m

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HISTORY OF PROCEDURE
IN ENGLAND.

HISTORY OF PROCEDURE
IN ENGLAND
FROM THE NORMAN CONQUEST

(1066 -i 204)

BY
MELVILLE MADISON BIGELOW, Ph.D.
Harvard University

BOSTON
LITTLE, BROWN, AND COMPANY
1880

MELVILLE M. BIGELOW,
1880.

CHARLES DICKENS AMD KVaNS, CRYSTAL PALACE PRESS.

PREFACE.
Adjective law deals with the courts and with the conduct of
causes ; and writers on the Anglo-Norman period, especially
In line 4, note, p. 224, for " same century " read " next century."
To the Norse names in " Thing" on p. 13, may be added " Thing-
wal" in Yorkshire. 1 Whitby Chart., p. 118 (Atkinson).

service may have been rendered as well to the student of
general constitutional history as to the student of the growth
of a special system of law.
The constitutional historians have had something to say
also of the conduct of causes in Norman times ; but the same
observation is to be made as before. They have written for
laymen ; or rather, constitutional history is not concerned
with technical processes of law, and the -conduct of causes has
therefore fallen but partially within their province. As to
German scholarship, that, in recent times, since the bringing
to light of the mass of materials now available to all, has been
directed to the elucidation of Germanic procedure, broadly,
as a great branch of remedial law, developed and developing,
and not to the conduct of causes in England. The present
work, therefore, occupies new ground in this particular also.

PREFACE.
ADJECTIVE law deals with the courts and with the conduct of
causes ; and writers on the Anglo-Norman period, especially
the constitutional historians, have written of both of these
subjects. But those who have heretofore written of the
courts have presented only what may be called the layman's
view. To complete the subject with the lawyer's side
required, it was conceived, a fresh examination of the whole
subject. The hope is indulged that, in the result, some
service may have been rendered as well to the student of
general constitutional history as to the student of the growth
of a special system of law.
The constitutional historians have had something to say
also of the conduct of causes in Norman times ; but the same
observation is to be made as before. They have written for
laymen ; or rather, constitutional history is not concerned
with technical processes of law, and the conduct of causes has
therefore fallen but partially within their province. As to
German scholarship, that, in recent times, since the bringing
to light of the mass of materials now available to all, has been
directed to the elucidation of Germanic procedure, broadly,
as a great branch of remedial law, developed and developing,
and not to the conduct of causes in England. The present
work, therefore, occupies new ground in this particular also.

Vi PREFACE.
It is hardly necessary to justify the profuseness of illus
tration in that part of the book which treats of the conduct
of causes. It is difficult at best to realise the methods
employed seven and eight centuries ago : the dry statement
of the practice of such remote times would be almost use
less. The author's purpose has been to bring the ancient
methods of the courts home to the reader, and thus make
his undertaking as far as possible a fitting success.
This would be enough for the author to say in his own
behalf; and he will only add that the Appendix contains,
after some records specially referred to in the text, a consider
able collection of Norman writs and charters relating to
litigation in the eleventh and twelfth centuries never before
printed. These will be found to cast a strong cross-light
upon much of the text, and to furnish invaluable aid to
further study. They are the complement of the writer's
collection in Placita Anglo-Normannica, and are designed,
with that collection, to furnish the student with the best
attainable materials for an exposition of the law books and
court rolls of the Anglo-Norman period. The last of the
records in the Appendix is worthy of special notice.
Oxford : August 2nd, 1880.

CONTENTS.

CHAPTER I.
Principles of Criticism 

PAGE I

The Danelag

CHAPTER II.

The Courts

CHAPTER III.

19

The Writ Process

CHAPTER IV.

147

Distraint..

CHAPTER V.

Summons ...

CHAPTER VI.

217

The Issue Term

CHAPTER VII.

229

CHAPTER VIII.

The Medial Judgment

288

viii CONTENTS.
CHAPTER IX. PAGE
The Trial Term   20I
CHAPTER X.
The Final Judgment  ,.,
J  341

APPENDIX  -.

INDEX  403

HISTORY OF PROCEDURE.

CHAPTER I.
PRINCIPLES OF CRITICISM.
Materials relating to litigation" on English soil are insuf
ficient to afford a complete view of the history of procedure
during the Norman period. The substantial features of the
procedure of that time, at least for that part of England
lying South of Watling Street, may indeed be made out from
English sources. This is fortunate, for English materials are
alone decisive as to procedure in England. But English
materials, unfortunately, often- fail in respect of interesting
and important details ; such, for instance, as the pleadings in
actions for disseisin "injuste et sine judicio," prior to the
reign of Henry the Second. Can these lacuna to any con
siderable extent be reliably supplied ; and, if so, how ? '
For supplying the want of material as to parts of the
procedure in the popular courts, the most natural and reason
able course is* to turn to the records of the pre-Norman
period. The ancient procedure there ran its course with
little interruption — certainly with no sudden change — during
the Norman period. During the time of the Conqueror
1 It will not be material if some of the grounds of criticism to be stated cannot
at present be availed of : it is important to set them all out for completeness, and
possibly for future use. E

2 HISTORY OF PROCEDURE.
and of his sons Rufus and Henry, at all events, the Anglo-
Saxon sources are safe guides to follow ; safer far, certainly,
than any other. The modification of the ancient pro
cedure had been next to nothing in the eleventh century,
and it was but slight during the reign of Henry the First.
The ordeal probably declined in this reign as a mode of
trial in civil cases, while the Norman duel correspondingly
gained ground. The ordeal virtually disappears for civil
purposes in the reign of Henry the Second. Compurgation
and trial by party-witness, however, continued through the
greater part of the Norman period with little or no change.
Trial by party-witness probably began slowly to decline by
the latter half of the reign of Henry the Second, when the
recognitions came to play an important part in the adminis
tration of justice. It might be difficult, if not impossible, to
prove such a decline, but it is certain that trial by party-
witness did eventually die out, or rather became absorbed,
mainly by the jury trial, partly by compurgation. The last-
named mode of trial — the most tenacious of life of all the
old modes— remained apparently unaffected until the Assise
of Clarendon, anno 1166, re-enacted at Northampton ten
years later. The adoption (or more likely the readjustment of
the practice) of presentment and ordeal by these assises is
said to have had the effect of abolishing the practice of com
purgation in criminal cases in the Shiremots, though it
continued in use in the many boroughs whose charters
exempted them from the jurisdiction of those courts.1 Even
these changes involved no change in the mode of proceeding
in a particular case over which the ancient procedure still
prevailed. The ordeal was still the ancient ordeal, though
its use had been narrowed ; and the same was true of
compurgation and party-witness.
- Stubbs, Select Charters, 151 (2d ed.). See the case of Ketel, Jocelyn
de Brakelond, 74 (Camden Soc). The. subject will be referred to aeain in
chapters viii. and ix.

PRINCIPLES OF CRITICISM. 3
The pre-Norman procedure does not sustain the same
relation to the procedure of the royal courts of England after
the Conquest as it does to that of the popular courts. The
royal courts, unlike the popular tribunals, were not connected,
it is apprehended., by an unbroken continuity with the courts
of the ante-Norman period. Some semblance of the old
Witenagemot still survived, and the King's Court (in the
later sense of the term, i.e. so far as it was in the eleventh
century distinguishable from the Witenagemot) had perhaps
its counterpart in the pre-Norman Aula Regis and Thegn-
men's Court. But the royal courts of justice (the King's
Court and the Exchequer) of the Norman period were in no
small degree distinct institutions, having a fresh beginning
with the reign of William the Conqueror. Normandy would
then appear to be the quarter to look to for supplying the
wanting materials specially relating to the new features of the
royal courts for the period under consideration.
This suggestion, however, must not be taken in any
absolute sense. The procedure of the royal courts appears
to have differed little from that of the popular courts, except
in the general use of writs and in the more frequent resort
to trial by recognition and by inquisition. Nor did the
use of a writ imply any divergence in the pleadings from
the procedure of the County, Hundred, and Manorial Courts.
And even as to trials by recognition and by inquisition,
which were by no means unfamiliar to the popular tribunals,
though they were unknown in England before the Conquest,
it is certain that when there were pleadings the parties came
to issue in no different manner from that of other and
ordinary modes in the popular courts. The Anglo-Saxon
procedure, though perhaps it cannot be said to have passed
on by unbroken continuity in the royal courts, was followed
by something just like it, so far as the Anglo-Saxon procedure
went; what was dissimilar lying mainly on the surface, by
way of addition. e 2

4 HISTORY OF PROCEDURE.
On the other hand it must not be supposed, in the absence
of Anglo-Saxon records, that the Norman records furnish
infallible suggestions in any particular as to what prevailed
in England. The most that can safely be affirmed is that
procedure in Normandy offered general types of procedure in
England. When from the general type — as, for instance, the
recognitions — we descend to details, the practice in Normandy
alone will not justify an assertion that the same details pre
vailed in England. A few illustrations will enforce this
observation. By the law of Normandy he who was to wage the duel
was permitted to hire a champion. " Dominus pro quo victus
duellum subiit tenetur eidem solvere pro duello faciendo
precium quod promisit!' l But this was not lawful in England
until finally (in effect) made so by statute in the latter part of
the thirteenth century. Glanvill says that hired champions were
sometimes brought into court, but adds that this was ground
for objection by the adverse party.2 It should be remem
bered that this difference in practice prevailed in respect of
an institution which had been introduced into England from
Normandy. Again, the Norman writ de feodo et vadio was a petitory
writ (a writ for the trial of the right of property) ; while the
same writ in England was possessory. Glanvill says that if
the tenant prevail in an action under this writ, " tunc is qui
petit de cetero nullum habebit inde recuperare nisi per breve
de recto."3 It has also been supposed that a similar difference
between the practice in England and that in Normandy pre
vailed as to the writ de feodo et elemosina ; the writ being
petitory in Normandy, but said to be possessory in England.4
But while Glanvill treats of the proceeding under the head of

¦ Somma, part ii. c. 64, § 19. The reputation of the champions of Caen
is well known.
3 Glanvill, lib. 2, c. 3, § 10.
3 Ib' "'*>. 13. =• 3°. § l- 4 Brunner, Schwurg. 324.

PRINCIPLES OF CRITICISM. 5
the common recognitions (which were possessory), he says
that if it be proved by the recognition that the tenement is a
clerical fee it cannot afterwards be drawn over to (or treated
as) a lay fee — " de cetero trahi non potest ad laicum feodum." I
And Bracton in the next century speaks of the proceeding as
petitory.2 One point of contrast, however, appears to have
prevailed, that whereas in Normandy the writ was avail
able only to a tenant against whom a claim was set up that
his tenement was frankalmoign,3 in England either the
demandant or the tenant could have the writ.4
Another and more striking contrast between the procedure
of England and Normandy was that process in cases of dower
in England was by the writ of right ; 5 while in Normandy it
was by recognition.6 Not less interesting or important is
the divergence concerning unanimity in the recognitions.
Glanvill directly states that there must be twelve agreed
persons on the inquest by the Magna Assisa ;7 and his
language concerning the common recognitions fairly implies
that unanimity was equally necessary with them ; at all
events, he says nothing to the contrary.. Thus, speaking of
the assise of mort d'ancestor, he says that the parties each
being present, the case shall be decided by the oath of the
twelve jurors, and according to their verdict.8 And substan
tially the same language is used of other recognitions.9 In
Normandy, however, a verdict of eleven was sufficient for the
common recognitions, though this appears not to have been
the case with the Magna Assisa.10
This will suffice to show that inferences from usage in
Normandy can be drawn only with the greatest caution. As
has already been intimated, it will be fair to assume that a
general type of trial which prevailed in Normandy prevailed
1 Glanvill, lib. 13, c. 25. 6 Brunner, 307 ; Somma, part ii. c. 36, § 7.
2 Bracton, 285 b. ' Glanvill, lib. 2, c. 7, § 2.
3 Brunner, 325. 8 lb. lib. 13, u. 11, § 13.
4 Glanvill, lib. 13, c. 23. 9 lb. c. 15, § 1.
s lb. lib. 6, cc. 4, 5. I0 Brunner, 365.

6 HISTORY OF PROCEDURE.
in England, unless, as was probably the case with litigation
over claims of dower, a usage had prevailed in England before
the advent of the Normans, i Thus, if materials were wanting
in England concerning trial by inquisition or by the recogni
tions, it would be safe to infer the use of such procedure as a
type ; though it would not be safe to infer the existence of the
same details that were found in Normandy.
Other evidence, however, may concur with Norman usage
to make it probable that Norman details were reproduced in
England. Uniform appearance of the same details among all
the Teutonic nations — which, however, would be a rare
circumstance — would render it highly probable that the same
thing took place in English procedure ; though it should
not be forgotten that the universality of the judicial duel
among the Teutonic nations of the Continent did not prove
its use in England before the Conquest, except possibly as a
bare survival. Much more important, however, than general
continental usage would be evidence of usage in England in
the thirteenth century, corresponding with or suggesting the
practice in Normandy. It is safe to affirm that nothing was
brought into England from beyond the Channel after the year
1204, and little, if anything, for a third of a century before
that time ; and whatever therefore may be found in England
in the thirteenth century of the same stamp as something
existing in Normandy in the twelfth century may with
tolerable certainty be set down as existing in England at that
time. Indeed, the procedure in England of the first half of
the thirteenth century may safely be invoked alone to illustrate
much of the ancient procedure there, and also the duel ; but
nothing further.
Again, the general prevalence on the Continent of a
' As to questions of dower, these had been tried before the Conquest by the
ordeal, compurgation, and party-witness ; and afterwards the Normans succeeded
in substituting for the old modes of trial the duel, as they did in all other petitory
actions.

PRINCIPLES OF CRITICISM. 7
special type under a general class — of a species in a genus —
would make it highly probable that that type was in use in
England also, though the details of continental procedure
could not be relied upon unless unvarying. Thus, it would be
safe to assume the existence in England of the inquisitio de
Coutume (inquisitio par turbe, des Gewohnheitrechtes), from
its general prevalence on the Continent, even if there were no
traces of it in modern English law ; but the continental
procedure was not uniform in details, and the practice in
Normandy cannot therefore be assumed to have prevailed in
England. The use to be made of Norse material may be gathered
from the next chapter.

