such as had no lawful calling or employment. It was occasionally authorised since that date (30 Geo. II. c. 8, and 19 Geo. III. c. 10), but only in time of urgent necessity occasioned by a war. Impressment for the navy has a distinct history (the case of Pressing Mariners, 18 St. Tr. 1323). The right to press sailors was recognised by 2 Eichard II. c. 4. It originated from the fact that whilst the ancient fyrd of the Saxon times, as strengthened by the feudal system, provided for the defence of the country by land, there was no similar provision made for its defence by sea. The practice was expressly authorised by 2 and 3 Philip and Mary, c. 16, and referred to in 7 and 8 Will. III. c. 21, 2 and 3 Anne, c. 6, and 4 and 5 Anne, c. 19. In 1793, in Fox's case (5 T. E. 276), it was expressly held by Lord Kenyon that the right of pressing was founded upon the Common Law ; reference was made to Broadfoot's case, and the maxim sahis j^opuli suprema lex. The latest statute dealing with it is 5 and 6 Will. IV. c. 24. How far this right, which still exists in theory, is ever likely to be again enforced in practice is a moot point. The modern law is to be found in the Naval Enlistment Act, 1884 (47 and 48 Vic. c. 46), and in the Naval Disciphne Act, 1866 (29 and 30 Vic. c. 109). The pressing of men to serve upon Enghsh ships during the Napoleonic wars led to hostilities with America. In 1806 the Leander, while pressing at New York, killed an American. In 1807 the Leopard forcibly took four deserters from the American ship Chesapeake. Further, England asserted a right to visit and search any neutral ship for British subjects, in order to press them into her navy, or rather to visit and search for contraband, and then, being on board the neutral ship, to seize any British subject there. The United States strongly protested against this claim in 1842. CONSTITUTIONAL AND GENERAL MATTERS. 91 The importance of this subject has been minimised by modern treaties and laws as to allegiance (see p. 74) and naturalisation. Judges. — Under the Norman system it appears that there was at first no regular staff of judges. All important matters were decided by the Curia Begis, sitting in its judicial capacity, or by the king in Council. The early kings were constantly travelling through the country, and dispensed justice wherever they might be. Hence justices in eyre (or of assize) were not needed. In 1178 a statuue appointed five persons to sit as judges (two clerks and three laymen), to be selected by the king. In 1179 there were three bishops amongst the judges. Then special commissioners went round to try matters in the country; and with the division of the Curia Begis into the three Courts of Common Law, and the settlement of the Common Pleas at Westminster, a regular staff of judges came into existence. The great importance of their office and their dignity was recognised by the Statute of Treasons, which enacted that the killing of any judge while discharging his office amounted to high treason (25 Ed. III. st. 5, c. 2). The judges, in virtue of their ancient position as members of the Curia Begis, have still the right of advising the king, and they are said to be his " Council learned in the law". In virtue of this same ancient position they used to sit in the Magnum Concilium, and were originally part of the House of Lords, and for this reason they have been con- sulted both by the king and the House of Lords upon various subjects. They were consulted by the king on the following oc- casions : by Eichard II. as to his kingly power; again by Henry VII. as to whether the devolution of the Crown upon him purged his attainder ; and again in the same reign upon Humphry Stafford's case (but see 3 Inst. 29 ; 92 CONSTITUTIONAL AND GENERAL MATTERS. 12 Bacon, 117) ; by Henry VIII. as to whether on a bill of attainder a person need be heard in his own defence. In 1591 they availed themselves of their power to offer a remonstrance against illegal commitments by the Govern- ment. They were consulted in the case of Felton in James I.'s reign, when they declared torture to be illegal; and also during the same reign in the case of Proclamations, in the case of Prohibitions, in Peacham's case (a separate consultation, an auricular opinion, see 12 Bacon, 100 sq.), in Calvin's case, in Stroud's case, and in the case of Commendams. They were consulted by Charles I. in 1628 as to the Petition of Eight, and again by him as to Ship Money ; on the question of Corporations by Charles II. ; as to George I.'s grandchildren in 1718 ; as to Sackville's case in 1760 ; as to the Koyal Marriage Act in 1772 ; and as to the Irish and Scotch peers in 1782. They were consulted by the House of Lords as to Buck- ingham's case in 1626; in 1629 as to whether Strode's Act 4 Henry VIII. c. 8 was general or particular, and as to parlia- mentary privileges ; as to Strafford's case in 1640 ; as to Laud in 1641; as to Clarendon's case in 1663; on the Habeas Corpus Act in 1758 ; on Fox's Libel Act in 1792 ; and as to McNaghten's case, on the criminal responsibility of an insane person, in 1843. But the right of the lords to consult them has been strictly limited to questions which arise out of the construc- tion of some existing law ; re London and Westminster Bank (2 CI. and F. 191), see, however, McNaghten's case (10 CI. and F. 200). Whereas the king may consult them whenever he pleases. He cannot, however, consult them separately, but only in a body ; for, according to Coke, the auricular taking of their opinion is contrary to the custom of the realm. The theories which Bacon tried to establish, that a judge must be under the king as well as under the law, have never been recognised by our Common Law. His dictum. CONSTITUTIONAL AND GENERAL MATTERS. 93 that the judges should be lions under the throne, being cir- cumspect that they did not check or pass any point of sovereignty is contrary to the spirit of the law. His effort by the writ cle non iirocedenclo rege inconsulto to prevent a judge proceeding with any matter which concerned the Crown, without first consulting the Crown, deservedly failed (see hereon 7 Bacon, 683). The securities for the exercise of the judicial oflfice with impartiality are : — (1) The non-interference of the Crown. (2) The oath taken by the judges. (3) Their tenure of office, which was fixed by the Act of Settlement in 1701, quamdm se bene gesserint,^ and their salaries thereby established. (4) Their salaries were made a permanent charge upon the Civil List by 1 Geo. III. c. 23, and are now paid out of the Consolidated Fund. Until the Act of Settlement the judges were servants of the king. They held their offices durante bene i^lacito, and their salaries were paid them out of the king's pm'se, besides which they had such other fees as the business in their courts brought them. It was with the object of increasing these fees that the judges extended the jurisdiction of their courts, e.g. by the writ of quominus (p. 15), by the writ of latitat, by bill of Middlesex (p. 18). They were com- pletely under the control of the sovereign, and could be dismissed at his pleasure. Charles I. had, on the petition of both Houses of Parliament, consented to make out the judges' commissions quamdm se bene gesserint; but his successors were not bound thereby, it not being an Act of Parliament. There are instances in the earlier records of the punish- ment of judges for misbehaviour in their office, by Alfred; by Edward I. (Wayland, G. J. of the Common Pleas; Hengham, C. J. of the King's Bench; Stratton, C. B. of the Exchequer ; ^ Semhle of recorders, but county court judges are removable by the lord chancellor. 94 CONSTITUTIONAL AND GENEEAL MATTEKS. and others); by Edward III. (Thorpe, C. J.); by Richard II. (Tresihan, C. J.) ; by James I. (Lord Bacon, the judges in the case of ship money, and Lord Macclesfield). The more modern cases appear to have been in Ireland : Sir Jonah Barrington, Fox, and Johnson (29 St. Tr. 81). There are also cases of colonial judges. In Montagu v. Governor of Van Diemen's Land (6 Moo. P. C. C. 489) the judge was removed. In Wilhs v. Gipps (5 Moo. P. C. C. 379), and Cloete V. Reg. (8 Moo. P. C. C. 484), the judge in both cases was retained ; see the recent case of Anderson v. Gorrie (10 Times, L. R. 660, L. R. 1895, 1 Q. B. 668). The grounds of judicial decisions according to Hale are : (1) "application" of existing rules; (2) interpretation of exist- ing rules ; (3) " the reason of the thing" ; (4) precedents. (See Clark's Jurisprudence, 229.) Jury. — The origin of trial by jury is uncertain. It is variously derived from a British or Roman British origin, from the Saxon system in the Shire Court and Hundred Court, whereby all the freeholders were the judges, from the com- purgators, from the Frith Borh, from the secta (the sworn witnesses) (rejected by II. P. and M. 626), from the twelve senior thegns of Ethelred's law, from the use of recognitors.^ Grand Jury. — There seems but little doubt that the grand jury, which must be carefully distinguished from the petty jury, is descended from the twelve senior thegns of Ethel- red, who were to go out with the reeve and present any person who is suspected of a crime. This ordinance, which dates from 978, is the basis of the present law as to grand juries ; for now, as then, they are bound not to accuse an innocent man nor to conceal a guilty one. These recognitors, 2 who of course only existed in criminal cases, as the grand jury now only exists in criminal cases, were constituted a jury of presentment by Henry II. on the ^ The germ of trial by jury is the Frankish Inquest, not English ; it was a royal, not a popular institution. I. P. and M. 72. - Different ones existed in civil cases. CONSTITUTIONAL AND GENERAL MATTERS. 95 analogy of the Grand Assize ; and from this directly comes the present grand jury. The principle was fm^ther extended by the Assize of Clarendon in 1166, and by the Articles of Visitation of Eichard I. in 1194. The present grand jury must consist of from 12 to 24 freeholders of the county, and any presentment they make must be heard and tried. They have a privilege of ignoring any bill which is preferred before them (Lord Shaftesbury's case in 1681, 8 St. Tr. 759). Petty Jury. — The necessity for trial by jury, as distin- guished from presentment, arose when trial by ordeal was abolished in 1215, and when the system of compurgation had become obsolete, and wager by battle was not applicable in all cases. The student must not confuse the legale judicium parkmi suorum of Magna Charta an aristocratic weapon with the popular trial by jury.^ The stages through which the petty jury passed were as follows : Firstly, the suitors in the Shire Court or Hundred Court were the freeholders, and they were the jury, — judges of fact and of law, not sworn upon oath. All the parties in the action might choose any of the freeholders to try their cause (denied by I. P. and M. 118, 538). The next step was the Norman introduction of the king's writ, addressed to the sheriff, to choose twelve men from the vicinage, who were to be sworn and were to judge both law and fact. Then in actions in the king's courts the jwcy were specially chosen, and they oould only find on the facts, while the court gave judgment, e.g. in the Grand Assize. The fourth step was the common jury, summoned by the sheriff from the vicinage, sworn upon their oath (juratae patriae) to decide upon the evidence brought before them by others, and not liable to attaint. The fifth step was the unity of the opinion of the jury, which was attained in the reign of Edward III. ; and in the 1 Forsyth, 109 ; Hallam, Middle Ages, ii. 396, ch. 8, pt. i. ; iv. 241, note 138 ; Palgrave, English Commonwealth, c. 8 ; I. P. and M. 152. 96 CONSTITUTIONAL AND GENEEAL MATTERS. same reign we find witnesses distinct from the jury, who gave evidence without having anything to do mth the verdict. The nest step was in Henry IV. 's reign, w^hen all evidence had to be given in court, so that improper evidence might be excluded by the presiding judge ; hence came the law of evidence, the examination of witnesses, and opportunities for advocates upon either side. It was not until the time of George I. that the ancient right of juries to rely upon their own knowledge in addition to the evidence before them was abrogated ; and in the following reign juries were summoned from the body of the county at large, and not from the vicinage or hundred. The rights and liabihties of juries have changed with the alteration of their office. Anciently, jurymen, being them- selves witnesses, were liable to attaint. The doctrine of attaint seems to come from the Shire Coui't, where a thegn giving a corrupt judgment lost his thegnhood and his wehr, and hence was attainted. A writ of attaint was the only method of appeahng from a verdict. Thereby twenty- four jurors were summoned (the grand jury in attaint), who decided on the same evidence as was given on the first hearing whether the petty jury had committed perjury or not (the latter being at that period witnesses). If they found that it was a false verdict they reversed it, and passed judgment on the petty jurors ; that they should lose their llberavi legem, and become infamous, forfeit their goods and chattels, and that their lands and tenements should be seized by the king; that their wives and children should be thrown out of doors, their houses razed to the ground, their trees rooted up, their meadows ploughed, their bodies cast into prison, and the injured party restored to his former position. This sentence was ameliorated by 11 Henry VIII. c. 24, and by 23 Henry VIII. c. 3. Fortescue (15th century) speaks of attaint with approval. CONSTITUTIONAL AND GENERAL MATTERS. 97 Sir Thomas Smith (16th centm-y) says that it is seldom heard of. Hale recognises it. Lord Mansfield treats it as obsolete. Attaint lay in civil cases only, Floyd v. Barker (12 Eep. 23), Biishell's case (6 St. Tr. 999). No attaint lay in criminal cases, it being inconsistent with the principles of liberty to question an acquittal, E. v. Duncan (7 Q. B. D, 198). Attaint gradually became obsolete ; as the jurors, being no longer witnesses, could not be guilty of perjm-y ; but it was not abolished until 6 Geo. IV. c. 50, when the offence of Embracery was introduced instead. The only other way of questioning a verdict was by a New Trial. The first instance of this was in 1665, which was long after attaint became obsolete. So for upwards of two cen- turies there appears to have been no remedy for the error or mistake of a jury. Juries were sometimes fined by the court, as in Sir Nicholas Throckmorton's case in 1554 (1 St. Tr. 901), and in Penn's case (6 St. Tr. 967), see also Floyd v. Barker (12 Eep. 23), in 1607, and Lilburn's case (5 St. Tr. 445), in 1653. It was held, however, in Bushell's case (6 St. Tr. 999), that where attaint did not lie, the jury could not be fined, and therefore that no fine could be imposed on them in criminal proceedings. There are cases of jurors being imprisoned, see Throckmorton's case, and Bushell's case. The origin of the necessity for unanimity of opinion in a jury comes from the fact that the suitors or judges of the Shire Moot were fined if they were outvoted ; hence the necessity for their all agreeing.^ The right of a jury to find a general verdict in criminal cases, and so to determine not merely the fact, but whether the fact constitutes in law a crime, was established in Bushell's case (6 St. Tr. 999) ; and although afterwards questioned in the trials for libel (see under Libel, p. 105) their rights were finally established in this particular by 1 In II. P. and M. 623 it is ascribed to (a) the arbitral, (b) the com- munal, and (c) the quasi -judicial elements in the jurj*. 7 98 CONSTITUTIONAL AND GENEKAL MATTEE3. Fox's Libel Act, 1792 (32 George III. c. 50), as confirmed by Campbell's Act in 1843 (cf. II. P. and M. 627, note 2). Jurists. — Glanvill is the oldest ^ author on English Law. Eanulphus de Glanvill was chief justiciar of Henry II. in 1180. He wrote upon the English Law as a pure system of customary law which was almost untouched by the Roman Law (I. P. and M. 142 suggests he did not write any book). Henry de Bracton flourished from 1245 to 1268. His great work, De Legihus et Consuetudinihus Angliae, is really an exposition of English Law supplemented in order to make it more complete by the Eoman Law, which he took from the Summa of Azo. From the Summa he took the divisions and framework of law. Bracton is not now treated as an authority on English Law (see Eoman Law, p. 128), but only as useful for reference for the purpose of drawing an analogy, as was held in 35 Henry VI. and again in a later case of Stowel v. Lord Zouch (1 Plow. 353) where Saunders, J. says, Bracton and Glanvill are not authorities in our law, but Bracton is an ornament to discourse where he agrees with the law ; and later it was laid down in Blundell v. Catterall (5 B. and A. 268) that Bracton is no authority unless he be confirmed by a decision of the courts. Fleta. — This book is said to have been written in the Fleet Prison, hence its name, about 1290, in the reign of Edward I. It was practically based upon the same lines as Bracton. The arrangement of Fleta is based upon remedies and rights. It purports to be written by the direct command of the king. Fleta is sometimes spoken of as Britton, and Selden thinks the two writers are the same. Britton wrote about the time of Edward I. ; and in the same reign were Thornton, who abridged Bracton, and Hengham, who wrote the Summa Magna et Parva, and pro- bably the Fetassavoir. In Edward II. 's reign came the ^ Dialogus de Scaccario, about 1177, by Richard, Bishop of London, Treasurer of the Exchequer (son of Nigel, Bishop of Ely). Stubbs, Select Charters, IGO. I. P. and M. 140. CONSTITUTIONAL AND GENEEAL MATTERS. 99 Mirrour of Justices, of uncertain authorship, it may have been written by Andrew Home. Sir John Fortescue, Chief Justice of the King's Bench in Henry VI. 's reign, was a prohfic author. He wrote Da Laiidihus Legimi Angliac as a book of instruction for the king's son, also De Natura Leg is Naturae, and on absolute and limited monarchy. In Edward IV. 's reign came Littleton upon Tenures, and later Lyndewood upon Ecclesiastical Law. In the reign of Henry VIII. came the treatise of Doctor and Student by St. Germain ; also Fitzherbert's Great Abridge- ment, and his Natura Brevium. In 1550, Staunforde wrote upon the criminal law and the prerogative of the Crown ; and after him in Elizabeth's reign came Plowden, an eminent reporter, and Lambard and Brooks' Abridgement. At this time also came the Eeports of Croke (see under Eeports, p. 127). In James I.'s reign flourished the great Coke ; his Com- mentary upon Littleton and his Institutes are standard works. His Eeports also appeared in the same reign. He was the first writer who treated the law from an historical standpoint. About the same time came Sheppard's Touchstone, probably written by Doderidge, as also was Wentworth's Executor. From this date legal waitings become more common, first in the form of digests such as Eolle, Viner, Comyns and Bacon, and later such institutional works as Hale and Blackstone. Justices of the Peace. — The origin of this honourable office is to be found in the conservators of the peace. Custodes pads were appointed in 1253, and again in 1264. Originally they were chosen by the freeholders of the shire, in full County Court, but subsequently by writ from the king (1 Ed. III. c. 16). In 1327 their powers were extended; and in 1361, by 34 Ed. IV. c. 1, they were given the title of Justices of the Peace, and the power to try felonies. By 18 Edward III. c. 2, the number in each county was limited to two or three ; but this was soon extended, by 34 100 CONSTITUTIONAL AND GENEEAL MATTEES. Ed. III. c. 1, to three or four. The number, however, con- tinued to increase, in spite of these statutes, in consequence of the increase of business which came before them. A fresh attempt was therefore made by 12 Eic. II. c. 10, and 14 Eic. II. c. 11, to fix the number at eight in each county. But these statutes are no longer in force. Justices are bound to take an oath on being appointed, and the writ of Dedimus potestatem empowers other justices to swear them in. Justices of the peace may hold o£&ce either : — 1. In virtue of a special office from ancient times. 2. By special commission. 3. Under charter of a corporation. 4. By tenure. 5. By prescription. It was held in the time of Elizabeth in Howel's case (see under Searche's case, 1 Leon. 70) that there was no such committing magistrate as a secretary of state ; but in Hell- yard's case (2 Leon. 175) they recognised his right qiia privy councillor. In E. v. Kendal (12 St. Tr. 1359) it was contended that the secretary of state was a conservator jpacis, but it was not allowed by the court. Such a magistrate is unknown to the common law. The passages in the law books which tend to show that he is a justice of the peace were held to be precedents of illegal acts, and therefore bad, in Entick v. Carrington in 1765 (19 St. Tr. 1030). A secretary of state has a restricted right in cases of treason to issue a warrant (E. v. Kendal, 12 St. Tr. 1359), but this does not extend to the papers of the accused (Sayre v. Earl of Eochford, 20 St. Tr. 1285). His position as a privy- councillor confers upon him the authority of a justice of the peace, for all privy councillors are in the commission of the peace ; see p. 13 (Harrison v. Bush, 5 E. and B. 344 ; E. v. Despard, 7 T. E. 736) ; cf. Stipendiary Magistrates, p. 134. Justiciar. — The title of justiciar (capitalis j^isticiarms CONSTITUTIONAL AND GENEEAL MATTERS. 101 totiiis Angliae) originated under the Norman dynasty. It was probably derived from the office of Seneschal of Normandy. He was the first man in the kingdom after the king, and acted as regent in the king's absence. He was more a political than a legal officer. The first instances were, in 1067, William FitzOsborn and Odo of Bayeux. The office grew rapidly until the justiciar came to represent the king in the realm in the same way as the sheriff did in the shire. In 1258, the barons in parliament insisted that the justiciar should not be chosen without their approval and consent. One of the last justiciars was Hubert de Burgh. The last was Eobert de Bruce in 1268 ; and the office was abolished by Edward I. Coke, C. J. arrogated to himself this title, and was attacked by Lord Ellesmere, the chancellor, for doing so (see Camp- bell, Lives, ii. 372). The modern title of Lord Chief Justice cf England has no relation whatever to this ancient and more honourable office. The Lord High Steward, who presides over the peers sitting as a court during a recess (see p. 12), is, as seneschallus totius Angliae, said to represent the ancient justiciar. King's Peace. — The origin of the king's peace was the sacred nature of the dwelling-place of the head of a tribe, who probably combined the priestly office with his duties as leader in war and as judge in time of peace. The precinct (maighin) immediately surrounding his house to the extent of a spear's throw was considered sacred, and any offence committed within it was treated as an offence against him as well as against the person injured (cf . the three-mile limit, in international law, from the coast with reference to juris- diction). The chief's right to punish the offender was at first equal to that of the injured party and grew to be greater. The sphere of the king's right extended in distance ; and as he travelled over his kingdom, which the early Norman kings 102 CONSTITUTIONAL AND GENEEAL MATTERS. constantly did (see p. 91), each town in turn became tem- porarily subject to his authority. Gradually thereby the custom grew of observing the king's peace not only round the royal palace, but all through the realm of the king wher- ever he is by deputy, as by his sheriff or his commissioner of assize, or wherever his writ to redress matters may run. The king's peace was much strengthened by the peace of Holy Mother Church, which was ordained by the clergy to be kept, and was enforced wherever the Church obtained a footing. An extension in territory has widely extended the idea and the application of the king's peace, as may be seen by studying the Foreign Jm-isdiction Acts of 1843, of 1878, and of 1890, whereby Orders in Council containing criminal provisions are made for the widely scattered portions of this empire. Language of the Law. — All statutes, charters, records, and documents appear to have been drawn up in the Latin language until the time of Eichard III. from which date (1 Ric. III. c. 1) all statutes were in English, although they were for some time after entered up on the parliament roll in French. In Richard III.'s reign statutes were for the first time printed in English. All proceedings in court viva voce were in Norman French, and all the pleadings being verbal in court, and not in those days written, were also in Norman French, but they were enrolled on the records in the Latin language. By 36 Edward III. statute 1, c. 15 (due to the efforts of the chan- cellor, William de Edington), all viva voce proceedings in court, judgments, and pleadings were ordered to be in English (in Vane's case, 6 St. Tr. 143, it was said that agitations of causes in Court ought to be English and a request to read the indictment in Latin was refused), but they still continued to be enrolled on the records in Latin, until, by 4 George II. c. 26, all proceedings were ordered to be enrolled in the English language. CONSTITUTIONAL AND GENERAL MATTERS. 103 The Eeports in the Year Books were always \\a'itten in law French, and all reports were, until the end of the seventeenth century, written in the same language in spite of the pro- visions in the Act of 1650 to the contrary. During the Commonwealth all legal records were ordered to be kept in English, at which the reporters of that time strongly pro- tested. With the return of Charles II. came the resumption of Latin for the records and Norman French for the reports, until 4 George II. c. 26. In Chancery proceedings on the equity side were by English bill, and so were all subsequent pleadings ; but the decrees thereon were always in Latin down to the time of Henry VIII. On the common-law side of Chancery pro- ceedings were in Norman French down to 1731, when by 4 Geo. II. c. 26 English w^as substituted. Liberty of the Press. — The first step after the discovery of printing in the fifteenth century was the establishment of the Caxton printing press in 1474. It seems, however, that Corsellis had, in 1468, printed at Oxford by the authority of the king, from whence comes the royal prerogative. The early censorship which existed over the press was chiefly ecclesiastical ; and we find its origin in the index expiirgatorius of the Pope, as enforced through his bishops. After the Eeformation the Church still retained the upper hand, although there was a special licenser for each kind of books. The next step was the incorporation of the Stationers' Company in 1556, which continued to 1694, that is, until the expiration of the Licensing Act. Copp'ight was then said to exist at common law as v/ell as by statute. Important ordinances regulating the press were issued in 1559 and 1585. The first newspaper, called the Weekly Nexvs, was issued in 1623. Many trials had previously taken place for pub- lishing books which were termed seditious (see p. 108, the cases of Stubbe, Udal, Barrow, Greenwood and Penry). 104 CONSTITUTIONAL AND GENEEAL MATTERS. In 1623, the right of printing might have been granted by letters patent which were exempted from the Statute of MonopoHes (21 James I. c. 3), or might have existed by lawful ordinance. The Star Chamber controlled the press at this time ; and in 1637, by a decree of the Star Chamber, all books had to be entered and registered at the Stationers' Company. The Star Chamber being abolished in 1641 (16 Car. I. c. 10), the Long Parliament used its Ordinance in 1643 to restrain printing. This evoked the well-known Areopagitica of Milton as a protest. In 1662, the Licensing Act (13 and 14 Car. II. c. 33) placed the sole control of printing in the hands of the Government. In 1679 was Harris's case (7 St. Tr. 926) where the law of libel was laid down to include anything concerning the Government ; and thereupon all unoificial newspapers were stopped. This was followed up in Carr's case, in 1680 (7 St. Tr. 1111), and it continued to be the law until Entick v. Carrington in 1765 (19 St. Tr. 1030). The Licensing Act was revived in 1685, and enforced rigorously by L'Estrange as censor in 1688. It finally expired in 1695, from which dates the liberty of the press. In 1712 a stamp duty was imposed on newspapers, which was not abolished till 1855. Copyright. — From 1694 to 1709, copyright at common law alone existed ; and in 1709, by 8 Anne, c. 19, it was created for a period of fourteen years. From 1709 to 1774 copyright by statute existed, limited in point of time, whereas copyright by common law was unlimited. In 1769, in Millar v. Taylor (4 Burr. 2303), copyright at common law had been questioned, and it was overthrown in Donaldson v. Beckett (2 Bro. P. C. 129), in 1774. From 1774 till the present time the period of copyright has been fixed by statute at forty-two years. In 1837 Talfourd's Bill was introduced, and in 1842 the Copyright Act was passed, which allowed copyright during the author's life and for seven CONSTITUTIONAL AND GENERAL MATTERS. 105 years after his death as an alternative to the period of forty- two years. In Jefferies v. Boosey (4 H. L. C. 815) it was clearly decided that no copyright had existed at common law since the statute of Anne. In 1882 was the Copyright (Musical Compositions) Act ; and further Acts to protect patents, designs, and trade marks were passed in 1883 and in 1885. Libel. — The later history of libel may be dealt with under three heads. First, as to the general law of libel ; next, as to seditious libel ; and lastly, as to blasphemous libel. The law of libel was enforced under Anne (E. v. Bear, 2 Salk. 418). But it was in the struggles of Wilkes that public notice was first brought to the unsatisfactory state of the law. The seizure of the papers of the North Briton in 1763 under a general search warrant was the signal for a public outcry. It was given expression to in Junius's letter to the king in 1769, and in Woodfall's trial (20 St. Tr. 895) for publishing this letter, when the jury found him guilty of printing and publishing only. At the subsequent trial of Almon (5 Burr. 2686) it was held that a publisher was liable criminally for his servants' acts ; and that the sole questions for the jury were the fact of publication, and whether the libel bore the meaning attributed to it by the indictment, i.e. the innuendo ; but that the question of the criminality of a libel was solely for the judge. The following lines illustrative of the prevalent opinion were quoted by Lord Mansfield (in E. v. Dean of St. Asaph, 3 T. E. 430, note) from the Craftsmmi : — For Sir Philip well knows that his innuendoas No longer will serve him in verse or in prose, For twelve honest men have decided the cause, Who are judges of facts, tho' not judges of laws. It had been previously held in Francklin's case (17 St. Tr. 625), in 1731, that truth alone was no defence to a criminal charge for libel; and this is still the law. 106 CONSTITUTIONAL AND GENERAL MATTERS. The rights of juries to find on the whole question of libel or no Hbel were upheld by Erskine in E. v. Shipley (21 St. Tr. 847, the Dean of St. Asaph's case) in 1779, and in Stock- dale's case in 1789 (22 St. Tr. 237). This was followed up by Fox's Libel Act, in 1792 (32 Geo. III. c. 60), which allowed a jury in a criminal matter to find a general verdict of guilty or not guilty; and this was extended by the judges to civil matters. The case of H. v. Paine (22 St. Tr. 357) marks a retrograde step in the freedom of the press ; but this freedom was com- pletely estabhshed by the beginning of the present reign, and has been upheld by Lord Campbell's Act in 1843 (6 and 7 Vic. c. 96), by which, on a criminal charge, the defendant may plead the truth of the libel, and that the publication was for the public benefit. This Act further allowed the defendant to show his innocence of his servants' acts. The whole question now of libel or no libel is entirely in the hands of the jury, and the liberty of the press depends upon those for whose wants it exists. Any one may publish anything that twelve of his fellow-countrymen think is not blameable (R. v. Cuthell, 27 St. Tr. 642). Obviously, there- fore, the liberty of the press is a faithful reflex of current opinion, which often condemns publications that in a few years after command universal esteem (R. v, Cobbett, 29 St. Tr. 1). The right of printing and publishing a fair report of public matters, e.g. proceedings in Parliament, without unfair comment, was established in 1868 by Wason v. Walter (8 B. and S. 671 ; as to the law prior to this case, see Stockdale V. Hansard, 9 A. and E. 1). Although a speech in Parlia- ment is privileged, a reprint of it by a private member is not necessarily privileged ; the Earl of Abingdon's case in 1795 (1 Esp. 226), and Creevy's case in 1813 (1 M. and S. 273). The Newspaper Libel Act of 1881 (44 and 45 Vic. c. 60) CONSTITUTIONAL AND GENERAL MATTERS. 107 and the Libel Act of 1888 (51 and 52 Vic. c. 64) have further extended and secured the freedom of the press. Blasphemous Libels. — The origin of the laws against blasphemy and blasphemous libels is to be found in the ecclesiastical influence which predominated in our early law (see Heresy, p. 86). From the earliest times the Church punished any reviling of her ordinances, and this was at a later period reinforced by the common lav/. The Blasphemy Act (9 and 10 Will. III. c. 32) is still in force, and its influence is to be traced in the proclamation against immorality and profaneness which is read on the opening of every Quarter Sessions Court and Assize Court. In Nayler's case (5 St. Tr. 801) in 1656, a man was punished for pretending to be Jesus Christ. Shortly after, in 1697, a Scotch case occurred (Kinnymount's case, 12 St. Tr. 1273). In the famous case E. v. Williams (26 St. Tr. 653), in 1797, the publisher of Paine's Age of Reason was convicted of blasphemy. The law was again strictly enforced in Eaton's case (31 St. Tr. 927), in 1812. In Carhsle's case (1 St. Tr. n. s. 1033) it was clearly held that no attack might be made upon the established religion, nor might it be questioned however temperately. In 1810 it seems that a more tolerant view was taken, and temperate discussion was allowed by Denman, C. J. in E. V. Hetherington (4 St. Tr. n. s. 563); but Hetherington being convicted by the jury, he preferred an indictment against the publisher of Shelley's poems, who was thereupon also convicted, E. v. Moxon (1 St. Tr. n. s. 693). The pre- sumed knowledge of a publisher of the contents of any book he published, and his responsibility for such book, was prac- tically negatived by Lord Campbell's Act in 1843. The law against blasphemous libel may still be enforced, Att. Gen. v. Bradlaugh (15 Cox C. C. 217) ; for Christianity 108 CONSTITUTIONAL AND GENEEAL MATTEES. is still part and parcel of the law of this realm (Cowan v. Milbourne, L. E. 2 Ex. 230). According to Stephen {Dig. Crim. Law, art. 161 ; Hist. ii. 474), it is the written matter advanced which still constitutes this an indictable offence, in whatever manner it be done. But it has been said by Coleridge, L. C. J. (E. y. Eamsay and Foote, 15 Cox C. C. 231), that the matter is not so important as the manner of advancing it ; and that providing the decencies of discussion are ob- served, the fundamentals of the Christian religion may be attacked. Seditious Libel. — One of the most ancient offences at common law is the crime of scanclalum magnatum, under which head there was a case in 1275, and another tempore Eichard II. But all the statutes which refer to this offence were repealed by the Statute Law Eevision Act, 1887, and it is therefore now entirely obsolete. The history of seditious libel has been shortly summarised by Stephen, J. [Hist. ii. 300) as follows : In the Plantagenets' time libel was generally defined as any defamatory writing. In the time of the Tudors and until Charles II. the doctrine as to seditious libel was extended by the Star Chamber, who decided both the law and the fact. In the eighteenth century, the judges adopted the doctrines of the Star Chamber, and upheld them, in spite of the protests made by Erskine and others. Finally, by Fox's Act in 1792, and by Campbell's Act in 1843, together with the more recent decisions on seditious libel, the law was placed on a modern footing. In early times any seditious publication was comprehended under the general name of libel, see the trials in the time of Ehzabeth ; of Stubbe in 1579, of Udal (1 St. Tr. 1271) in 1591, of Penry in 1593 for the Martin Marprelate tracts; and see, too, Lord Cromwell's case (4 Eep. 13). In 1670 Penn CONSTITUTIONAL AND GENERAL MATTEES. 109 and Mead's case (6 St. Tr. 951) is noticeable for the stand made by the jury for their privileges. The first landmark in the history of seditious libel was the case of the Seven Bishops (12 St. Tr. 183), in 1688, where the law as it then existed was clearly laid down by Powell, J. Eeference was there made to the early case of Wraynham (2 St. Tr. 1059), and the case de lihdlis famosis (5 Eep. 125) in 3 James I. The next case was Tutchin's (14 St. Tr. 1095), in 1704. The trial of Sacheverell in 1710 (15 St. Tr. 1) marks a further advance in the strict interpretation of the law of sedition as applied to libel; and this seems to have been the last purely party prosecution whereby a faction attempted to punish an enemy under the cloak of the law of seditious libel. In 1714, Sir Eichard Steele was expelled from the House of Commons for writing a seditious libel called " The Crisis ". The attack against Wilkes (19 St. Tr. 981) comes more under the head of the general law of libel; and the same may be said of the prosecution of Paine (22 St. Tr. 357), in 1792, for his pamphlet The Bights of Man. The law of seditious libel was strictly confined to attempts directed against the Government of the country, as in Home Tooke's case (20 St. Tr. 651), in 1794. In Frost's case (22 St. Tr. 471) and in E. v. Winterbotham (22 St. Tr. 823), the law was again rigorously enforced. In 1796 was the pro- secution of Eeeves (26 St. Tr. 529) for seditious libel in connection with some expressions used in his History of the Common Law. In 1816 came the six Acts by one of which (60 Geo. III. and 1 Geo. IV. c. 8) on a conviction for seditious libel all copies of the libel could be seized; and on a second convic- tion the punishment was fine, imprisonment, or banishment. The penalty of banishment was repealed in 1830 by 11 Geo. IV. and 1 Will. IV. c. 73. The truth of a seditious libel was not allowed to be 110 CONSTITUTIONAL AND GENERAL MATTERS. pleaded as a defence or in extenuation of punishment (E. v. Burdett, 1 St. Tr. n. s. 1). In Feargus O'Connor's case (4 St. Tr. n. s. 1352), in 1840, the law was enforced against a political demagogue for advocating force and the spoliation of property. The whole doctrine as to seditious libel was enunciated upon a modern footing in the case of E. v. Sullivan (11 Cox C. C. 44; cf. E. v. Most, 7 Q. B. D. 244). Martial Law. — The phrase " martial law " may be under- stood in different senses (see Stephen's Hist. i. 207). 1. As the law military exercised by the lord high constable of the realm or by the provost marshal over troops on actual service, especially on foreign service. 2. The military law which the sovereign tried to introduce in time of peace to punish breaches of the peace. This was declared illegal by the Petition of Eight (3 Car. I. c. 1). This form of martial law was used by Elizabeth in 1569 and in 1589; by James I. in 1617, 1620 and in 1624; and by James II. in Beal's case (3 Mod. 124), where, however, it was decided that a military deserter could not be executed by martial law. Questions relating to it arose in 1798, in Wolf Tone's case (27 St. Tr. 614); in 1799, the Irish Act; in 1833, the Insurrection Act; in 1849, the affair in Ceylon; and in 1865, the case of Governor Byre (L. E. 6 Q. B. 1). 3. The military law which governs the standing army (see p. 112, the Mutiny Act, now the annual Army Act). 4. The right which the Crown has to repel force by force, whether force of invasion or of insurrection. This last is the only sense in which martial law is known in England ; the question of responsibility being measured by the necessity of the case, Wright r. Fitzgerald (27 St. Tr. 759). The right to suppress offences by use of the soldiery is an ancient common-law right based upon the right to resist force by force, and it has been further extended by statute, 25 Edward III. c. 2, the statute of treasons, by 17 Eichard CONSTITUTIONAL AND GENERAL MATTERS. Ill II. c. 8, "the posse coniitatus " (see p. 130), again by 13 Henry IV. c. 7, and in the second year of the reign of Henry V. The Tudors enforced it in the same way as the Eiot Act is now apphed (see p. 220, Eiot). The right to enforce martial law was again strengthened by the Eiot Act (1 George I. st. 2, c, 5) ; and the necessity for the exercise of it arose in the Gordon riots of 1780, in the Manchester massacre, 1819 (E. V. Hunt, 1 St. Tr. n. s. 171 ; Bedford v. Birley, id. 1072 ; id. appdx. B. E. F.), and in the Bristol riots of 1831 (E. v. Pinney, 5 C. and P. 254). Monopolies. — The prerogative of the Crown, which enables it to regulate all matters relating to commerce, first suggested the idea of a royal grant to a particular person to have the exclusive right of selling a particular article. Hence arose the patents of monopolies which by the Tudor period had grown to an intolerable burden. It is said that they are contrary to Magna Charta, being included in the words dissaisietur libertatibus vel liberis consiietudinihus suis. The first public opposition to them was by the Parliament of Elizabeth in 1571. The question was again raised in 1597, and in 1601 it was so burning that several patents were repealed. Monopolies grew to a great height under James I. and Sir Giles Mompesson (2 St. Tr. 1119) and Sir Francis Michell (2 St. Tr. 1132) were impeached in connection therewith in 1621. This was soon followed up by the Act against monopolies (21 James I. c. 3), which is still the law, an exception being made to cases of letters patent for fourteen years for new manufactures within the realm to the true and first inventor thereof. By the Patents, Designs, and Trade Marks Act, 1883, as amended by the Patents, Designs, and Trade Marks Act, 1885, extensions of time up to fourteen years may be allowed in some cases. An attempt by Charles I. to revive monopolies was one of the principal grievances against him. Mutiny Act. — The origin of the Mutiny Act is involved in the history of the standing army in this country. The 112 CONSTITUTIONAL AND GENERAL MATTERS. nucleus of the standing army arose in the wars of the Commonwealth ; it grew under Charles II. and James II. and it was expressly declared illegal by the Bill of Eights in 1689. Custom had taught the people that a standing army was intolerable but necessity compelled them to recognise it. Therefore, by an Act expressly passed for that purpose, the existence of a standing army was allowed. This Act, the Mutiny Act (1 W. and M. c. 5), was passed in 1689 for the first time. The immediate necessity which gave rise to it was the mutiny of the Scotch troops who were marching towards London, and the urgent need for their speedy punishment as soldiers, instead of the tedious process of trial as civilians. The first Mutiny Act recites that " the raising and keeping of a standing army within the kingdom in time of peace, unless with the consent of Parliament, is against the law ". This refers not only to the Bill of Eights but to the provision of the Petition of Eight against martial law and the billeting of soldiers. It further recites that "no man can be forejudged of life or limb or subject in time of peace to any kind of punishment within this realm by martial law, or in any other manner than by judgment of his peers and according to the known and established laws of this realm. Yet, nevertheless, it being requisite for retaining the before-mentioned forces and other persons subject to military law in their duty that exact disci- pline be observed, and that persons belonging to the said forces who mutiny or stir up sedition, or desert her Majesty's service, or are guilty of crimes and offences to the prejudice of good order and military discipline, be brought to a more exemplary and speedy punishment than the usual forms of law will allow." This Act was continued every year until 1881, when the Army Act was passed, and its place is now taken by the annual Army Act. CONSTITUTIONAL AND GENEEAL MATTERS. 113 The necessity for this annual Act arises because a standing army is unlawful in time of peace, because its discipline is contrary to the common law, and because there is no money to pay it except when provided by statute. The persons subject to this Act are : 1. The army. 2. The marines when not subject to the laws of the sea forces. 3. British troops in India. 4. In special circum- stances, militia, yeomanry, volunteers and colonial troops. Petition of Right to the Crown. — The ancient right of the subject to petition the Crovvoi dates from the very com- mencement of the royal authority. Petitions of the people were originally of three kinds ; — 1 . For legal remedies addressed to one of the Houses of Parliament in its judicial capacity, and referred by them to the com'ts ; but these at an early period became obsolete. They were subsequently dealt with by Chancery. 2. Petitions for inivilegia or changes of the law, or exemp- tions from the law in favour of a particular individual ; these gave rise to private Acts of Parliament. 3. Public petitions addressed to Parliament, e.g. the Eoot and Branch petition, 1646, against Episcopacy ; the Kentish petition, 1701 ; the petitions against the Septennial bill, 1717; the Naturalisation of the Jews, 1753 ; the Eoman Catholics, 1780 (Lord George Gordon) ; and the slave trade, 1787 ; as to the Corn laws, 1846 ; and as to the Chartists, 1848. None of these three, however, touched the doctrine of petition of right to the Crown, and this right appears to have been recognised by early statutes in 5 Ed. I. and in 21 Ed, I. It was made one of the leading provisions of the Bill of Eights in 1689, and it was then enacted that all commitments and prosecutions for such petitioning were illegal. This was partly due to the Seven Bishops' Case (12 St. Tr. 183), where the right of petitioning had been ques- tioned. The famous Petition of Eight put up by the House of 8 114 CONSTITUTIONAL AND GENEEAL MATTERS. Commons to the king at the instance of Sir Edward Coke in 1628 is a vindication of this ancient right, see too the case of the Petitioners and Abhorrers in 1679, also see the Bankers' Case (14 St. Tr. 1). An act to prevent tumultuous petitions to the Crown was passed in 1661. It is quite clear that a petition of right lies against the Crown in contract (Thomas v. Eeg. L. E. 10 Q. B. 31 ; the Bankers' case, 14 St. Tr. 1 ; Feather v. Eeg. 35 L. J. Q. B. 200), it is also clear that it does not lie in tort (Viscount Canterbury's case, 4 St. Tr. n. s. 767 ; Tobin v. Eeg. 16 C. B. n. s. 310). Proceedings in connection here- with are regulated by the Act of 1860 (23 and 24 Vic. c. 34), and see Mitchell's case (6 Times, L. E. 181, 332). Peti- tion of right and the ancient proceeding of vionstrans de droit (see p. 21) could both be brought in Chancery against the attorney-general. Piracy.— The first treaty dealing with piracy was between the Eomans and the Carthaginians, by which the latter were forbidden to sail beyond Pelorum for commerce or piracy. As Eome depended on a foreign food supply she was inter- ested in the suppression of pirates. The laws of the Han- seatic League, 1380, show that it took strong measures to suppress piracy. The Sound Dues were probably a com- pensation for keeping down piracy, but as there were no standing fleets it flourished. The Knights of St. John kept down the piratical Barbary States. Piracy is an offence against the law of nations. A pirate is hostis hu77iani geiieris. Under the Norman kings it was held to be treason ; but since the statute of treasons (25 Ed. III. c. 2) it is only felony. It used to be tried by the Court of Admiralty, under the jurisdiction which the lord high admiral had over all offences committed at sea, piracy by land being not then clearly recognised. By 28 Henry VIII. c. 15, it was provided that maritime felonies should be tried by virtue of a commission under the CONSTITUTIONAL AND GENERAL MATTERS. 115 great seal directed to the admiral or his lieutenant or his deputy aiid thi-ee or four more to be nominated by the lord chancellor. Four formed a quorum and constituted the Court. The procedure was the same as in felonies at common law. By 11 and 12 William III. c. 7, the offence of piracy was extended to include new matters ; and these were added to by 8 Geo. I. c. 21 and 2 Geo. II. c. 28. By 18 Geo. II. c. 30, the offence of assisting an enemy was made pkacy ; and later, by 5 Geo. IV. c. 113, the slave trade was made pkacy. A criminal jmlsdiction in pu'acy is now vested in the Central Criminal Court ; but matters as to con- demnation of ships as prizes would go to the prize court side of the Court of Admiralty when sitting. Poor Laws. — There does not appear to have been any system of poor law in England before the Ee- formation, for the religious houses throughout the country sustained the poor and relieved the sick. The tithes (see p. 135) which were taken by the Church were partly devoted to this object. In 1391 it was ordained that in cases of appropriation of benefices a portion of the tithes was to be set aside for the poor (15 Ed. II. c. 6). The only in- cidental allusion of any importance comes in 23 Ed. III. e. 1 (the Statute of Labourers), whereby the wages of labour were regulated, and a general prohibition was enforced against giving alms to able-bodied people. In 12 Eichard II. c. 7, and 19 Henry VII. c. 12, we find the basis of the law of settlement. A class of labourers, adscriptitii glebae, were fixed by these statutes. Under Henry VIII. came the overthrow of the monasteries, and the poor were scattered all over the realm in search of subsistence (see Vagrancy, p. 220). We therefore now find the first laws which deal with the subject in detail. 27 Henry VIII. c. 25, is the basis of the present poor law. Previously thereto, by 22 Henry VIII. c. 12, a licence from a justice to beg was rendered necessary, and it 116 CONSTITUTIONAL AND GENEKAL MATTERS. was only granted to those persons who were unable to work. According to Blackstone, the object of the great statute, 43 Elizabeth, c. 2, was, " to relieve the impotent poor, and them only ; to find employment for such as are able to work : and this principally by providing stocks to be worked up at home, which, perhaps, might be more beneficial than accumulating all the poor in one common workhouse, a practice which tends to destroy all domestic connections (the only felicity of the honest and industrious labourer), and to put the sober and diligent upon a level, in point of their earnings, with those who are dissolute and idle. Whereas, if none were to be relieved but those who are incapable to get their livings, and that in proportion to their incapacity ; if no children were to be removed from their parents but such as are brought up in rags and idleness ; and if every 'poor man and his family were employed tuhenever they re- quested it, and were allowed the whole profits of their labour; a spirit of cheerful industry would soon diffuse itself through every cottage ; work would become easy and habitual, lohen absolutely necessary to their daily subsistence ; and the most indigent peasant would go through his task without a murmur, if assured that he and his children (when incapable of work through infancy, age, or infirmity) would then, and then only, be entitled to support from his opulent neigh- bours." This is a curious anticipation of the development of the modern theories as to the Poor Law. The same learned author, commenting upon the effects of subsequent poor legislation (detailed below), observes, with a practical insight which would put many modern theorists to shame, that " there is not a more necessary or more certain maxim in the frame and constitution of society, than that every individual must contribute his share, in order to the well-being of the community : and surely they must be very CONSTITUTIONAL AND GENERAL MATTERS. 117 deficient in sound policy who suffer one half of a parish to continue idle, dissolute, and unemployed, and then form visionary schemes, and at length are amazed to find that the industry of the other half is not able to maintain the whole ". By 13 and 14 Charles II. c. 12, the law of settlement was firmly established and the period ascertained ; and this was strengthened by 1 Jac. II. c. 17, which first established the liability of the parish for its poor, the parish being origin- ally an ecclesiastical division. The same Act inaugurated the system of finding work for the able-bodied poor. In 1723 came the first establishment of workhouses (9 Geo. I. c. 7). By the Act of 1782 (22 Geo. III. c. 83) the office of guardian of the poor was instituted, and the forma- tion of several parishes into one union for the purposes of relieving the poor was permitted. Under these permissive statutes an oppressive and wasteful practice of outdoor relief sprung up, which grew to a national calamity ; and this was fm-ther augmented by the establish- ment of select vestries in 1819 (59 Geo. III. c. 12). It was not until 1834 that the poor law was amended (4 and 5 "William IV. c. 76), and this Act was reinforced in 1868. The system of this Act was to substitute indoor relief (inside the workhouse) for outdoor relief wherever possible, and to compel a person to live in the workhouse before he could obtain any assistance on the ground of poverty. This system prevails now ; but the present tendency is to revert to the old order of things, only on a more magnificent scale, — to turn the State into a vast union workhouse, to make the poor their own guardians, and to have all State work administered as a gigantic system of outdoor relief. The parallel is probably derived from the historical system which made the civil service of the Cro^vn an amiable method of outdoor relief to the needy portion of the aristocracy. The Poor Law Commissioners, who were appointed under 118 CONSTITUTIONAL AND GENEEAL MATTERS. the Act of 1834, are now represented by the Local Govern- ment Board. Praemunire. — The offence of praemunire means the intro- duction of a foreign civil power into the realm, and the creating of an wiperium in imperio by giving that obedience to papal process which constitutionally is due to the king only. It owes its position to the struggle between the Church and the State in this country. It was so called from the word- ing of the writ 2)raemunire facias (prae moneri, "cause A. B. to be forewarned that he appears before us to answ^er the con- tempt wherewith he stands charged," etc.). The encroachments by the Pope upon the royal power in this country, which reached a climax in John's reign, were strongly resented by Edward I. and in the thirty-fifth year of his reign was laid the foundation of resistance to all papal provisions. The Statutes of Provisors in Edward III.'s reign, 25 Ed. III. statute 6 ; 27 Ed. III. statute 1, c. 1; 38 Ed. III. statute 1, c. 4 ; and statute 2, cc. 1, 2, 3, 4, were followed up by several statutes in the reign of Eichard II. and finally by the great Statute of Praemunire, 16 Eichard II. c. 5. The punishment of obtaining from Eome or elsewhere any processes, bulls, or the like touching the king was, that the person should be put out of the king's protection, and that his lands and goods should be forfeited to the king, and that his body should be attached to answer the king in council. This was reinforced by 2 Henry IV. c. 3, and the inter- ference of Eome was checked for a time. In Henry VIII. 's reign severe statutes were passed, and the whole of the clergy of the realm, being alleged to be guilty of a praemunire, by a large sum bought their pardon from the king (22 Henry VIII. c. 15, and 23 Henry VIII. c. 19). This allegation was based upon their admitting the legatine power of Wolsey. For a like offence a pardon was extended to all the lay subjects of the Crown (22 Henry VIII. c. 16). CONSTITUTIONAL AND GENERAL MATTERS. 119 Appeals to Eome were restrained by 24 Henry VIII. c. 12 ; and the Act for the submission of the clergy (25 Henry VIII. c. 19) followed. In subsequent reigns the penalty of a praemunire was ex- tended to many other offences, and it continued to be a common method of punishment down to the eighteenth century. The punishment was also increased to the effect that the offender should be attached and should remain in prison at the king's pleasure. It used to be thought lawful to kill a person attainted of a praemunire, as he bore caput lupinum; but this was declared illegal by 5 Elizabeth, c. 1. This statute is repealed by 9 and 10 Vic. c. 59. It was always illegal to in any way relieve or assist any person known to be guilty of this offence. So late as 1843 there were nine statutes upon the books under which the penalties of a praemunire could be incurred. Cp. Eeligious Liberty, p. 122 ; Heresy, p. 86. Privateers. — Privateers are, strictly speaking, only allowed in time of war, but in their ancient form of ships carrying letters of marque they were permitted in time of peace, and they were directed against some particular power who refused redress. Marque comes from marcare (analogous to pignus, a pledge), and was the seizing of a pledge to ensure redress. Or it may come from marcha, a licence to cross territory (the marches) to attack an enemy. Originally in this country and in Italy there were private associations of merchants, called Corsari, to put down pirates ; hence it was called la guerra del corso, in French la course, which afterwards itself degenerated into a system of private warfare by force amounting to piracy (Corsairs). Sir Travers Twiss says that the introduction of privateers, as dis- tinguished from letters of marque, seems to be due to France, who during the fifteenth and sixteenth centuries relied upon private zeal for the formation of a fleet. 120 CONSTITUTIONAL AND GENEEAL MATTERS. Privateers appear to have been frequently used by the Enghsh merchants in earlier times ; but it was not until the sixteenth century, the time of the Armada, that there is any noteworthy record upon the subject. From that date down to the present time the right to grant letters of marque has always been recognised as a special prerogative of the Crown. The corresponding right of the subject to accept letters of marque from other powers has been much restricted by the various Foreign Enlistment Acts. By the treaty of Paris, 1856, to which all the civilised States, except Spain, Mexico and the United States became sig- natories, privateering was abolished. Proclamations. — The object of a proclamation is to make known the existing law, and it cannot either make a new law or unmake the old law {ex jMtte Chavasse, 4 De G. J. and S. 655). But this was not the ancient doctrine ; for we find that in 1340 the Commons asked that matters of permanent interest might be embodied in statutes, and things of tempor- ary importance in proclamations. At the time of Henry VIII. express authority was given by 31 Henry VIII. c. 8, to the king to issue proclamations which should have the force of law. This statute was repealed by 5 and 6 Edward VI. c. 11. However, proclama- tions still continued to be issued by the Tudor sovereigns. They were issued by James I. as to the Book of Sports, the making of starch out of wheat, and the building of houses in or near London. They were frequently used on the advice of the Privy Council for alleged matters of public safety, and so principally originated from the Star Chamber. In 1610 came the famous Case of Proclamations (12 Rep. 74), when it was held by all the judges, headed by Coke, that the king has no prerogative except that which the law allows him ; that he cannot create any new offence by pro- clamation, nor can he thereby change any part of the common law, or the statutes or customs of the realm : he may, how- CONSTITUTIONAL AND GENERAL MATTERS. 121 ever, issue a proclamation to admonish his subjects that they keep the laws, upon penalty of punishment according to law. Proclamations were again revived by Charles I. and upheld by the judges; and again, in Charles II.'s reign, in 1665, when officers and soldiers who had served in the Parliamentary army were ordered to leave London and Westminster ; again, in the same reign, as to rebuilding houses after the great fire ; and again, in 1675, with reference to the compulsory closing of coffee houses. In 1766 the exportation of wheat was prohibited by proclamation under the advice of Lord Chatham ; but an Indemnity Act (7 Geo. III. c. 7) had to be passed, to protect the persons who had acted thereunder. In certain cases it is said that the Crown may legislate by proclamation, as, for instance, in a newly-conquered country (Campbell v. Hall. Cowp. 204). The power to issue special proclamations may be given by an Act of Parliament (see 39 and 40 Vic. c. 46). PurYeyance (Preemption). — This was the right which the king had to buy up provisions and other things required for Jiis household by his purveyors (pourvoir, to provide) at a fixed sum (although the owner was unwilling), and to the exclusion of, and in preference to, all other customers. It was further extended to the right of taking by force any horse or con- veyance from any subject in order to expedite the king's business upon the high road. Compensation had, however, to be paid in such cases. The necessity for these rules was apparent when the king moved about his dominions as constantly as the early kings did, for they travelled all over their realm at great speed, e.g. King John, in May, 1209, on the 1st was at Pontefract, on the 3rd at Derby, on the 5th at Lichfield, on the 8th at Gloucester, on the 10th at Bristol, on the 13th at Bath, on the 16th at Marlborough, on the 20th at Winchester, on the 22nd at Southampton, on 122 CONSTITUTIONAL AND GENERAL MATTERS. tiie 28th at Arundel, and on the 31st at Lewes (see Hardy's Description of the Patent Rolls, ad fin.). These rights are mentioned in the laws of Canute, and by Magna Charta the excess of them was regulated. Again they were revised by the Articuli super cartas, 28 Ed. I. c. 2 ; by 34 Ed. I. statute 4, c. 2, the statute de talagio nan coicedendo ; and by 25 Ed. III. statute 5, c. 1. The right of purveyance extended to personal labom\ In Edward III.'s time we find painters were impressed to decorate St. Stephen's Chapel, and in Edward IV. 's reign workers in gold were impressed for his household. Further restrictions were added by Eichard II. by Henry VI. by Edward VI. and notably by Elizabeth. Under Charles I. the exercise of these rights of pm'veyance and preemption was a serious cause of complaint, and by the Long Parlia- ment it was much restricted (16 Charles I. c. 19). Finally both rights were entirely abolished, together with all military tenures, by 12 Charles II. c. 24, and in lieu thereof, the excise duties on beer and on other liquors were settled upon the Crown. According to Coke, the restrictions upon purveyors were in his time that they could take : — 1. Only for the king's household. 2. Only with the consent of the owner. 3. At the market price. 4. No more than was necessary. 5. Where it could best be spared. Religious Liberty. — For the early religious struggles in this country, see under Heresy (p. 86), which practically covers the time down to the reign of Charles II. (and see Praemunire, p. 118 ; Blasphemous Libel, p. 107). Of the great subject of religious liberty a bare outline must here suffice. Originally there was equality in religion in the realm, because there was but one Church recognised in the country, CONSTITUTIONAL AND GENERAL MATTERS. 123 and to that Church every one belonged. The growth of learning and the spread of education, consequent on the founding of universities and schools, gradually emancipated the minds of many from ignorance and superstition, and sowed the first seeds of dissent. Inquiry followed upon education. The struggle of Wycliffe, and, later, of Cobham and Old- castle, was but a vain endeavour to vindicate the natural right of man for freedom to worship God, Equality was rigidly enforced, — the equality of compulsion Vv-hich requires all to act in the same way, whatever may be the state of private thought or of individual conviction. Under this system all England was Eoman Catholic until the time of the Eeformation. The legal history of the Reformation may be shortly summarised as follows (see Stephen's Hist. ii. p. 453). 1. It restrained appeals to Rome, in 1532, by 24 Henry VIII. c. 12. 2. In 1533 it fm'ther restrained appeals, and compelled the submission of the clergy, by 25 Henry VIII. c. 19. 3. The Supremacy Act, 1534 (26 Henry VIII. c. 1). 