CHAPTER II.
THE DANELAG.
There are indications of the existence, North and East of
Watling Street, so late as the twelfth century, if not later,
of a more or less distinct branch of Teutonic procedure. It
is proposed in the present chapter to look into the nature
and extent of these indications. But it may be observed at
the outset that the Danish-Norse, procedure (as the procedure
referred to will be called) was probably a vanishing fact in
English history at the time of the Conquest, and that its
extinction was hastened by the ever-increasing contact with
the more vigorous institutions and administration of the New
Era. The interest that may attach to the subject is mainly of
an antiquarian nature ; but it is none the less worthy of
study. If the Dane law did once flourish beyond Watling
Street, as it clearly did at least in modified form, it failed to
perpetuate itself, or to make any impression upon English pro
cedure that can be recognised at the present day. That is the
striking fact. Indeed, to show that the Danish-Norse procedure
was without a lineage in England, is both the purpose and the
justification of the present inquiry. To show this, it is neces
sary to examine (i) the question of its existence there, and
(2) its probably characteristic features, for the purpose of
satisfactory comparison and judgment. The Norse procedure

THE DANELAG. 9
will be presented for comparison in future chapters. Danish
procedure was distinctive in England only as it was Norse.
To what extent Danish-Norse procedure prevailed in
England prior and subsequently to the Norman Conquest
cannot be stated with certainty. Nor indeed can it be stated
with certainty in what particulars the procedure of the Danes
and Norwegians in England differed from that of the West-
Saxons and Angles. The differences between the laws of the
Danes and the Angles may safely be assumed to have been
slight, both by reason of the nearness of their original homes
across the German Ocean, and by reason of their very
intimate relations upon common ground in England. There
was probably a greater difference between the West-Saxon
and the Danish laws.
Though Danes and West-Saxons (by which are here
meant most of the inhabitants of South and South-West
England) by no means kept aloof from each other, but on
the contrary were constantly intermingling and taking up
their abodes in each other's districts ; still there was a definite
line of geographical division between them, within which the
mass of the respective peoples kept themselves. There was
no such identity of territorial occupation by the West-Saxons
and Danes as by the Angles and Danes. The mass of the
West-Saxons kept to the South and West of Watling Street,
the great Roman road from Dover to Chester, while the mass
of the Danes kept to the North and East of it, in accordance
with the boundary set by the treaty of Alfred and Guthrum.1
This fact, in connection with the considerable separation of
the continental ancestors of these peoples, would suffice to
prevent a confident assertion of sameness of laws and insti
tutions further than such as would reveal their relation to
1 The boundary between the West-Saxons and Danes, as determined by the
treaty between Alfred and Guthrum, diverged somewhat from Watling Street in
the South-East. It extended "upon the Thames, along the Lea to its source, then
right to Bedford, and then upon the Ouse to Watling Street." — 1 Ancient Laws
and Inst. 153 (8vo ed.).

ia HISTORY OF PROCEDURE.
each other as members in common of the family of Teutonic
races. It is impossible to arrive at any clear idea of the number
of those who crossed the North Sea and made permanent
settlements in England ; but some general data are at hand
which suffice to show that very great accessions to the popu
lation of the Middle, Eastern, and Northern districts were
made. The most striking indication of the extent of the
Danish-Norwegian settlements in England is found in the
number of names of places of Danish or Norwegian origin.
Of these there are said to be nearly fourteen hundred.1 Of
these fourteen hundred nearly six hundred are in counties lying
South of the Humber ; almost three hundred being in the
single county of Lincoln, about one hundred and forty in the
adjoining counties of Leicester and Northampton, and
upwards of fifty in the counties of Norfolk and Suffolk.
North of the Humber there are eight hundred local names of
Danish-Norse origin. South of the Thames there are very few.
Of the nearly six hundred names above mentioned, almost all
are thought to be Danish. Of the eight hundred North of
the Humber, nearly three hundred are probably Norwegian.
Now these localities having Danish-Norse names must
have been either new settlements or old settlements with new
names. If the former were the case, the population of such
places must at first at least have been entirely Danish-Norse ;
and it is hardly likely that subsequent accessions were now
largely from the South of England. There could have been
no sufficient inducement for such a change of abode. The
continuance of the foreign names is some evidence that no
sweeping immigration from the South could have set in. It is
'Worsaae, Danes and Northmen, 71 (London, 1852, transl.). The figures
of Worsaae appear to include names of the minutest places. According to the
present writer's count, the Index of ancient Domesday for Lincoln has 160 local
names in "by," 52 in "torp,"and 14 in "holm" and "hou," a total of 226 of
supposed Danish and Norse names. These several numbers agree very nearly
with the enumeration of townships and parishes in Lincolnshire by the census of
1871 ; the total being the same, 226.

THE DANELAG. n
more reasonable to suppose that these settlements became the
abodes of the new streams of Northmen that came to swell
the population in those parts of England.
Many, probably most, of these settlements must have been
new. The population of the North-East of England was small
until long after the Norman Conquest ; and there was probably
no lack of vacant districts, sufficiently inviting, for the new
comers. To such places, Danish-Norse laws and institutions
must, in the natural course of things, have succeeded.
But the conclusion can hardly be materially different if
these were old settlements with new names, as was certainly
the case in some instances.1 The change of name could have
occurred only by the driving out or supplanting the old popu
lation by the new, and the permanent occupancy of the loca
lities by the latter. Now it is possible that in places in which,
without driving out the old inhabitants, the new population
supplanted the old, and fixed Danish or Norse names upon
the settlements, the new population may soon have amalga
mated with the old. Such an occurrence would be nothing
new. But it does not follow that they would yield to the
subject people their peculiar laws and usages, especially in the
regulation of their own relations with each other. To suppose
that the amalgamation, which certainly did take place at length
very extensively, would be directly attended with such a result
is to suppose something out of the natural course of things, and
out of the range of experience, and hence of probability.2
The evidence of an extensive and widespread Danish-
Norse population North-East of Watling Street is not, how
ever, confined to names of places. In the central district of
1 Norfhweorthig became Deoraby, i.e. Derby, and Streoneshalch became
Whitby ; the termination "by" being Danish, and signifying "town."
s The conquering Teutonic peoples, wherever they went, carried their pro*
cedure with them, even to Italy. The procedure of the courts of France (at least
of Frankish France) was distinctively Teutonic throughout the middle ages, though
the Franks rapidly amalgamated with the Latin-speaking Gauls, assuming their
manners, civilisation, and language. The most striking feature of Teutonic insti
tutions is Teutonic procedure. That was never abandoned.

12 HISTORY OF PROCEDURE.
Mercia and in Lincolnshire, the Danes were not only in pos
session of a great number of villages and rural estates, but
they had also become masters of large towns, five of which
were particularly distinguished as Danish, namely, Stamford,
Leicester, Derby, Nottingham, and Lincoln — "The Five
Burghs." These places belonged to the Danes as early as in
the time of Alfred, and were conspicuous for their size, com
merce, and wealth.1 It has been suggested that they were
like a little separate state, possessed in common of their own
courts of judicature,2 and other peculiar municipal institutions.
The hostile and dangerous neighbourhood of the English
would compel them to unite together as much as possible;
" and for a very long period they formed the chief support of
the Danish power in England. Protected by them from all
attacks from the South, the Scandinavian settlers were
enabled securely to continue establishing themselves in the
more Northern districts." 3
Besides the five burghs, the Danish-Norse people were
possessed of the equally important town of Chester and the
far more important city of York ; and in these towns they
exercised, we may well suppose, a similar kind of supremacy.
Indeed, it has been said (perhaps somewhat strongly) that in
1 Worsaae, 31. "Five towns, Leicester, and Lincoln, and Nottingham, so
Stamford eke, and Derby, to Danes were erewhile, under Northmen, by need con
strained, of heathen men, in captive chains, a long time ; until again redeemed
them, for his worthiness, the bulwark of warriors, offspring of Edward, Edmund
king." — Anglo-Saxon Chronicle, anno 941. But the five burghs, "and all the
Northumbrians," "and all the army North of Watling Street" readily submitted
again to the Danish advance under Swegen seventy-two years afterwards. — Ang. Sax.
Chron. anno 1013. This fact, in connection with the firm opposition of Southern
England to Swegen, indicates the continuance of the Danish strength beyond
Watling Street, and the weakness of the Anglo-Saxons in the same territory. The
same five towns appear to be still under Danish control and institutions in the time
of Domesday (anno 1085-86) ; at least the twelve " lawmen " of the Danes and
the old confederation there appear. — Schmid, Gesetze, Einl. p. 52.
2 See I Palgrave, Commonwealth, 51.
3 Worsaae, 31. "Die fiinf Burgen scheinen einen Stadtebund gebildet zu
haben, der, wenn nicht von diinischer Bevolkerung begriindet, doch schon friih der
danischen Herschaft verfiel."— Schmid, Gesetze, Einl, p. 51.

THE DANELAG. 13
about half of England the majority of the population was of
Danish extraction, and was possessed of Danish laws and
Danish characteristics.1
There is further evidence of Danish power and influence
in the frequent reference in the charters and chronicles to
Danes and Northmen of high position in England, To refer
to a single illustration, in a charter of the year 997, recording
a confirmation of a will before the Witan assembled perhaps
in Essex, it is said that thegns were gathered there from
afar, as well West-Saxons as Mercians, Danes, and Angles ;
showing that it was taken as matter of course that Danishmen
of rank should be present.2
The names of some of the Danish-Norse towns are not
without special significance. Towns are found in the North
and East of England with names composed in part of the
word " Thing," the Norse name for court. Thus, in Suffolk
there exists a hundred called Thingoe, which is the subject of
a charter by Edward the Confessor, sub nom. Thinghowe;3
and that this was a seat of litigation appears from the language
used concerning it.4 The same is true of other places having
the like name. The village of Tinghurste in Lincoln (?) is
mentioned in a concord between the church of Lincoln and the
monastery of St. Albans, anno 1 162, the record of which is
preserved by Roger de Wendover. " The present village of
Thingwall (or the Thing-fields) in Cheshire was a place of
meeting for the Thing, and not only bore the same name as
the old chief Thing place in Iceland, but also as the old
Scandinavian Thing places, ' Dingwall,' in the North of Scot
land, ' Tingwall,' in the Shetland Isles, and ' Tynewall ' or
' Tingwall ' in the Isle of Man."5 It should be added that the
1 Worsaae, 180. Comp. Vigfusson's Cleasby, Icel. Diet. pref.
2 Thorpe, Dipl. 541. 3 lb. p. 418.
4 "And ic an  the half nigende hundredes sokne into Thinghowe."
In the old Latin version given by Thorpe, the language is "Annuo .... jura
regalia viii. et dimidiam placitorum ad Thynghowe."— Thorpe, Dipl. 419.
s Worsaae, 158.

14 HISTORY OF PROCEDURE.
"Husting" belongs to the same category.1 And it is significant
that in ^Ethelred's laws concerning the five Danish boroughs,
their court or assembly is called Burh-gethincthe,2 that is,
Burg-thing — a term seldom if ever used of the courts of the
Anglo-Saxons. The term " Thing" in the sense of a court is
indeed used in the laws of Hlother and Edric;3 but these
were the early laws of the Jutish kingdom of Kent.
There were also in the Danelag, it is stated,4 certain
larger Thing-meetings for the different districts, superior to
the local Things ; and it is strongly suggested that the
Ridings — or, properly, Trithings— of Yorkshire and Lincoln
shire were superior jurisdictions of this nature. It is said that
in Scandinavia, and particularly in the South of Norway,
provinces were divided not only into halves and fourths, but
also into thirds, or Tredinger, perfectly answering to the
English Trithings. And it was to these Tredinger that all
appeals were carried from the local Things.
This last suggestion, however, is not material. It is
enough that there is found to be a very extensive distribution
in England of Danes and Norwegians, and that the name of
the Norse court of justice frequently appears. Until some
evidence is produced indicating that the people of such
localities adopted the procedure of their English enemies, we
must admit the view of the advocates of Danish influence in
England, that these people probably observed their own
peculiar usages.3
Of the existence of Danish law in England from the
ninth until the middle of the twelfth century at least, there is
also ample evidence in the Anglo-Saxon codes and in the
1 York and Lincoln had " Hustings " ; and the existence of a court in London
of the same name seems to imply a stronger Danish element in the metropolis than
is commonly admitted. The Anglo-Saxon word for "court," it need hardly be
said, was " mot," usually with a prefix, "gemot."
2 Anc. Laws, 292 (8vo ed.). 3 lb. 30. 4 Worsaae, 158.
s " It is not probable that this condensed and conquering population [of Danes
and Norwegians] should have entirely abandoned their ancient laws."— 1 Palgrave
Commonwealth, 50. '

THE DANELAG. 15
so-called Laws of Henry the. First (a custumal left in its
present form perhaps about the end of the reign of Stephen '),
though little is revealed therein concerning the actual nature
of the Danish law.
In the laws made upon the final treaty of peace between
Alfred the Great and Guthrum the Dane there is clear
recognition of Danish institutions, and a total absence of
attempt to impose new laws upon the people of Guthrum.
Norse terms are constantly used by the side of the English
to express the penalties imposed for the infraction of law.
Where the English were to be liable for the "wer" or
"wite," the Danes were to be liable for "lahslit;" the
evident meaning of which is, that the law of the Danes fixed
a certain penalty to the same offence, and that this penalty,
and not the English, was to be inflicted in the Danish district.
" If anyone withhold tithes, let him pay lahslit among the
Danes, wite among the English. If anyone withhold ' Rom-
feoh,' let him pay lahslit among the Danes, wite among
the English.2 ... If a lord oblige his theow to work on a
festival day, let him pay lahslit within the Danish law, and
wite among the English." 3
In cases in which the value of the fine is named the
amount exacted among the Danes is given as well as that
imposed among the English. " If a mass-priest misdirect the
people about a festival or about a fast let him pay thirty
shillings among the English, and among the Danes three half
marks." 4
The laws of Edgar (A.D. 959-975) provided "that secular
rights stand among the Danes with as good laws as they
1 Portions of this collection were clearly of the reign of Henry the First, and
perhaps the whole was founded upon some work of that reign now lost. A charter
of Henry, issued between the years 1108 and 11 12 (Stubbs, Sei. Ch. p. 104,
2d ed.), is spoken of as recent in the Leges, c. 7, § I.
2 Laws of Alfred and Guthrum, c. 6.
3 lb. c. 7. See also Laws of Cnut, Secular, cc. 15, 47, 49.
^ Alf. and Guth. c. 3.