4. The dissolution of the monasteries, the lesser in 1536 (27 Henry VIII. c. 28), and the greater in 1540 (31 Henry VIII. c. 13). Under Henry VIII. came the first disabling statutes which were enforced in England and Ireland, and gave birth to the Puritan movement. The Uniformity Act and the Supremacy Acts of the time of Elizabeth, as subsequently re-enacted, must be borne in mind, and there was practically no religious liberty at all until the Restoration, in 1660. This period of liberty which began at 1660 was, however, all too short ; for the Clarendon Code, including the Cor- poration Act of 1661, the Uniformity Act of 1662, the Con- venticle Act of 1664, and the Five Mile Act of 1665, imposed severe restrictions upon religion. It was followed by the 124 CONSTITUTIONAL AND GENEEAL MATTERS. Test Act of 1673 and the Parliamentary Test Act of 1678. From 1678 to 1829 both Houses of Parliament were prac- tically closed against Eoman Catholics. The first symptom of better things was the Declaration of Indulgence in 1687. Then came the great Toleration Act of 1 William and Mary, c. 18. The Act recites that its object is to unite Protestant subjects in interest and affection. It does not protect papists or popish recusants or private and secret meeting houses. It protects all persons who should take the oaths of allegiance and supremacy and subscribe the declaration against transubstantiation from penalties for attending conventicles or for absenting themselves from the services of the Established Church. And if such persons are in holy orders on subscribing to part of the thirty-nine Articles they are allowed to officiate at conventicles and are exempted from onerous public offices. It allowed Quakers to affirm instead of taking the oath. It required all meeting houses to be registered, and protected them. This Act was practically repealed by 31 and 35 Vic. c. 48. In 1711 was the Act against occasional nonconformity (10 Anne, c. 2) ; as a bill, it was rejected three times, and the Commons threatened to tack it to the bill for Supply. It was only passed by the creation of twelve peers to vote for it. (It was repealed by 5 Geo. I. c. 4.) In 1713 came the Schism Act, against which thirty-three peers protested, to forbid any one not a member of the Church of England from keeping a school. From the time of George II. onwards, annual Indemnity Acts were passed, i.e. from 1727 to 1828. The " No Popery " riots, better known as the Gordon riots, in 1780, followed the Eelief Act of 1778, and preceded the Eelief Act of 1791. In 1828 the Corporation and Test Acts were repealed, and in 1829 the Eoman Catholic Emancipation Act was passed. CONSTITUTIONAL AND GENERAL MATTERS. 125 The statutes of 7 and 8 Vic. c. 192, and 9 and 10 Vic. c. 59, gave further rehef to Nonconformists. In 1833 the first Quaker (Pease) sat in Parliament. The right of the Jews to sit in Parliament was questioned in 1858 in the case of Salomons v. Miller (8 Ex. 778), but they were admitted into Parliament in 1858. The first Eoman Catholic judge was Shee, in 1864. The first Eoman Catholic lord chancellor of Ireland was Lord O'Hagan, in 1868. The contest as to the Parliamentary oath between Brad- laugh and the House of Commons ended in establishing the right of every member of Parliament to afiirm instead of taking the oath. The penal laws with reference to religion have been ably summarised by Hallam (Const. Hist. cap. 3 ad fin.) under the following heads : — ^- (1) Those requiring a test of conformity to the established religion of the country, in order to qualify any person for an office of civil trust. (2) Those designed to restrain the free promulgation of opinions, especially through the press. (3) Those prohibiting the open exercise of religious worship which is not that of the Established Church. (4) Those prohibiting secret worship of the same nature. (5) Those enforcing conformity to the Established Church or an abjuration of heterodox tenets, by legal penalties. The relief of Nonconformists may be summarised under the following dates : — lu 1687, the Declaration of Indulgence. In 1688 (1 William and Mary, c. 18). Annual Inderonity Acts, 1727 to 1828. 1779, and 1828. The relief of Eoman Catholics may be also summarised as follows : — 1687, Declaration of Indulgence. 126 CONSTITUTIONAL AND GENERAL MATTERS. 1727 to 1828, Annual Indemnity Acts. 1778, Savile's Act. 1791, 1829, 1832, 1844, and 1846. The effect of religious legislation may be shortly tabulated as follows : — The Corporation Act, 1661. Repealed in 1788 and 1828. The Uniformity Act, 1662, Repealed in 1688, 1844 and 1846. The Conventicle Act, 1664. Repealed in 1688 and 1812. The Five Mile Act, 1665. Repealed in 1812. The Test Act, 1673. Repealed in 1828. The Parliamentary Test Act, 1678. Repealed in 1829. The various Acts of Supremacy were : — The Statute of Provisors, 1344. The Statute of Praemunire, 1393. The Supremacy Act, 1534. The Supremacy Act, 1562. The Corporation Act, 1661. The Test Act, 1673. The Parliamentary Test Act, 1678. The various Acts of Uniformity were : — The Statute of Elizabeth, 1558. The Uniformity Act, 1662. The Conventicle Act, 1664. The Five Mile Act, 1665. The second Conventicle Act, 1673. Reports of the Law. — The method by which the decisions of the judges become known to the public and are preserved for future generations is by making some VTritten report of their judgments. Eeports of cases have existed from the earliest times until the present time under various phases. The rotuli curiae regis date from Kichard I. ; they contain entries of judicial proceedings. The roll of 9 John (Michaelmas term) contains copies of pleadings taken from 7 Henry II. so it appears that enrolment was practised in Henry II.'s reign. Originally decisions were only delivered in court, and CONSTITUTIONAL AND GENERAL MATTERS. 127 were never officially preserved. From the time of Edward II. until that of Henry VIII. the Year Books were published every year at the expense of the Crown, and they contained the decisions of the judges. They were compiled by the prothonotaries in each court, who were appointed under the Crown. The first Year Book is in 1292, in the twentieth year of Edward I. In the reign of James I. two State reporters were again appointed, at a salary of £100 each, but they had to report for all the courts. The office soon became obsolete. With this exception, since Henry VIII. 's reign there have been no State reports in this country. The ancient reporters who existed after Henry VIII.' s reign only reported the decisions in the particular court in which they sat, and there was no regular series of reports which embraced all the courts. The reports of Croke during the reigns of Elizabeth, of James I. and of Charles I. are well known. They are always cited as Cro. Eliz. Cro. Jac. or Cro. Car. and they were followed by the reports of Coke in the time of James I. which are always quoted as " The Eeports ". At the present time, besides the established system of law reporting, which dates from 1866, there are many other law reports in existence. Roman Law. — The history of the Eoman law in England must be dealt with very briefly. ^ The Roman domination over England for four hundred years could not have existed without leaving some traces in this country. But when the invasion of the Saxons took place they brought with them their own purely Teutonic law, and drove out or enslaved the few inhabitants of the country, so that practically there was no mixture of law at all. It may therefore be said that there was no Roman law in England at the time of the Conquest. It was through the Church that Roman law gained a ^ For an able account see Scrutton, Influence of the Roman Law on thi Law of England. 128 CONSTITUTIONAL AND GENERAL MATTERS. footing in this country consequent upon the conversion of the nation to Christianity. This footing was strengthened after the Norman Conquest by the system of the canon law brought over by the Norman ecclesiastics. The canon law was merely a Eomanised system of Church law. The prelates sat as chancellors, as judges, as clerks (clericus shows the intimate connection between the priest and an office demanding education), and occupied all positions of trust which could be held only by literate men. Their chief fountain of law was the Eoman law, as it reached them through the Glossators of Northern Italy and the Comment- ators of Western Europe. In Glanvill, in 1190, we find very little Eoman law ; but in Bracton, in 1256, there is much that is taken directly from the Eoman law. This was due to the establishment of a school of civil law at Oxford by Vacarius in 1144. The so- called laws of Henry I. were largely composed of extracts from the Eoman law. Bracton drew his Eoman law from the Summa of Azo. According to Eeeves, most of Bracton is pure English law. According to Maine, the entire form and one third of the contents is taken from the corpus juris. The truth seems to lie midway between these two statements. Bracton took a framework, partly of English law, partly of Eoman law, and on it fitted all the English law he knew ; and then, to fill up the most glaring gaps, inserted extracts from the Eoman law. Maine asks how it was that Bracton palmed off his Eoman law as English law ; and in reply it may be said that the same thing was done all over Europe. The laws of the barbarians as civilisation advanced gave way to the civilised Eoman law ; and Bracton' s, therefore, is not an exceptional case. Eoman law is not recognised as binding here ; although, "in deciding a case on principle where no direct authority can be CONSTITUTIONAL AND GENERAL MATTERS. 129 cited from our books, it is no small evidence of a sound con- clusion if it is supported by Roman law," ^:)er Tindal, C. J. in Acton V. Blundell (12 M. and W. 324). The celebrated judg- ment of Holt, C. J. in Coggs v. Bernard (1 Sm. L. C. 201) draws largely upon the Roman law and upon Bracfcon (see under Jurists, p. 98). Sheriff. — The office of sheriff, or shire reeve, is one of the most ancient offices known to the law. It is of purely Teutonic origin. The scir gerefa existed in the tribes which came into England at the Anglo-Saxon invasion. We see him as the scir man of the laws of Ina. In the Norman period he was technically known as the Vicecomes, and his shire or county was termed his bailiwick. This officer was originally elected by the people of the shire, and the right of election was confirmed by statute, 28 Edward I. c. 8, in order that the commons might choose such persons as would not be a burden to them. Popular elections were, however, abolished by 9 Edward II. statute 2 ; and the power to appoint sheriffs was vested in the Crown, subject to special provisions for procedure in the appointment. Vain attempts were made in 1338 and 1376 to restore the elective principle. By several statutes, especially 14 Edward III. c. 7 ; the Statute of Cambridge, 12 Richard II. c. 2 (repealed by 84 and 35 Vic. c. 48) ; 23 Henry VI. c. 9 ; 21 Henry VIII. c. 20, the procedure was regulated as follows. All the judges together vnth the high officers of the king met in the Exchequer on the morrow of All Souls, when they nominated three persons from each county, and the list thus made out was submitted to the sovereign, who, with a golden bodkin, pricked the parchment opposite the name which stood first for each county (hence the phrase "pricked for a sheriff"). By 24 Geo. II. c. 48, the day was altered to the morrow of St. Martin ; and by the Judicature Acts the meeting is to take place in the Queen's Bench Division, in which the Exchequer 9 130 CONSTITUTIONAL AND GENEEAL MATTEES. is now merged. The Chancellor of the Exchequer presides upon these occasions. By Magna Charta the sheriff was expressly forbidden to hold pleas of the Crown, because it was improper that, being sworn to execute the king's writ, he should also judge the matters alleged in it. But in some cases his judicial duties still survive, e.g. in assessing damages in undefended actions. By 1 Mary, session 2, c. 8, he was forbidden to act as a justice of the peace during his tenure of office, which act was but declaratory of the common law. His ancient judicial duties in the Sheriff's County Com't and Sheriff's Tourn (see pp. 60, 61) are now obsolete. By 1 Eichard II. c. 11, after serving once, no man could be compelled to serve again within three years, if there were other efficient persons within the county. By 14 Charles II. c. 21, no person was to be sheriff who had not sufficient lands within the county to answer to the king and his people. This re-enacted several statutes of Ed. II. and of Ed. III. the object of which was to place the sheriff above temptation in conniving at the escape of any man of position whom he might have in his custody. By the same Act of Charles II. he was forbidden to keep a table at the assizes, except for his own family, or to give presents to the judges or their servants, or to have more than forty men in livery, but he must not have less than twenty men in livery. His power to raise the posse comitatus may be mentioned. This was "the power of the county," and was a summons to every person above fifteen years old, under the degree of a peer, to attend when wanted, under penalty of fine and im- prisonment for refusal. The sheriff was appointed for one year only ; but he might be appointed durante bene placito, and in such cases his office only ended by his own death or the demise of the Crown. However, by 7 Anne, statute 1, c. 8, a sheriff may continue to hold office for six months after the sovereign's death. CONSTITUTIONAL AND GENERAL MATTERS. 131 The power of the Crown to appoint a pocket sheriff, that is, one not nominated in the Exchequer, is doubtful. It was exercised in 34 Henry VI. and was then expressly declared by the judges to be contrary to the law, as, indeed, it was subsequently admitted to be by 34 and 35 Henry VIII. c. 26. In the fifth year of Elizabeth, because of the Plague, the courts did not meet, and so the queen herself named the sheriffs. The power of appointing a sheriff non obstante a statute disappeared, if ever it existed, with the abolition of the doctrine of noJi obstante by the Bill of Eights. An occasional appointment of a sheriff, as on the death of the acting sheriff in his year of office, is sometimes made. Formerly, in some cases, the shrievalty was one of inheritance. Such was the case of the shrievalty of West- moreland, which was granted by King John to Robert da Veteripont ; and it vested at one time in Anne, Countess of Pembroke, who actually sat as sheriff on the assize ; ^ ulti- mately it became vested in the Earl of Thanet ; and on his death without issue in 1849, all hereditary claims to it were abolished by 13 and 14 Vic. c. 30, and the power to appoint vested in the Crown. In the case of London and Middlesex, the election of the sheriffs was vested in the citizens of London for ever by the charter of Henry I. they paying £300 a year to the Exchequer (Westby's case, 3 Rep. 72). Slavery. — Slavery in this country has never been recog- nised by the common law ; but the position of a villein was in early times very near that of a slave. Villeins appear in Saxon times to have been in two classes : those who had rights attached to the soil and were bound to the soil, and those who were separated from the soil and regarded as mere chattels. The feudal system lowered their condition, and continued to bind them to the ^ Under Henry III. Ela, Countess of Salisbury, was sheriff of Wilt- shire. I. P. and M. 466. 182 CONSTITUTIONAL AND GENEEAL MATTEES. soil. They became for the greater part Uttle better than slaves, although some of them held property, Villenagium. The growth of manors raised their condition, and ensured fixed services, instead of uncertain (see I. P. and M. 354) and unlimited services, and gave them those customary rights which afterwards grew into tenure by copy of court roll, the precursor of the modern Copyhold. The Statute of Labourers in 1349, and the various sub- sequent statutes with reference to Vagrants (for which see p. 220), and to the Poor (see p. 115), had the effect of em- bittering their condition ; and the exaction of the poll tax led, in 1381, to the great insurrection of the villeins. This led to the theoretical abolition of slavery, and the substitu- tion of fixed services and free rights of commerce. But the class of tiativi continued for some time in a position practically that of slavery. They were regarded as villeins in gross, and could be sold like a chattel. Their position was inferior to that of a villein regardant, who passed with the land and could not be separated from the land, upon which he had certain customary rights. Their emancipation progressed gradually through their own efforts and through the benevolence of their masters, assisted by the Church. The great cause of the decay of villeinage was the partition of the lands of the Church amongst the laity. An attempt to legalise slavery of vagabonds was made by 1 Ed. VI. c. 3, but this was speedily repealed (3 and 4 Ed. VI. c. 16). A case of villeinage occurs in the time of Elizabeth, Butler V. Crouch (Dy. 266 b. 283 b.) ; but the last case appears to be in 15 James I. Pig v. Cayley (Noy, 27) ; and it was expressly decided there that the status of a villein regardant no longer existed. Since that date slavery in any shape has never been recognised by the custom of the country (Smith v. Gould, Salk. 666). It was pro- nounced illegal by Sir Leoline Jenkins in 1674. CONSTITUTIONAL AND GENEEAL MATTERS. 133 It was under the peace of Utrecht in 1713 that the Assiento contract arose, which was a grant by Spain to a British company of an exclusive right to carry slaves from Africa to Spanish America for thirty years, on the same terms as the French Guinea Company of 1701 held the right. This contract was renewed under the peace of Aix-la- Chapelle in 1748. In 1762, in Shanly v. Harvey (2 Eden, 126), it was held that a return to a %vrit of habeas corpus alleging slavery was insufficient. In 1772, in Somerset's case (20 St. Tr. 1), it was held by Lord Mansfield that slavery was illegal in this country; and in 1778, in Knight's "case (20 St. Tr. 1), slavery in Scotland was declared illegal. Previous to that date the opinion of the law ofiicers of the Crown, Talbot and Yorke, had been taken on the question, and given in favour of the legality of slavery in this country. During 1805, 1806, and 1807, the slave trade was gradually restricted (see 46 Geo. III. c. 52 ; 47 Geo. III. St. 1, c. 36), and in 1834 slavery in the colonies was aboHshed (3 and 4 Will. IV. c. 73). In 1816 was Lord Exmouth's expedition against the Barbary powers to enforce the abolition of Christian slavery. The current idea that a slave when he sets foot upon an English ship becomes free (The Creole, Pitt Cobbett, L. C. 47) is by no means correct. It appears that even upon a British ship upon the high seas a slave has no legal right against the captain of the ship who chooses to smTender him up, R. v. Lesley (Bell, C. C. E. 220). And the same rule prevails in territorial waters. It was once thought that a British public ship in territorial waters could be compelled to sm'render a slave who fled (see the opinion of Best, J. in Forbes v. Cochrane, 2 B. and C. 469), and this may still be the law as to a private ship. A public]ship, however, ismot subject tojany foreign jurisdiction, 134 CONSTITUTIONAL AND GENERAL MATTERS. wherever it may be {The Exchange, 7 Cranch, 116). The rule may be stated broadly that a fugitive slave maybe received per- manently upon a British ship, although his life is not in danger, and the captain of a ship cannot be lawfully compelled to give him up again if it would expose him to bad usage. Slavery is a local law, and the various treaties which have regulated the practice of states inter se with reference there- to need not be detailed here (see Wheaton's International Law, 3rd Eng. ed. sec. 126). The slave trade does not, however, amount to piracy {Le Louis, 2 Dods. 210, in 1817). A contract made here with reference to trade in slaves carried on elsewhere will be enforced (Santos v. lUige, 8 C. B. n. s. 861 ; 6 C. B. n. s. 841 ; Madrazo v. Willes, 3 B. and Aid. 353). If a slave is brought to England and returns to a country where slavery is legal, his temporary presence here does not make him free (the slave Grace, 2 Hagg. Adm. R. 94 ; semble in the United States, the Dred Scot case). A contract to serve for life has been held valid (Wallis v. Day, 2 M. and W. 273). The change from slavery into a relationship of master and servant exhibits a striking illustration of the tendency of the forms of society to pass from status to contract. Stipendiary Magistrates. — The first stipendiary magis- trate appears to have been Fielding, in 1754. The next step was the Police Act of 32 George III. c. 53 ; then came 2 and 3 Vic. c. 71; 11 and 12 Vic. c. 42; 38 and 39 Vic. c. 3. In boroughs stipendiary magistrates were first allowed by 5 and 6 William IV. c. 76, and this Act was repealed by the Muni- cipal Corporations Act, 1882, which gave still further powers. The magistrate has been known to act as a public prose- cutor in the sixteenth century; see the cases of Reresby (in R. V. Coningsmark, 9 St. Tr. 1) and Alleyn (in Turner's case, 6 St. Tr. 565), which shows how much his modern position is'opposed to his ancient sphere of office. CONSTITUTIONAL AND GENERAL MATTERS. 135 Terms. — The origin of the division of the year into terms may be ascribed to the influence of the Church. Certain days were set aside by reHgion as too holy to be desecrated by daily labour (cf. the Dies fasti SLnd nefasti of theEomans). The festival of Christmas, or the birth of Christ ; the festival of Easter, or the resurrection, and the festival of Pentecost, or the coming of the Holy Ghost, originated three of the vacations, and the fourth vacation is due to the time of harvest. These festivals coinciding with particular saints' days, the ensuing terms took their names from these saints' days. That of Saint Hilary after the Christmas festival, and that of Saint Michael after the time of harvest, while Trinity Term comes from the festival of the Holy Trinity at Pente- cost, and Easter term from the festival of Easter. To these exceptional periods were added all Sabbaths and some special saints' days. By the laws of Edward the Confessor stringent regulations were made as to legal terms, and, according to Britton, these were rigidly enforced ; but the Church granted dispensations to allow assizes to be taken in certain holy seasons (see Kymer's Foedera). By 3 Edward I. c. 51, Statute of West- minster, certain assizes were authorised to be taken dm'ing the holy seasons. Trinity Term was regulated by 32 Henry VIII. c. 21, and Michaelmas Term later by 16 Charles I. c. 6, and 24 Geo. II. c. 48. All the terms were regulated by 11 Geo. IV. and 1 William IV. c. 70. But all these distinctions were altered, so far as regarded the administration of justice, by the Judicature Acts, and terms are no longer regarded. The periods of the year are now unequally divided into Sittings of the Supreme Court, of which there are four. Tithes. — The history of tithes is very uncertain as to their origin, but they appear to be derived from the usages of the early Chm-ch. They did not arise jtire divino, for they are not mentioned until the fourth century (Kennell v. 136 CONSTITUTIONAL AND GENEEAL MATTERS. Bishop of Lincoln, 7 B. and C. 153). At the Council of Macon in 585, laws as to tithes were promulgated, and they became a permanent charge upon the land in the seventh century, although still voluntary. In 778 they were made compulsory by Charlemagne, who gave a fourth each to the poor, to the bishop, to the clergyman of the parish, and to the fabric of the church. In 786 they were enforced by the legatine councils in England, and adopted by the leading men of the kingdom. They were subsequently further enforced by the laws of Athelstan in 930, and of Edgar in 960, and by three constitutions of Edward II. They were payable to the cathedral church, and not to any church to which the donor liked to dedicate them. They were distributed to the parish churches by the bishop. By the laws of Ethelred II. they were ordered to be distributed in thi-ee portions according to the ancient custom, — to the poor, to the clergy, and to the maintenance of the church. The claim of the clergy of particular parishes, in respect of their churches, upon the tithes was not heard of until 1200. By a decree of the Pope in 1200, which was recognised as law in England, the arbitrary consecration of tithes was forbidden. In 1176 a decree of the Lateran Council forbade tithes being granted to laymen (the infeudation of tithes). In 1391 it was provided that where benefices were appropriated a portion of the tithes was to be set aside for the poor (15 Ed. II. c. 6). The lay impropriation of tithes was due in great measure to the suppression of the monasteries by Henry VIII. and the appropriation of theh" tithes to laymen. The more modern doctrine of the law was that tithes were demandable as of common right. In 1836 the Tithe Com- mutation Act authorised a composition to be made for all tithes, and the amount of payment under each composition was to fluctuate according lo the price of corn. CONSTITUTIONAL AND GENERAL MATTERS. 137 Torture. — Tortm-e in this country has ever been illegal by the common law ; but it appears to have been occasion- ally employed under the express direction of the Crown. It was certainly used in this country by the Knights Templars as late as 1310, and it was used at Newgate up to 1334. The torture chamber at the Tower of London was a well-known historical adjunct during the wars of the Roses and the Tudor period. In the reign of Henry VIII. an Act passed in prevention of piracy allowed torture. Torture was saidbyFortescue (De Laudibus Legwn Angliac) to be contrary to the law. And according to Coke, it is forbidden by Magna Charta in the words, nullus liber Iwmo . . . aliquo modo destriiatur. The cases in which it appears to have been used are to Anne Ascue in 1545, to witnesses in the Duke of Norfolk's trial in 1571 (1 St. Tr. 957), to Peacham (2 St. Tr. 869). When it was attempted to be used on the trial of Felton (3 St. Tr. 367) in James I.'s reign, it was declared illegal by all the judges. Previously thereto it had been frequently used by the Star Chamber, especially in connection with the Gun- powder Plot. The Bill of Eights in 1689 expressly forbade the infliction of any cruel or unusual punishment. The using of torture was one of the accusations in the cases of R. v. Picton (30 St. Tr. 225), and E. v. Huggins (17 St. Tr. 297). The last case in this country in which torture was officially used is said to have been in 1640. Treason. — The origin of the law of treason is found in the breach of the allegiance due from the vassal to the lord, and this was enunciated in the laws of Alfred. In Edward I.'s reign, came the case of Segrave in 1305, Gaveston's case (1 St. Tr. 21) in 1311, the Despencers' case (1 St. Tr. 23) in 1321, Koger Mortimer's case (1 St. Tr. 51) in 1331, and Sir John Gerberge's case in 1348. The arbitrary decisions of the judges led to the Statute 138 CONSTITUTIONAL AND GENERAL MATTERS. of Treasons, 25 Edward III. statute 5, c. 2, which limited and defined treason as including attempts upon the life of the king or queen or their eldest son ; carnal knowledge of the king's companion, or his eldest daughter unmarried, or his eldest son's wife (both parties, if consenting, are guilty, e.g. Henry VIII. 's wives) ; levying war against the king in his realm ; ^ being adherent to the king's enemies ; counter- feiting the great or privy seal, or the coin of the realm (which are now reduced from treason to felony only by 24 and 25 Vic. cc. 98, 99) ; slaying the king's chancellor, treasurer or judges acting in their ofiQce (but this does not include barons of the Exchequer). By 11 Henry VII. c, 1, it was declared that treason did not include service to a de facto king. This statute was held not to excuse service to a Commonwealth (Sir Harry Vane's case, 6 St. Tr. 119). It does not in any case command service but only excuses it. The list of treasonable offences was temporarily supple- mented during the reigns of Henry VIII. and his de- scendants. In all cases of treason one witness was sufficient at common law ; but this was, by 1 Edward VI. c. 12, and 5 and 6 Edward VI. c. 11, changed to two witnesses; as was decided in Sir Harry Vane's case (6 St. Tr. 119) in 1662, and in Lord Stafford's case (7 St. Tr. 1525) in 1680. In Algernon Sydney's case in 1683 (9 St. Tr. 817), the question of a second witness arose ; and it was held that a writing of the prisoner's was sufficient instead of such witness. This decision was in consonance with Peacham's case in 1615 (Cro. Car. 126). The two witnesses must be with reference to the same act of treason, although each may depose to a different overt act, as was enacted by the statute 7 and 8 "William III. c. 3, in 1695. This statute, the Treason Bill, requires a pro- secution to be begun within three years of the offence, 1 A late growth. II. P. and M. 503. CONSTITUTIONAL AND GENERAL MATTERS. 139 except in cases of designed murder of the sovereign, and also allows the accused to employ counsel (E. v. Collins, 6 C. and P. 305). It also permitted the accused to have a copy of the indictment five days before trial, and a copy of the jury panel two days before trial, and a subpoena to compel witnesses to come on his behalf. By 7 Anne, c. 21, the jury panel is to be delivered ten days before trial and with it a list of the witnesses for the prosecution. But these two statutes do not apply to cases of treason against the person of the sovereign (5 and 6 Vic. c. 51). In Anne's reign, also, further treasons were created by 1 Anne, statute 2, c. 17, and by 6 Anne, c. 7. From 1780 to 1794, the judges artificially extended the Statute of Treasons to include many things which were outside the statute, but which were decided to be construc- tive treason. These constructive treasons were, in 1795, by 36 George III. c. 7, made a part of the law of treason, and were confirmed in 1816 by 57 George III. c. 6. These last two Acts were practically repealed by the Treason Felony Act of 1848 (11 and 12 Vic. c. 12), which deprived many offences not relating to the king's person of the character of ti'eason, and made them felonies only. E.g., compassing to depose the sovereign ; levying war within the kingdom ; stirring a foreigner to invade the kingdom. Prosecutions under the Act for open and advised speaking were limited to two years after the Act. The Statute of Treasons of Edward III. was expressly excepted from the operation of the Act. A further treason was enacted by 3 and 4 Vic. c. 52, for procuring the marriage of a successor to the throne under the age of eighteen. By 5 and 6 Vic. c. 51, a species of treason was created, namely, the pointing or discharging at the sovereign of any firearm, or throwing at her any missile, which was declared to be a high misdemeanor (E. v. Oxford, 140 CONSTITUTIONAL AND GENEEAL MATTEES. 9 C. and P. 525). The ancient penalties of forfeiture and attainder for treason were abolished in 1870, by 33 and 31 Vict. c. 23. The necessity for an overt Act, which must be of a general nature, was clearly established in Frost's case (4 St. Tr. n. s. 86) in 1840 ; but the old decisions disregarded this principle, as was seen in Sir Everard Digby's case (2 St. Tr. 187) in 1606, in connection with the Gunpowder Plot, and in the prior case of Lord Essex (1 St. Tr. 1333) and in the Duke of Norfolk's case (1 St. Tr. 957) in 1572. The historical development of the term "levying war against the king " has kept pace with the improved methods of warfare. The law in Messenger's case, in 1668, was widely laid down ; but it was restricted in K. i'. Lord George Gordon (21 St. Tr. 485) to open violence to compel the king to alter his counsels. In 1710 it was decided that any movement of a general nature, as to destroy all meeting- houses of dissenters, was a levying of war within the Statute of Treasons (see the case of Dammaree, 15 St. Tr. 521, and Purchase, 15 St. Tr. 651). So in Frost's case in 1840 (4 St. Tr. n. s. 86) it was held that the object must be of a general kind, and not of a particular or private nature, and this was confirmed in Smith O'Brien's case (2 H. L. C. 465) in 1849, in the time of the Chartist demonstrations, and again, in 1887, in the trials of the Fenians. It was laid down in E. v. Gallagher (15 Cox, C. C. 291) that a person may, by the im- proved methods of science, levy war against the sovereign, although he has not a large following of people. The punishment for treason was anciently very severe. The judgment was as follows : — That the offender be drawn to the gallows, and that he be not carried nor allowed to walk. (But a sledge or hurdle was generally allowed, to save the offender from being dragged on the ground.) That he be hanged by the neck, and then cut down alive. That his entrails be taken out CONSTITUTIONAL AND GENERAL MATTERS. 