16 HISTORY OF PROCEDURE.
may best choose." l " Then will I that, with the Danes, such
good laws stand as they may best choose, and as I have ever
permitted to them, and will permit, so long as life shall last
me, for your fidelity which ye have ever shown me." 2
According to the custumal called Laws of Edward the
Confessor, a work of the twelfth century, he who had thirty
denariata^ in live-stock should, by the law of the English,
pay a penny to St. Peter, and by the law of the Danes half a
mark.3 The law of the Danes concerning the penalty for
injuries to the great highways and streams is also stated ; and
so of the slaying of villeins and socmen,4 and of the breach
of the king's peace given by his hand and seal.5 There is
also, in the same collection, a short chapter concerning the
difference between the laws of the Danes and those of the
West-Saxons concerning forfeitures or fines.6 The laws of
William the Conqueror treat in detail at the outset of the
differences, in respect of penalties for breaches of the king's
peace, between the Mercian law, the Dane law, and the
West-Saxon law. 7 In the same collection the Dane law of
warranty is referred to ;8 also the Danish penalty against a
judge for rendering false judgment;? also the Dane law as to
contumacy.10 And it is directly stated that in the time of
the Conqueror the law of the Danes and Norwegians prevailed
in Norfolk, Suffolk, and Cambridgeshire.11
Finally, in the Laws of Henry the First the familiar
statement is reiterated of the threefold division of the law of
England, to wit, the West-Saxon law, the Mercian law, and
the Dane law ; and it is declared that " in many things they
differ, but in many things they agree."12 And there are
many other references to the law of the Danes in the
1 Suppl. to Edgar's Laws, c. 2. ? Laws Wm. I. cc. 2, 3.
" lb. c. 12. 8 lb. c. 21.
3 Laws of Edw. Conf. c. 10. ' lb. c. 39.
* lb. c. 12. >° lb. c. 42.
5 lb. c. 27. « LawsofEdw.Conf.c.3o(Rog.deHov.)
0 Ib. c. 33. " Laws Hen. I. c. 6, § 2 ; ib. c. 9, §^.

THE DANELAG. 17
same custumal, some of them referring to peculiarities of
procedure.1 The references above given to the Anglo-Saxon laws
would alone have been ample to prove the existence and
authority of the Danish law North and East of Watling
Street, and would have rendered the preceding inquiry un
necessary, had it not been important to ascertain the extent
of Danish-Norse occupation. If this inquiry had led to the
conclusion that the Danes and Norwegians had acquired but
a small foothold, in a few scattered settlements, the references
to the Dane law would have been of little significance. In
such a case the Dane law would have fallen to the level of
detached local customs, such as prevailed everywhere in
England. Conclusions based upon this inquiry must be cautiously
drawn. It must not be supposed that pure Danish or Norse
institutions prevailed to any considerable extent, if at all, in
England. Time, separation from Scandinavia by a great
sea, and contact with other institutions everywhere present,
must have had a modifying effect. The Norse procedure did
not, it seems, exist in perfect purity (that is, as it existed in
Norway) even in Iceland. Trial by compurgation, in pure
form, appears not to have prevailed there until after the union
of Iceland with Norway in the latter half of the thirteenth
century.2 The Icelandic procedure especially, to which we
shall largely refer, can be safely appealed to only as indi
cating, with probability, the essential features of the pro
cedure of the peoples living North and East of Watling Street
It is not safe to affirm that the procedure of the Danelag or
of the Norwegian districts was more than a species of the
great Northern genus. In a word, then, pure Norse procedure
probably never prevailed in England : Danish-Norse pro-
1 Laws Hen. I. c. 11, § 11 ; c. 14, § 4; c. 34, §§ 1, 8; c. 66, §§ 5, 6 (procedure),
10 (procedure); c. 70, §§ 6, 8.
2 See Vigfusson's Cleasby, Icelandic Diet., Eithr (oath), Kvithr (verdict) ;
Viga-Glum Saga, transl. by Head, p. 117; Gragas, pref. by Schlegel, p. 84.
C

18 HISTORY OF PROCEDURE.
cedure probably did prevail there to some extent from the
tenth to the middle of the twelfth century ; but neither left a
lineage.1 1 We close this inquiry with a quotation from the learned dictionary above
cited — not, however, subscribing to the view that the modern English jury is
lineally connected with the Norse inquest. Nothing is more certain than that the
modern jury is the outgrowth of the Norman inquisition, which, though somewhat
resembling, is not the same thing as, the Norse inquest. But the Norse inquest,
in modified form, prevailed, we may believe, in the North of England. "From
the analogy of the Icelandic customs, it can be inferred with certainty that along
with the invasion of the Danes and Norsemen the judgment by verdict was also
transplanted to English ground , for the settlers of England were kith and kin to
those of Iceland, carrying with them the same laws and customs ; lastly, after the
conquest it became the law of the land." — Vigf. Cleasb. Diet., Kvithr. The last
clause may (like the preceding), be true, but the implication that the "judgment
by verdict" was the Norse verdict is not true. The Norse inquest or verdict of
twelve (tolftar-kvidr), however, was a near approach to the modem jury; but
still it was not the modern jury or its original. The subject will be considered
later, in the text, chapter ix.

CHAPTER III.
THE COURTS.
THE Courts of England in the Norman period were the Wite
nagemot, called both the Great Council (Magnum Concilium)
and the King's Court in the twelfth century, the Ecclesiastical
Court, the (lesser) King's Court, the Exchequer, the County
Court, the Burghmot, the Hundred or Wapentake Court, the
Manorial Court, and the Forest Court. There was no Court
of Chancery by name in any part of the period. There was
a chancellor indeed, as there had been .before ; but he exer
cised no jurisdiction as a judge in equity. He often sat in
the superior courts ; he was one of the established staff of
the Exchequer, and he constantly sat with the other judges
in the King's Court and in the Witenagemot, and in the
twelfth century frequently went on circuit. But this was all.
The nation, however, possessed a judge in equity in the king.
The sovereign frequently acted in causes .which in modern
times would be considered equitable, as will hereafter appear.
The courts themselves, also, including the Ecclesiastical Court,
all exercised equity jurisdiction as occasion required, and had
done so in pre-Norman times. There was nothing in the
constitution of the ordinary tribunals of justice, or in any
limits set to their jurisdiction or procedure, which could have
prevented them from entertaining equity causes ; and the
c 2

20 HISTORY OF PROCEDURE.
evidence that they did in fact entertain such causes is ample,
as will appear in the chapter on the Writ Process.
The Witenagemot.
The Witenagemot of the Anglo-Saxon period was both
a legislative and a judicial body, though its legislative function
predominated. It was an "assembly of the wise men" of
the nation, met to enact laws for, and look out for the general
welfare and protection of, the nation at large, and incidentally
to adjudge upon the disputes of -the king's thegns and great
men, cleric and lay. After the Conquest there was also a
gathering from time to time of the king's "wise men" (under
this and various other equivalent names), called as a body
sometimes the Witenagemot, sometimes the King's Court,
and sometimes (and in the twelfth century generally) the
Great Council ; and this body, like the old Witenagemot,
transacted both legislative and judicial business, the former
predominating over the latter.
The Anglo-Norman Witenagemot was only the successor
of the Anglo-Saxon Witenagemot ; it was not the same
thing, either in constitution or in independence and authority.
Its members for the greater part of a century were Normans
mainly ; and for nearly as great a period of time, they did
little else, when acting in a legislative capacity, than to register
the king's will. But we are not concerned in this book with
that body as legislators : we are concerned with it only as a
judicial tribunal. In this aspect, however, a distinction must
be marked at the outset. We have said that this court was
sometimes called (that is, by contemporary writers) the King's
Court ; but there was another court of the same period, often
distinguishable, called also the King's Court. How then is it to
be determined which body was intended when a writer of the
time speaks of a trial in the King's Court? Sometimes,
unfortunately, it is impossible to determine which is meant ;
the facts stated being insufficient to base a safe conclusion

THE COURTS. 21
upon. Sometimes, indeed, the distinction at best must have
been shadowy.
The following generalisations will serve as a test for those
cases in which sufficient facts are stated by the records or
writers, the term Witenagemot being intended to include the
Great Council : 1. The great assemblies at Easter, Pentecost,
and Christmas, when "the king wore his crown," in the
language of the time, were Witenagemots. 2. The same was
true of any assembly of '' all the king's great men '' of the
kingdom, whether convened in the interest in part of the
church or not. 3. Such an assembly convened in the sole
interest of the church was a Great Synod or synodal Wite
nagemot.1 4. An assembly engaged in the business of
general legislation for the kingdom was a Witenagemot.
5. A court in which a great man of the church (e.g. the
archbishop of Canterbury) was impleaded or was accused on
behalf of the king was the Witenagemot.2 6. A meeting for
business by the king's household and personal attendants was
the King's Court as distinguished from the Witenagemot. 7. A
body delegated to hold "royal pleas" apart from the king was
also the King's Court in the same sense. 8. The county as
sembled to meet the itinerant justices of the king in the latter
half of the twelfth century, and earlier, in the reign of Henry
the First, was also the King's Court in this sense.
Having thus distinguished, so far as there was a distinction,
between the body known as the Witenagemot or Great Council
and the King's Court in the ordinary sense of later times, it
remains to ascertain the jurisdiction of the 'former body as a
judicial tribunal. It will not be necessary, it may be remarked,
to treat of the procedure of this court, or of any of the lay
courts, separately, as will be done in the case of the Eccle
siastical Court ; the lay courts not being peculiar to each other
in any such sense as they are different from the Ecclesiastical
1 Compare Beomwulf of Mercia, Essays in Ang. -Sax. Law, 327, and Thorpe,
Dipl, 70. 2 See infra, pp. 23-25.

22 HISTORY OF PROCEDURE.
Court. It will turn out indeed, upon examination, that the
procedure of the latter court did not differ substantially from
that of the lay courts ; but that is a fact to be shown.
It should be observed at the outset that the Witenagemot,
and, in the twelfth century, the Great Council as the same
body, being an assembly of national legislators, had the right
to take cognisance of any cause which a majority (with the
king) voted to entertain, or proceeded, without question, to
entertain. The body had not yet divided into two houses,
one of which alone possessed judicial functions. But while
the Witenagemot and the Great Council had the right to
entertain jurisdiction of all causes, it in fact did not exercise
such an authority. It was an aristocratic body, before which
men of mean degree did not venture to appear, and from
which they did not venture to seek favours. They had their
own local courts for obtaining redress or relief, appointed for
the very purpose. If indeed it happened that the local court
was unable or unwilling to do justice by them, by reason of
the rank or power of the defendant, or of the perversity or
ignorance of the judges, or of want of jurisdiction, a remedy
was provided by enabling the party to carry his cause to some
other local court or to the powerful County Court, presided
over by the king's own officer, the sheriff, and thence, if
justice were still unattainable, to the King's Court, as dis
tinguished from the Witenagemot.1 The latter, as a judicial
tribunal, appears not to have been a court of appeal, but an
aristocratic court of original jurisdiction ; all appeals going,
regularly, to the King's Court proper. Whatever the Great
Court might have done, it appears never to have either called
to itself cases from other courts or to have received appeals
from judgments rendered in other courts ; except perhaps
when sitting as a Great Synod.
When the accused was one of the king's great lay barons
1 This drawing cases into the King's Court from the local jurisdictions will be
considered later.

THE COURTS. 23
the trial, it is apprehended, was also generally, if not always,
before the Witenagemot. The trial of Ralph Breton, earl of
Norfolk, and of Roger de Breteuil, earl of Hereford,1 for the
Norwich treason to the Conqueror is stated to have been in
the King's Court ; but the court was a summoned council of
the king's great men. The same appears to have been true
of the court before which Waltheof, the last of the English
earls, was tried as privy to the same treason as that found
against the earls just named ;2 but the record is not full
enough to be decisive. The cases of Robert Malet3 and of
Robert de Belesme4 were also probably before the Wite
nagemot ; though the record is not so clear as might be
desired. The power and influence of the defendants, espe
cially of Robert de Belesme, were such as to require the king
to obtain the action and support of his entire baronage.
Robert de Montfort is tried before a summoned assembly of
great men for violating his oath to the king, Henry the First.5
As to the trial of Henry of Essex 6 for treason to Henry the
Second, the record simply states that the accusation was made
" in conspectu principum terras."
Trials between the king's great men, cleric and lay, were
often brought before the Witenagemot. Thus, the case of
Bishop Wulfstan v. Archbishop Thomas7 was tried before
the king, archbishop Lanfranc, bishops, abbots, earls, and
great men. Although the case of Archbishop Lanfranc v.
Odo 8 at Penenden Heath was brought before " the whole
county," the court was much more than an ordinary County
Court, both'in respect of its members and "of the subjects
adjudicated upon. It was more properly the Witenagemot
of Kent, possibly reminding the English participants of the
•- Placita Anglo-Normannica, 11.
2 lb. 12. The trial appears at best to have been a mockery of law ; though it
is none the less a testimony to the hold which the requirements of the law had, so
soon after the Conquest, upon the ruling class even when seeking the death of an
Englishman. 3 lb. 82. * lb. 83. s lb. 94. 6 lb. 210. 1 lb. 2. 8 lb. 4.

24 HISTORY OF PROCEDURE.
time when the county had been a nation of itself, with its
own national Legislature. The case of the Archbishop of
Canterbury v. The Abbot of Battel,1 upon a question of wreck
in the time of Stephen, appears to have been before the Great
Council, though it is said to have been tried " apud regiam
curiam." It has already been observed that spiritual causes
were sometimes tried in the Witenagemot. Finally, it should
be stated that Ralph Basset and the king's thegns held a
Witenagemot in Leicestershire in the year 1124; "and there
they hanged more thieves than had ever before been hung
within so short a time, being in all four-and-forty men."2
This is one of the latest mentions of the Witenagemot by
that name. Thereafter it is the Great Council or (as before)
the King's Court. And the language which tells of a Wite
nagemot in that year of 11 24 is the language of an English
man using the despised but still, among the people, cherished
vernacular. The king's personal causes were often tried in the Witena
gemot, and always, it is apprehended, when the defendant
was one of the great clergy. It is hardly to be conceived
that a bishop, much less an archbishop, would, before the
thirteenth century, be put upon trial in the smaller King's
Court, composed as that usually was of the king's own
retainers. It was "in aula regali," indeed, that William the
Conqueror proceeded against his half-brother Odo, Bishop of
Bayeux, but it was before an assembly of the first men of the
kingdom (" congregatis .... primoribus regni ") 3 which, if
the attendance was general, as is implied, means the Witena
gemot. The' appeal of treason against William, Bishop of
St. Carilef,4 is said to have taken place before the King's
Court ; but the court consisted of the king's great men, the
archbishops, bishops, earls, barons, and officers of the army.
The case of Thomas a Becket5 is so familiar as scarcely to
1 Tlacita Ang.-Norm. 143. - Ang.-Sax. Chron. anno 1124.
• Placita Ang.-Norm. 291. * lb. 307. a lb. 21".