141 and burned, while he is yet ahve. That his head be cut off. That his body be divided into four parts. That his head and quarters be at the king's disposal. This was tersely put as being hung, drawn, and quartered. A woman was drawn to the place of execution and there buxnt alive, decency forbidding the disembowelling. By 30 George III. c. 48, and 54 George III. c. 146, the sentence was changed to the following effect. He was drawn on a hurdle to the gallows. He was there hung until he was dead. His head was struck off, his body quartered, and the head and quarters were at the Crown's disposal. And as to a woman, she was merely drawn on a hurdle to the gaUows, and there hung until dead. Now by the Felony Act, 1870, the judgment in all cases of treason for aU persons is simply death by hanging. The consequences of the ancient judgment were to cause a forfeiture of aU the property of the offender, and a corrup- tion of his blood. These consequences were both removed by the Felony Act, 1870. SECTION II. COMMON LAW AND EQUITY. Alienation. — In the Saxon times all land which had been acquired by a person for himself as Bookland could be alien- ated by him within the limitations (if any) contained in the grant by the book. But this did not include Folkland, or land descended. This distinction is found in the Teutonic fees of conquest and fees of heritage, and in the French propres and acquets. The right of alienation was extended from alienations inter vivos to wills, and the deathbed exercise of this right was the immediate cause of the will. The feudal system of the Norman dynasty put an end to all alienation without the consent of the lord, though in cer- tain cases a person could alienate in favour of his heir without the lord's consent. By the use of subinfeudation, however, alienation practically existed until the time of Edward I. In the time of Henry I. alienation of lands purchased by a man for himself was allowed according to Glanvill. This was gradually extended by custom to devise by will (II. P. and M. 306, 328). But by 9 Henry III. c. 32, sufficient land had to be left to answer the service due to the lord, which was fixed at one half of the land. By the Statute of Quia Emptores (18 Edward I, c. 1), subinfeudation was put an end to, and absolute freedom of aUenation was allowed, the land to be held of the original lord, and not of the grantor. This did not extend to wills (see p. 191), nor did it include the tenants in capite of the king, unless they had a licence from the king. Note. — Coke says the law of alienation consists in limitations to an originally absolute power. Blackstone says it is an extension of an originally permissive right. I. P. and M. 310, 320-6 combines both theories and allows alienation which did not seriously damage the lord's interests. (142) COMMON LAW AND EQUITY. 143 The necessity for a licence was changed into a fine, payable on alienation, by 1 Edward III. c. 12. Further reliefs from the burdens upon alienation were granted by 7 Henry VII. c. 2, and by 3 Henry VIII. c. 4. Finally, by 12 Charles II. c. 24, all fines on alienation were entirely done away with. As to alienation by will, see p. 191 (cf. Livery of Seisin, p. 168). Assumpsit.^ — Assumpsit was originally an action of tres- pass on the case brought for some tort done by the defendant where there was some contractual relation between the parties. It may be traced to the universal obligation that lay upon persons who exercised a public calling, to take ordinary care when employed, and to show ordinary skill in their calling (Wilson v. Brett, 11 M. and W. 113). If such person did not undertake to do anything, he was under no obligation (Heaven v. Pender, 11 Q. B. D. 503); but where he binds himself by contract he becomes liable not for breach of the contract, but for negligence in his performance of it. In process of time the fact of the plaintiff having trusted the de- fendant within his ordinary calling came to be regarded as a consideration entitling the plaintiff to damages for sub- sequent failure by the defendant to perform the contract properly, for the original grounds of negligence were extended to include any failure to perform. Subsequently, the action of assumpsit was extended to cases where no allegation was made of the defendant exercising a public calling (Coggs v. Bernard, I. Sm. L. C. 201). It was at this stage that assumpsit appears to have been used instead of the old action of debt (see p. 152). The reason of this was that in the action of debt the defendant was allowed to wage his law (see p. 54). Further, in an action of debt, the exact amount claimed only could be recovered, neither more nor less. In order to evade this wager of law, instead of suing by an action of debt, an action upon the case was brought, with a count for a quanUim meruit. That is, the action was based upon the special facts 1 Ames, " History of Assumpsit," Harvard Law Rev. ii. 1, 53. 114 COMMON LAW AND EQUITY. of the particular case which were set out ; and it was alleged that the defendant had taken the benefit (assuvipsit) of these facts, and assumed rights to himself, whereby he had rendered himself liable to make recompense to the plaintiff, and the plaintiff therefore sued for as much as he should be adjudged entitled to recover. It was the usual form of action in cases of simple contract, where the amount claimed was not precisely ascertained. Assumpsit may be said to have begun with malfeasance, to have been trans- ferred to misfeasance, and finally to be now used for non- feasance. Bailment. — The development of the law as to bailment exhibits a complete revolution of ideas. Originally the owner parted with the possession to the bailee, and the possessor was the only person who could sustain an action for recovery of the goods, if he was wrongfully, or by his negligence, deprived of them. Hence he was answer- able to the owner because the owner could not sue. But gradually the doctrine was reversed, and in 1283 it was said the bailee could sue because he was responsible to the owner. The bailor was also allowed the right of action against the wrong-doer, certainly as early as 48 Edward III. if the bailment was merely at will and not for a certain time, irrespective of the fact that he had voluntarily parted with the possession. "Where the bailee had no remedy, e.g. act of God, or the king's enemies, he was not answerable to the bailor. But in 1601, in Southcot's case (4 Eep. 83), his liabihty was increased to cover vis tnajor, e.g. robberies; and in 1628 it was said in Symons i). Darknoll (Palmer, 523) that he was liable for loss by destruction, although he might not have any remedy over. He could only escape this general liability by taking the bailment in a special manner, e.g. to keep the article as he keeps his own goods, as Coke advises. COMMON LAW AND EQUITY. 145 Hence comes the general liability of a common carrier, whereby he is said to be an insurer against all things except the act of God or the king's enemies. But it must be an alien enemy, and not an enemy who is a subject ; for in the latter it is treason, and against such the bailee has his remedy over, as was decided in The Marshal's case in 1455. In Woodlife's case (Moore, 462) the distinction between paid or common bailees and unpaid or private bailees was raised by Popham, C. J. This was recognised in 1671, when the general liability of a bailee was rigidly enforced in Morse V. Slue (2 Lev. 69). But the law was changing, and in 1681 an unpaid bailee was held by Pemberton, C. J. in King v. Viscount Hertford (2 Shower, 184, case 164) not answerable for vis major, or for anything which occurred without negligence on his part. By Coggs V. Bernard (1 Sm. L. C. 201) in 1703, the distinction was fixed by Lord Holt. The bailee must receive consideration to make him al- together liable. The fact of the owner trusting the bailee was sufficient consideration to render him liable to keep the goods at all risks. The modern development of this is that mere delivery or parting with the possession by the owner is a detriment to the bailor and an advantage or consideration to the bailee. In a common bailee everything was negligence which the law did not excuse, and this without laying it in assumpsit ; for he exercised a public calling, and therein he was bound to show skill. It was his duty, and the courts kept up the standard of this duty. Hence the liability of common inn-keepers for all in their inn, though they have not actual possession of the goods, and against them the averment of duty was by the law and custom of England, which is all one, and means the common law. 10 146 COMMON LAW AND EQUITY. According to the Year Books, there was no dehvery of goods to a bailee where they are locked in a chest, and the chest delivered ; hence comes the rule in criminal law as to carriers breaking bulk to make it larceny. The ancient liability of the bailee, who had (or could have) recovered the goods or their value, or damages, to answer to the bailor, has been construed to mean that the bailee is a trustee for the bailor for any excess he recovers above his own personal loss, which is extended to include cases where the bailee has insured. Bankruptcy. — The basis of the law of bankruptcy was the statute of 4 Henry VIII. c. 4, where we find the first mention of the liabilities of insolvent debtors. This was followed up by 13 Eliz. c. 7, which created the distinction between traders and other people. The status of a bankrupt was then that of a criminal. Under 21 James I. c. 19, scriveners were liable to be made bankrupts, as also were aliens and denizens, the object being to protect traders. By 4 and 5 Anne, c. 4, a method of procuring a discharge from liabilities by a surrender by the debtor of all his property was introduced in favour of traders, and such bankrupt was allowed to be discharged. Until this date all debts in bankruptcy were paid pari pass7c. By 5 George II. c. 30, bankers, brokers, and factors were made liable to the statutes of bankruptcy ; but farmers, graziers, and drovers were exempted. By 6 George IV. c. 16, the old statutes were repealed and a new system in- augurated. By 1 and 2 Vic. c. 110, further relief was accorded to all insolvent debtors^ Arrest on mesne process was abolished, and a Court for the Eelief of Insolvent Debtors was erected by the statutes 5 and 6 Vic. c. 116, and 7 and 8 Vic. cc. 70, 96. Since then, various systems have been tried, by the Bankruptcy Act of 1849, by the Act of 1861, and again, by the Act of 1869, which last Act abolished the district courts COMMON LAW AND EQUITY. 147 of bankruptcy, and gave bankruptcy jurisdiction to County Courts. The law at present is governed by the Bankruptcy Act of 1883. Borough English. — Borough Enghsh (or "cradle holding") is the right by v^hich the younger son succeeds to everything, and may be contrasted with the peculiar custom of Borough French, which before primogeniture was in common use, existed in certain towns, e.g. Nottingham, and which gave everything to the eldest son. It is known on the Continent as "the younger right," and it existed all over Europe and in many oriental countries. It originated in the fact that the youngest son stayed at home under the power of his father, unemancipated, and continued to serve his father through life, and, in return for his services, suc- ceeded to his father's property on the death of his father.^ The other sons were previously provided for by the father when they went out into the world. In Wales the youngest son had the tyddyu, or principal tenement, also eight erws of land, and his father's boiler, hatchet, and coulter. In Kent, he had covert del astre. In Picardy and Artois the youngest son's right was known as mainete [minor natu). Commons. — The origin of commons is prehistorical, but the customary rights of a free village community over the pasture must not be confounded with the strictly legal view which is alone regarded in this country, whatever those customary rights may have been in theory or in practice. Those ancient rights extended over the pasture mark of each community ; the other two marks being for the dwelling-house and for arable. The pasture mark is found at a later period in two divi- sions. One the meadow, which was enclosed for hay, and after the hay harvest (about Lammas day) the enclosures were thrown down, and the whole pastured in common. The ^ Aided by the lord insisting upon the rule, one tenement one tenant. II. P. and M. 279. 148 COMMON LAW AND EQUITY. other the waste, which was always in common, principally for pasture ; but it included the woods and water, which could not be in either of the other three marks ; and all rights of hunting, fishing, and sporting over it were equally in common. It is the latter, the waste portion of the pasture mark, which we find in the Saxon times as the Folkland, and under the Normans as the terra regis. The origin of commons in the law of England springs from the manorial rights of the Norman lord. All rights of commons were originally in the lord, and were parted with to others by Grant express, or implied (either by permission or sufferance). In 1236, the Statute of Merton (20 Henry III. c. 4) first established the right to enclose the commons. This was followed up in 1285 by the Statute of Westminster the Second (13 Edward I. c. 46). The great change in the fifteenth and sixteenth centuries, which converted England from an arable country into a vast sheep farm, was not without its effect upon the commons. Again, in the seven- teenth century, the reclamation of the fens must be taken into account. The first movement to enclose the commons, on the principle of a national agricultural benefit, is seen in the eighteenth century, when numerous private Enclosure Acts were obtained. We now first hear of a Board of Agri- culture as a Committee of the Privy Council. In 1801 was the first General Enclosure Act, and this was supple- mented by further Acts in 1836, in 1845 (under which the Enclosure Commissioners were established, now the Board of Agriculture), and in 1876. Common lands are therefore now only enclosable by the consent of the Board of Agriculture as sanctioned by Parliament ; or by the Statute of Merton, and the Statute of Westminster the Second; or by consent of the commoners, according to the custom of the manor where such custom exists. COMMON LAW AND EQUITY. 149 Consideration. — The origin of the doctrine of considera- tion in the English law is much disputed.^ It appears to have originated in the ancient secta (see p. 55), or appointed witnesses who were legally established in every district to witness all transactions, especially those which created a debt by delivery of property ; this delivery being a quid pro quo. Hence came the rule that, when the debt was proved by the "transaction witnesses," there must have been a quid- pro quo or consideration for it. This doctrine was gradii- ally extended to all simple contracts. The origin of consideration in simple contracts is therefore to be found in the necessity for producing evidence of an agreement. The doctrine was never allowed as to matters under seal, because the secta were only evidence in default of writing; in- deed, the oath of the secta could be met with written evidence. Writing was held conclusive ; for if a man said he was bound he was held to be bound, and he was not allowed to aver any- thing to the contrary. He was held bound absolutely, and no question as to consideration having passed could be raised. This theory was afterwards transferred from a mere writing to a sealed writing, and the fact of his seal being attached to the writing showed that the writing was made by the debtor. This was afterwards further extended into the doctrine that a seal imports consideration. Conspiracy in Restraint of Trade. — The first traces we find in the statute book of any Acts which deal with labour are the Statutes of Labourers, passed in 1349 and 1350. The next step was the Statute of Apprentices (5 Eliz. c. 4). But before this time the dissolution of the monasteries and the rise of the poor law subsequent thereon had a great effect on labourers and trade. The ultimate effect of these events is particularly seen in the ^ Salmond, essays in Jurisprudence, iv. Hare on Contracts, ch. vii. Harvard L'no Rev. ii. 1. Jenks on Consideration. Pollock on Contracts, appds. note E. 150 COMMON LAW AND EQUITY. numerous Acts which were passed in the time of the Georges dealing with special trades, and which culminated in the Combination Laws of 1799 and 1800. The necessity for passing these Acts indicates that there was no remedy at common law against such conspiracies apart from statute. Previous to 1825, however, the opinion arose that a conspiracy in restraint of trade was a common law offence, although the only authority in favour of this opinion was a dictum of Grose, J. in E. v. Mawbey (6 T. E. 636) in 1796. Thereupon the Acts of 1824 and 1825 were passed, which certainly gave far more extensive rights to trade unions than they had ever had before. In 1851, it was held by Erie, C. J. in E. v. Eowlands (5 Cox, C.C. 436), where the law as to workmen and trade conspiracies is elaborately discussed, that all combinations of workmen in restraint of trade were illegal at common law, and that the Act of 1825 had only introduced special excep- tions. A combination to violate a private right in which the public has a sufficient interest, is a crime, such a violation being an actionable wrong (Erie on Trade Unions, 32). This doctrine was supported in 1855, in Hilton v. Eckersley (6 E. and B. 47), and again, by Bramwell, B. in 1867, in K. V. Druitt (10 Cox, C. C. 592). In 1871 came two Acts to further defend the rights of trade unions, and to suppress acts of violence by workmen done to intimidate their fellow- workmen, or their employers ; and these were followed up by the Conspiracy and Protection of Property Act in 1875. The doctrine of conspiracy in restraint of trade, being an offence at common law, was repudiated in the case of the Mogul S. S. Company v. McGregor (L. E. 1892, A. C. 25) ; and see also Temperton v. Eussell (1893, 1 Q. B. D. 715). Corporations. — Corporations undoubtedly existed in the Eoman law (cf. Bes Universitatis), and the idea was spread from that great source over the whole of Europe by means of the Church of Eome. The perfected system of corporations COMMON LAW AND EQUITY. 151 came into this country with the ecclesiastics from Eome, as we find, for example, in the corporations sole of a bishop, a parson, a vicar choral, and the like. It is, however, clear that corporations under the name of guilds existed in this country in the Saxon times, and they enjoyed many special privileges, e.g. the charter of Henry II. to the burgesses of Southampton, the charter of John to Dunwich. The original purpose of corporations was ecclesiastical or charitable. The guild existed mainly for the object of ensur- ing assistance to an indigent member from the richer members of the same mystery or trade. From the time of Henry VI. to the present date, many charters have been granted to burgesses for the protection of their guilds. The rights of corporations were attacked by Charles II. and James II. in the well-known proceedings by the writ of Quo Warranto. By 2 W. and M. c. 8, the rights and franchises of the city of London were secured from forfeiture for ever thereafter. The law was entirely remodelled and codified in 1835 by the Municipal Corporations Act, and this has been followed up by other Acts until the consolidating Act of 1882 (45 and 46 Vic. c. 50). In recent times the principles of cor- porations have been largely applied under the name of Company law. Costs. — The origin of costs is to be found in the fee paid to the king for his trouble in hearing a cause. The first statute which expressly gave costs was the Statute of Marlbridge (52 Henry III. c. 6). Before that time costs were always in- cluded in the damages and considered in assessing them. The ancient law regarded the king, who acted as arbi- trator, as entitled to some recompense for his trouble (cf. the vadimoniufn of the Koman law). All judgments ended, "and the said A. B. in mercy," i.e. that he be amerced by his lord or by the judge for the expenses incurred by his wrong- doing. The Statute of Gloucester (6 Edward I. c. 1) gave costs 152 COMMON LAW AND EQUITY. in real actions, and this was followed by the Statute of Westminster the Second (13 Edward I.). All these statutes only extended to the plaintiff, and a defendant took no costs until 23 Heniy VIII. c. 15 (see note, Burgess v. Langley, 5 M. and G. 723). There were several statutes upon costs from 4 James I. c. 3, to the reign of William and Mary, when costs were placed upon a modern footing. Costs in the Supreme Court are now regulated by the Judicature Acts. A pauper's exemption from costs dates certainly from 1423, and probably earlier. In that year there was a special direction to the clerk of the council to hear first every day the bill of the poorest suitor, and the king's Serjeant was enjoined to give his assistance to such suitor gratuitously. Paupers were expressly exempted from costs by 11 Henry VII. c. 12. Blackstone says they had formerly to pay or be whipped, but that this practice was disused. Debt. — The ancient action of debt lay only for a sum certain, and did not extend to unliquidated claims. It arose from a contract between the parties, but the theory of contract was influenced by the growth of the doctrine as to Consideration (see p. 149) ; cf. Assumpsit, p. 143. It was the earliest form of action known to the law (see p. 52). It lay in the debet or the detinet. In debet when the creditor himself sues, in detinet when his representative sues. The latter was extended to include goods other than money, and so gradually came to be practically synonymous with detinue. According to Holmes (Common Law, 270) the action of debt has passed through three stages. First, a claim for money due, as a strictly personal action. Second, the theory of consideration was introduced as a benefit to the promisor. Third, consideration is viewed as a detriment to the promisee.' The following is an abstract of a record in an ancient action ' As to debt by recognisance, see II. P. and M. 202. COMMON LAW AND EQUITY. 153 of debt : — Siurey to wit. Writ, declaration {e.g. on a bond), ■profert in curia, defence, oyer prayed of the bond and the condition, imparlance, continuance, plea no such award, re- plication, protestando, demui-rer, causes of demurrer, joinder in demurrer, continuance, opinion of the court, replication insufficient, general error assigned, writ of scire facias to hear errors, sheriff's return scire feci, error assigned afresh, rejoinder in nullo est erratiirn, continuance, opinion of court, judgment of the Common Pleas reversed, judgment for the plaintiff, costs, defendant amerced. Distress. — The origin of distress is found in the fact that a party was allowed to seize a part of the goods of an offender in order to compel him to proceed to arbitration and submit his case to the law. Distress is found in great detail in the early Brehon law, and there it is undoubtedly the earliest method of self- redress restrained by the forms of custom which afterwards hardened into law. A similar practice is found in the Eoman law in the pignoris capio. The Teutonic original dilfers from its English imitation in that the former extended to breaches of contract, and was a general method of prosecuting all claims. It also required notice to the party distrained upon, and the attendance of witnesses and a stay of proceedings pending an inquiry as to the existence of the debt. Under the stay the debtor took back the distress, while the creditor obtained a lien over it. This was called a distress with time, whereas an immediate distress places the goods in pound at once. These points are not found in the early English law. The leading characteristic of the English distress was its extra-judicial nature, it being the act of a private individual.^ It also introduced the taking of nams or taking in ivithernam. It was also available as an active method of repayment, and ' Originally used to compel tenant to appear at lord's court. II. P. and M. 574. 154 COMMON LAW AND EQUITY. not merely as a passive means of compelling the party liable to pay. After 7iams were taken, the cattle were put in pound, and the forfeiting time began to run during the delay in pound (dithim). The owner could then replevy [replegiare, to take back pledges), that is, give pledges to bring the matter before the recognised authority for decision, whereupon he was en- titled to have his goods back which had been seized as a pledge ; the object of their seizure having been attained, namely, to compel a reference to law. In all this we may trace a survival from a foray. The reasons why distress survived in English law are the obvious limitations of man's ideas in primitive times, and the fact that no new system was ever adopted whole- sale, but was gradually engrafted upon the ancient system. In later times it was connived at by the courts in order to bring the debtor within their jurisdiction ; and they subse- quently adopted distress as part of their own procedm'e, and extended it to the seizure of lands and goods, in order to compel the defendant to submit to their jurisdiction. Lastly, they extended the principle of distress to the person of the party liable, as we see in the writ of subpoena, and in a warrant. Beplevin. — The action of replevin is, according to the Mirrour, due to Glanvill, the chief justice of Henry II. The writ of replevin issued out of Chancery to the sheriff, directing him to redeliver the distress to the owner, and to try the matter in his County Court. But the Statute of Marlbridge (52 Henry III. c. 21) dispensed with the Chancery writ, and allowed the sheriff to proceed at once on complaint made to him by the individual. This was reinforced by 1 P. and M. c. 12. The true owner was compelled by the Statute of West- minster the Second (13 Edward I. c. 2) to give pledges for prosecuting his action against the distrainor, and further pledges for returning the distress if the action was decided COMMON LAW AND EQUITY. 155 against him. And in cases of distress for rent, a bond with two sureties for double the value of the distress was re- quired (11 George II. c. 19). To this action the distrainor may make avowry, that is, claim that the distress was in his own right or that of his wife, and that the goods ought to be returned to him. Or he may make a cognisance where the distress was made by him other than in his own right. If the distress was carried out of the county or concealed, the debtor could have a writ of capias in tvithernam or in vetito namio, which means a reciprocal distress taken to answer for the other ; and so goods taken thereby cannot be replevied until the original distress is produced. This seems the customary use in English law of the term taking in ivithernavi. By the Statute of Marlbridgs (52 Henry III. c. 4) unreason- able distresses were forbidden. Breach of pound, that is, taking the distress by force out of the pound, has been regulated by various statutes, especially 2 William and Mary, c. 5 ; and 6 and 7 Vic. c. 30, and it is an indictable offence (E. v. Butterfield, 17 Cox, C. C. 598). Divorce. — The Saxon law allowed divorce, and for some time after the Conquest a guilty wufe could be divorced. Marriage, according to the canon law, being a Sacrament, was indissoluble, and this continued to be the law until the period of the Eeformation. For adultery or cruelty a divorce a mensa et thoro was gi-anted, but this did not allow the parties to marry again. Suits for nullity of marriage and for jactita- tion of marriage were also allowed, and in some cases restitu- tion of conjugal rights was decreed. This was the period of the undisputed supremacy of Kome. In the Reformation period came the change of supremacy to the king, and the introduction of divorce a vinculo, which could, however, only be obtained by a private Act of Parlia- ment. From 1550 to 1602 divorce for adultery was allowed, 156 COMMON LAW AND EQUITY. and the parties might remarry. But in 1602 tlie old rule was again enforced ; and a second marriage after a divorce was, in 1611, held to be bigamy (Porter's case, Cro. Car. 461). Previous to this, however, the higher authority of Parlia- ment had been invoked in special cases, as in 1436, when it declared a marriage between Isabel Botiller and William Pulle, which had been had by force, to be void ; and in 1551, when it confirmed the second marriage of Lord Northampton, who had divorced his first wife. In 1666 was Lord Eoos's Act, in 1697 the Earl of Macclesfield's, in 1700 the Duke of Norfolk's, and from that time up to 1857, divorce by Act of Parliament was often obtained, though only four times on the wife's petition. In 1857 the Divorce Court was established, and the law placed on its modern footing. The jurisdiction of the Church, which had endured so long, was replaced by that of the courts of law, decrees a mensa ct thoro were remodelled under the name of judicial separation ; and divorces a viiiculo were no longer to be obtainable only by Act of Parliament, biit were pronounced by the courts of law (see Marriage, p. 170). Ejectment. — The origin of ejectment was the ancient writ De ejectione firmae, which was a purely possessory remedy, and lay at the suit of a lessee against any person who ejected him from possession of the demised premises, whereby he recovered his term and damages. It was therefore a personal action of trespass; but by 3 and 4 William IV. c. 27, it was considered as a mixed action, and under the Common Law Procedure Act, 1852, its effect, namely, the specific recovery of land, would class it as a real action. Originally the Common Law Courts only gave damages, and not specific restitution of the property in possessory actions, as was held in the reign of Edward III. and again in Pilchard II. although Bracton says they did give specific COMMON LAW AND EQUITY. 157 restitution. Tiie Courts of Equity, however, gi-anted specific restitution, and the Common Law Courts adopted the practice of the Equity Courts herein, and gave judgment for specific recovery with a writ of possession thereon, as was held in 7 Edward IV. This was recognised as settled law in 14 Henry VII. This procedure was adopted to settle questions of title because the old real actions were under great disadvantages, for their proceedings were tortuous and dilatory. Fm'ther, real actions could only be brought in the Court of Common Pleas, and judgment therein was conclusive to bar any further action of the same nature. Eeal actions (or feudal actions) as methods of deciding the ownership of land have passed through various forms. In the Saxon time charters (see p. 56) or wager of law were employed. The writ of right was introduced by the Normans, to which a wager of battle might be pleaded (Claxton v. Lylbourn, Cro. Car. 522). The Grand Assize (see p. 69) was introduced in order to evade the wager of battle. A writ of right patent was directed to the lord of the court baron, a writ of right close was directed to the sheriff. Real actions were abolished by 3 and 4 Wm. IV. c. 27, and are now replaced by an action to recover land commenced by a writ of summons. As to possessory writs, see p. 66. The proceedings in ejectment in order to try the title of land were as follows : — The claimant who has a right of entry (where there was no right of entry the old real action must be brought) makes a formal entry on the premises, and being in possession there seals and delivers a lease to a third party who thereby becomes the lessee, and then goes out leaving the lessee in possession. The lessee is then ejected, either by the actual possessor of the land, or by another third party who comes in by agreement and ejects the lessee, such third party being called the casual ejector. The lessee, then, has a right of action of ejectment against this casual ejector, to recover the 168 COMMON LAW AND EQUITY. term and damages on his proving title, lease, entry, and ouster, that is, a good title of his lessor, a good lease made thereunder, a proper entry by himself under the lease, and actual ouster of himself by the defendant ; whereon he re- covered the term and damages, and had a writ of possession to enforce judgment. The next step was, it is said, invented by Eolle, C. J. in the time of the Commonwealth, whereby no actual possession is taken by the claimant, no lease is made, no entry is made by the lessee, and no ouster by the casual ejector; but all these are fictitiously presumed to have taken place. Then on the lessee bringing his action, the casual ejector gives notice to the party really in possession, telling him of the claim and advising him to defend it, which the party in possession does, and thereby becomes the real defendant. If he does not appear as defendant the lessee recovers judgment against the casual ejector, and the real possessor is turned out under the writ of possession. The party in possession before becoming defendant must, however, enter into a rule of court to admit at the trial (called a consent rule) the making of the lease, entry of the lessee, and ouster of the lessee. The case then stands as A. on the demise of B. v. C. If, however, the defendant does not appear at the trial, his agreement to confess being broken, and the lessee not being able to prove the fictitious lease, entry, and ouster, the original process is resumed, and the lessee recovers against the casual ejector, as above stated. If the defendant does appear he pleads not guilty ; and the real question is then tried, namely, the title to demise the premises to the lessee on which the question of possession turns. If the lessee proves his lessor's title he gets possession, and the defendant is ejected, and the claimant is practically the owner of the premises. The next step was to introduce a purely fictitious person as lessee and as casual ejector. This was adopted after the COMMON LAW AND EQUITY. 