THE COURTS. 25
need mention. Although the king calls for judgment upon
the archbishop on the ground that as his liegeman he had
relused to stand to justice in his court (" in curia mea
recusat") ; and though the record states that the archbishop
came to the King's Court in his chapel,1 the court is the
Magnum Concilium. The Ecclesiastical Court.
The Ecclesiastical Court 2 was a court which had derived
its authority and powers in the main from the immemorial
usage of the church. The chief object which it had in view
was the enactment of laws for the promotion of the spiritual
welfare of Christians generally, of rules for the administration
of church affairs by bishops and clergy, and for the discipline
and conduct of the various orders of ecclesiastics. The
nature of a council which had undertaken business of this
sort was unmistakable. Whether composed exclusively of
ecclesiastics or not, it was an Ecclesiastical Court in the
legitimate sense.3
Had the church never assumed other authority than this,
strictly interpreted, there would be no difficulty in deciding
whether a particular court was clerical or lay.4 But the
Ecclesiastical Courts had a large share in the administration
of justice in the Norman period (as in the earliest times),
especially in criminal causes ; and there are numerous
1 Placita Ang.-Norm. 212. ° A general term, used for convenience.
3 In accordance with this test, the various litigations of the abbots of Battel,
with the abbot of Marmoutier, with bishop Hilary of Chichester, and with Theo
bald, archbishop of Canterbury, on the question of the ecclesiastical independence
of Battel Abbey,, were ecclesiastical causes, notwithstanding the participation of
laymen. The cases will be found in Placita Ang.-Norm. pp. 14, 156-159.
4 Peter Blesensis (if the elder or younger Peter is the author of the work com
monly attributed to one of them), writing on the canon law in the latter half of the
twelfth century, says: "Nemo, militans Deo, implicat se negotiis secularibus.
Unde nonvidetur quod ecclesiasticus judex debeat cognoscere de causis secularibus ;
ut de dote, de successione, de testamentis. " — C. 10. But he adds that the bishop
as judge might interfere "incidenter, et, ut generalius dicam, accessorie," but not
"principaliter."

26 HISTORY OF PROCEDURE.
records of the twelfth century of synods, so named by
ecclesiastics of the time who drew up the records and par
ticipated in the business of the courts, which exercised
jurisdiction over purely temporal interests, such as the title
to churches and lands. This raises a difficulty. How is it
to be determined, in cases where a distinction existed, whether
a court having under consideration the trial of a matter not
of a spiritual nature was clerical or lay ?
Six broad generalisations may be made, in part answer
to the question, r. A court composed entirely of ecclesiastics,
to which laymen had not been summoned, was a clerical
court. 2. A court composed entirely of laymen, whether
ecclesiastics had been summoned or not, was a lay court or
nothing. It was nothing if it attempted to make laws or to
decide questions of a spiritual nature. 3. A court convened
by virtue of the authority of, and in conformity with, a
franchise (of sac and soc) was a lay court, though attached
to a religious house. 4. A court convened by the king,
justiciar, earl, sheriff, or other great man being a layman, for
the trial of a temporal cause, though affecting the interests of
the church, and though ecclesiastics were present, was a lay
court, if laymen only or mainly were required to attend. 5. A
court convened for the trial of alleged offences or of disputes
inter clericos, or of delicts committed by laymen against the
clergy or the church,1 was an ecclesiastical court, if not coming
under head 3 or 4, which would be rare.2 If the trial was in a
court coming under head 3 or 4, it was a clerical cause in a lay
court. 6. The ordinary court of a bishop and his diocesan
clergy was a clerical court, though laymen were permissibly

r Const. Clarendon, cc. 6, 10.
2 The fact that punishment peculiar to the church was inflicted in a particular
case did not necessarily imply that the Ecclesiastical Court had jurisdiction of
trying the accused party, even though that punishment may have been inflicted
upon a clerk, for the offence may have been committed against a layman. Laymen,
too, were subject to the punishments of the church, though tried and adjudged
(as in ordinary cases they were) in the lay courts.

THE COURTS. 27
present, and though lay causes were (by consent) brought
before it.1 The only remaining case is the difficult one— the
nature of a court at which both ecclesiastics and laymen were
present, or ecclesiastics alone, laymen in either case having
been summoned ; the court not having been convened by
virtue of a franchise or of a command of the king or other
layman. Such a court must, however, have been a clerical
court, though concerned with the temporalities of the church.
It must have been convened by an ecclesiastic ; and not having
assembled under a franchise, it must have met by virtue of the
ancient judicial usage of the church, though not, perhaps, for
purposes sanctioned by early usage. This will explain how
certain of the courts of the reign of Stephen and of the early
part of the reign of Henry the Second, to be referred to more
particularly hereafter, are called synods, and are properly
treated as Ecclesiastical Courts which have assumed juris
diction belonging to the lay courts. The contention which
led to the Constitutions of Clarendon2 was in all respects a
real one, and not a question of names ; for a clerical court
was by right under the control of ecclesiastics.
Difficulty in deciding as to the character of a court will
still arise in many cases because of the record failing to give
sufficient direct indicia by which to judge. In such cases the
date of the litigation is worthy of consideration. If in the first
third of the twelfth century or earlier, or if in the last third of
the same century, it was probably a lay court, when concerned
with temporal interests. It is certain, too, that there is some
irregularity of proceeding throughout the- Norman period.
But this irregularity consisted almost always in the bringing
of lay causes before a clerical court, seldom if ever the
reverse, in the twelfth century.3 Jurisdiction in such cases
was probably matter of consent, except in the time of
1 See Modbert v. Prior and Monks of Bath, Placita Ang. -Norm. 1 14.
2 Infra, pp. 34-37.
3 Battel Abbey was under the special protection of the king ; which fact
explains Abbot Walter v. Bishop of Chichester, Placita Ang.-Norm. 156.

28 HISTORY OF PROCEDURE.
Stephen and in the earlier years of his successor, a point to
be considered hereafter.
The English ecclesiastical assemblies, iu Norman as well
as in later times, may be divided into National, Provincial,
and Diocesan Councils. The former embraced, as the
Anglo-Norman records sometimes say, " the whole clergy
of the kingdom," which in fact means only the superior
clergy, the archbishops, bishops, abbots, and it seems
(perhaps by special invitation) the more eminent of the
archdeacons, priests, and deacons. To these were often
added the king and the greater of the laity ; the whole
being presided over by the archbishop of Canterbury, or
by the king. The distinction between such an assembly and
the Witenagemot, as we have elsewhere observed, would be
hard to state. But a body of this description, though trials
were sometimes prosecuted before it,1 was convened mainly
for legislative purposes ; and we are not here specially con
cerned with it. The same maybe said of Provincial Councils.
By these are now meant the councils of the archbishoprics,
or at least of several dioceses. Such appear to have been
composed of the same material with the National Councils,
and to have been concerned mostly, though not exclusively,2
with church legislation. The Diocesan Councils are of
greater interest in respect of matters of litigation. These
were the County Courts and the Burghmots of the church,
and were composed of the bishop and his superior clergy, the
archdeacon, abbots, deacons, and sometimes " all the clerici "
and the laity. It'is of these we are mainly to speak.3
That these Diocesan Councils are the original of what
since the last half of the twelfth century have been known as
the Court Christian (" Curia Christianitatis ") — the Ecclesi
astical Court — is reasonably clear; but the history of the
development of these councils, and of the settlement of their
1 Placita Ang. Norm. 223, 224. ' See ib. 161, 1S2-188, 189-196.
3 See upon the whole subject Smith, Diet. Christ. Antiq. title Council.

THE COURTS. 29
judicial functions, resulting in a fixed judicial tribunal of the
English Constitution, is very obscure. It is not clear, indeed,
that (wholly apart from procedure in the strict sense) the
Court Christian of Glanvill had assumed the fixed state
which characterised it in the thirteenth century, with regular
terms, and sessions for judicial purposes alone. The contrary
is altogether probable. It can only be affirmed that it was by
this time commonly convened and (in the bishop's absence)
presided over by the archdeacon, as the bishop's minister,1
and that it was an accompaniment of the King's Court, and
sat as its complement whenever needed ; also that such a
court sat in the counties2 in its own right, and in aid of the
local courts and of the Eyre, as well as by specially granted
authority.3 The jurisdiction of spiritual causes had doubtless always
pertained exclusively to the clergy ; or rather the clergy
doubtless always had the right to exclude the laity from the
judgment of spiritual causes.4 As matter of fact, they did
not usually exercise their jurisdiction over spiritual matters
of general interest without the aid, or at least the presence,
of the lay baronage. The king often, if not generally, sat in
and perhaps sometimes presided over the church synods.
This was certainly true when ecclesiastical questions were
brought into the King's Court for determination, a matter of
not unusual occurrence.5 Whether the king possessed any
legal voice in the deliberations of the synod, apart from the

1 Comp. as to the Anglo-Saxon period, 1 Stubbs, Const. Hist. 233. Glanvill
speaks of the ecclesiastical judge, as though the Court had by his time come
to consist sometimes of a single judge. — Lib. 4, t. 9, § 3 ; lib. 10, t. 12, § 1. And
he speaks of the judge of the Ecclesiastical Court as the bishop, or in his absence
his official, that is, the archdeacon. — Lib. 4, c. 9, § I ; c. 10, § I. In other cases
he uses the plural, and quotes a writ of prohibition addressed, " Rex judicibus
illis ecclesiasticis, salutem." — Lib. 4, c. 13. See also the next writ, c. 14.
2 Glanvill, lib. 4, c. 9, §§ I, 3 ; Placita Ang.-Norm. 150, 155. 3 lb. 219.
4 Peter Blesensis, cc. 16, 48, 51.
5 See, for instance, Plaid et transaction en presence de Henry I., in the
Appendix.

30 HISTORY OF PROCEDURE.
permission which was probably always accorded him, may be
doubted ; and the doubt is still stronger concerning the right
of the laity generally to vote.1 No doubt the laity present
had the right to insist upon the clergy limiting themselves,
in their exclusive jurisdiction, to legislation of a spiritual
nature ; and their voice, with that of the king, must have been
heard in the synods at which they were present, in case of
any serious attempt on the part of the spiritual baronage to
extend their jurisdiction over matters temporal.
In the pre-Norman (as well as in the Norman) period the
clergy sat also in temporal causes, having a voice therein to
the extent, at least, of declaring the canon law, and of- re
quiring suitors to yield obedience to the general law on pain
of ecclesiastical censure. "The bishops sat in the popular
courts," it is said, " as they sat in the Witenagemot, and in
both with much the same power as the lay witan."2 The
Hundred and County Courts were attended as well by the
parish priest as by the lords of the locality, the reeve and the
four best men of each township.3 It is doubtful if the bishop
of the diocese was regularly present in the Hundred ; but
he was a member of the County Court.4 And spiritual
causes appear sometimes, by consent of the attendant clergy,
to have been brought before these lay courts.
In the reign of the Conqueror a law in the form of a
charter was promulgated by the king, " by the common
counsel and advice of the archbishops, bishops, abbots,
and all the nobles of the kingdom," by which a line was
drawn between the judicial powers of the clergy and the
laity in respect of spiritual causes ; which line, as the law
states, had not been observed, according to the canons,
down to that time. This law required that spiritual causes
should no longer be tried in the secular courts. It thus
" See I Stubbs, Const. Hist. 230 ; Smith, Diet. Christ. Antiq. title Council,
pp. 481, 482, 485.
2 I Stubbs, Const. Hist. 232. 3 lb. 103. 4 ib. 114.

THE COURTS. 31
made mandatory the trial of purely ecclesiastical causes in
¦the Ecclesiastical Court ; putting an end to the irregular
practice which had prevailed theretofore. It did not, how
ever, prohibit laymen from sitting in the clerical courts ; nor
was it understood to have any such meaning. Laymen
continued to attend those courts, as before. Archbishop
Anselm, for instance, caused the great men of the realm, lay
and cleric, to be summoned to an ecclesiastical council at
Winchester, anno 1102.1 Nor did the charter profess to
forbid the trial of ecclesiastical causes in the royal courts ;
its language referring apparently to the popular courts only.
But it is more interesting to notice that the clergy were not
forbidden to attend upon the lay courts. In the Laws of
Henry the First, " the reeve, priest, and four best men of
the township " still appear in the Hundred and County
Courts, as in the Anglo-Saxon period.2 In a word, the Con
queror's charter was intended to prevent the lay courts from
acquiring jurisdiction over spiritual causes, not to prevent
the clerical courts from acquiring jurisdiction over temporal
causes ; of which there was no danger at that time.3
Nor did this change of the law affect the rights of the
clergy in their own courts as lords. In these private juris
dictions, attached to their estates, they continued to hold
their secular courts and to exercise the same authority as
that exercised in the private courts of the lay lords and in
the Hundred Court. It is always to be remembered that
the courts granted or confirmed by the king to religious
houses were temporal and not spiritual courts. No franchise,
it is apprehended, was ever granted by a temporal power for
holding a clerical court. The authority of the church to
hold courts was original and inherent.
1 Ang. -Sax. Chron. anno 1 102; Eadmer, Hist. Nov. 67; 5 Freeman,
Norm. Conq. 147. See also Placita Ang.-Norm. 157-159.
2 Laws of Hen. I. c. 7, §§ 7, 8. Further attention will be called to this fact
at a later stage.
3 The charter in full will be found in the Appendix, No. I.

32 HISTORY OF PROCEDURE.
In respect of the subject-matter of jurisdiction perma
nently exercised by the Court Christian, this may compre
hensively be stated to have embraced church law and the
cure of souls. In the Conqueror's charter separating eccle
siastical from temporal jurisdiction, it was ordered that no
bishop or archdeacon should further hold pleas in the Hundred
Court concerning the laws of the church ("de legibus epis-
copalibus"), nor bring causes which pertained to the cure of
souls ("ad regimen animarum") to the judgment of laymen.1
The latter head came finally, in the reign of Stephen, to
include the punishment (i) of all offences by the clergy, of
every nature ; while from the first it included the punish
ment (2) of many offences committed by the laity. Then
(3) by reason of having the charge of marriages and the burial
of the dead, with jurisdiction of questions of legitimacy as
pertaining to the cure of souls, the Ecclesiastical Court always
had jurisdiction over disputes concerning the estates of dece
dents, though strangely enough not over questions of dower.
In the reign of Stephen a great extension of jurisdiction was
effected in matters of property ; the ecclesiastical baronage
finding the only protection to their temporal interests to be
in the exercise of authority by their own court.
With regard to the first and third class of cases, the Con
queror's charter had some connection, perhaps, with results
that the Conqueror doubtless little anticipated. Its natural
effect is generally believed to have been to afford occasion to
ecclesiasticism in England, in the favourable opportunity
especially of Stephen's reign, to take and fortify a position
such as it had never before fully assumed, not merely of
absolute independence of the secular courts over the criminal
offences of the clergy, but also over questions of the tempo
ralities of the church.2 A little latitude of construction of the
1 Comp. Peter Blesensis, u. 15.
2 In early times the clergy had exercised jurisdiction over small civil claims.
" The Penitential of Theodore contains a provision that the bishop shall determine
the causes of the poor up to fifty shillings, the king if the sum in question be
greater." — I Stubbs, Const. Hist. 232.

THE COURTS. 33
charter would make it include both of these cases ; but the
necessities of the time of Stephen were doubtless the real
justification to the clergy for assuming jurisdiction over ques
tions of property. The same jurisdiction would have been
assumed, no doubt, without the Conqueror's charter.
Under the system which prevailed before the Conquest,
and perhaps until the reign of Henry the Second, all clerical
offences, great and small, which were not committed upon
laymen, were indeed punishable only by ecclesiastical autho
rity ;: but if a man of the church committed an injury upon
one of the laity, the punishment of the offence was com
mitted to the secular courts.2 On the other hand, offences
committed by laymen against the church, such as the killing
of a bishop, priest, deacon, or monk, were atoned for accord
ing to canonical law.3 Disputes between men of the church
were also to be settled within the church.4 In causes con
cerning tithes, the right of patronage, and offerings, and causes
between ecclesiastics, says Peter of Blois, " canones legibus
imponunt silentiam."5
In the reign of the Conqueror, of Rufus, and probably of
Henry the First, jurisdiction was exercised by the King's
Court over the conduct of the highest dignitaries of the
church, so far as it affected the king.6 Stephen's arrest of
the bishops is also familiar.7 By the middle of the twelfth
century, for the redress of criminal offences against laymen,
1 "De his qui intra aecclesiam in gravibus vel in levibus commissis delinquunt,
nichil vindictse ad eos qui foris sunt." — Dialogue of Ecgbert, t. 8 ; Peter Blesensis,
c. 16 ; Laws of Hen. I. c. 57, § 9.
2 Dialogue of Ecgbert, c. 8 ; 2 Anc. Laws, 90 (8vo ed. ).
3 lb. c. 12. King Stephen himself was summoned to answer before an Eccle
siastical Council for arresting and dismissing the bishops in the year 11 39, and
obeyed. 4 Canons of Edgar, c. 7 ; 2 Anc. Laws, 247 ; Law of the Northumbrian
Priests, c. 1 ; 2 Anc. Laws, 291.
5 Peter Blesensis, u. 16; ib. cc. 48, 51.
6 Placita Ang.-Norm. 391, 307; Eadmer, Hist. Nov. 37; 5 Freeman, Norm.
Conq. 94 ; post, p. 48.
7 But this was in violation of his oath of office. The view of the clergy may
be seen in William of Malmesbury, Gest. Reg. anno 1139 (pp. 500-505, Bohn).
D

34 HISTORY OF PROCEDURE.
the temporal courts had still, indeed, a right to inflict punish
ment upon a clerical offender, but only after the Ecclesiastical
Court had pronounced him guilty, deprived him of his order
and turned him over to the temporal courts as now virtually
a layman, and punishable as such upon the next offence.1 If
the Ecclesiastical Court refused to try the offender, or failed
to find him guilty, and also to degrade him and turn him over
to the temporal courts, he had immunity from all outside
interference. This state of things existed at its height from the
beginning of the reign Df Stephen2 until the tenth year of
the reign of Henry the Second ; when at last the storm that
tore down the pretensions of the church burst over the head
of Thomas a Becket, a storm hastened somewhat, perhaps,
by the personal ill-feeling that arose on the part of the king
from the moment when, in the year 1162, upon his election
as archbishop of Canterbury, a. Becket resigned the chan
cellorship without consulting the king. The result was the
Constitutions of Clarendon, anno 1 164.3 From the very coro
nation of Stephen until that time the clergy of England were
masters of the situation, judicial as well as administrative,
a period of twenty-nine years.
These Constitutions were, as they purport, the result of
an inquiry into the customs of England existing in the time
of Henry the First, grandfather of Henry the Second; the
former having died less than twenty years before the latter's
accession to the throne, so that the old customs might be
1 Roger de Hovenden, anno 1 167.
2 See Stephen's oath of office as king, to which position he could not have
attained without the support of the clergy, especially of his brother, the papal
legate, Henry, bishop of Winchester. He swore that the jurisdiction and power
over beneficed clergy, and over all persons in orders, and their properly, and the
distribution of effects of the clergy, should be in the hands of the bishops.
Wilham of Malmesbury, Gest. Reg. anno 1 136 (p. 493, Bohn) ; Stubbs, Sei. Ch. 120
(2d ed. ). This is called his second charter.
3 See Stubbs, Sei. Ch. 137-140. The Assise of Clarendon was another thing,
being two years later.

THE COURTS. 35
easily ascertained. And these customs of the first third of
the twelfth century were now to be renewed.1
How far the clerical position had been advanced since
these customs prevailed, and how far, on the other hand,
the revulsion now went, may be inferred from the very
first section (or chapter) of the Constitutions ; where it was
deemed necessary to declare, in respect of advowsons and
presentations to churches, that in case of disputes "between
laymen, or between laymen and clerks, or between clerks,"
the same should be tried and determined in the King's Court.2
The next section is not less significant in declaring that
churches in the King's fee should not be given in perpetuity
without his consent. The third section, however, is the one
of special interest.
This section declared that clerks accused of any crime
should be summoned by the king's justiciar into the King's
Court, to answer there for whatever the King's Court should
determine they ought to answer there, and (to answer) in the
Ecclesiastical Court for whatever it should be determined
(in the King's Court) they ought to answer there ; yet so
that the king's justiciar should send into the Court of Holy
Church to see in what way the matter should there be treated ;
and if the particular clerk should confess or be convicted,
the church should not thereafter protect him.
The sixth section provided how laymen should be accused
and proceeded against in the Ecclesiastical Court, for offences,
it should seem, committed against the clergy or the church.
They were not to be put to trial on mere rumour.3 The
1 It would be a great mistake to suppose, with Phillips (1 Englische Rechtsg.
162, 163 ; 2 ib. 69), that any attempt was made to set aside the Conqueror's
charter of jurisdiction, as will be seen by the statement of the Constitutions,
infra. 2 The state of the law on this point in the time of Stephen will be seen in the
cases referred to hereafter, ^pp. 46, 47.
3 "Laici non debent accusari nisi per certos et legales accusatores et testes in
praesentia episcopi ita quod archidiaconus non perdat jus suum, nee quicquam
quod inde habere debeat." D 2

36 HISTORY OF PROCEDURE.
seventh provided that no one who held of the king in chief
should be excommunicated or his lands put under interdict
until the king should be consulted, " so that whatever belongs
to the King's Court may therein be settled ; and the same, on
the other hand, of the Ecclesiastical Court." Appeals, by
the eighth section, were to proceed (in ecclesiastical cases)
from the archdeacon to the bishop, thence to the archbishop ;
and if the latter failed to do justice the parties were then to
go before the king, that by his writ the controversy might be
determined in the archbishop's court, and not proceed further
(that is, to Rome) without the king's consent.
Section nine is interesting, both as limiting still further
the claim to ecclesiastical jurisdiction, and as containing
the first specific mention of the proceeding for determining
whether a particular fee was eleemosynary or lay; for the
effectual carrying out of which the writ de elemosina vel
feodo of Glanvill was fashioned.1 The section declared that
if a dispute arose between a clerk (as plaintiff) and a layman,
or between a layman (as plaintiff) and a clerk, about a tene
ment which the clerk claimed as eleemosynary, but the layman
claimed as a lay fee, it should be settled by a recognition
of twelve lawful men, by consideration of the king's chief
justiciar, and before the justiciar himself, whether it was an
eleemosynary or a lay fee. If it were declared to be the
former, the case should then be pleaded in the Ecclesiastical
Court ; but if the latter, then, unless both should claim it of
the same bishop or baron, the case should go to the King's
Court. If both claimed of the same bishop or baron, the
case should go to such person's (temporal) court.2

1 It must not be inferred, however, that this was the beginning of such
remedies. The subject will be considered in the chapter on the Writ Process.
2 This section differs from the first in that the first refers to a dispute concerning
the title to the advowson, while in this section the question referred to is how the
title is held. And it should be noticed that if it were found that the fee was clerical,
its administration, with the disputes relating thereto, was turned over to the Ecclesias
tical Court. The guarded language of the chronicler in Abbot of Battel v. Alan de,
BellaCogo, Placita Ang.-Norm. 245, accords, inreality, with this.— Post, p. 40, n. 5."

THE COURTS. 37
The tenth section provided that any person, whether
of city, castle, town, or demesne manor of the king, who
refused to obey the summons of the archdeacon or bishop
for any delict for which he ought to answer to them, might
be put under interdict. Such person could not be excom
municated, however, if the king's officer would compel him to
come to satisfaction ; but if the officer failed, then the bishop
might proceed against the accused according to ecclesiastical
law. This section, with the sixth, is of interest as showing
that the Ecclesiastical Court was not to be shorn of juris
diction over offences committed against the clergy or the
church ; for such must have been the delicts referred to.
Other sections of a more general character follow ; the
only remaining one of importance to the present inquiry
being the fifteenth. Not a little has been heard concerning
the attempt of the Ecclesiastical Court to obtain jurisdiction
over the trial of actions for the breach of solemn contracts,
on the ground that such acts were violations of faith, and
hence sinful. The fifteenth section of the Constitutions of
Clarendon appears to be the first distinct reference to this
claim. "Pleas of debt," is its language, "which are due by,
pledge of faith, or without pledge of faith, belong to the
king's justiciar." x This probably referred to pleas of debt
between laymen or between a clerk and a layman. The
Ecclesiastical Court appears to have retained jurisdiction of
pleas of debt between the clergy;2 such causes, with the
complaints generally between the inferior clergy of a religious
house, being tried, perhaps, before the dean or other superior
officer of the establishment, as in later times.

1 " Placita de debitis, qua; fide interposita debentur, vel absque interpositione
fidei, sint in justicia regis. "
2 At the Synod of Winchester, anno 11 75, eleven years after the Constitutions,
it was decreed that in actions between clerks for the recovery of money, the party
who should be the loser should be condemned to pay the costs. This was "to
put a check upon litigation." The decree might have referred to causes in the
temporal courts, but that is not its natural meaning.— Roger de Hovenden,
anno 11 75.

38 HISTORY OF PROCEDURE.
The repentance of the archbishop over his hasty signature
to the Constitutions, the mutterings of the less courageous
bishops who had barely assented, fearing to express any open
disapprobation, and the absolution of a, Becket from his oath
by letters of the pope, are too well known to be dwelt upon.
But an incident is given by Roger de Wendover, writing in the
thirteenth century, which, if really subsequent to the Constitu
tions, as put by the chronicler, shows that the king had at first
at all events gained a substantial victory. Roger tells us that
in the same year the king, wishing always, as he asserted, to
punish crimes with due severity, and that the dignity of all
orders should be treated fairly, said that it was unreasonable
that his justiciars should be obliged to hand over clerks, when
convicted of crimes, to the bishop of the diocese, without punish
ment ; and he decreed that all clerks taken in open crime should
be handed over to the bishop, and those whom their bishops
found guilty should be deprived of their orders in presence of
his justiciar, and afterwards be delivered over to the King's
Court. The archbishop, says the chronicler, maintained the
opposite opinion, that none who were deprived of their orders
for crime should receive any further punishment from a lay
tribunal.1 And this controversy, he adds, owes its origin to
Philip de Broc, a canon of Bedford, who, when arraigned on a
charge of murder, used contumacious language against the
king's justiciar ; which he was unable to deny when brought
before the archbishop, wherefore he was deprived of his
prebend, and banished for two years.2
1 On the ground of the maxim, ATemo bis vcxari debet pro una et eaxlem causa.
2 Within a year after the Constitutions the king claimed and exercised criminal
jurisdiction in the Royal Court over archbishop a Becket himself.— Placita Ang.-
Norm. 213 — the charge of peculation made at the council of Northampton. But
this could hardly have been justified under the Constitutions ; nor indeed did the
king attempt so to justify it. Thomas pleads a discharge given on the day of his
consecration, and insists that his answer shall be accepted. " Amplius," he says,
" nolo inde placitare." This gives to the king the opportunity to say to his court,
" Cite facite mihi judicium de illo, qui homo meus ligius est, et stare juri in curia
mea recusat," Compare the cases of Odo of Bayeux and William of St. Caiilef,

THE COURTS. 39
This account, however, has not a little the appearance of
something preliminary to, rather than consequent upon, the
Constitutions ; and the suggestion is strengthened by the more
distinct statement of Ralph de Diceto, who, like Roger de
Wendover, wrote in the thirteenth century. In one short
paragraph the former tells of the council resulting in the
Constitutions ; and then, without saying, as Roger has added,
" in the same year " as if they were subsequent, proceeds to
report the facts mentioned by Roger. And instead of saying
that the king " decreed " (decrevit) that clerks taken in crime,
etc., Ralph says that the king " had decreed " {decreverat) in
that way ; the whole account as given by the latter, including
the affair of Philip de Broc, being apparently an explanation
of the causes which immediately led to the Constitutions.
The events which followed the recantation of a Becket,
the murder at last of the archbishop, at which the king
himself was suspected of connivance, and the humiliation of
the king, need be referred to only as indicating the strength
of the position which the church had acquired during the
lawless reign of Stephen, and the greatness of the struggle
necessary to dislodge it. And all the results as seen in the
Constitutions seemed likely to be lost in the events following
upon the murder of the archbishop. But while the king was
humiliated to the last degree (he is said to have literally
submitted to the stripes of the church), and though he
solemnly promised to abrogate the Constitutions, so far as
they were prejudicial to the church,1 the fruits of victory
finally remained with the opponents of clerical aggression ;
which, however justifiable under Stephen's oath of office,
and in the perilous circumstances of Stephen's reign, had
in the reign of Henry the Second, lost its justifying motive
Placita Ang.-Norm. 291, 307 ; infra, p. 48. The king stood upon authority,
though in face of the facts his conduct was outrageous ; and Thomas was an
archbishop of Canterbury, not a suffragan.
1 See the purgation of the king, and the charter of absolution, Roger de
Hovenden, anno 1 172.