159 middle of the eighteenth century. John Doe was the fictitious lessee or plaintiff, and Eichard Koe the fictitious casual ejector ; hence, in the books, the cases are cited as e.g. Doe d. Eigge v. Bell, meaning, Doe, the lessee of Eigge (on the demise of Eigge), sues Bell, the party in possession, for the possession of the premises claimed. The proceedings in ejectment were shortly as follows : — 1. The original writ si fecerit te securum, the sheriff's return, pledges of the prosecution, and "that the within named A. B. is attached by pledges" (two pledges). 2. The declaration against the casual ejector, followed by the notice from the casual ejector to the party in posses- sion. 3. The rule of court by which the party in possession is admitted as defendant on his giving consent, as above stated. 4. The record which contained the declaration or count, the defence, plea not guilty, issue, venire, award, respite for default of jurors, nisi prius clause, postea (if necessary tales de circumstantibics), verdict for the plaintiff, motion in arrest of judgment, continuance, opinion of court, judgment for the plaintiff, costs, capiatur pro fine, writ of possession and return thereto. The action of ejectment was remodelled in 1833 by 3 and 4 William IV. c. 27, and by the Common Law Procedure Act, 1852. It is practically abolished by the effect of the Judicature Acts, and its place is taken by an action to recover land. This, however, is usually and practically termed proceedings in ejectment. Employers' Liability. — This doctrine of law is itself part of the ancient doctrine of a master's liability for the acts or defaults of his servants. The primitive idea of such liability is to be found in the responsibility of an individual to the tribe for all in his house, whether children, slaves, or property. Analogous to family responsibility is the system of Frankpledge (see p. 52). 160 COMMON LAW AND EQUITY. This liability of the ancient paterfamilias could be avoided by handing over the offending person or thing to the injured party (noxalis deditio). The first extension of this principle appears in the cases of magister (the captain of a ship) and institor (the manager of a shop) whose acts were taken to be those of their principals, the true owners. The principle was next extended to include a master's liability for the wrongful acts of his servants in the cases of the owner of a ship, of a stable, or of an inn. We see here a clear statement of the liability of an employer for the torts of his servant, originating in those public offices which are performed by individuals to obtain a profit out of the public ; cf. the modern law on Eailway Companies' liability for the acts of their servants (Cobb v. G. W. E. 1894, A. C. 419). This rule of liability appears to have grown up in the English law in the above described way, or, at all events, upon analogous lines. ^ It was not until a comparatively recent date that an exception was judicially recognised to this rule. This was an exception of the master's liability where the injury was done by one servant to a fellow-servant (Priestly v. Fowler, 3 M. and W. 1 ; iii 1837), based upon the fiction of an implied consent by a servant to take the risks incident to common employment, or working with another servant. The lengths to which this fiction was carried led to many miscarriages of justice, with the ultimate result that the liability of the master was again re-established in certain special cases of common employment. The Employers' Liability Act, 1880, rendered the master liable to his servant for the torts of a fellow-servant under special circumstances, and thereby created a statutory excep- tion to the judicial exception to the ancient common-law rule. To this Act itself several exceptions exist, and the 1 The superior is only liable wlien the inferior cannot pay. II. P. and M. 531. COMMON LAW AND EQUITY. 161 law at present on this subject is in an almost chaotic condition. Entails. — The system under which land in this country is kept in the same family for many generations by means of assurances, known as deeds of settlement, entailing the property upon the successors of the settlor, has been sometimes thought to be peculiar to our English law. Probably, however, it was practised under the Eoman law, and in some modern countries that have adopted the Eoman law. The earliest trace in England is the Heirland of the Saxon times, that land which went to the heir, and from which he could not be debarred. The preference for males is seen in the laws of Alfred. The great link in the chain which has for many generations tied up the land was the statute De Donis (13 Edward I. c. 1). An attempt to give effect to the same principle was made in the equally famous statute of Quia Emptores (18 Edward I. c. 1). A method of alienating these entailed estates was intro- duced by employing the process called a Fine, which appears to have been used for other purposes as early as the time of Henry II. This method was stopped by 34 Edward III. c. 13, and again restored by 1 Eichard III. c. 7. By 4 Henry VII. c. 24, fines were recognised as modes of alienating entailed estates. The addition of Eecoveries as a further method of dealing with entailed lands is traceable to Taltarum's case in 1472 (cf. p. 181, Mortmain). The influence of Uses is the next point to notice, especially with reference to their effect upon vested remainders and contingent remainders. The system of entail was perfected by Orlando Bridgeman (afterwards Lord Bridgeman, and lord keeper), in the pressing necessi- ties of the civil wars during the time of the Commonwealth. He invented trustees to preserve contingent remainders, and is responsible for the modern strict settlement. (A copy of his Precedents dated 1682 is in the Middle Temple Library.) 162 COMMON LAW AND EQUITY. Entailed estates continued to flourish, until in 1833 their alienation was allowed by the execution of a deed with the consent of the protector of the settlement, followed by enrolment of the deed ; the clumsy mechanism of fines and of recoveries being then abolished. In 1856 the first step was made to loosen the chain of entail upon the land by facilitating the leasing and selling of settled estates, and this was followed up by the Settled Estates Act, 1877. In 1882 the new era was inaugurated by the Settled Land Act, and settled land continues to be a fruitful subject of legislation. The object of these Acts is to take away a monopoly from a small class, and to give an opportunity of acquiring an interest in land to every citizen, and that end is gained by facilitating the transfer of land, especially as regards the expense thereof. Their further object is to relieve and assist those owners who are limited in interest, by a deed of settlement, and are also limited in power, to make any improvements upon the property, and to afford any benefit to the occupiers of the property (see re, Ailesbury, L. E. 1892, A. C. 356 : " it is not for the benefit of a great family that ninety-five farms and one thousand cottages should remain, perhaps for a number of years, in the hands of money-lenders, and of an impoverished tenant for life," ^er Bowen, L. J. ; L. E. 1892, 1 Ch. 544). Forest Laws. — The origin of the forest laws is ascribed to Canute,^ and they were probably copied from the Scandi- navian law. But even then every man had a right to hunt on his own ground, as we find in the laws of Edward the Con- fessor. These early laws were followed up by William I. in his savage forest laws, which were continued by his successors. Henry II. by the Assize of Woodstock, in 1184, modelled the Forest Courts (see p. 41) on an analogy to the courts of 1 His forest laws are a forgery, tem-p. Henry II. according to I. P. and M. 79. COMMON LAW AND EQUITY. 163 the shire ; and compulsory attendance was prescribed at these courts, which were visited by the justices in eyre. In 1215, this compulsory attendance was relieved against as regarded all persons dwelling outside the limits of a forest. By the Charta de Foresta of Henry III. in 1217, the forest laws were mitigated in great measure, the penalties of death and of mutilation being forbidden as regarded human beings, although they were continued as to dogs. But these forest laws gradually fell into disuse ; and it was one of the most serious grievances against Charles I. that he attempted to revive these laws, and to re-establish the Forest Courts, as a means of extorting money from the people. The limits of forests were therefore fixed by statute (16 Car. I. c. 16), and declared to be the same as they were in 20 James I. New forests were forbidden to be made, and to prove a forest an ancient forest it must have held a Forest Court within sixty years before 1 Charles I. Coke says there were in his time sixty-nine forests in England. A forest might be vested in a subject if the king gave express directions for justice to be administered there, and his justices came there (Leicester Forest, Cro. Jac. 155). Without the royal licence no man could make a park, chase, or warren ; for that would be to appropriate ferae naturae, which are res nullius, to himself. Whereas hunting and hawking 'in one's own land could always be indulged in, subject to the statutes in that behalf (the case of Monopolies, 11 Eep. 87 b.). Game Laws. — The history of the game laws cannot be properly regarded as merely an offshoot from the ancient forest laws (see p. 162). Certainly as early as the fifteenth century the ov^mer of land had an inchoate property in wild animals upon his land, the universal right of the king by prerogative to wild animals as being res nullius, having become obsolete at an early period, with certain exceptions, such as royal fish, e.g. the whale, or royal birds, e.g. swans. 164 COMMON LAW AND EQUITY. The change to a new order of things together with the growth of laws as to commons, and the increase of the number of vagrants, gave rise to the game laws. The first statute worthy of notice was in 1389, when vagrants were prevented from poaching by 13 Eichard II. c. 13, and ownership of land was made a qualification for killing game. This was continued with heavy penalties by 11 Henry VII. c. 17. In 1604, it was declared absolutely illegal to sell game by 1 James I. c. 27, and in 1670 the qualification for taking and killing game was raised by 22 and 23 Charles II. c. 25. This Act (with many of the old Game Acts) was repealed by 1 and 2 "William IV. c. 32, and the qualification put on a lower level, still, however, based upon the ownership of land. From 1389 to 1706, it may be said generally that owner- ship of a certain quantity of land was a necessary qualification to kill game, that the game could not be sold, and that on the land of an unqualified person no one without his per- mission could kill game. Selling game was forbidden by 28 George II. c. 12, as to any person whether qualified or not. As the exclusive right of game was supposed by the feudal system to be vested in the king, in strict law none who had not an express grant from the Crown could kill game. According to Blackstone, the only statutes which expressly conferred a right to kill game were 1 Jac. I. c. 27, repealed by 22 and 23 Car. II. c. 25, and 5 Anne, c. 14, now also repealed. From 1604 to 1832 it may be doubted whether in point of law anyone was entitled to shoot a pheasant, a partridge, or a hare. From 1706 to 1828, a system of fines for game offences was introduced, and, in default of payment, imprison- ment. In 1828, night poaching was made a crime ; and this Act (9 George IV. o. 69) is still in force, as are also the Acts of 1 and 2 WilHam IV. c. 32, of 23 and 24 Vic. c. 90, and the Ground Game Act of 1880 (43 and 44 Vic. c. 47). Under COMMON LAW AND EQUITY. 165 these Acts the quahfication has been extended to occupiers of land as well as owners, and a system of taxation by excise licences has been generally enforced. Heriots.— Heriots are of Teutonic origin, and seem to be derived from the return by the tenant to his lord of the horse and armour with which the lord provided him to fight in battle (cf. the giving and receiving of Stock in the Brehon law). A heriot was the return by the comes to his prince;ps of what had only been lent to him for a special purpose. According to Blackstone, it originated from the fact that the lord could seize all the goods of his villein, and the heriot was a commutation of that right, and he traces its introduction to the Danes and the laws of Canute. But, as he points out, heriots were almost always horses armed for war and the weapons of warfare. They existed in the reign of Edgar. By custom, a heriot came to be fixed as the best personal chattel of which the tenant died possessed, which the lord is entitled to demand. Heriots exist principally in copyholds either by service or by custom. But they may be due in respect of freeholds, as, for instance, where copyhold is enfranchised and becomes freehold. Inheritance. — The right of succession to the effects of an intestate appears to have been regulated by Magna Charta, but it must be clearly borne in mind that title by descent is far older than title by will. Amongst the Saxons the inheritance went to all the children equally. The preference for the male sex over the female was first introduced by the laws of Canute, and does not seem to be dependent entirely upon feudal principles. The law of Canute did not exclude the females entirely, as the Salic law does, but only postponed them to the males. The right of primogeniture existed in Canute's law among the males, but not among the females, who took the land 166 COMMON LAW AND EQUITY. equally in coparcenary. This right of primogeniture was strictly enforced under the feudal system and under the Normans, with reference to all lands held by military tenure ; but socage lands continued to descend equally among the male children. According to GlanviU by the time of Henry II. and ac- cording to Mirrour by Henry III.'s reign, socage lands, like military lands, went by the law of primogeniture, except in Kent, where the ancient mode of descent continued under the name of gavelkind tenm-e, and except where the custom of borough English prevailed. Amongst females there is no right of sole succession to dignities or titles of honom-, but the Crown may give the dignity to whichever one it pleases. In the case of succession to the Crown, the right of primogeniture prevails amongst females as well as males. The law as to inheritance became fixed about the time of Henry III. or, at the latest, in Edward I.'s reign ; and it remained unchanged until 1833, when the Act of Inheritance (3 and 4 William IV. c. 106) was passed, which placed the law upon its modern footing. The distribution of the estate of an intestate was regulated by Magna Charta, under the supervision of the Church. This was amended by the Statute of Westminster (2 and 3 Edward I. c. 19), which cliecked the abuses which had arisen under the administration of estates by the Church, and gave the whole of the chattels amongst the next of kin of the de- ceased; and this was reinforced by 31 Edward III. c. 11, which statute originated the office of Administrator. The Statute of Distribution (22 and 23 Charles II. c. 10) regulated the rights of the next of kin, and this was again altered in part, and in part re-enacted, by 1 James II. c. 17, which is now the leading statute upon distribution. Further provisions were made by 19 and 20 Vic. c. 94, for abolishing any special customs as to distribution. And this COMMON LAW AND EQUITY. 167 was followed up by the statute 20 and 21 Vic. c. 77, which dealt with the jurisdiction of the Court of Probate. The last Act on the subject was the Intestates Act, 1884 (cf. Primo- geniture, p. 186 ; Wills, p. 191). Interest. — The ancient rules with reference to taking interest upon money owing from a person were based upon the ecclesiastical theory that it was a sin to take interest. The injunction in the Mosaic law prohibited usury with a brother, but not with a stranger (Deut. xxiii. 20). Eules against it have existed in most systems of law, notably in the Eoman and later with the Dutch, a trading nation. In England there have been many variations. The influence of the Church is seen in the history of the law as to usury. In the time of Edward the Confessor usury was illegal, and it was then an ecclesiastical offence. In Norman times the Jews were allowed to charge interest. In 1341, the jurisdiction was divided between the king and the Church by 15 Edward III. c. 5. It was not until 1545 that usury was recognised by the law and fixed at a legal rate, which varied according to the numerous statutes which were passed between that time and the reign of Anne. Interest was fixed by 37 Henry VIII. c. 9, at 10 per cent. ; and this was confirmed by 13 Eliz. c. 8. But it was sub- sequently reduced by various statutes, as by 21 Jac. I. c. 17, to 8 per cent., and by 12 Car. II. c. 13, to 6 per cent., until by 13 Anne, c. 15, it was limited to 5 per cent. All the statutes on the subject were repealed in 1854 by 17 and 18 Vic. c. 90, and we have now no laws against usury. Equity grants relief now against unconscionable bargains in any case where fraud or undue influence is shown. Leaseholds.— The position of a leasehold in the Enghsh law as a chattel, although an estate in land, is solely due to its historical origin. Leaseholds were originally those holdings which the inferior servants of a feudal lord occupied near his castle, and they were really estates at will, for the 168 COMMON LAW AND EQUITY. lord could eject the tenants at any time. But gradually a prac- tice grew up of assuring them in their position for a fixed period; and we find by the time of Edward I. (see the Statute of Mortmain, 7 Edward I.) that leases for terms of years were then well recognised. Their recognition arose from the rights that the tenant acquired by custom against his lord and his successors. By the reign of Edward III. we find terms of years as long as 300 in use. The tenant had no real action, and could only recover damages if ejected. At a later date he was allowed to recover his term also. The restrictions upon leases were numerous until the statute of 21 Henry VIII. c. 15, which enabled many persons, pre- viously incompetent, to make leases. This was extended by 32 Henry VIII. c. 28. It was not until the Statute of Frauds in Charles II. 's time that there was any necessity for a lease to be in writing. Livery of Seisin.— The term seisin was at an early date used to denote possession of chattels^ as well as of land. Seisin or possession of chattels is heard of up to 1400 (see L. Q. E. ; I. 324; II. 481; IV. 24). The general theory as to livery of seisin connects it with the delivery of the possession of land to a person. The necessity for it arose from the fact that a transfer of land must be publicly assented to by the whole of the tribe or people, because, anciently, the land belonged to them all ; hence the necessity for publicity. The Scandinavian custom required that the vendor should throw a clod of earth into the extended cloak of the purchaser as a symbol of the property. The Athenian law also had a symbohcal tradition by a twig or a rod, or a turf; and stones (opoi) were set up to record the fact upon the land or upon the house. In Spain, the Moorish custom was the same, and resembled the ancient custom whereby a clergyman takes possession of his church. With the Jews the custom was that a man took off his shoe and gave it to his neighbour 1 Also of a right of common. II. P. aud M. 32, 612. COMMON LAW AND EQUITY. 169 for a testimony in Israel (Ruth, iv. 7). And to this day the transfer of copyhold lands is always by the rod (cf. the B,oma.n festiica) accoi'ding to the custom of the manor. The livery of seisin which was required by the common law was either in deed, that is, actually on the spot (cf. the Roman traditio brevi manu), and could be done by proxy; or in law which was in sight of the place only (cf. the Roman traditio longa manu), and could not be done by proxy. The notoriety of livery of seisin was for a long while avoided by the use of a bargain and sale, under which the bargainor (vendor) was held by Equity to be a trustee for the purchaser, who did not publicly enter on the land. This secret con- veyance was assisted by the Statute of Uses (27 Henry VIII. c. 10) which vested the legal estate in the bargainee (pur- chaser). However, by 27 Henry VIII. c. 16 (the Statute of Enrolments) all bargains and sales of freeholds had to be enrolled. This did not apply to leasehold interests, and a bargain and sale for a year (or a lease for a year operating under the Statute of Uses), followed by a common-law release operating by transmutation of possession, was the common method of avoiding livery of seisin until 1841. Then, by 4 and 5 Vic. c. 21, a statutory release was substituted for the bargain and sale (or lease) and release. Finally in 1844 and 1845, by 8 and 9 Vic. c. 106, the necessity for livery of seisin was abolished, and all lands now lie in grant as well as in livery, and can now be transferred by a simple deed of grant without any notoriety or publicity (see the Conveyancing Act, 1881 ; cf. Alienation, p. 142). Manors.— Manors certainly existed in the Saxon times, for even at the present time there are some survivals of the Teutonic customs, e.g. Heriots. A manor was a tract of land belonging to a lord who kept his demesne lands {terrae domini- cales) himself, and granted out the rest of the property as tenemental lands to tenants, to hold of him in perpetuity for an estate of freehold. Of the lands which he retained he kept part for himself. 170 COMMON LAW AND EQUITY. and the other part his servants cultivated, and these servants or tenants gradually grew into tenants by copy of court roll, the modern copyholders. The Court Baron (see p. 61) is inseparable from a manor. By the Statute of Quia Emptores, 18 Edward I., all crea- tions of new tenancies to be held from the creator, instead of from the paramount lord, were put an end to, and hence all manors which now exist must date before this statute. According to Maine, the manor is directly descended from the ancient Village Community; while Seebohm's theory traces the manor from the Koman manerium, and according to I. P. and M. 594 it coincides with the Vill. Marriage. — The influence of the Church upon the law is nowhere more strikingly exhibited than under this head. It is said by Blackstoue that marriage was a civil contract until Pope Innocent III.^ made a sacred ceremony necessary. Certainly during the period of the Commonwealth marriages were freely celebrated before justices of the peace ; but on the Eestoration the passing of an Act of Parliament to validate them was thought necessary (12 Car. II. c. 33). At the present time, however, a marriage may be contracted without any religious ceremony at all. From the earliest times in this country marriage had to be celebrated before a priest.''^ This was so by the laws of Edmund (see E. v. Millis, 10 CI. and F. 534). From the time of the Conquest the Ecclesiastical Courts alone had jurisdic- tion in marriages, and they administered the canon law. The ancient common law, however, still remained in force as to some points, especially in refusing to recognise a right to legitimate issue by a subsequent marriage between the parents. Legitirnatio per siibsequens matrivionium was declared illegal by the Great Council in the Statute of Merton (20 Henry III. s. 9) in the well-known words, iwlu- 1 II. P. and M. 368 says he only enforced the publication of banns ; there was usually a sacred ceremony before, 2 Controverted in II. P. and M. 370. COMMON LA^Y AND EQUITY. 171 nms leges Angliae mutare, and confirmed in 25 Edward III. and in 9 Henry VI. c. 11. The Ecclesiastical Courts were protected in the exercise of their jurisdiction by Magna Charta, in 1285 ; by the statute Circumspecte agatis, and by the statute of the Writ of Consul- tation (18 Edward I.). They could enforce a marriage, where there had been a verbal contract to marry immediately or at a future time : and they retained this power till 1754. From the Ecclesiastical Courts an appeal lay to Kome, but this was abolished under Henry YIII., and the High Court of Delegates was substituted as a court of appeal (see p. 42). The prohibited degrees of relationship, according to the canon law, were enforced in Saxon times, but at the time of the Keformation they were narrowed by the statutes of Henry VIII. The doctrine of a precontract invalidating a marriage was abohshed by 32 Henry VIII. c. 38. This doctrine had been frequently employed to allege bastardy against a man's heir, particularly by the claimants to the Crown during the wars of the Eoses ; also by Richard III. and by Lady Jane Grey. In 1753, by Lord Hardwicke's Act, the effect of pre- contracts was abolished, and the Ecclesiastical Courts were forbidden to enforce them (26 George II. c. 33, 4 Geoi'ge IV. c. 76, s. 27). Lord Hardwicke's Act also put an end to the abuses which centred round the Fleet marriages. These marriages had been valid at common law, which only required the presence of a priest, the place, the time, the parties, and the circumstances being generally immaterial. The sweeping nature of this Act led to great injustice, which was not rectified until 1822. In 1835, the Marriage Act altered the law as to voidable marriages, making them altogether void. The present law is mainly to be found as to the Church of England under 4 George IV. c. 76, and as to Dissenters under 6 and 7 William IV. c. 85 (see Divorce, p. 155 ; Married Women, p. 172). 172 COMMON LAW AND EQUITY. Married Women.— The law with reference to married women in England is peculiar in its indigenous system. The primitive idea of marriage appears to have been based upon the authority of the husband, the mund or manus. This in Europe was changed into a community of conjugal property ; while in England, under the Norman rule, it became conjugal unity. The conjugal property of the general law of Europe may be traced to the theories which centre round the transition from manus to paraplierna, to dos, and to community of goods. Alienation. — The Saxon law enabled a married woman to alienate her property ; but she was forbidden to do so under the Norman law until the time of Henry II. when we first hear of fines, whereby she was enabled to deal with her property. Before Henry VIII. fines were firmly established as one of the common assurances of the realm, and re- coveries were also introduced about this time. The Act of 1833 (3 and 4 William IV. c. 74) abolished both the clumsy fictions of fine and of recovery, and provided a simple form of a deed acknowledged^ by a married woman as a method of alienation ; and this was subsequently amended in 1857, by Malins's Act, which allowed her to alienate with her husband's consent a reversionary chose in action, and by the Conveyancing Act, 1881. Under this last Act by a simple deed of grant a married woman may in almost all cases alienate her property. Contracts.— In. ancient times a married woman appears only in exceptional cases to have had any capacity to contract. Such cases were in modern times extended to include a woman who is a trader by the custom of the city of London, one whose husband is civilly dead, and one who is temporarily separated from her husband, that is, if by a judicial separation or by a pro- tection order. Lord Mansfield attempted to extend this 1 Which existed previously by custom in London and other cities. II. P. and M. 411. COMMON LAW AND EQUITY. 173 last mentioned exception to cases of voluntary separation, but the old law was restored by the decisions of Lord Kenyon. Now, by the Married Women's Property Acts, her right of contract is practically unlimited, but her contract binds only her separate estate, and not her person (Scott v. Morley, 20 Q. B. D. 120). Crime. — The criminal responsibility of a married woman was strictly limited by the theory of the common law, which regarded her as one with her husband, and therefore acting under his control, and without any discretion or power of her own. This theory did not extend to treason, because the duty to her liege lord was greater and more sacred than the duty to her lord by marriage, nor did it extend to offences mala in se which are prohibited by the law of nature. She could not be guilty of conspiring with her husband, or of stealing his property, or of harbouring him if he had committed a crime. However, she herself might, and still may, be guilty of crime where it is clearly proved that she was acting entirely apart from her husband, e.g. if she be judicially separated from him, or in matters peculiarly within her province, domestic matters, e.g. the keeping of a brothel. Dower.— Dowex {doarium), the English dower of lands, the right of a widow, must be carefully distinguished from the Eoman dos, which was property settled upon a marriage, and from the various primitive forms of the separate property of married women. Dower does not arise until the marriage is dissolved, whereas dos (settled property) and separate property only existed during the marriage. Some schools of Hindoo law give large rights in the pro- perty of her husband to the widow of a sonless husband, and it was chiefly to do away with these rights that suttee was introduced by the priests. There is no actual precedent for the English dower. 174 COMMON LAW AND EQUITY. It was due to the clergy. They combined the survivals of many customs relating to separate property and settled property with the object of benefiting the woman when the marriage was ended. Dower in England might arise by a particular custom, as well as by the common law. Under the latter head came the forms ad ostium ecclesiae, ex assensu patris, and de la plus belle. The dower of the widow was, in the time of the Saxons, a third of all the real and personal property of which her husband died possessed. The date of his death was the time for ascertaining her rights, and they were indefeasible. By Edmund it was extended to one-half. Under the Normans she was allowed one-third of all lands held by military tenure, but only of all those lands which were held by the husband at the date of the marriage, and her rights were defeasible by the husband alienating the lands (see the Assize of Northampton, 1176). Glanvill says dower could be out of personal property, but this became obsolete at an early date (cf. "with all my worldly goods I thee endow " in the Marriage Service). By Magna Charta provisions were laid down for the widow's quaran- tine, the forty days after the death of her husband, during which she may reside in his principal mansion house. Her rights were next extended to a third of all lands held by her husband at any time during his life. Bracton says that the right of dower extended to one-half of all socage lands and only if ad ostium ecclesiae; and Littleton, in his time, speaks of one-third. The introduction of uses seriously affected dower, there being no seisin of the husband in lands held to his use whereby the dower might take effect. Jointures were therefore introduced to alleviate her condi- tion ; but with the extension of the doctrine of trusts, the dower was rendered still more precarious, and was generally COMMON LAW AND EQUITY. 175 avoided by the limitations settled in the well-known form of the uses to bar dower. The Dower Act of 1833 extended the right of dower to trust property, but made it liable to be defeated by a simple declaration inserted in the deed of conveyance or by any alienation by the husband during his life, and postponed it to the claims of all creditors. Separate Estate.— The separate property of married women was an institution in ancient Egypt, and was known to the Chaldee law. It is found in the Athenian law. It existed with Slavonic communities, under the name of morgeyi gifu; and these gifts on the morning of her marriage were after- wards increased by part of the bride price (weotuma or coemptio) being paid to her. Further additions resulted from gifts after the marriage {morgengahe). In the Hindoo law, the same genesis is seen culminating in the Stridhan, which eventually came to include all the property acquired by a married woman for herself, and over which she had absolute power of disposal. The succession to the Stridhan was, speaking generally, in the heirs of the woman and not of the husband, daughters being preferred to sons, and unmarried daughters to married daughters. In Eoman law, no separate property of married women in manu existed. But when the manus became obsolete, and the wife ceased to be bought by the husband, he no longer acquired rights over her property. It remained under the protection of her tutores. Her perpetua tutela was gradu- ally reduced to a mere shadow, and she acquu-ed the absolute control of her property, subject only to the auctoritas of her tutor, which he was by the later law practically compelled to give. Thus the separate property of a Eoman matron was hers to deal with as she pleased, but protected, if necessary, from importunate creditors, by her right to avail herself of her tutor's nominal right to refuse his auctoritas. The right of a married woman to have any separate estate was recognised first in the time of Elizabeth, in favom" of 176 COMMON LAW AND EQUITY. wives who were living apart from their husbands under a deed of separation. In the time of James I. it was extended to all wives ; and the Court allowed gifts of separate property to the wife for her personal maintenance. In 1695, under Lord Somers, it was held that a married woman could always enforce her equitable rights against her husband. The restraint upon anticipation was annexed to the separate estate in the time of George III. It is said to have been devised by Lord Thurlow for Miss Watson's settlement, and was upheld in the case of Pybus v. Smith (3 Bro. C. C. 310), and established in Tullet v. Armstrong (1 Beav. !)• The liability of the separate estate of a married woman for her contracts and torts was clearly established in Hulme v. Tenant (1 Bro. C. C. 16), and has been laid down by statute in 1870, 1871, 1882, and 1893, the various Married Women's Property Acts. Now a married woman holds all her property, with slight exceptions, whenever and however acquired, for her sole use as separate estate. The earliest form under which this separate property appears is the parapherna. The dos or settled property had nothing to do with the married woman's separate property. From the latter was derived the Mens separSs of the French law. Settled Property.— The settled property of married women, or, to speak more accurately, the property settled upon the marriage of a woman with her husband, is a well- known subject of English law. The original object of this settled property (which must be carefully distinguished from the separate property of a married woman and the dower of a widow) was to provide a fund for the support of the home, and it came to be regarded as a means of providing for the children of a marriage. It is seen in the Eoman dos, which originated on the desuetude of maniis in the gifts of relatives upon the COMMON LAW AND EQUITY. 177 marriage morning. This dos was gradually subjected to numerous restrictions, and was the parent of the French dot and of the English dowry. Equity to a Settlement.— The wife's equity to a settle- ment appears to have existed early in the seventeenth century, when it was introduced as a check upon a suit brought by the husband in Chancery. And in 1801, in Elibank V. Montolieu (5 Ves. 737), it was extended to the wife's suit, and she was herself allowed to sue for a settlement to be made upon herself and her children. Wills. — In the Saxon times a married woman could make a legal will. Under the Normans she could, by special licence, deal with a third of any property of her ovTn, and a third of any property she got from her husband. At the time of Henry VI. she was allowed, by licence, to deal with the whole of her own prenuptial property ; and this was extended afterwards, about the time of Charles I. to all personal property comprised in her separate estate. In Charles II. 's reign her will could include property coming to her under a power or as executrix. She was afterwards allowed power of testation over all her property when her husband was civiUy dead, or when she was legally separated from him, or had obtained a protection order. In the present reign her power of testation was extended to all her separate estate whatsoever. (As to Marriage and Divorce, see pp. 170, 155.) Merchant Law. — The origin of the law merchant, or lex mercatoria, is fully described in the Introduction to Smith's Mercantile Law. It comes from — (1) Roman law, especially the four contracts consensic. Its influence is seen in affreightment, derived from locatio conductio, in general average, bottomry, respondentia, and salvage, all of which appear in the Digest of Justinian. (2) A collection of maritime usages, which may be subdivided into : — 12 178 COMMON LAW AND EQUITY. (a) Those of the Mediterranean ports, e.g. tahula Amal- fitana, the laws of Trani, the cojisolato del mare. (5) Those of the Northern ports, e.g. the laws of Oleron, the laws of Wisby, (3) Great fairs, the simple rules of the market, the law of market overt, the summary procedure of the Court of Pie Poudre. (4) The works of writers who were numerous on the continent, although none existed in England until the fifteenth century. (5) The fact of this law being administered in separate courts, which were distinct from the king's courts, as : — {a) The special com't for marine insurance, at the time of Elizabeth, which was soon, however, disused. The system of insurance was introduced into England by the Lombards. (6) The Com-t of Pie Poudre. (c) The Staple Courts, whither the foreign merchants of the Teutonic Hanse guilds came. {d) The Admiralty Courts. The periods of the law merchant may be divided into : — (1) To the appointment of Coke as lord chief justice about 1607. (2) To the appointment of Lord Mansfield as lord chief justice in 1756. (3) Down to the present time. The growth of the law merchant may be summarised as follows : — (1) The administration of special customs in special courts in a special way. (2) A system of customs which are recognised, and can be proved if necessary, but which are only binding on a special class. (3) These customs became incorporated in the general law and bound all the subjects of the realm, the question of the reasonableness of the custom being of paramount im- COMMON LAW AND EQUITY. 179 portauce (Goodwin v. Eobartes, L. E. 10 Ex. 337 ; 1 A. C. 476 ; Crouch v. Credit Foncier, L. E. 8 Q. B. 374). "It is impossible," says Blackstone, " that the maritime laws of any one realm would suffice for ordering the affairs and traffic of all merchants." Tiiis shows a tendency towards private international law. The law merchant was then sup- posed to be "a system of equity founded on rules of equity and governed in all its parts by plain justice and good faith" (Buller, J. in Master v. Miller, 4 T. E. 320). But now it is regarded as in the following citations: "that the general maritime law has a meaning only when it refers to the law as administered in the English courts" (Willes, J. in Lloyd V. Guibert, L. E. 1 Q. B. 115). Again, "that from ancient times the law administered in ancient courts was the general maritime law, and that law is still to be followed in this court " (Sir E. Phillimore, in The Leon, L. E. 6 P. D. 148). And again, " the law of the English admiralty com't is the English maritime law" (Brett, L. J. in The Gaetano and Maria, L. E. 7 P. D. 137). As to foreign mer- chants, see p. 72, Aliens. Mortgages.— The basis of the law of mortgage is the right of redemption. It is this which gives to what appears on the face of it to be a simple conveyance of land the effect of a mere pledge to secure money lent upon the land. The earliest trace of it is found in the Ecclesiastical Courts, where a denial of the right of redemption by the creditor on being repaid was treated as a breach of faith (fidei laesio), and this was upheld by the resolutions of the Lateran Council in 1178. In both cases, the example of the Eoman contractus fiduciae no doubt influenced the Church, coming through the canon law. The development of contractus fiduciae into pignus, and then into hypotheca, is almost exactly paralleled in the English law. At the time of Henry II. it was declared that a creditor 180 COMMON LAW AND EQUITY. who was repaid should return the thing which he held in pledge to his pledgor. The Court of Chancery first extended the right to redeem to a surety of the debtor. It was not until the time of Charles I. that the" right became settled in favour of any mortgagor or pledgor. Mortmain. — The history of mortmain is interesting as a proof of the influence of the Church in this country ; and, further, it exhibits the complete revolution that has taken place in the law, owing to the changing of social conditions. The object of the laws against mortmain was to prevent land getting into a "dead hand," that is, into the hand of a corpo- ration which has always successors and never dies, with the result that the land never passes out of its hands, and is dead, so to speak, for all purposes ; more especially for those feudal purposes and services from which the lands of the Church were held free. Their object was also to prevent the services for the defence of the realm being withdrawn, and to preserve escheats to the lord. In the Saxon times it seems that a licence from the Crown was necessary to enable any one to alienate in mortmain. Under the Normans the necessity of the royal licence was enforced by the Constitutions of Clarendon in 1164. This was evaded by the ingenuity of the clergy, who availed themselves of the fact that such alienations accrued by forfeitm*e to the immediate lord of the fee ; for the owner gave his lands to the Church and immediately took them back again as attendant to the Church, which instantaneous seisin did not occasion forfeiture ; and then, on the pretext of some other forfeiture, the Church, as immediate lord of the fee, entered upon the lands and ejected the tenant (that is, the original owner). This artifice was met by the second of Henry III.'s charters, c. 43, in 1217, which was reinforced and re-enacted by 9 Henry III. c. 36. Again, the ingenuity of the Church invented long terms COMMON LAW AND EQUITY. 181 of years, as a thousand or more, whereby they became nominally lessees, but practically owners ; and, further, they bought in lands which were boTia fide held of themselves as lords of the fee. This was met by the statute De religiosis (7 Edward I.). Again, the ingenuity of the Church invented common recoveries as a means of acquiring land. This was put a stop to by the Statute of Westminster the Second (13 Ed- ward I. c. 32). An express provision was made against alienation in mortmain by the statute Quia emptores (18 Edward I. c. 3). The royal licence to alienate in mortmain was obtained by a writ of ad quod damnum, as regulated by 27 Edward I. Statute 2, and by 34 Edward I. Statute 3, and the royal prerogative to grant the licence was further confirmed by 18 Edward III. Statute 3, c. 3. But the Church was not yet defeated ; and further ingen- uity produced the well-known doctrine of uses (see p. 189). This was short-lived, and was stopped by 15 Eichard II. c. 5. The statutes against mortmain were, however, again avoided by the purchase of large estates adjoining churches, which were consecrated as churchyards, and by land being given to superstitious uses, that is, religious uses, although not to any corporate body. Therefore, by 23 Henry VIII. c. 10, these evasions were restrained, and the mortmain law made more stringent. This statute only extended to super- stitious uses, and not to charitable uses. The effect of the statutes of mortmain was practically suspended by 1 and 2 Philip and Mary, c. 8, for twenty years. By 43 Eliz. c. 4, charitable uses were more clearly defined, and the law ameliorated with reference to the objects there specified. By 17 Charles II. c. 3, the augmentation of poor livings was first allowed ; and this was followed by 2 and 3 Anne, c. 11, which made an exception in favour of the fund called Queen Anne's Bounty. 182 COMMON LAW AND EQUITY. By 7 and 8 William III. c. 37, the royal licence was set upon a new footing, and after that statute the writ ad quod damnum became obsolete. This statute had been rendered necessary by the clause of the Bill of Eights, with reference to the dispensing power (see p. 77), as that affected the power of dispensing with the statutes of mortmain. Next came the Mortmain Act (9 George II. c. 36), upon which the law was based down to the present time, and under it lands could be given to a charity under certain formalities. The object of that Act was, according to Lord Hardwicke, to prevent the locking up of land, and to prevent persons in their last moments from being imposed on to give their lands away from their families. Exceptions to the Act were made by special statutes in favour of the principal seats of learning, and of literary, scientific, and educational objects, of highway boards, and of certain public companies. These statutes were afterwards to some extent consolidated in the Mortmain Act of 1888, which has set the law upon an entirely modern footing. This last Act was further amended by the Mortmain Acts of 1891 and 1892, mth the result that now practically anything can be given by deed or will to a charity (under certain formalities) ; but if it is land that is given by will, it must be sold, and the proceeds of the sale only pass to the charity. Thus we see a complete revolution in the law has taken place. Modern law regards without prejudice what the ancient law looked upon with terror and aversion. It is noticeable that the law is indebted to the ingenuity of the clergy' in connection herewith for long terms of years in leases, for common recoveries, and for the whole doctrine of uses and trusts. Nisi Prius. — The origin of these words comes from the clause of nisi prius which was ordered by the Statute of Westminster the Second (13 Edward I. c. 80) to be placed COMMON LAW AND EQUITY. 183 in all writs of venire facias, that is, that the sheriff should cause the jurors to come to Westminster on such a day, unless before {nisi prius) that day the justices assigned to take the assize shall come into his county. The sheriff, as it was usually arranged that the justices of assize should come before the day fixed, returned his jurors into the assize court. By 42 Edward III. c. 11, no trial by nisi prius took place on assize till the sheriff had returned the names of the jurors to the court at Westminster, which he did on the last day of term, whereupon the jury, not being sum- moned, made default in appearing. Then the sheriff was authorised by distringas in the King's Bench, or by habeas corpus juraiorum in the Common Pleas, to compel them to appear next term, unless before (nisi yrius) that time the justices of assize should come into his county ; and this, of course, the justices usually did, when the sheriff summoned the jury to appear before them. By the Common Law Procedure Act of 1852, the two systems of process above referred to which were used against a jury making default were abolished, and proceedings in civil matters before justices of assize were no longer to be connected with the provision of nisi prius, and the use of such words was made unnecessary. Trials at nisi prius, though formerly only a small part of the business of the justices of assize, grew to be the largest portion of their work. But at present, except in certain populous centres, nisi prius work is steadily falling off, civil causes being tried in London, and the business of justices of assize is chiefly criminal. Pleadings/ — A short sketch of the law on this subject must suffice here. Originally pleadings were oral in court, and the matter was judged as they were delivered, indeed in some cases they were dictated by the judges themselves, 1 See H. J. Stephens on Pleading. 184 COMMON LAW AND EQUITY. or suggested by them. All pleadings were, however, entered upon the record by the prothonotary. If a pleader made a slip or mistake he was allowed to correct himself on admitting his error [jeofaile, hence the Statute of Jeofails). In the time of Edward III. written pleadings were first adopted and have been used ever since. The declaration was concluded with the words inde producit sectam, etc., which meant the secta or appointed witnesses (see p. 54), although the secta became obsolete by the time of Edward III. In the reign of William IV. five amending Acts were passed to regulate the system of pleading and procedure generally. The Common Law Procedure Acts, 1852, 1854, and 1860, further simplified pleadings and reduced them to a more systematic form. Finally they were regulated and reformed by the Judicature Acts, and the rules of court made thereunder. At the present time the tendency is to discourage the use of pleadings as much as possible in all simple cases. The old pleadings each had their special names. First came the declaration. Then the plea, which might be of different kinds, in abatement (a dilatory plea not on the merits), or in bar (which went to the merits), or a demurrer (an objection on a point of law), or the general issue (which in contract was nil debet, on a bond non est factum, in assumpsit non assumpsit, and in tort " not guilty "). Then came the replica- tion, followed by the rejoinder, the sur-rejoinder, then the rebutter and the sur-rebutter, and in some cases even more. Prescription. — According to Bracton, the definition of pre- scription and the reason for its existence in the English law is different from the Eoman law. Bracton drew a distinction between prescription as to corporeal things and as to incor- poreal things. As to the latter it is doubtful whether prescrip- tion applied to them. But by the time of Littleton it was applied to incorporeal things, and he treated prescription as identical with posses- COMMON LAW AND EQUITY. 185 sion from time immemorial. According to him, time im- memorial is not from the reign of Eichard I., but was so long that no man alive has heard to the contrary or knows to the contrary, which is the principle of the Roman law. He does not refer to the theory of a presumed grant. After Littleton's time the law changes, and we find that time immemorial is not treated as a title of acquisition, but only as evidence thereof ; and hence comes the theory with reference to enjoyment from the time of Eichard I. The difficulties of this theory became apparent as time went on ; for, if a right was claimed over a thing, it could be defeated by showing that the thing had come into existence since the time of Eichard I. Hence came the theory of the presump- tion of a lost grant which was presumed after twenty years, and this was the rule of the courts, although not authorised by Act of Parliament. Finally came the Prescription Act of 2 and 3 William IV. c. 71, whereby the modern law of prescription was estab- lished. It does not apply to all rights, but only to those mentioned in the statute, and so the ancient fiction of the common law still prevails in some cases. This statute does not give direct acquisitive prescription, and bona fides is necessary. Prescription at common law gives a negative right only, and no bona fides is required. With reference to prescription as applied to real property the time used to run from certain fixed dates, as the begin- ning of the reign of Henry I. and then it was altered to Henry II. and then to Eichard I. and so on. But by 32 Henry VIII. c. 2, and 21 James I. c. 16, the general period of twenty years was settled ; and this was confirmed by 3 and 4 William IV. c. 27. By the Eeal Property Limitation Act in 1874, it was reduced to twelve years. These statutes extinguish the right as to land, and give an absolute title to the possessor, with a positive right of action against all the world. Bona fides is not necessary. 186 COMMON LAW AND EQUITY. Prescription with reference to actions, or the limitations of actions, is extinctive prescription, and puts an end to the right of action only, and not to the existence of the right. The statutes on limitations of actions are 21 James I. c. 16, as amended by 3 and 4 William IV. c. 42, and 19 and 20 Vic. c. 97. In criminal law, the time for an appeal of felony was a year and a day to the individual. As to the Crown, milium tempus occurrit regi, except in treason, where it is three years, unless it amounts to attempted assassination of the sovereign. There are a few more unimportant exceptions to the nullum tempus rule. The period of limitation in the French law is for crimes ten years, delits three years, and contraventions one year. Primogeniture. — The doctrine which gave the whole of a man's real property to his eldest son existed in England before the Norman time (see p. 165). Among the Saxons land descended to all the children in common, whether male or female ; and this was the rule in most primitive races, although in some cases the eldest son had a double share, as being responsible for the widow and the unmarried daughters. The next step is the distinction between ancestral and self- acquired property. Ancestral property descended to the sons all together, whereas self-acquired property could be distributed by will amongst any of the children in any shares the testator pleased ; and this was the rule in the time of Henry I. except as to Bocland (cf. p. 142). The early form of primogeniture which gave the pre- dominating share to the elder son was known as Ancestral primogeniture, and this ancient customary law of the Saxons was of indigenous gi'owth. The introduction of the feudal system brought with it Official primogeniture, which gave the whole of the feud to the eldest son, because, according to feudal doctrines, services COMMON LAW AND EQUITY. 187 were not devisable, and militarj- service had to be rendered for every feud. The origin of this form of primogeniture is to be found in the succession to the chieftainship of a clan or sept. The reason that primogeniture was of such exceptional stability in English law was because the English law was almost entirely unaffected by the only other legal system then known, namely, the Roman law, which did not recog- nise the right of primogeniture. By the time of Henry III. Bracton tells us that the comis held a presumption against lands being in socage ; and in default of proof to the contrary, the succession to lands was regulated by the rules of primogeniture. Soon after this the doctrine became fixed, and has ever since been recognised, as an integral portion of the common law. The right of primogeniture amongst females only obtains with reference to succession to the Crown. Tort. — It seems quite clear that what we now call tort originally embraced the whole of the law of wrongs done against the person, which includes criminal acts. When in due com'se the distinction came to be drawn between the injury to the individual and the injury to society aided by the theory of the king's peace, then many differences grew up between tort and criminal acts. These differences may shortly be summarised as foUows : — 1. A crime is prosecuted by the sovereign, who alone can remit the punishment. A tort is pm^sued by the injured party, who alone can remit the punishment. 2. In crime the object of punishment is prevention, in tort the object is to gi'ant redress to the injured party. 3. The sanction of the law against crime is punishment, tlie sanction of tort is compensation. 4. Crime affects the people generally, tort only aifects the individual. 5. In criminal proceedings the intention is regarded, and 188 COMMON LAW AND EQUITY. therefore a party may be liable for mere attempts ; in tort there must be actual injury done. 6. The criminal law applies the ultimate sanction im- mediately, the civil court does not. 7. There are differences with regard to public opinion ; crime is regarded as infamous, and a convicted person is seriously affected in his future life. This is not so in tort. 8. There are differences between the procedure in crime and in tort. 9. Crime is a violation of an absolute duty, while tort violates a relative duty. A complete change of ideas produced the mediaeval rule of law that if an injury was both a tort and a crime, the crime must be prosecuted before any civil action lay for tort ; but this is no longer so, and the primitive principle of the distinct individual right, being considered apart altogether from the criminal law, now prevails (Midland Insurance Com- pany V. Smith, 6 Q. B. D. 561 ; re Shepherd ex parte Ball, 10 Ch. D. 667 ; 9 Ch. D. 701 ; Eoope v. D'Avigdor, 10 Q. B. D. 412 ; Appleby v. Frankhn, 17 Q. B. D. 93). See also 98 L. T. newspr. 227. TrOYer. — Trover is an action based upon the fiction of a finding and subsequent conversion. It arose for much the same reason that assumpsit did (p. 143), because, in the old action of detinue, the defendant might wage his law (see p. 54). In order to evade this wager of law, instead of suing in detinue for the chattel detained, an action on the case was invented, whereby the plaintiff set out the particular facts of his case, and alleged that the defendant had found the goods and had converted them to his own use, for which he, the plaintiff, claimed damages (trover and conversion). The plaintiff recovered damages, and the defendant retained the goods, and acquired thereby a good title to them, even though he might have actually stolen them. COMMON LAW AND EQUITY. 189 The injui-y lay in the conversion, for any honest man might find the goods of another lying in the highway. There is no right of action until the goods have been de- manded from the holder, and he has refused to give them up. This action was remodelled, and the formal allegations abolished by the Common Law Procedure Act, 1852. Uses. — The existence of uses in English law is a striking instance of the influence of the Eoman law. The original pattern is to be found in the Eoman fidei commissum, which was introduced to enable persons, who were excluded by the jiis civile, to acquire property under a Testament, e.g. peregrini. This sm-vived in the canon law, and was intro- duced into England by the clergy (see Mortmain, p. 181). The first statute taking notice of uses was 50 Edward III. c. 6, but they existed before this date. The object of the clerics was to procure land for the Church ; and since the Chm'ch was restricted from holding land directly, the in- direct method of a use which gave to the Chm-ch all the benefit of the land with none of its burdens was resorted to. The fee simple did not pass to the Chm^ch, and therefore the Mortmain Acts were not infringed. But this scheme of the clergy was stopped by 15 Richard II. c. 5, as to all religious corporations. The doctrine of a use was, however, found very convenient for dealing with interests in land, especially during the wars of the Roses, because thereby many of the feudal incidents were avoided, notably escheat. Uses therefore gradually came into common use. Attempts to regulate them were made by numerous statutes (see Chudleigh's case, 1 Rep. 120). The principal evils of uses may be briefly summed up as follows. They permitted indirect alienation of land. They favoured secret devises of real property. They were em- ployed to defeat creditors, and to evade all those feudal and 190 COMMON LAW AND EQUITY. other burdens which the law and custom had placed upon the land. The principal benefit derived from uses was the wide scope afforded for making provisions for younger children. FinaUy, by the Statute of Uses (27 Henry VIII. c. 10) all passive uses of freeholds were transmuted into estates in possession, and a double ownership thereby avoided, the mere right to have the benefits was turned into an actual possession, and the equitable interest became a legal estate. It was hoped that the land would, by the operation of this statute, be taken from the encroaching jurisdiction of the court of equity, and subjected in all points to the courts of law. The statute of uses was held not to apply to cases where the legal owner had some active duties to perform to the beneficiary. This statute used the word " seised," and so did not apply to any leasehold interest or uses thereof. In Tyrrel's case (Dyer, 155a), it was held that there could not be a use upon a use, and that the statute only took effect upon the first use, and, being thus exhausted, left the second use un- touched. Thereupon the court of equity stepped in, and enforced the second use under the name of a Trust. Hence comes the whole modern law of Trusts. For a trust is but one use limited to take effect upon another use. Wardship. — Wardship was a feudal right introduced by the Normans (not a universal feudal incident), whereby the lord was entitled to the custody of an infant and his lands without an account of profits, until he came of age, twenty- one in males and sixteen in females (3 Ed. I. c. 22), if she was not married at or after fourteen. On coming of age, the infant could sue out his livery {ousterlemain) on payment of half a year's profits, instead of relief and primer seisin. The lord had a further right of marrying his ward to any one he pleased. For a short time under the Charter of Henry I. the COMMON LAW AND EQUITY. 191 rights of wardship as to person and land were enjoyed by the widow or the next of kin. But by the Assize of Northampton, in 1176, the rights of wardship were Hmited to the lord of the fee. Magna Charta remedied the abuses of wardship, and under it the lord acquired a right of disposing of his male ward in marriage, as well as his female ward as confirmed by the Statute of Merton, 20 Henry III. c. 6. But I. P. and M. 305 says this right existed before 1216, although Glanvill circa 1160 does not mention it. Magna Charta was the origin of guardianship in chivalry, which was supplanted by other forms of guardianship, and was abolished by 12 Charles II. c. 24. The Court of Wardship and Liveries was erected expressly for the purpose of deciding matters with reference to this feudal institution ; and it existed with all its abuses in early times, although it was not actually authorised by statute until 32 Henry VIII. c. 46. The revival of this court was one of the principal grievances against Charles I., and it was swept away by the Long Parliament, 16 Charles I. c. 20, as con- firmed in 1653, and by 12 Car. 11. c. 24. Wills. — Wills were in all probability introduced into England by the clergy (about 597 a.d.) ; and to this fact is partly due the peculiar position the Church occupied for a long time with regard to wills. The ancient right of devising land by will certainly existed amongst the Saxons. But this right does not seem to have extended further than the Boc- land, according to the terms of the original grant. The wills of Egbert, and again, of his son Ethelwulf, and of his grandson Alfred the Great, disposed of the testator's Bocland. This Bocland was the odal land ^ of the Teutonic races ; cf . the udal tenure in Orkney and Scotland. The effect of the Norman Conquest was to abolish the right of devising land by will.^ The heir was the only person who 1 I. P. and M. 40 denies this. ^ II. P. and M. 324 takes a diiierent view, and speaks of the preva- lence of " post obit distributions or gifts ". 192 COMMON LAW AND EQUITY. by the feudal system could benefit on a man's death. But the practice of sub-infeudation gradually crept in, whereby the rights of the heir were defeated. Sub-infeudation was, how- ever, stopped by the statute Quia emiHores (18 Edward I. c. 1). Strictly speaking, however, the right to devise real property was first exercised after the Norman Conquest with reference to terms of years. Next, uses became devisable, and so con- tinued for a long time. Then by the Statute of Uses (27 Henry VIII. c. 10), these uses being turned into legal estates became incapable of devise, and consequently the necessity arose of providing some other means for enabling the people to exercise their customary rights. The Statute of Wills (32 Henry VIII. c. 1) was therefore passed. But this only extended to a portion of the estate, viz. two-thirds of the land held in chivalry or by military tenure, and the whole of the lands held in socage. This was affected by 12 Charles II. c. 24, which abolished military tenure, and turned all tenure into free and common socage, the result being that a man can now devise all his land. By 29 Charles II. c. 3, certain restrictions were placed upon the form of a testament of real property, three witnesses being required to attest it. By the Mortmain Act (9 George II. c. 36) the doctrine forbidding devises to any charity was firmly established, but the effect of this has been lately lessened by the Mort- main Acts of 1888, 1891, and 1892. Finally, by the Statute of Wills (1 Vic. c. 26), the law as to testaments was placed upon a modern footing. The feudal objections to the freedom of devise were : — 1. That seisin must be transferred by livery, which was impossible if the testator was dead. 2. From a fear of undue influence being brought to bear upon a testator when infirm, or upon his deathbed. 3. Because there was a want of the publicity which the common law required in any acquisition of property; descents on an intestacy being apparent to all. COMMON LAW AND EQUITY. 