4o HISTORY OF PROCEDURE.
of self-preservation, and now threatened the welfare of the
nation.1 An examination of Glanvill, who wrote near the end of
the reign of Henry the Second, and more than twenty years
after the Constitutions, will show that the king did not fulfil
his promise, and that the victory remained on the side of
reform, at least as to property causes; though for several
years after the death of a Becket the king's fear of the pope
caused him to yield to Rome when any direct attempt was
made by the pope or by his legates to exercise judicial
authority over property causes' of the church.2 But by the
time of Glanvill the whole matter of advowsons and pre
sentations was within the jurisdiction of the temporal courts,
as regulated by the Constitutions. Glanvill says that if a
dispute concern merely the last presentation, and the claimant
allege that he or one of his predecessors in right had the last
gift and presentation, the plea should be discussed by the
assise appointed concerning ecclesiastical advowsons, namely,
the assise de ultima prsesentatione.3 If the right of advow
son were the sole object of dispute, the case also went before
the temporal court for consideration.4 This statement cor
responds with the language of the first section of the Consti
tutions.5 But the most significant statement of Glanvill
1 The hasty and intemperate proceedings, called laws, instituted upon the
flight of a Becket, had but a temporary effect, and need not be here considered.
They may be found in I Phillips, Eng. Reichsg. 170, 171.
2 An example may be seen in the case of Godfrey de Luci v. Abbot Odo, anno
1 1 76, in which a, question of property is brought to trial by the papal legate
Hugezun before a synod, as a matter of course, though the validity of the king's act
was directly involved and doubted. The case will be found in the Appendix, No. 3.
3 Glanvill, lib. 4, c. I ; lib. 13, c. 18. 4 Ibid.
s Ante, p. 35. Abbot of Battel v. Alan de Bellafago, Placita Ang.-Norm.
245, was a case of this kind, tried in the King's Court about the year 1 1 70. (It
was near the close of the plaintiff's life; and he died in June, 1 171.) The
chronicler states that the trial was without detriment to ecclesiastical law or dignity,
because the only question for the King's Court was, who made the last presentation.
The trial occurred during the a Becket difficulty ; and it was still thought necessary
for the clergy to explain that such a proceeding in the King's Court did not involve
an attempt by that court to determine upon the mode in which ecclesiastical pro-

THE COURTS. 41
occurs in chapter twelve of the same book just cited. It should
be observed, he saysrthat it sometimes happens that one clerk
sues another in the Ecclesiastical Court concerning a church.
Should they, he continues, derive their titles through different
patrons, the Ecclesiastical Court may, upon the demand of
either patron, be prohibited from proceeding in the suit until
it be ascertained in the King's Court to which patron the ad
vowson of the church belongs. A writ of prohibition follows,
and then another writ to be used in case of the refusal of the
Ecclesiastical Court to obey the first.
Elsewhere Glanvill says that if a plea of an ecclesiastical
fee arise between two clerks concerning a tenement held
in frankalmoign, or if the tenant, a clerk, hold an ecclesi
astical fee in frankalmoign, whoever may happen to be the
demandant, the plea ought to be in the Ecclesiastical Court,
unless a recognition should be demanded whether the fee be
ecclesiastical or lay ; which recognition must be in the King's
Court.1 This, in effect, is section nine of the Constitutions.2
The Pipe Rolls of this time confirm the statements of
Glanvill. In the thirty-first year of Henry the Second ( 1 1 84 ,
a little before Glanvill's treatise was written), Simon de M.
was found debtor to the king in ten marks for pleading in
the Court Christian concerning a lay fee.3 And still more
explicit and striking was the entry that the prior of Wor
cester rendered account of ten marks for himself holding plea
of a lay fee in the Court Christian.4
Again, in the case of an action brought by a creditor
against his debtor for the recovery of payment of his debt,
Glanvill says that upon the debtor's appearance in court —
that is, in the King's Court — if the creditor has neither pledge
nor sureties (from the debtor for the debt), nor any other
perty should be administered, when no question of the right of property was
involved. Such explanations are to that extent an abandonment of the position of
a Becket ; while at the same time they fully justify the king's position.
1 Glanvill, lib. 12, c. 25. - Ante, p. 36.
3 Placita Ang.-Norm. 278. 4 Ibid.

42 HISTORY OF PROCEDURE.
proof, except the mere faith of the defendant, this will not be
received as proof in the King's Court, a statement referring
to the necessity of making a prima facie case. Glanvill adds,
Yet he may proceed for the breach of faith in the Court
Christian. But, he continues, though the ecclesiastical judge
may hold cognisance of such crime, and either impose penance
on the convicted party or enjoin him to make satisfaction, yet
as to pleas of debt among the laity or pleas affecting tene
ments the Court Christian cannot, by reason of a law of the
kingdom (the Constitutions of Clarendon), hold or decide
them under the pretence of the party having pledged his
faith.1 Pleas of debt owed by the clergy appear to be
excepted by Glanvill from the jurisdiction of the King's
Court.2 The statement that the Ecclesiastical Court may enjoin
the debtor to make satisfaction should be noticed in passing,
as showing how that court might act as a court of equity in
aid of justice in cases in which the temporal courts could not
do justice ; 3 of which defect in those courts, or rather in the
rules of evidence, the passage reveals an instance which may
fairly be assumed to be a type of other cases. It is probably
safe to suggest that whenever a person had a just cause of
action which, however, he could not establish in the secular
courts for want of the required supporting evidence (evidence
additional to his own statement), he could resort to the
Ecclesiastical Court, and, through the warnings or the censure,
pains, and penalties of the church, obtain specific perform
ance or compensation. This point will be alluded to again
presently. Only one short, and that unsatisfactory, book concerning
crimes appears in Glanvill's treatise, the last one in it ; and
this makes no mention of crimes committed by the clergy.
1 Glanvill, lib. 10, c. 12. - lb. lib. I, c. 3, § I.
3 Comp. Peter Blesensis, c. 10, that the bishop "potest cogere nvaritum
prestare cautionem de rcstituenda dote. "

THE COURTS. 43
But nothing is said to indicate that the law treated of was
not general. There is, however, a passage in Roger de
Hovenden, of the year 1175, some eleven or twelve years
before Glanvill's treatise was written, and before the king
had fully recovered from the consequences of the murder
of a Becket, in which we are told that the pope's legate
Hugezun "gave permission to the king to implead the clergy
of his kingdom for offences against his forests ancl taking
venison therein." This passage shows the extreme to which
the king had at first been driven by the a Becket catas
trophe. It is probable that he had recovered himself by
the time of Glanvill's book (perhaps anno 1186). Glanvill's
silence as to clerical offenders may, however, indicate a
prudent regard for the feelings of the king. Neither the
Assise of Clarendon (anno 1166) nor that of Northampton
(anno 1 176) contains any reference to crimes committed by
the clergy. Their language is, however, general as to criminal
offences. Further evidence of Henry's dread of the pope for some
years after the death of a Becket is probably furnished by
the case of Henry's son, " the young king " against his (the
son's) vice-chancellor Adam, anno 1176.1 Adam was a clerk,
and was accused before a lay court on the Continent and
found guilty of treason to his lord. He was saved from the
gallows by the bishop of the place, who asserted that
" clericum in sacris ordinibus constitutum a laico non posse
judicari." This indeed was at Poictou ; but the king, when
he heard of the affair, appears to have been displeased, or
more likely alarmed, and orders the offending clerk to be
sent to him. The order was obeyed, but not without the
infliction of great indignities upon the prisoner, including the
sending him to the king in irons ; in which condition the king
refused to receive him. The king then directs that Adam be
1 Placita Ang.-Norm. 314. The word "vice-chancellor" need not create
surprise. The office was common at this time, but had no judicial significance.

44 HISTORY OF PROCEDURE.
given into the custody of the abbot of Hida at Winchester,
" until he can speak with his counsel about the matter."
The exercise of lay jurisdiction over the clergy in personam
was, it is true, a different thing from exercising jurisdiction
over disputes of property claimed by the church. The
jurisdiction of the church had become fortified by the usage
of centuries and by the sanction of emperors, kings, and
princes, as to the offences of the clergy ; I but this case of
the vice-chancellor was an appeal of treason, jurisdiction over
which class of cases had belonged, unquestioned in England
for more than a century, to the court of the offended party.2
The case therefore merely indicates the temporary subjection
of Henry to fear of the pope.
That the King's Court, or other lay court, had exercised
jurisdiction over questions of church property prior to the
reign of Stephen, both before 3 and after the Conquest, the
evidence is decisive ; and from the Conquest to Stephen this
jurisdiction was substantially exclusive.4 In the year 1070,
1 See e.g. the decree of the emperor Julian anno 530. Cod. lib. 1, c. 29.
The Constitutions of Clarendon were the late beginning of determined revolt
against clerical privilege and priestly assumption of superiority over the State.
2 Post, p. 48.
3 See the Cases of Eadgar, Essays in Ang.-Sax. Law, 347, and Cod. Dipl.
1258 ; Bishop jEthelstan, Thorpe, Dipl. 375, and Essays, 363 ; .Ethelred,
Thorpe, 271, and Essays, 350; Godwine and Leofwine, Thorpe, 301, and
Essays, 360 ; Ealdred, Essays, 368, and Cod. Dipl. 805.
4 This may not have been the case before the Conquest. Many property
causes of the church are recorded as having been brought before synods ; but it is
not clear that these synods were anything else than the Witenagemot. See the
Cases of Offa, Essays in Ang.-Sax. Law, 316, and Cod. Dipl. 164; Archbishop
^Ethelheard, Essays, 317, and Cod. Dipl. 1019 ; Deneberht and Wulfheard,
Essays, 320, and Thorpe, Dipl. 52 ; Beornwulf, Essays, 323, and Thorpe, 67 ;
Wulfred, Essays, 324, and Thorpe, 73; and other cases in the Essays following these.
It is, however, impossible to affirm that jurisdiction was not exercised in particular
cases in any court by consent of the parties ; but substantial unanimity as to the
forum, as in the cases from the Conquest to Stephen, has a most persuasive bearing.
As to clerical jurisdiction in these pre-Norman councils, Professor Stubbs says :
" They seem also to have exercised a friendly jurisdiction in suits for property
between different churches ; herein acting rather as arbitrators than as judges, and
probably expecting review or confirmation by the Folkmot or Witenagemot."—
I Const. Hist. 231. He also says that these councils were "scarcely distinguish-

THE COURTS. 4J
at a great assembly, consisting of the king, archbishop
Lanfranc, and the bishops, abbots, earls, and great men of
the kingdom — the Witenagemot — bishop Wulfstan recovers
church lands of archbishop Thomas of York.1 Not far from
this time the celebrated trial between archbishop Lanfranc
and bishop Odo occurs, in a County Court at Penenden
Heath ; the suit being successfully brought for the recovery
of lands and franchises of which the see of Canterbury
had been disseised by Odo.2 At the suit of the abbot of
St. Augustine, anno 1076, the king sends a writ to his own
justiciars for the relief of the plaintiff as to lands of which
his church had been disseised.3 Later in the same reign
occurs the well-known case of Bishop Wulfstan v. Abbot
Walter,4 in which, before the king's justiciar and an assembly
of "counties and barons," the plaintiff, as bishop, claims and
recovers the right to lands and various services from the
defendant as abbot. About the same time occur land suits
in County Courts between bishop Odo and the same Walter.5
At a County Court held at Kenetford, composed of abbots,
sheriffs, and many knights, French and English, the abbot of
Ely recovers various lands and franchises of which his church
had been disseised at the Conquest.6 In the reign of Rufus
the abbot of St. Augustine obtains a writ from the king
ordering an inquisition as to the customs which his church
claimed in Newington.? In the same reign, the monks of
St. Benet obtained from the king a writ requiring an
assembly of the County Court of Hants, and an inquisition
whether the land of Isham had paid rent to the monks in
the time of the king's father.8 Near the beginning of the
reign of Henry the First a writ is obtained from the king,
ordering an inquisition as to lands claimed by R. of Avranche
able from the separate Witenagemots. All these councils in many respects resemble
the Witenagemots. " — lb. 230. "Mixed synods or rather Witenagemots." — Smith,
Diet. Christ. Antiq. title Council, p. 480 ; see also ib. p. 485.
1 Placita Ang. -Norm. 2. ! Ib. 4. 3 lb. 13. 4 Ib. 16.
s Ib. 20, 21. 5 Ib. 23. 7 Ib. 66. 8 Ib. 71.