193 4. The Civil courts had no jurisdiction as to wills, and the Ecclesiastical courts that had the jurisdiction could not deal with questions affecting the freehold. But devises of purchased land (not property descended), and of property in towns, were treated by custom as chattel interests, and so were cognisable in the Ecclesiastical courts. Where a right of devise was authorised by custom, as was the case after the Conquest in Kent and in some few manors and boroughs, it was regarded as an Assignment by custom, and therefore was cognisable in the Civil courts. The history of wills with reference to Personal Property differs somewhat from that of Eeal Property. In the Saxon times complete freedom of bequest of personal property was allowed. In the time of Henry II. according to Glanvill, a man's chattels were divided into three parts, a third of which he could give by his will, one third went to his heirs, and a third to his wife. The writ de rationabile parte honorum lay to recover the reasonable shares of the parties entitled. In some cases, however, he could bequeath a half and in some cases even the whole. By Magna Charta the full right to bequeath all chattels was given. But the ancient customary right of the wife and descendants to two-thirds still appears to have been re- cognised, it was mentioned in 17 Edward III. and in 30 Edward III. ; and it was clearly laid down, as late as Charles I. by Sir Henry Finch, to be the general law of the land. And this opinion is in consonance with all the old writers, Glanvill, Fleta, Fitz Herbert, and the Year Books, although Coke cites a passage from Bracton to the contrary. But by 4 WiUiam and Mary, c. 2, confirmed by 2 and 3 Anne, c. 5, as to the province of York ; and by 7 and 8 WiUiam HI. c. 38, as to Wales; and by 11 George I. c. 18, as to London, these ancient rights were entirely abolished, having previously become obsolete throughout the rest of the kingdom. Hence it may be said that since 13 194 - COMMON LAW AND EQUITY. 1721 every man has had an absolute right to devise all his chattels, with the exception, by custom, in certain places, of leaving his best chattel to his lord and his next best chattel to the Church, which is said by some to be the origin of heriots and mortuaries (cf. Inheritance, p. 165). SECTION III. CRIMINAL LAW.i Appeal of Felony. — An appeal in ancient days was a private process whereby a person was accused by another of some grievous crime, punishment or some proper com- pensation being demanded on account of the personal injury inflicted. The pubHc interest was not considered. The derivation is from the French appeller, to challenge or summon, the active and not the neuter verb. It was a survival of the earliest form of criminal procedure, namely, the unlimited right of self -redress submitting to be controlled by the recognised forms of law in pursuing revenge. We find it in the laws of Athelstan ; and again, much later, in the laws of Henry I. It originally extended to high treason ; but this was altered by 5 Edward III. c. 9 ; 25 Edward III. c. 4 ; and 1 Henry IV. c. 14. All appeals for death had to be within a year and a day of the felony, by the Statute of Gloucester (6 Edward I. c. 9), which is said to be but declaratory of the ancient common law ; and no indictment lay at the suit of the king until that time had elapsed : hence the rule that it is no murder unless death results within a year and a day of the injmy. If the appellee proved innocent, he could not be subsequently indicted for the same offence at the suit of the king. The appellee had always the right to wage battle (see p. 67), with certain exceptions there stated. Among these exceptions is a woman : hence the provision of Magna ^ Eefer to Stephen's General View of the Crioniiial Law, pp. 1-55 ; Cherry, Grcnvth of Criminal Law. (195) 196 CRIMINAL LAW. Charta that none should be taken or imprisoned on the appeal of a woman, except for the death of her husband. The appellee, if found guilty, must be punished as if he had been convicted on an indictment. The Crown cannot pardon him. It is a private matter to which the Crown is no party, and, therefore, it may not interpose at any time ; for as the original idea was to procure compensation in damages, it would practically be allowing the king to remit damages incurred in a civil suit (Stroughborough v. Biggin, Moore 571). The right of appeal is not lost by the offender being first indicted, which might happen when the rule as to a year and a day became disused, and when the power of the executive increased. For, although at the suit of the king the offender might be indicted and acquitted, yet the appeal lay. So also if he was convicted, and then pardoned by the king (3 Henry VII. c. 1) ; for the king's pardon cannot affect an appeal. If the accused had taken his benefit of clergy on being found guilty on an indictment for manslaughter, he could not afterwards be appealed ; for he had suffered the penalty of the law, and none may be punished twice for the same offence. The appeal could be brought in any of the principal courts or in the County Court. There was a case in the Com-t of Chivah-y in 1631 (Lord Rea V. Eamsey, 3 St. Tr. 483), and another case occurred later (Bigby v. Kennedy, Burr. 2648) in the King's Bench in 1770. The two Kennedys, it is said, owed their pardon to the intercessions of their sister with the courtiers of the time, to whom she was intimately known (see Junius' Letters, No. 39). The last case of appeal for felony was Ashford v. Thorn- ton (1 B. and Ad. 405), subsequent to which this method of prosecution was entirely abolished by 59 George III. c. 46 (see p. 68 ; cf. Homicide, p. 207). CRIMINAL LAW. 197 Bail. — The origin of the law of bail is to be found in the primitive idea that a person must give security for his appearance before a court of law. The tacit submission of the rights of both parties to judicial arbitration, instead of having recourse to force, involved pledges by both parties. The plaintiff gave his (cf. p. 54, John Doe and Eichard Eos ; the Eoman vades and siibvades), the defendant gave his, or his body was seized by the sheriff. The party bailed was not personally bound. The bail appeared in person to undertake the responsibility, and if his principal made default he was liable to the same punishment as his principal. For some interesting information on bail, see Junius' Letters, 68, to Lord Mansfield. The history of bail may be shortly summarised as follows. It was originally at the discretion of the sheriff. Then came the Statute of Bail (3 Edward I. c. 12) ; and various statutes from Edward III. to the seventeenth cen- tury ; 4 Edward III. c. 1 ; 34 Edward 111. c. 1 ; 23 Henry VI. c. 9 ; 1 Eichard 111. c. 3 ; 3 Henry VIL c. 3. The last two statutes gave justices of the peace the power to bail. The next step was the provision of the Bill of Eights, in 1689, against the requisition of excessive bail. Finally, these statutes were consolidated by 7 George IV. c. 64 ; and the law was placed upon its modern footing by 11 and 12 Vic. c. 42 (see False Imprisonment, p. 201). Benefit of Clergy.^ — This idea of the exemption of the clergy from criminal liability originated in 1176, and was limited to those who, by habit or tonsure, were clerks. But, in 1276, by 4 Edward I. c. 5, a bigamus (meaning a twice-married person) was excluded. The benefit ex- tended to all felonies, and any number of offences, but not misdemeanours or forest crimes. In 1350 it was extended to secular clerks by the statute pro 1 For Alfred's law hereon see I. P. and M. 436. 198 CRIMINAL LAW. clero (25 Edward III. st. 3, c. 4), and it was extended by the courts to all who could read on their first offence ; but this did not include treason. In 1487, branding on the hand was enforced for all who took their benefit of clergy, except- ing peers and a clerk in holy orders (4 Henry VII. c. 13). In Henry VI.'s reign, clerks were forbidden to claim their privilege before conviction, and they could not be claimed by the bishop immediately after the offence. In 1513 benefit of clergy was abolished as regards the laity in cases of murder and in many felonies, by 4 Henry VIII. c. 2. This did not ajffect a clerk in holy orders (see the cases of Standish and of Eichard Hunne, in 1515). By 1 Edward VI. c. 12, it was extended to include a bigamus, and to include all peers, even though they could not read, which is a sad reflection upon the education of a nobleman of those times. In 1576, purgation was abolished, and imprisonment for one year substituted (18 Eliz. c. 7). Under the Tudors, and during the subsequent reigns, most felonies were exempted from the benefit of clergy. In 1692, women were placed on an equal footing with men , by 3 and 4 W. and M. c. 9, and 4 and 5 W. and M. c. 24. In 1705, the necessity for reading was abolished by 5 Anne, c. 6. In 1717, a clergyman was made liable for larceny to transportation for seven years; and by 4 George I. c. 11, branding and whipping in such cases were done away with. In 1779, branding was altogether abolished by 19 George III. c. 74. In 1827, benefit of clergy was itself entirely abolished by 7 and 8 George IV. c. 28 ; and, as some doubt arose in con- nection with the trial of Lord Cardigan (4 St. Tr. n. s. 666), as to whether that statute affected peers, a further Act was passed in 1841, whereby the right was expressly taken from all peers (4 and 5 Vic. c. 22). Coinage. — The history of the laws affecting coinage is most involved in its earlier stages ; for not only had the king the right to coin, but many other persons, by special CRIMINAL LAW. 199 grant from the Crown, were enabled to coin in their own locality or jurisdiction. By the Statute of Treasons (25 Edward III. st. 5, c. 2), unauthorised coining was made a capital offence. Coins had to be made of sterling metal or esterling (derived from esterlingi or esterlings, a name for the inhabitants of a particular district in Germany) (25 Edward III. c. 13). All the statutes on coinage, except the Statute of Treasons, which made it a treasonable crime, were repealed by 1 Mary, c. 1. Subsequent statutes commenced to make a difference between gold and silver and copper money. The first copper money was issued in 1672, under royal authority. The law is now regulated by 24 and 25 Vic. c. 99. Confessions. — Confessions were always admitted in courts of law, because of the presumption of common sense that no man would say anything against himself. But this does not always hold (Harrison's case, 1 Leach, 264). The earlier law permitted the questioning of prisoners, and answers or confessions thus obtained were often the principal evidence against them. This system of inquisition, resembling the procedure in France, was used in Throck- morton's case (1 St. Tr. 869) in 1554. Under the auto- cratic rule of the Tudor s, this power of compelling confes- sions was assisted by the use of torture (p. 136). The attitude of the law towards prisoners gradually changed ; torture was disused, and by the eighteenth century the rules against admitting confessions were formulated. From 1783 (Warickshall's case, 1 Leach, 263) onwards, the restrictions upon the use of confessions in evidence grew until they reached an absurd degree of strictness (K. V. Drew, 8 C. and P. 140). It was not until 1852, in Baldry's case (2 Den. C. C. 430), that the law was restored to a more satisfactoi-y position, and the older cases were overruled. 200 CRIMINAL LAW. Even at the present time the uncertain nature of the rules as to confessions is often the subject of comment (E. v. Thompson, 17 Cox, C. C. 641, and note, 629). Constables. — The word " constable" is an introduction of the Norman system {comes stabuli), he being a well-known officer in France. From the great office of lord high con- stable the lesser constables were derived. The last lord high constable of England was the Duke of Buckingham, who was executed by Henry VIII. ; and since then this office has not been regularly filled (cf. Court of Chivalry, p. 44). By Magna Charta constables were forbidden to hold pleas of the Crown. The constables were at this period officers of great dignity, and had charge of all royal castles in the realm. Within the manor or liberty of such castles their civil and criminal jurisdiction was omnipotent. The strong- hold of the castle was used as a prison for malefactors. But when their office began to change from being simply keepers of castles to acting as executive officers of the king's commands, and hence of all legal process, it was felt to be improper to allow them to retain judicial powers as well. We find the office of high constable was first created by the Statute of Winchester (13 Edward I. c. 6). Petty constables did not exist until the reign of Edward III. They supplanted the ancient Headborough, the head man of each borough (see ex parte Fox, 5 T. E. 276), who, in his turn, represented the borhsman, the head of the frith- borh, who answered by security (borh) for the keeping of the peace (frith) by all in his locality ; who again was derived from the tithing man, or head man of each group of ten families, for whose good behaviour he was responsible to the tribe. Both high and petty constables were chosen anciently in the court leet. Under 14 and 15 Car. II. c. 12, they came to be appointed by the justices of the peace (see 5 and 6 Vic. c. 109; 7 and 8 Vic. c. 33). Now their office is CEIMINAL LAW. 201 entirely merged in the modern system of police (see infra, p. 217), which prevails in all the realm. Deodaud, The. — This represents one of the most primitive ideas in criminal jmisprudence. It is the dedication to God {Deo datum) of the instrument of death. By the Mosaic law, if an ox gored a man, it was to be stoned, and its fiesh could not be eaten. With the Greeks the deodand found a place amongst the laws of Solon and of Draco. By the Athenian law, the offending thing was cast out beyond the boundary, it was regarded as an accm'sed thing. With the Eomans, under the name of noxalis deditio, a human being or an animal could be given up to escape liability for its act ; compare the case of Postumius for concluding the peace of the Caudine Forks. It existed in the Salic law, and in the laws of the early Teutonic tribes. The first trace of the deodand in this country is in the laws of Kent, in 680, where the surrender of a slave who kills a man is provided for; so, too, in the laws of Ina of Wessex. In Alfred's laws a like provision as to cattle is found. And again, later, in the laws of Henry I. it was held that a dog could be surrendered for sheep-killing, and the liability avoided. The ancient practice gave the accursed thing to the relatives of the deceased, originally for the purpose of vengeance. But wheii the king's peace became established, and the idea of private injury was supplanted by that of public wrong, and the king took the part of the public upon himself, he also took the accursed thing. It was necessary that the article and the value of it should be found and presented by the grand jury. All the law upon this subject was abolished by 9 and 10 Vic. c. 62, and deodands were done away with. False Imprisonment. — The ancient writs for delivering a person from false imprisonment were four in number : De liomine replegiando ; mainprise ; de odio et atia ; habeas 202 CRIMINAL LAW. corpus (see p. 82). The writ de homine replegiando lay to replevy a man (as a chattel is replevied in distress ; see Keplevin, p. 154) out of custody on giving security to the sheriff that the man shall appear to answer the matter objected against him. The writ of Mainprise (de mafiucaptione) directed the sheriff to set a prisoner free, taking mainpernors or sureties for his appearance. Mainpernors differ from bail. For a man's bail may im- prison him or give him up before the stipulated date for appearance ; mainpernors cannot do either, being barely sureties for his appearance at the date named. Again, bail are only answerable for the special matter for which they stipulate ; mainpernors must produce the party to answer all charges whatsoever. Again, bails were not always bound in a sum certain, while mainpernors were. Again, one bailed is still in the eye of the law in custody ; but one delivered j;er manucaptmiem is altogether out of custody (see Bail, p. 197). The writ de odio et atia was used for releasing a person maliciously imprisoned on a charge of homicide ; and it was a writ which directed the jury to decide if the accusation was properly laid, or maliciously [propter odiam et atiam), for the latter was bailable. It was only issued by royal favour, and on payment of whatever the king chose to accept. This writ was made a matter of right by Magna Charta. It is said by Coke to have been abolished in 28 Edward III. c. 9, and revived again by 42 Edward III. c. 1 ; but this is very doubtful. For this provision of Magna Charta was re-enacted by 9 Henry III. c. 29, and again by 28 Edward III. c. 3, and by several other statutes of Edward III. and Eichard II. The ancient remedy of appeal of imprisonment appears to have become obsolete at an early date. CKIMINAL LAW. 203 The remedies according to Coke for false imprisonment are : — 1. Those given by Magna Charta. 2. An action for false imprisonment at common law. 3. An indictment at the king's suit ; and 4. Habeas corpus. Arbitrary imprisonments were practised by the Privy Council under Elizabeth, and w^ere remonstrated with by the judges in 1591 (see p. 92), and were declared illegal by the Petition of Eight in 1628 (cf. Habeas Corpus, p. 88). Felony. — The distinction between felony and mis- demeanoui- is purely historical, and is not based upon any intrinsic difference in the nature of the crimes included thereunder. It originated in the feudal system, and was a synonymous term with forfeiture of lands or goods (see Forfeiture, p. 205) : hence all crimes which occasioned such forfeiture were termed felonies, and gradually the term " felony " came to mean the crime committed, and not the consequence which followed upon the crime. It is said to be derived from " fee," meaning a feud or fief, and " Ion," meaning value or price, that is, the consideration which a man gives for his fief, or for which he may forfeit it ; or from " fell," meaning bitter, wicked.^ Originally it included treason, for treason occasions a forfeiture ; and the Statute of Treasons (25 Edward III. c. 2) uses the phrase, "whether they be treason or other felony". Although treason may still be included under felony they are not synonymous terms. Capital punishment is not a necessity in felony ; for there may be felony which is not capital, as larceny, and capital punishment might be inflicted although the offence was not felony, as formerly in the case of heresy at common law or the punishment oi peine fort et dure. However, the idea of capital punishment was generally 1 A breach of trust between man and lord. I. P. and M. 284 ; II. 463. *204 CRIMINAL LAW, connected with felony ; ^ and so if a new felony is created by statute, the law implies a capital punishment if one be not expressly mentioned. The importance of all this is, how- ever, much lessened by 33 and 34 Vic. c. 23, which was passed to do away with forfeiture for felony, and consequently the ancient test of felony, namely forfeiture of lands or goods, no longer exists. Fines.— Fines were one of the most ancient methods of punishment, and take their origin from the compensation payable for killing a man (wergild), or for bodily injury (hot), or from the fine payable to the king (wite) for a breach of his peace. Fines in modern law may be regarded as a development of the wite. In Henry II.'s time came the first limitation on fines. They were regulated by Magna Charta to the effect that " a free man should only be amerced, saving to him his contenement " (which means his countenance, or that which is necessary for his maintenance in his position, as the books of a scholar or the armour of a soldier), " and a villain saving his wainage " (the wagon or wain was the contenement of a villain or husbandman, otherwise he would have had to carry his burden on his back). The amercement in all cases was to be assessed by the oath of honest men of the neighbourhood. Amercement (amerciare, to fine) exactly represents the wite, and was expressed at the end of all judgments, by the words : " and the said B. in mercy" (sit in misericordia). These amercements were arbitrarily imposed, whereas fines were fixed punishments, settled by statute. The amerce- ment in the lower courts was affeered or settled by affeerors, persons sworn to inquire, according to Magna Charta. In the superior courts affeerment was by the coroner, except over the officers of the courts, when the judges themselves alfeered the amount. ^ See note hereon in II. P. and M. 465. CKIMINAL LAW. 205 It is in connection with amercements imposed upon persons not olficers of the court that we first find the term " fine " ^ used (Griesley's case, 8 Eep. 38, and God- frey's case, 11 Eep. 42). Fines were referred to by 3 Edward I. e. 6, and were fixed in military matters by tlie statute de militihus (1 Edward II. st. 1). The practice in the superior courts was to inquire what a man could pay the king yearly, saving his maintenance, and that of his wife and children. Such fines were called ransoms, because they ransomed a man's life from the king (see Norton's case, Dyer, 232, a.). Then, instead of an excessive fine which he could never have paid, and according to the maxim qui non habet in crumena luat in corpore, he would be imprisoned until he did pay, which meant perpetual imprison- ment. Then, instead of a fine, a limited imprisonment was inflicted. By 12 Charles II. c. 24, fines were regulated, and by the Bill of Eights (1 William and Mary, session 2, c. 2) excessive fines were forbidden. But they had previously been imposed in Hampden's case and in Williams' case. In the Earl of Devonshire's case (11 St. Tr. 1353), the fine was £30,000, merely for striking within the king's palace. The fines of the Star Chamber were most excessive, especi- ally in James I.'s reign. In Barnardiston's case the law was discussed ; and now fines are regulated by the various statutes which deal with the different offences punishable by fine, based upon the principle of the Bill of Eights. Forfeiture. — This is based upon the feudal system in this country. But it certainly was well known in the Saxon times ; for it is derived from the fact that a person who had broken with society and who had disregarded the restraints of government, ought to be put out from the community, and his property forfeited to the community, which afterwards came to be represented by the sovereign. 1 Finem fcccere, to make an end of the matter by a bargain between the judge and the defendant. II. P. and M. 516. 206 CRIMINAL LAW. Forfeiture was also recognised as a punishment in many civil matters, as, for instance, in cases of leases, of copyholds, of mortmain, of simony, of bonds, of recognisances and the like.^ It was the foundation of the feudal system that gave forfeiture its prominence as connected with the land. By the Charter of Henry I. it was expressly determined that the king's forfeiture of the lands of convicted persons should only be for a year and a day. This right was a limitation upon his former right of committing waste upon all their lands by pulling down their houses, cutting down their woods, extirpating their gardens, and ploughing up their meadows, and instead of this destruction he took the profits for a year and a day. This punishment was similar to that of other nations, as we learn from the decrees of Nebuchad- nezzar and Cyrus in the books of Daniel and Ezra, which ordered the houses of criminals to be made a dunghill. The charter of Henry I. was followed up by Magna Charta. But in course of time the king took his profits for a year and a day, and his ancient right of waste as well (17 Edward II. the statute de pmrogativa regis). In later times it was customary for the party liable to com- promise with the king for his right ; but by 54 George III. c. 145, the penalties of forfeiture of land, excepting in cases of treason or murder, were limited to the period of the life of the offender, so as not to prejudice his heir. Forfeiture of goods and chattels followed immediately upon conviction, whereas lands were not forfeited except on attainder. Forfeiture on attainder related back to the lands held at the date of the guilty act. The theory as to conviction was extended to cases where the party fled, and the jury used to find that he had fled ; whereon forfeitm-e of his goods and chattels ensued. This became obsolete ; and by 7 and 8 George IV. c. 28, the inquiry as to flight was expressly abolished. 1 Originally it was for treason only, whereas escheat was for any felony. I. P. and M. 332. CRIMINAL LAW. '207 By the Felony Act of 1870, 33 and 34 Vic. c. 23, all forfeiture was taken away in cases of treason and felony ; and therefore the only case in which it now remains is in outlawry. Outlawry on a criminal charge is still in force. Gambling. — There does not appear to be any statute upon the books with reference to gambling or gaming until the time of 33 Henry VIII. c. 9, although it was an offence long before that date. That statute prohibited all but gentlemen from playing certain games, except at Christmas, under penalty of fine and imprisonment. It was followed up by 16 Charles II. c. 1, which limited bets to £100. In 9 Anne, c. 14, we find all securities for money won by gaming declared illegal, and £10 fixed as a limit for losses at one time at play. Many statutes were passed in the reign of George II. especially as to gaming houses ; and by 13 George II. c, 19, the increasing number of horse races was restricted (re- pealed by 3 and 4 Vic. c. 5). These were followed by several statutes in the present reign, which prohibited all games not being merely games of skill. Their object was to suppress common gaming houses, which include all betting houses, and also all betting carried on in a public place. Homicide. — The history of murder, or secret killing as it was originally understood, is difficult to trace with accuracy. As early as 860, under Ethelbert, we find the system of wer and bot and wite in full force, and it is noticed in the laws of Alfred in 871. At the time of Athelstan, in 925, we hear of "morth"as equivalent to secret killing; hence the expression sometimes used, " open morth," is inaccu- rate and misleading.! The law of Canute, in 1017, confirmed the earlier laws. The laws of Edward the Confessor, in 1042, clearly identi- fied murdrum with morth, and this was recognised by the 1 According to II. P. and M. 456 it means one taken in the act of secret killing. 208 CEIMINAL LAW. laws of Henry I. in 1100. The doctrine of the law hitherto had been that homicide was a mere wrong against the individual, susceptible of compensation. In the time of Bracton murder was understood as secret killing, involving a fine upon the township, because by his time it was a presumption of law that all the inhabitants of the township were French, and there was no presentment of Englishry. Presentment of Englishry originated under the Norman rule. It was due to the numerous assassinations of the Norman invaders by the conquered Britons. To prevent these crimes it was ordained that the Hundred should be heavily fined for every Norman secretly slain in it. And every one so slain was presumed to be a Norman, unless he was proved or presented by his four nearest relations to be an Englishman, in which case the Hundred was not fined. Presentment of Englishry was aboHshed after 1340 (14 Edward III. c. 4). The next development was the division of murder into three heads. First, homicide of the worst kind. Second, excusable homicide {se defendendo or per infortunium), the consequence of which was the forfeiture of goods, wherein we see a survival of the ancient hot and wite. This for- feitm'e of goods was not relieved against until 1532 by 24 Henry VIII. c. 25. In order to acquit a person on the ground of self-defence, it was necessary by the Statute of Gloucester, 6 Edward I. c. 9, for the jury to find that it was done in self-defence, and not by way of felony, nor of malice aforethought ; and this method of procedure was recognised by 16 Kichard II. c. 6, in 1392. The third head was justifiable homicide. By 23 Henry VIII. c. 1, and 1 Edward VI. c. 12, benefit of clergy was taken away in cases of murder. In Henry VIII. 's reign murder by poison was made treason, and punished by boiling to death (22 Henry VIII. c. 9, this Act being occasioned by the Bishop of Eochester's CRIMINAL LAW. 209 cook poisoning several people ; it was, however, shortly after repealed by 1 Edward VI. c. 12). The power of the Crown to pardon on conviction for murder was much abridged by 2 Edward III. c. 2, and 14 Edward III. c. 15; but this was altered shortly afterwards, and the restrictions subsequently imposed were less severe (13 Richard II. St. 2, c. 1). A custom grew up of granting pardons 7ion obstante the Statute of Eichard II. ; but after the Bill of Rights (1 W. and M. sess. 2, c. 2) this power fell into disuse. The present power of the Crown to pardon in murder is undoubted (R. v. Parsons, 1 Show, 283). The modern principles of homicide are to be found in Hale's Pleas of the Croion, and were clearly enunciated by Holt, C. J. in R. v. Plummer (Kel. 109), and in R. v. Mawgridge (17 St. Tr. 57), and again by Lord Raymond in R. V. Oneby (17 St. Tr. 27). Cf. Appeal of Felony, p. 195. The following is an abstract of an ancient record of an indictment on conviction for murder : Oxford to wit. Session of Oyer and Terminer. Commission re- cited of Oyer and Terminer, and of the Peace. Grand Jury. Indictment ("that A. B. not having the fear of God before his eyes, but being moved and seduced at the instiga- tion of the devil, on the etc., did, etc., upon one C. D. with a certain drawn sword of the value of 5s. etc.," the last words were for the purposes of " deodand," see p. 201). Capias. Session of gaol delivery. Arraignment. Plea, not guilty. Issue. Venire (jury of the vicinage come to represent the ancient witnesses). Verdict, guilty (" and that he has not nor had any goods or chattels, etc., in the county, etc.," because if he had they would have been forfeited to the Crown). Judgment of death, and dissection (" that his body be dissected and anatomised"). Larceny.' — The distinction between larceny as an offence against an individual and as against the State is a modern 1 See I. P. and M. 564 ; II. 156-167. 14 210 CEIMINAL LAW. theory. Anciently, it was purely a personal injury, to be compounded for by the offender. The Saxon law punished larceny nominally with death, but the accused could always buy himself off at a fixed price. Capital punishment was limited to matters above the value of twelve pence, and this value was fixed by the laws of Athelstan, and it was the origin of the distinction between grand larceny and petty larceny. This distinction was enforced in 9 Henry I. when capital punishment for gi-and larceny could not be com- pounded for, and continued to exist with benefit of clergy until modern times. One shilling at that time was the value of a pasture-fed ox, and was probably equal to about 13s. 4d. at the present rate. Petty larceny under twelve pence ^ was a felony, but not capital. This distinction is now abolished (24 and 25 Vic. c. 96). Lunacy. — The question of lunacy in connection with the criminal law is one of great interest and greater difficulty. The history of the criminal responsibility of madmen may be shortly summarised. The earlier law held every man responsible for his actions unless he was wholly deprived of his memory and under- standing. This was the doctrine of Coke and Hale, and it was enforced in various trials (Arnold's case, 16 St. Tr. 695, Bee the charge of Tracy, J. to the jury). It was almost impos- sible to escape conviction, because the prisoner had to establish his own lunacy, and not being allowed counsel he had him- self to examine the witnesses and speak in his defence. The capacity to do this was a sufficient refutation of his lunacy, as lunacy was then understood (Ferrer's case, 19 St. Tr. 885). Blackstone, writing about 1765, adopted the current view of the law ; but even then signs may be traced of an improve- ment in the manner of regarding criminal lunatics. ^ This limit allowed one to steal enough to keep from starvation for eight days. II. P. and M. 496. CEIMINAL LAW. 211 The old law was finally abandoned in Hadfield's case (27 St. Tr. 1281), in 1800, when the test of delusion was adopted. In that case it was rightly stated by Erskine, that the old legal definition was unsound, no such madman having ever existed, for such a person would be an idiot. Erskine then went on to rely upon a delusion existing at the time of the offence and connected with the act, and this doctrine was upheld by the Court. Hadfield's case has never been overruled ; and it appears, therefore, that (apart from McNaghten's case) it ought to be the guide as to what constitutes insanity at the present time. For some time, however, the administration of the law fluctuated ; but in McNaghten's case (10 CI. and F. 200), the existence of a delusion was held to be an index of lunacy, and the prisoner was held free from criminal re- sponsibility. This case was expressly put forward as one of partial insanity. Consequent upon this case came the opinions of the judges, delivered on the questions put to them by the House of Lords. It has been suggested that not being asked by the lords to answer in their judicial capacity, these answers are not a binding authority in point of law (Stephen, Hist. ii. 154). Or, to put the same matter in a different way, that the lords have no right to consult the judges upon mere abstract propositions of law, but only on actual cases or statutes (see p. 92). This seems to be the correct view. It may be further said that the answers of the judges can only have binding authority so far as they enunciated the law as it then existed, which was the law as governed by Hadfield's case. The judges' answers cannot make new law ; and they must be regarded as authority upon the law then actually in force, which, since Hadfield's case, had adopted delusion as a test of insanity. If we examine the answers carefully we find evidence 212 CRIMINAL LAW. that the judges recognised this test of delusion. The first answer expressly assumes that insanity includes cases of partial delusion, the party being in all other respects sane, and lays down that the act must be shown to be connected with the delusion, and not done with a sane knowledge. And in the answer to the fourth question the judges premise that partial delusion is sufficient 'prima facie to exonerate from criminal responsibility, but proceed to ascribe to a party suffering from such delusion the same capacity as a sane person has of distinguishing between legal right and legal wrong, and of resisting an impulse to commit a legal wrong. This conclusion is obviously irreconcilable with the premises. Given a diseased mind, given a delusion, and given an act connected with that delusion, it is impossible to ascribe rationality to that act. Such rationality is after all merely assumed in order to rejudge the question of responsibility or irresponsibility. Since the answers in McNaghten's case a variety of directions to juries have been given from the Bench, which, although ostensibly following the dicta of these answers, have practically in many cases recognised that the true test is delusion. How far it would be necessary to establish an obvious connection between the delusion and the offence is a doubtful point. It is one of the most difficult problems of insanity to trace the connection between a particular delusion and an act which may appear at first sight to l)e totally independent of the delusion. But once the existence of a disease in ; the mind is ascertained, it is impossible to say with certainty what actions prompted by that mind are untainted by that disease. The subject has been inquired into on several recent occasions, notably in 1865 by the Eoyal Commission on the punishment of death, in 1874 by the select committee CRIMINAL LAW. 213 on the Law of Homicide Amendment Bill, and in 1879 by the Royal Commission on the criminal code. The earlier statutes of 39 and 40 George III. c. 94, and 3 and 4 Vic. c. 54, which dealt with this subject, were partly repealed and amended by the Trial of Lunatics Act, 1883, the principal effect being to abolish the general verdict of not guilty, and to substitute a special verdict of guilty but insane. (As to lunatics in general see the Act of 1890.) Mayhem. — Mayhem is the forcible depriving another of a member of his body useful for fighting. Undoubtedly it was originally punished by retaliation, which was the earliest recognised punishment in primitive societies {nisi cum eo pacit talio esto, the law of the Twelve Tables). Re- taliation was the law in Saxon times, but it gradually became obsolete, and at common law mayhem was only punishable by fine and imprisonment. By 5 Henry IV. c. 5, it was made a felony to put out the eyes, or cut out the tongue of any one so as to prevent his being able to identify his assailant or give evidence against him. Next, 37 Henry VIII. c. 6, for cutting off a person's ear made the offender liable to an action for treble damages and to a fine of £10 to the king. Then came the Coventry Act, 22 and 23 Charles II. c. 1, so called because it was passed in consequence of an assault upon Sir John Coventry and the slitting of his nose, supposed to have been done at the instigation of the Court for speeches delivered by him in parliament ; and this statute made mayhem a capital felony in almost every case without benefit of clergy. Under this statute the trial of Coke and Woodburn took place (16 St. Tr. 53). Then by 9 George I. c. 22 (the Waltham Blacks Act), shooting at a person was made a capital felony without benefit of clergy. The Coventry x\ct was repealed in the present century by 9 George IV. c. 31. The law is now regulated by 24 and 25 Vic. c. 100. 214 CEIMINAL LAW. Outlawry. — The punishment of outlawry is as old as the law itself. In primitive tribes it existed, as in the Brehon law, under the name of fuidhir, and it included those persons who for some act of blood had fled the kingdom, and were not allowed to return, also those who could not pay the " wer" to the relatives of the deceased, also finally, as a later growth, those who were expressly banished and put out- side the laws, by the people or by the king acting for the people. Originally, the object of outlawry was attained not by direct punishment, but by putting the person outside the pale of the law, so that no one could be made responsible for doing any injury to him or killing him. He bore caput lupmtwi, for as he could not pay the " wer" of a man he had killed, he was also deprived of his own "wer". The result was that to save his life he withdrew himself from the tribe, and went into voluntary banishment (cf. the aquae et igni interdictio of the Eoraan law). It existed in the Saxon system, where its importance iu criminal cases was due to the joint responsibility of the family or the clan (cf. the system of Frankpledge, p. 52), see the cases of the outlawry of the Godwin family, and again of Sweyn. In civil matters its object was to compel the party to submit himself to judicial authority. The severity of primitive punishments may be ascribed to the fact that they were a mitigation of this most serious retribution for crime. Under the Norman system, outlawry involved a forfeiture of goods. It could, therefore, only be for felony (see p. 203). In Bracton's time, process of outlawry was allowed in tres- pass vi et armis, and afterwards by many statutes in almost all proceedings. Later it became settled law that the killing of an outlaw might amount to murder. It was expressly provided by Magna Charta that no CRIMINAL LAW. 215 person should be outlawed except by the lawful judgment of his peers or by the law of the land. The proceedings in outlawry were as follows : the sheriff to a writ of capias ad respondendum makes a return of non est inventus. Thereon, alias capias issues, and ^gaim p)luries capias, and then the writ of exigi facias (cause him to be required), whereupon the sheriff requires or proclaims the party at five successive county courts, and requires him to surrender himself. On the return of quinto exactus follows ideo utlagatus (that the party was by the judgment of the coroners of the king of the county aforesaid, according to the law and custom of the kingdom of England, outlawed). Then follows the writ of proclamation on which the sheriff proclaims the party three times in different public places, and thereon the outlawry is complete. The writ of capias utlagatum lay to arrest the outlav.- wherever he might be found. At any time the party could come in and surrender and reverse the outlawry, on showing cause, as was done in Tynte v. Eeg. (7 Q. B. n. s. 216) after a hundred and sixteen years in the case of the Duke of Wharton. A woman when outlawed is technically said to be "waived". Outlawry with the forfeiture consequent on it still exists in criminal cases, and is not affected by the Felony Act of 1870 ; but in civil proceedings it was abolished by 42 and 43 Vic. c. 59. Owling. — This was the offence of transporting wool or sheep out of the kingdom, to the detriment of the staple manufacture of wool. It was called owling because it was usually done in the night time. It was an offence at com- mon law. By 11 Edward III. c. 1, stringent provisions were enacted with regard to it. This was followed by several other statutes, notably 8 Elizabeth, c. 3, which inflicted the punishment of cutting off the left hand and nailing 216 CEIMINAL LAW. it up in a public place. By 12 Charles II. c. 32, the ship and cargo were to be forfeited, and this was confirmed by 7 and 8 William III. c. 28. By 4 George I. c. 11, amended by several other statutes (12 George II. c. 21, and 19 George II. c. 34), a penalty of transportation for seven years was imposed. Finally, by 5 George IV. c. 47, the offence was abolished. Peine forte et dure. — This was the punishment for standing mute of malice upon a criminal charge. It was introduced by the Statute of Westminster I. (3 Edward I. c. 12), although it is said to have existed pre- viously in the form of death by starvation.' Its object was to make the prisoner plead to an indictment for a felony, because, unless he pleaded, he could not be tried. This did not apply in high treason, for there standing mute was equivalent to conviction, and so too in misdemeanours. If the accused could not be tried he could not be convicted, and therefore no forfeiture of his estate would ensue, and the corruption of blood was saved, although his goods were forfeited ; and thereby the children of the accused were pre- served in their inheritance. On a prisoner standing mute a jury was empannelled to try if he be mute of malice or ex visitatione Dei. If they found the former he was to be admonished three times ; and, after a respite of a few hours, his sentence was to be clearly read to him that he might know his danger ; and he might even then claim benefit of clergy. The sentence, which included a person of any sex or of any degree, was that he should be placed on his back naked, and upon his body should be placed as great a weight of iron as he could bear and more ; and on the first day three morsels of the worst bread should be given him, and on the second day three draughts of standing water nearest to his prison door, and so alternately till he died; but the judgment formerly was, until he answered (see Hawkins, II. cap. 30, sec. 16). 1 II. P. and M. 649 says the puuishment previously was only imprisonment. CRIMINAL LAW. 217 The "pressing to death" was gradually introduced be- tween the reign of Edward I. and Henry IV. for the first record of it is in 8 Henry IV. when the judgments ran, until he died, which must have happened quickly by pressing. The older records imply a punishment by starvation, sub- sistence for the space of several days being possible, and then the judgment ran, until he answered. This punishment was abolished by 12 George III. c. 20. The last case, according to Stephen (I. Hist. 298), was Burnwater's in 1726, but he was not actually pressed to death ; and in 1658 Strangeways died by pressing. Its introduction into our law is principally owing to the fact that torture was not allowed by the common law, and therefore there was no method of ascertaining the guilt of an accused who refused to plead and to put his cause in arbitra- tion and himself upon his country. This was especially the case after trial by ordeal was abolished in 1215. Police. — The Saxon system of police is to be found in the organisation of the Frith borh, or frankpledge (see p. 52). This was followed up by the Assize of Clarendon, 1166, which provided for the responsibility of the district for strangers; and again, in 1776, by the Assize of Northampton. In 1181 was the first Assize of Arms, and this revived the ancient fyrd (the Saxon army) and the organisation of the police. The next step was the system of watch and ward, inaugu- rated in 1233, under Henry III. and this was confirmed in 1252 by the x\ssize of Arms. By the Statute of Winchester in 1285, the liability of the Hundred was established, and further police regulations were made (13 Edward I. st. 2, c. 6), by this statute high constables were appointed. By the same Statute of Winchester, the law as to hue and cry (huer, to shout) ^ after all malefactors was settled 1 For other derivations see II. P. and M. 576. 218 CRIMINAL LAW. This proceeding had already been allowed by 3 Edward I. c. 9, and 4 Edward I. de officio coronatoris ; and it was made an express part of a constable's duty, and used as a means of arresting a felon in order to avoid the liability of the Hundred for the wrong done. By 27 Ehz. c. 13, hue and cry had to be by horsemen as well as by footmea. A penalty was imposed on any constable for neglecting it, by 8 George II. e. 16. But hue and cry is now obsolete, most of the foregoing statutes having been repealed by 7 and 8 George IV. c. 27. In 1326 conservators of the peace were appointed (see under Justice of the Peace, p. 99). The modern system of police was not established untO the present century, when, in 1829, it was first organised — as to the metropolis in 1836, as to all other boroughs and as to all counties during the period from 1839 to 1856 (cf Constables, p. 200). Prisons. — Henry II. is said to have erected gaols in every county. One of the oldest prisons appears to have been the Fleet Prison, which existed in the time of Edward I. and was used by the Star Chamber to enforce obedience to its ordinances, and to carry out its punishments. This prison was also used for debtors and for persons ordered to be im- prisoned for contempt of court by the Court of Chancery, the Court of Exchequer and the Court of Common Pleas. The Marshalsea Prison was used by the Com't of King's Bench. In 1561 it appears that the wardenship of the Fleet Prison was vested in Sir Jeremy Whichcote and his heirs, but later on this patent was set aside. It was subsequently regranted and finally sold to the highest bidder. The horrible practices which this led to were exposed in the case of Huggins and Bambridge (17 St. Tr. 297), and an Act was passed in 1729 to put an end to the then state of things. The visitation of prisons by Howard the philanthropist CRIMINAL LAW. 219 dates from 1773, and is the era of the reform in prison hfe. In 1782, houses of correction were established by 22 George III. c. 64, and in 1784 county gaols were established by 24 George III. c. 54. Prisons were fm'ther regulated by the Acts of 1823 aud 1865, and finally by the Prison Acts of 1877 and 1884. Rape. — Eape was always a crime severely punished in most systems of jmisprudence, notably in the Eoman law and the Jewish law. By the Sa^xon law death was the punishment, and this appears to be derived from the Teutonic custom. Under the Norman rule it was changed to the loss of both eyes and castration, and this was the law according to Bracton. In the reign of Edward III. the woman raped could accept the ravisher for her husband with the consent of the judge and her parents, and so avoid his punishment. By the Statute of Westminster the Eirst (3 Edward I, c. 13) the offence was changed from felony to trespass, and the punishment was two years' imprisonment and a fine at the will of the king ; but if prosecution was taken within forty days the old law still prevailed. Very soon, by the Statute of Westminster the Second (13 Edward I. c. 34), it was again made a felony. Benefit of clergy in cases of rape was taken away by 18 Elizabeth, c. 7. These statutes continued in force until the present century, when, by 9 George IV. c. 31, they were all repealed, and rape was made a capital felony. In 1841 the punishment was altered to transportation for life (4 and 5 Vic. c. 56, s. 3). But by the Criminal Consolidation Act of 1861 (24 and 25 Vic. c. 100) the limit of punishment for rape was fixed at penal servitude for life or imprisonment for two years ; and see further upon this subject the Criminal Law Amendment Act of 1886. Riot. — Riot was always an offence by the common law 220 CEIMINAL LAW. of the realm. It existed where three or more persons assem- bled together and proceeded to commit violence; and this could be suppressed by force by the sheriff with the jjosse comi- tatus, as was afterwards enacted by the statute 13 Henry IV. c. 7. Any killing or wounding in suppressing a riot was always held justifiable; see the case of the Bristol riots (R. V. Pinney, 5 C. and P. 254). Statutory riot is a different offence. This is where twelve or more assemble together to commit violence, and do not disperse upon proclamation made to them. This offence was first made high treason by 3 and 4 Edward VI. c. 5, which statute was repealed by 1 Mary, c. 1, and the offence was made a felony by 1 Mary, st. 2, c. 12. This last statute would have lapsed at the end of her reign, being only made for her life, but by 1 Elizabeth, c. 16, it was continued for the life of that queen. From her death until George I. no Eiot Act existed. Then came 1 George I. st. 2, c. 5, the Eiot Act, which is the basis of the modern law. Vagrancy. — The origin of the law as to vagrancy com- mences with the position of the serfs of the early Norman baron. Their position was defined by the Statute of Labourers (23 Ed- ward III. c. 1), which bound them to the soil and settled them oil the site of their labour. From this date to George III. numerous statutes were passed, notable amongst which are the following : 12 Eichard II. c. 3, which enforced the ob- taining of a licence to beg, and first recognised the impotent poor ; 2 Henry V. c. 4 ; 22 Henry VIII. c. 12, and 1 Edward VI. c. 2, both these last were violent measures directed against vagrants, and almost reducing them to slavery. These were followed by 39 Eliz. c. 4. By the statute of 22 Henry VIII. c. 10, gipsies (or, as they were then called, Egyptians) were banished from the king- dom, and afterwards this was enforced by 1 and 2 P. and M. 0. 4, and 5 Eliz. c. 20, which punished any persons who CRIMINAL LAW. 221 imported gipsies into the kingdom. These statutes were all repealed in the time of George III. and George IV. Idle soldiers and mariners, or persons pretending to be such, were, if found wandering about, considered guilty of a capital felony, 39 Eliz. c. 17 ; but this was done away with by 52 George III. c. 31. In 1744 vagrants were classified into three divisions by statute (17 George II. c. 5), as follows : — 1. Idle and disorderly persons. 2. Eogues and vagabonds. 3. Incorrigible rogues. This statute was re-enacted by 5 George IV. c. 83, which is still in force as the foundation of the law of vagrancy. Witchcraft. — Witchcraft owed its place in the criminal law in this country to the influence of the Church, who took their principle from the text in the Bible, "Thou shalt not suffer a witch to live". It was punished with a terrible death by burning alive. A well-known instance is that of Joan of Arc, the French heroine, burnt at Eouen. In 1441, Eleanor Cobham, Duchess of Gloucester, was convicted of witchcraft. Jane Shore was accused by Eichard II. of bewitching him and causing his arm to wither and a hump to appear on his back. The first important statute was 33 Henry VIII. c. 8, which made it a felony without benefit of clergy. During the sixteenth and seventeenth centuries, trials for witch- craft frequently occurred. In Scotland they were numerous, the suspected women being subjected to the most barbarous cruelties (see Scott's Demonology and Witchcraft), In 1616 was Mary Smith's case (2 St. Tr. 1049), and in 1645 the Essex witches (4 St. Tr. 817, where much historical knowledge is to be found). The law had been previously strengthened by several statutes, notably 1 Jac. I. c. 12. 222 CRIMINAL LAW. In 1665, we find Sir Matthew Hale directing a jury that witchcraft was possible (the Suffolk Witches, 6 St. Tr. 647). Towards the end of the seventeenth century, trials for witchcraft were extremely common in the New England colonies (in America). The case of the Devonshire witches occurred in 1682 (8 St. Tr. 1018), they being burnt on the slenderest evidence. Soon after, the tide of public opinion began to turn (see Hathaway 's case, 14 St. Tr, 639), and the expression of the general feeling resulted in the legislative interference of Parliament. By 9 George II. c. 5, this offence was abolished, and all persons pretending to use witchcraft or tell fortunes, or the like, are to be held guilty of misdemeanour ; and by 5 George IV. c. 83, such persons are to be treated as rogues and vagabonds. APPENDICES. THE ORIGIN OF PROPERTY IN LAND. Theories. 1. Occupatio of res nullius (Romau law (see Cicero) ; Thiers). 2. Labour (by the economists, Locke). 3. Contract. 4. Creature of law (Montesquieu). 5. Economic theory of nature, security of property as a stimulus to labour and saving (Mill). 6. Natural right (Fichte). 7. Growth of sovereignty of tril)al chief, and the disentangle- ment of individual rights from tribal rights (Maine). THE GROWTH OF PROPERTY IN LAND. The following are the stages through which most communities pass : — 1. Hunting, limited districts, e.g. the elephant hunting of the African tribes. 2. Pastoral. 3. Nomadic agricultural (dawn of property). 4. Settled agricultural {tribal land). 5. («) Village community ; pure communism, redistribution every year. (6) House community ; shifting severalty every seven years, (c) Joint family ; family property. 6. Individual property in land grows out of family property, being partly due to the special rights of the chief in the various forms of : — (a) Karta (Slavonic). (6) Khosain (Russian). (c) Chief of Sept (Irish). (d) Teutonic headman. (225) 15 226 APPENDICES. (e) Lord of manor. (/) Paterfamilias. And partly due to different causes whicli unconsciously con- tributed toward the establishment of individual rights over the land, e.g. : — (a) The right of partition (between heirs). (6) The influence on the eldest son's position of the Roman theory oi Dominium. (c) Execution for debt. {d) Feudalism, (e) The Church. (/) Improving land, reclaiming waste, (gf) The example of moveables (individual property there- in). Qi) Acquired lands as opposed to ancestral. Fees of con- quest as distinguished from fees of heritage. THE PRIVILEGES OF THE LORDS AND OF THE COMMONS. As to the Lords. Op the Members collectively. L Judicial. 2. Expulsion. 3. Originating Bills affecting the peerage. 4. Determination of peerage claims. 5. Commitment. 6. Demanding presence of members. 7. Services of the law officers of the Crown. 8. Excluding disqualified persons. Op the Members individually. 1. To have a writ of summons. 2. Protest of dissent on the Journals. 3. Access {always as peer of the realm). 4. From serving as witness (waived). 5. „ „ „ juror. 6. Speech. 7. Arrest. APPENDICES. 227 As to the Commons. Of the Members collectively. 1. Favourable construction of their acts. 2. Access. 3. Publication of debates. 4. Impeachment. 5. Exclusion of strangers. 6. To punish own members. 7. To punish others for breach of privilege. 8. To provide for proper constitution of the House. 9. Exclusive cognisance of matters arising in the House. 10. Originate Money Bills. Of the Members individually. 1. Speech. 2. Arrest. 3. From being juror. 4. From attending as witness (waived). THE CONFLICTS BETWEEN THE LORDS AND COMMONS. 1. 1407, on supply. 2. 1621, Floyd's case. 3. 1668, Skinner's case. 4. 1671, the right of the lords to amend Money Bills. 5. 1675, the appellate jurisdiction in equity of the Lords (Shirley v. Fagg). 6. 1700, the resumption of Irish forfeited estates. 7. 1700, the trial of Somers. 8. 1704, on the jurisdiction of the Commons as to elections (Ashby V. AVhite). 9. 1770, on exclusion of strangers. 10. 1783, Fox's India Bill. 11. 1832, the Reform Bill. 12. 1860, the paper duty. 13. 1872, the abolition of purchase in the army. 14. 1885, the redistribution of seats in connection with the extension of the franchise. 15. 1893, the Home Rule Bill. 228 APPENDICES. THE EIGHT OF PARLIAMENT TO CONTROL TAXATION. 1215, Magna Charta. 20 Henry III. c. 29, 1265, First Parliament. 1275, Gustiima antiqua. 1283, Change from local taxation to central. 1294, ■^ Parliament summoned to tax, quod omnes tangit ah omni- 1295, / bus comprobetur. 1297, Confirmatio Gartarum (25 Edward L c. 6). De Tallagio non concedendo (34 Edward I. st. 4). 1300, Articulae super cartas. Edward III. and Richard II. 1330-1390. 9 Henry IV. (indemnity of the Lords and Commons). 1 Richard III. c. 2 (benevolences). Tudors : benevolences, monopolies. 1571, ^ ^^'''' L monopolies. 1601, I 21 Jac. I. c. 3, i 1608, Book of rates. 1610, Resolution of Commons (on Bates' case, 1606). 1614, Impositions denounced. 3 Car. I. c. 1 (Petition of Right). 1629, Rolle's case (tunnage and poundage). 1637, Ship money, Hampden's case. 16 Gar. I. c. 8 (tunnage and poundage impossible). ,, c. 10 (ship money). 1 AVilliam and Mary, sess. 2, c. 2 (Bill of Rights). After settling its right to control taxation. Parliament managed by the commencement of the present reign to ensure that the money collected should be spent in a proper way, and upon the particular objects for which it was voted. Subsequent to 1834, and until 1866, the control of the issuing of money to make payments to the various departments, and of the audit of the accounts, was in the same hands. Since 1866, Parlia- ment has obtained a control over the auditing of public accounts. APPENDICES. 229 THE CUSTOMS. The right to take customs (the ancient consuetudines) probably originated in Purveyance. The Crown had this right given to it because it had to protect and maintain the ports and harbours of the realm, and because it allowed subjects to leave the realm with their goods. In 1275 (3 Edward I. Statute of Westminster the First), custuma antiqua vel magna were payable by all (aliens had to pay half as much again), and were charged upon exports of the three staple commodities — wools, skins, and leather ; so called, because they had to be exported from those ports where the king's staple was established to assess the duty payable. Gustuma, therefore, properly means that which is due upon a staple commodity. When allowed by Parliament it is termed a Subsidy ; otherwise it is an Impost. Edward I. also substituted Butlerage for the ancient Prisage. Every ship importing over twenty tuns of wine had to give one tun from before the mast, and one tun from after the mast : this was prisage. It was changed to 2s. on every tun imported, payable by aliens only : this was butlerage, being paid to the royal butler. In 1297, by the Gonfirmatio Cartarum, the customs were limited to the antiqua. In 1303, by the Carta mercatoria, the aliens' duty was introduced. These nova vel parva custuma were 3d. in the pound on all imports and exports, paid only by aliens in return for special privileges accorded them. In 1340, any maltote was declared illegal. In 1371, the indirect tax on wool ended. In 1373, tunnage and poundage appear. Tannage was a wine duty in addition to Vjutlerage. Poundage was a duty of Is. in the pound (ad valorem) on all imports, except wine. In 1376, tunnage and poundage were granted for the life of the king. Under the Tudors came extraordinary Impositions. In 1606, Bates' case. In 1608, the Book of Rates. 230 APPENDICES. In 1610, the Resolutiou of the Commous. In 1614, Impositions were denounced. In 1628, the Petition of Right (3 Car. I. c. 1) forbade illegal exactions. In 1629, Rolle's case. By 16 Car. I. c 8, the Long Parliament put an end to all customs and other taxes without the consent of Parliament. In 1660, consolidation of customs under (a) duty on wool and cloth ; (b) tunnage ; (c) poundage. In 1787, Pitt's consolidation. In 1842-5, Peel's reduction of customs. The era of Free Trade now commences. But many customs still exist, e.g. the tea duty. In 1876, the Customs Consolidation Act, which has been amended by numerous recent statutes. THE OFFICE OF SECRETARY OF STATE. The first Secretary was in Henrj' III.'s reign. In 1433, Henry VI. appointed one for French affairs. In 1476, a Principal Secretary was created, and under the Tudors he had greater importance. From 1688 to 1782, were the first Secretaries of State ; one for the Northern department, and one for the Southern. In 1765, in Entick v. Carrington (19 St. Tr. 1030), the office of Secretary of State was clearly defined. In 1782, the Departments were altered to the Foreign and the Home. In 1794, a third was appointed for War, who In 1801, was also given the Colonies. In 1854, the Secretary for War was separated from the Colonies. In 1858, the Secretary for India was created. The Secretaries for Ireland and for Scotland are not Secretaries of State. THE GROWTH OF DEMOCRACY. The transition in this country from Autocracy to Democracy has followed universal lines. The change from the rule of a king to the rule of the people has almost invariably been upon this APPENDICES. 231 development of ideas, — viz. Autocracy, Aristocracy, Timocracy, and Democracy. The power of the Norman kings was finally broken by the barons in obtaining Magna Charta; Autocracy was then at an end. The rule of Aristocracy is seen in the reigns of Edward II. and Richard II. and it was shattered during the wars of the Roses. Its period of renaissance under the Tudors and the Stuarts was not that of the ancient Aristocracy, but of a modern growth, mainly composed of the dependants of the king. With the Revolu- tion of 1688, the power of the Aristocracy passed away. New blood was introduced into the country, new sources of wealth were dis- covered, the whole country side became a gigantic sheep farm, and the age of Timocracy was inaugurated. The riches of the Nabobs acquired iu India gave additional strength to the new system. During the eighteenth century this system was supreme, as we see in the long administration of Walpole and in the successful cor- ruption practised by the Pelhams. It was administration for the Crown, and not yet government for the people. The access of the wealth of the manufacturers reinforced the Timocracy, and the Reform Act of 1832 was the first blow the system received. It was 400 years since any change had taken place in the adjustment of political power ; but it was only thirty-five years before another re-adjustment came in 1867. Still more rapid was the progress, which, in fifteen years, led to a further re-adj ustment in 1884. The fate of Timocracy was sealed in 1867 ; government for the people replaced administration for the Crown ; and, in 1884, the new era of Democracy began. It may confidently be anticipated, that, as the transition of political power has hitherto proceeded upon the same lines as in other States (e.g. Rome), so it will continue with the same result as in other States. THE GROWTH OF LAW. It has often been pointed out by eminent jurists, that the law in this country is subject to change, without being expressly altered by statute. The differences engendered by altered social circum- stances in the relative position of the various classes in this country, and also the broader views which prevail upon most points, notably 232 APPENDICES. theological points, all tend to give a different interpretation of the law at the present day to that given a century ago. The brief historical sketch in the foregoing pages is a sufficient in- dication of the great change that does thus come over the law. It was said by Lord Eldon, speaking of a court of equity, that the court lays down fixed principles to be applied to the circumstances of every case brought before it (Gee v. Pritchard, 2 Swaust. 414). But this doctrine was dissented from by Jessel, M. R. in re Hallett's Estate (13 Ch. D. 710), where he held that equity was partly a modern creation to meet the necessities of the times. It was said by Cole- ridge, L. C. J. that though the law remains, the administration of it changes with the changing spirit of the times (R. v. Ramsey and Foote, 15 Cox, C. C. 235). Undoubtedly the ancient rights of juries give them the privilege of finding any verdict they may please, although by the strict letter of the law they would be comjDelled to find the paity guilty. Juries have exercised this right in many instances, notably in connection with the law of libel (seditious or otherwise), also in cases of dis- tinction between grand larceny and petty larceny. Checks upon Legislation. — The growth of law, apart from judicial decisions which interpret the law, is, of course, due entirely to legis- lation. The influence of equity in developing law may be placed i.mder the head of judicial decisions. The checks upon legislation have hitherto happily been numerous, — a respect for the freedom of contract, for vested interests, for free- dom of opinion (religion, press), for personal liberty, and for established institutions and usages. "Wliether these salutary checks will continue to exist for long seems doubtful. A further restraint is exercised over the scope of legislation by the influence of the Crown, the Cabinet, and the Courts of law. The influence of the lex et consuetudo ParUameuti, which enables the Cabinet to enforce their wishes by resigning office, is now losing its power, while the resjject and influence of one House towariow Stamps). Droits of Adimraltv. Fines (from Wite). First fruits and Tenths.) ,.., . Sale of pardons. ) *^^ ■^°''«- 3ve.— Waifs.— Estrays,— Gold and Subsidy, all staples above ctistuvia antiqua, except duty on wool. Subsidy (as before). Tenths and Fifteenths. Saladio. Loans (all these on personalty). Tenths. Fifteenths. Loans. Benevolences. Letters Patent. Privy Seals. Loans. Property and Income tax. Monopolies. Monopolies (aboUshed Charles I.). Poll. Poll (aboUshed Charles L). Sale of Dispensations. Sale of Dispensations (abolished James II.). Assessed. Excise. 1 J- by Long P&rliaraeut. Postal, j Excise, malt, wine (includes " Assessed "). Postal. Telegraph. Stamps. Death duties. Sale of Offices and Pensions (abol- ished George II.). X 3 1158 00599 5336 k JN 118 AA 001028 108 7