+5 HISTORY OF PROCEDURE.
and by the abbot of Abingdon.1 About the same time abbot
Faritius recovers judgment in several cases in respect of
knight fees, in the presence, in one case, of sheriffs, justiciars,
and barons, in another before bishops (one being Roger of
Salisbury, the king's justiciar and treasurer, the reorganiser
of the Exchequer) and many barons of the king.2 A few
years later the king by his writ commands Goscelin to go
into the Manorial Court of the abbot of St. Augustine and
there sue in respect of certain land of the church.3 Abbot
Faritius, about the year 1108, obtains a writ from the king
against Robert Maledoit, commanding him to perform
services due the abbot.4 About the same time the king
confirms a recovery of judgment in his court in respect of
a prebend, the right over which was in dispute between
the abbot of St. Augustine and the canons of St. Martin.5
In the year 1109 abbot Faritius recovers judgment in the
Exchequer as to a certain manor.6 A great trial occurred
in the year 1121, between the monks of Durham and the
monks of York, concerning the right to a church, before an
assembly of great men, apparently laymen, one, at least, a
sheriff.7 Many other examples might be given of the reign of
Henry the First to the same effect ; and there is no known
record at variance with the cases referred to. The trials held
in the Ecclesiastical Court will all be found to have been
purely ecclesiastical causes, or causes relating to offences
inter clericos. Even in the reign of Stephen the King's Court
did not lose its ancient jurisdiction : the Ecclesiastical Court
merely assumed jurisdiction alongside of it, for the better
protection, doubtless, of the secular interests of the church.
Thus, there is a record of a litigation in the King's Court
anno 1 139, between the archbishop of Canterbury and the
1 Placita Ang.-Norm. 73. 2 lb. 75-78. 3 ib. 90.
* !»• 97- s lb. 98. 6 lb. 99, 100. 7 lb. 117, 119.

THE COURTS. 47
abbot of Battel as to a question of wreck.1 In the year 1 141
there is a case of a writ of right, commanding the archdeacon
of Canterbury to hear a cause as to land of the church.2 The
following year there occurred an inquisition as to the estate
of R. P., deceased, held before barons and legal men of the
church, clerks, and laymen.3
On the other hand, the first cases, since the Conquest at
least, of trials of questions relating to church property in the
Ecclesiastical Court occur in this reign. There is a record
of an adjudication in the year 1145, in a public synod ("in
publica synodo "), of the trial of the right to two churches.4
In another synod, held the following year, judgment was
rendered in a cause between the monks of Basselech and
Picot, chaplain of St. Gundley, in respect of a certain chapel,
its tithes, and cemetery.5 About the same time a question of
the title to certain manors was agitated and decided between
bishop Ascelin and the monks of St. Andrew in a court of
bishops, abbots, " and other religious men."6 In the year 1 148
an ecclesiastical cause relating to the status of Battel Abbey
is tried in the King's Court7 — perhaps because this monastery
was under the special protection of the king. And thus the
cases fluctuate throughout this reign of Stephen.
The same fact is observable during the first years of the
reign of Henry the Second. The Constitutions alone would
indicate this ; but there are records of actual causes, distinctly
establishing the fact.8 Thus, a trial anno 11 56 as to the title
to the church of St. Gundley was held before a synod presided
over by archbishop Theobald.9 The same "appears to have
been true of the case of Church of York v. Church of Glou
cester, except in its final stage.10 Indeed, the practice did not
entirely cease with the Constitutions. There is a record of a
trial in the Spiritual Court in the year 1175 (nine years after
1 Placita Ang.-Norm. 143.
* Ib. 146. The demand of a writ is of itself an appeal to the secular
authority. 3 Ib. 147. 4 Ib. 150-154. s lb. 155. 6 Ib. 160.
i Ib. 156. 8 Ib. 174, note. » Ib. 182-186. I0 Ib. 189.

48 HISTORY OF PROCEDURE.
the Constitutions) as to a certain church, upon a commission
of the pope.1
The records concerning offences of the clergy against
laymen are not so numerous or decisive in respect of jurisdic
tion prior to the reign of Henry the Second ; but such as we
have indicate that the King's Court in some degree exercised
the right to punish clerical offenders. So far as questions of
treason and abuse of office held of the king are concerned,
the records are sufficiently clear. The well-known encounter
between William the Conqueror and Odo of Bayeux (his half-
brother) in the King's Court, and that of Rufus and William,
bishop of St. Carilef, in the same court have already been
mentioned.2 The Case of Bishop Remigius, in the time of the
Conqueror, is still more to the point ; since in that case the
ordeal of fire was actually undergone on behalf of the de
fendant, who had been accused of treason to the king.3 And
Eadmer tells us that Rufus commanded archbishop Anselm
to be ready to do right in the King's Court in respect of
a complaint made concerning men sent by Anselm to the
king for military duty in Wales.4
As to other great crimes, such as homicide, it has already
been observed that the fact that the peculiar punishments of
the church were inflicted in particular cases does not alone
show that the offenders were tried in the clerical courts ;
for the offences may have been committed against lay
men. Criminal charges (not of treason) against a bishop
must, it seems, in the time of Henry the First, have been
tried in the Ecclesiastical Court;5 but as to men of the
1 Placita Ang.-Norm. 219. We do not enter into the controversies growing
out of sections of the Constitutions not relating directly to the jurisdiction -of the
clerical and lay courts. But what has been said may be sufficient to show that
Mr. Green's broad statement (Short list, of the English People, p. 103) that " the
legislation respecting ecclesiastical jurisdiction was wholly new " needs qualification ;
even if it be entirely true in respect of some of the illustrations he gives.
2 Ib. 291, 307; ante, p. 24. 3 lb. 30.
* Eadmer, Hist. Nov. 37 ; 5 Freeman, Norm. Conq. 94.
5 Leges Hen. I. c. 5, § 24.

THE COURTS.

49

church of lower rank the records are not always explicit.
Chapter lxxiv. of the Laws of Henry the First provides for
penitential punishments of bishops, priests, and deacons who
have committed homicide ; but we are not told in what court
the accused (not being bishops) were tried. There is no
doubt, however, that all offences inter clericos were cognisable
only in the Ecclesiastical Court.1 If crime were committed
upon a layman, the lay courts took cognisance of it.2 As
to offences committed by the clergy which did not affect
laymen, though the clerical courts, as we have said, always
had jurisdiction, it is not improbable that matters of this
kind were often tried in the lay courts of the religious houses
concerned. According to the Laws of Edward the Confessor
(chapter iv.), all tenants of the church appear to have had, in
the time of the Confessor, the right to a trial in the Ecclesi
astical Court for alleged offences, and to resist being put upon
trial in a lay court ; but this was apparently an exceptional
state of things.
There are indications that minor offences (delicts) of the
clergy were in the time of Henry the First sometimes treated
as subjects of lay cognisance, notwithstanding the language
of the custumal bearing that king's name.3 Thus, William
of Jumieges obtains a writ concerning trespass against abbot
Faritius in the year lio6.4 There is another writ for an
alleged trespass by the priests of St. Augustine in the year
1113.5 In Abbot Peter v. Bishop Remelin,6 in the same
reign, the plaintiff recovers the body of a deceased person,
carried away by force by the defendant, the trial being had
before the king, archbishop Anselm, the earl of Meulan,
bishops, abbots, and great men. The court appears to have
been secular, for the earl of Meulan delivers the judgment.
1 Laws Hen. I. t. 57, § 9 ; Peter Blesensis, c. 16 ; Dialogue of Ecgbert, c. 8.
2 Dialogue of Ecgbert, c. 8.
3 Laws Hen. I. c. 57, § 9. See also Dialogue of Ecgbert, c. 8.
4 Placita Ang.-Norm. 93. 5Ib.no. 6 Ib. 136.

50 HISTORY OF PROCEDURE.
But how much of such exercise of jurisdiction was matter
of consent, or of privilege, or of power, in the particular
instance, cannot be known.
There was a second branch of jurisdiction in the Eccle
siastical Court which has played a less prominent, indeed,
but far more permanent, part in English history. The
Spiritual Court of England has jurisdiction at the present
day of certain offences of the laity over which it exercised
jurisdiction in the eleventh and twelfth centuries. Among
these the chief are offences between the sexes, such as
adultery and promiscuous intercourse ; though if the illicit
act were accomplished by violence, jurisdiction over the
offender belonged to the temporal court.1 This branch of
jurisdiction covered also proceedings in matters of marriage
and divorce, an example of which may be seen in the case of
Richard de Anesty v. Mabel de Francheville.2
Criminal intercourse of the sexes was probably always
matter of clerical jurisdiction, though perhaps not exclusively
so, for among the customs of Kent Domesday states that in
cases of adultery the king was entitled to the man, the arch
bishop to the woman.3 And this was substantially true in the
twelfth century.4 But when the king or earl was not inter
ested, the jurisdiction was probably ecclesiastical, after the
Conquest if not before.5
1 Glanvill, lib. I, c. 2 ; lib. 14, c. 6. " Placita Ang.-Norm. 311.
3 1 Domesday, 1. 4 Laws Hen. I. c. II, § 5.
5 A passage in Leges Hen. I. c. 7, § 3, may seem to indicate that the trial
was in the popular court. — 1 Stubbs, Const. Hist. 232, 233. But this passage
only declares that the causes of the church are first to be tried, on the as
sembling of the County Court — "agantur itaque prirno debita vene christianitatis
jura" — which appears to refer to the rights generally of the church as plaintiff
and not merely to criminal forfeitures in which the church was interested. The
church had, of course, the same right to sue in the popular courts as the laity.
The Penitentials seldom speak of the forum. See, for example, 2 Thorpe, Anc.
Laws, 82-85 (8vo ed.). But in the Dialogue of Ecgbert, c. 8, it is said that
criminal offences of the sexes by persons within the church were of clerical cogni
sance.— 2 Anc. Laws, 90. Professor Stubbs agrees that for the punishment of
disobedience, heresy, drunkenness, and the like by the clergy there were special
spiritual courts before the Conquest. "For such, then, it is probable that the

THE COURTS. 51
To the Spiritual Court appears also to have belonged the
punishment of defamation until the rise of actions on the
case,1 when the temporal courts assumed jurisdiction, though
not, it seems, to the exclusion of punishment by the church.
The punishment of usurers, cleric and lay, also belonged to
the ecclesiastical judges, though their movables were con
fiscated to the king, unless the usurer "vita comite digne
pcenituerit, et testamento condito quae legare decreverit a se
prorsus alienaverit."2 That is, it seems, the personal punish
ment was inflicted by the Ecclesiastical Court, but the con
fiscation of goods (when proper) was decreed by the King's
Court.3 The third subject of jurisdiction of the Ecclesiastical Court
has also remained in that court to the present day, namely,
the- decision of disputes arising over the estates of decedents.
Wills had been unknown, it seems, among the Teutonic races
before the introduction of Christianity ; and the church,
having brought into practice the usage of the Roman nation,
naturally assumed and retained jurisdiction over questions
arising from testaments, so long at least as no dispute over
making the will or the right to make one arose.4 Pleas

bishops had domestic tribunals not differing in kind from the Ecclesiastical Courts
of the later age and of matured canon law." — I Const. Hist. 233. But that the
practice in respect of purely ecclesiastical causes had been irregular, that they
had been brought before the lay courts at an earlier time, appears from the
Conqueror's charter of jurisdiction. — Ante, p. 30. Appendix, No. I.
1 Under the Stat, of Westm. 2, c. 24, anno 1285.
2 Dialogue of the Exchequer, Stubbs, Sei. Ch. 229 (2d ed.).
3 Ib. 229, 230. The passages are somewhat obscure. The clause above
quoted appears to indicate that wills were not ambulatory during the lifetime of
the testator as in modern times. See also Placita Ang.-Norm. 249. But the
language may imply a present disposition on the making of the will.
4 Questions in advance as to the right to make v. proposed will, were considered
in the lay courts. See Placita Ang. -Norm. 249. Peter of Blois, as has before been
remarked, ante, p. 25, n. 4, thought the ecclesiastical judge ought not to entertain
jurisdiction of wills or of any other secular matter, except incidentally cr accessorily,
"Nemo militans Deo," he says, " implicat se negotiis secularibus. Unde non videtur
quod ecclesiasticus judex debeat cognoscere de causis secularibus; ut de dote, de sue-
cessione, de testamentis. Referre ergo arbitror, utrum de tali causa velit episcopus
E 2

52 HISTORY OF PROCEDURE.
concerning testaments, says Glanvill, however, in general
terms, whether the question were if the will was good, or
upon its interpretation, ought to be tried before the ecclesi
astical judge.1 And as questions of legitimacy in relation to
the title to property also belonged to the Ecclesiastical Court,2
so, to the extent of determining the question of bastardy or
not, but no further, that court had jurisdiction of disputes
over intestate property as well as over testamentary. The
demandant in respect of lands alleged to have been given in
maritagio could also, at his election, bring suit in the time of
Glanvill in the Court Christian.3 The jurisdiction, Glanvill
tells us, was acquired from the mutual troth usually plighted.
Nor was the ecclesiastical judge prohibited from holding plea
in such matters, though the claim related to a lay fee, if it
were clear that the demand related to marriage ; unless the
suit were brought against a stranger to the blood.4
The permanent results of the reforms instituted by Henry
the Second in derogation partly of the recently assumed,
partly of the ancient, clerical jurisdiction may be thus
summarised : i. All questions agitated concerning church
property were relegated to the King's Court, or other lay
court, in one form or another. 2. All offences committed by
men in orders upon laymen were to be redressed alone in the
lay courts. 3. Debts and demands in favour of laymen
against clerics were to be sued in the same courts. 4. Redress
by clerics against laymen, when it was not pursued for the
mere purpose of punishing sin, was to be sought in the lay
courts. On the other hand the Court Christian still retained juris
diction in the following cases : 1. Over offences between
the clergy alone. 2. Over small debts and perhaps minor
principaliter cognoscere, an incidental-, imo accessorie, verbi causa cognoscendo de
causa matrimonii, utrum debeat separari, potest cogere maritum prestare cautionem
de restituenda dote. Sic igitur episcopus, non principaliter, sed incidenter, et, ut
generalius dicam, accessorie, potest de civile causa cognoscere." — Peter Bles. c. 10.
1 Glanvill, lib. 7, c. 8, § 1. ' Ib. cc. 13 -15. 3 Ib. c. 18, § 5. 4 Ibid.

THE COURTS. 53
property causes between the clergy. 3. Over matrimonial
causes, the conduct of the sexes, defamation, usury, and wills.
4. Over (it seems) crimes committed by the laity, when juris
diction was sought for the purpose of imposing ecclesiastical
censure, admonition, or penitential punishment.
The jurisdiction of the Ecclesiastical Court having thus
become settled before the close of the reign of Henry the
Second, a way was found to keep that court within the limits
fixed, to wit, by means of a writ of prohibition, issued from
the King's Court;1 a writ in use from the time at least of
Glanvill, and probably earlier, until the present day — the last
survival, almost, of the ancient equitable jurisdiction of the
King's Court to require specific, personal obedience in an
adverse party.
Besides cases in which there was a settled line of demarca
tion as to the jurisdiction of the Ecclesiastical Court and the
temporal courts, there were cases, some of which have already
been incidentally alluded to, in which the jurisdiction appears
to have been shared between the king, or lord, or both, and
the bishop or archbishop. There are certain pleas of Chris
tianity, say the Laws of Henry the First, in which the king
has a share in this manner : If the king permit anyone who
has committed homicide within a church to make compensa
tion for the act, the party must first pay to the bishop and
the king the price of his birth, and so in-law himself ; then he
must pay five pounds for the peace of the church, and seek
reconciliation of the church, as shall belong to it.2 Again, as
to the withholding of tithes by a tenant, the king's officer was
to go to the land, and the bishop and the lord of the land, with
the priest, were to take the crops and render to the church
what belonged to it (that is, the tenth part, or tithe), and
1 Glanvill, lib. 4, cc. 12-14 ; lib. 12, cc, 21, 22. A similar mode of restraining the
other courts from encroaching upon the jurisdiction of the King's Court probably
prevailed ; as may be inferred from the special writ as to the Magna Assisa. —
Glanvill, lib. 2, cc. 7, 8. Comp. App. No. 56.
" Laws Hen. I. u. 1 1, § 1.

54 HISTORY OF PROCEDURE.
leave the ninth part (that is, one of the ten parts, the tenth
one having gone to the church) to him who had refused to
pay his tithe ; the rest, the other eight parts, they were to
divide, the lord to have half and the bishop half, even though
the tenant in default were a man of the king.1 Romescot
was due at the feast of St. Peter ad Vincula ; and he who
then withheld it must pay the money and thirty pence addi
tional to the bishop, and fifty shillings to the king.2 The
penalty for withholding churchscot after the feast of St. Martin
was similar.3 In the case of adultery committed by a married
man (uxoratus),^ the king, as has elsewhere been stated, Was
to have the man, the bishop (not the archbishop, as in Domes
day for Kent) the woman.5 The man who committed perjury
upon the Gospels was to lose his hand or half his were, this to
be divided between his lord and the bishop.6 The man who
simply bore false testimony was not thereafter to be allowed
to appear as a witness, and must pay to the king or the lord
of the land "helsfang."7 One who slew or maligned a man in
orders should make compensation according to right ; to the
bishop payment according to the rank of the party slain or
injured ; and to the king or lord the full sum for the breach
of peace; or he must deny with full "lada."8 One who un
justly held "Dei fugitivum" must give him up "ad rectum"
and make payment to the proper person, and to the king
according to his wergeld ; and anyone who kept an excom
municated person or an outlaw was to perish without pardon.
Every payment (permitted in such a case) was to be divided
between the church and the king.9 And, generally, in causes
1 Laws Hen. I. c. II, § 2. " lb. § 3. 3 lb. § 4.
4 This shows the difference between the canon and the (Roman) civil law ; by
the latter only the (married) woman could commit adultery. See Smith, Diet.
Christ. Antiq. title Adultery.
5 Laws Hen. I. c. 1 1, § 5,
6 Ib. § 6, from Laws of Cmit, Sec. cc. 36, 37. See also Edw. Sen. c. 3 ;
/Ethelstan, lib. 1, c. 25 ; Bracton, 185, § 2.
? As to this term, see Glossary to Thorpe, Anc. Laws, vol. ii.
8 Laws Hen. I. c. n, § 8 ; c. 66, § 1 ; Laws of Cnut, Sec. c. 44,
' Hen. I. c. ii, § 14.

THE COURTS. 55
for which compensation might be made, the lords of lands
could take a pecuniary fine, according to the law of the
locality.1 There is no evidence of any change of the law in
these matters during the twelfth century.
In what court or courts such mutual demands were en
forced does not clearly appear ; but it is not unreasonable to
suppose that either party might take the first step, the bishop
in his own or in a lay court if he preferred, the lord in his
own or perhaps in the bishop's court, and the king in his own
court. Prior to the reforms of Henry the Second, a fixed,
specific right of action appears always to have involved juris
diction in the superior of the party entitled to the right, or in
the party himself when he had a court of judicature ; and it
would follow, it seems, that either the bishop, lord, or king
could sue in his own court if jurisdiction had not already been
entertained by either of the others in behalf of all. Where,
however, the offence out of which the common claim pro
ceeded was within the sole socn of a franchise, as, for
example, a theft within the league of St. Edmund, the thief
having been taken there, the party having the local jurisdic
tion must have proceeded in order to fix the specific amount
of the fund to be divided ; and if he did not so proceed, and
the king was interested, the party holding the socn was
probably liable to a mulct to the king.
The elaborate system of procedure in the Ecclesiastical
Court made known by the text-books was unknown to the
lawyers of the Norman period ; 2 though it is not unnatural
to presume that, alongside of agencies at work on the Con
tinent, the seeds of that system were sown by the teaching of
Vacarius at Oxford, in the later years of the reign of Stephen.
This learned man is said to have published, while there, nine
1 Hen. I. c. 11, § 15.
2 The church courts of England perfectly understood the canonical division of
petitory and possessory actions as early as the year 1203, and probably long
before. Chron. Evesham, 130 (Rec. Com.). The subject will be referred to again
in the chapter on the Writ Process.

56 HISTORY OF PROCEDURE.
books on the Roman Law, composed of materials from the
Digest and Code.1 But his expulsion by Stephen, or his
enforced silence at all events, prevented the accomplishment
of any immediate results.2 There had, however, always been
an " ordo judiciarius " in the trial of ecclesiastical causes, con
formity to which was generally required by the canon law;3
and to the nature of this ordo we now direct our inquiry.
The materials for reconstructing the old ecclesiastical
procedure are fragmentary ; but if not sufficient to fully
set forth its details, they are enough to clearly indicate its
general nature. Suit was begun by simple summons —
whether executed upon the defendant in person, as in the
temporal courts, or by letters placed upon the altar, as, some
times, in the thirteenth century, the records do not state,
but probably in the former manner — and never by distress.
The formality of a summons, however, was probably dis
pensed with in cases of complaints made at synods, at which
both parties were present and prepared for the cause; as
may be inferred to have been the case in Archbishop Roger
v. Bishop Geoffrey.4 Summons, as in the temporal courts,
was to be made "once, twice, and thrice," unless sooner
obeyed ; after which time, if the defendant failed without
excuse to appear, he was in contumacy, as in the lay
tribunals.5 1 "Suggestione pauperum de Codice et Digesta exceptos ix. libros composuit,
qui sufficiunt ad omnes legum lites qua? in scolis frequentari solent decidendas si
quis eos perfecte noverit." — Duchesne, Hist. Norm. Script, p. 983 (Paris, 1619) ;
Wenck, Vacarius, p. 2. See also 1 Stubbs, Const. Hist. 494, note.
2 "Tempore regis Stephani a regno jusste sunt leges Romana?, quasin Britanniam
domus venerabilis patris Theobaldi, Britanniarum primatis asciverat. Ne quis
etiam libros retineret edicto regio prohibitum est, et Vacario nostro indictum
silentiam ; sed Deo faciente [favente ? ] eo magis virtus legis invaluit, quo earn
amplius nitebatur impietas infirmare." — John of Salisbury in Bibliotli. Patnim
Max. xxiii. p. 404 (Lugd. 1677) ; Wenck, Vacarius, pp. 31, 32.
3 Peter Blesensis, c. 3. Exceptional cases are mentioned in the chapter cited
and in c. 4. See also ib. cc. 42, 44 ; Regino de Synodalibus Causis, pp. 399,
400 (Wasserschleben). 4 Placita Ang.-Norm. 223.
s As to contumacious absence, see Peter Blesensis, cc. 58-60 ; Carta Willelmi,
App. No. I ; Battel Abbey Chron. 79 (Ang. Christ. Soc.) ; Regino de Synodalibus
Causis, pp. 330, 331.

THE COURTS. 57
The archdeacon, acting for the bishop in his absence,
held the ordinary clerical court of a diocese,1 as the steward
(dapifer) held the lord's lay court ; and the defendant chose
judges to sit with the archdeacon. Nor could a cause pro
ceed, if objection were made, before this was done.2 The
pleadings in private causes were probably conducted to an
issue in formal manner by oral plaint and defence, much as
in the temporal courts ;3 though there is reason to suppose
that there was more freedom from rigid formalism of lan
guage. Certain it is that nothing is said in the records con
cerning miskenning (mistake of language in pleading) in the
pleading of ecclesiastical causes before the thirteenth century.
And in great public causes, such as questions of ecclesiastical
authority and independence, turning upon charters or other
documentary evidence, the pleadings lost all rigidly formal
character, being swallowed up in the arguments presented by
the parties,4 as appears to have been true also in like causes
before the lay courts.5 And in some cases of prosecutions
for aggravated offences the "ordo judiciarius " was abandoned
altogether.6 No ecclesiastical cause was to be tried (ordinarily, it
seems) without an " accusator " present in court ; 7 and the
accusers and witnesses (a term which included compurgators)
were to be legal men, confronting the defendant in court, and
free from infamy, suspicion, or manifest taint, since priests
1 As to the early mode of holding the bishop's courts in making the circuit of
his diocese, see Regino de Synodalibus Causis, pp. 206-216 (Wasserschleben).
2 Leges Hen. I. c. 5, § 5 ; c. 33, § 5 ; Excerpts of Ecgoert, c. 143 ; 2 Thorpe,
Anc. Laws, 120. Comp. Edw. Conf. c. 36, as to lay causes.
J See, for example, the Case of Matilda, Placita Ang.-Norm. 79, referred to at
length infra, p. 63 ; Leges Hen. I. c. 5, § 1.
4 See Richard de Luci v. Odo, App. No. 3 ; Hist. Mon. de Bello, 78 et seq.
(Ang. Christ. Soc).
5 Trial by charters, issues of law, and other questions for the judges, appear to
be the only cases in which arguments were possible under the Teutonic procedure.
6 Peter Blesensis, cc. 3, 4.
? Leges Hen. I. c. 5, § 7 ; Regino de Synod. Caus. 495. See Peter Bles.
cc. 4, 11. Accusation inter clericos was to be in writing, at least on the Continent.
Regino de Synod. Caus. pp. 399-40 1.

58 HISTORY OF PROCEDURE.
could not be accused by men who could not be priests.1
But, further, it seems that laymen were not allowed to accuse
clerks in the Ecclesiastical Court, or clerks to accuse laymen.2
If many criminal charges were brought against clerks by
accusers (that is, by the same accuser, and perhaps against
the same clerk), failure in one of the cases required that the
rest should be dropped.3 A bishop was not to be adjudged
guilty except by seventy-two witnesses, nor an archbishop
by any number (in an ordinary court). Forty-four witnesses
were necessary to convict a priest " cardinalis" ; twenty-six
a deacon "cardinalis"; and seven a sub-deacon or clerk of
lower order.4 If a bishop had deviated from the faith, and
after private admonition appeared incorrigible, he was to be
accused before the highest men of the church, or before the
pope.5 If he were accused of certain crimes, he was to be
heard by all the bishops " in provincia," and not to be found
guilty until legitimate accusers were present, men of his own
county (or country, "comprovinciales"), and not foreigners.6
And in the case of a priest or any clerk accused by the
people (" a populo," by the popular voice, without a special
" accusator "), if there were no certain witnesses of the offence
charged, who knew of the truth, the accused was to make
oath of his innocence, calling God to witness of the truth;7
which shows that formal accusation by an accusator was not
always necessary.
The case already referred to of Archbishop Roger v.
Bishop Geoffrey8 shows the general character of pleadings
in private causes in the latter half of the twelfth century,
or, to be precise, in the year 1176. The parties had come
together in a council held at Winchester before the king,
1 Hen. I. c. 5, § 9.
" Ib. § 8 ; Excerpts of Ecgbert, cc. 44, 45 ; 2 Thorpe, Anc. Laws, 121.
3 Hen. I. c. 5, § 10. 4 Ib. § n. s ib. § 25. 6 Ib. § 26.
1 Ib. § 27. These passages from the Laws of Henry I. are for the most part
taken from ancient canons of the church, as may be seen by an examination of the
Dialogue and the Excerpts of Ecgbert, 2 Thorpe, 87-127. 8 Ante, p. 56.

THE COURTS. 59
bishops, and great men, assembled for the purpose of effecting
a reconciliation between the archbishop and the bishop as to
a scene of alleged violence in London. l It seems, therefore,
to have been an ecclesiastical council. The short account of
the case states that the archbishop complained to the king
before the assembly that Geoffrey, on the occasion referred
to, laid violent hands upon him ; which charge was traversed
by a direct denial. And the defendant therefore proceeds to
purge himself in the sight of the king and bishops present,
" in the word of truth, according to law," upon the Gospels
placed before him.2 This was declared by the archbishop of
Canterbury to have been legally done ; whereupon the parties
were reconciled.3
The appointment of a second or trial term must have been
necessary in many, indeed in most, cases ; for accused clerks,
like laymen, were commonly required to produce compur
gators or witnesses, and sometimes to undergo the ordeal —
that of bread or cheese, called the " corsnasd " in Cnut's laws,
peculiar to the clergy, or the iron4 or water ordeal, perhaps.
Either form of proof ordinarily required preparation. This
involved the declaration of a medial, as opposed to the
final, judgment ; in which, as will hereafter be seen to have
been the practice in temporal causes, the court laid down a
rule declaring who should bring the proof, when he should
bring it, and of what it should consist. The question of
the burden of proof, in the peculiar sense of the procedure
of the Norman period — that is, which one of the parties
should furnish the particular test or proof required by the
1 I Twysden, Script. 1109.
2 " Quod Eliensis episcopus expresse negans, in conspectu regis et episcoporum
circum astancium sacrosanctis evangeliis coram eo positis, de hoc in verbo veritatis
legitime se purgavit."— Placita Ang.-Norm. 224.
¦ 3 It is not stated whether the defendant appeared with compurgators ; but it is
probable he did. In another case (if there is not a mistake in the date) between
the same parties it is said that the defendant acquitted himself " cum centissima
manu presbiterorum." — 2 Anc Laws, Glossary, Oath.
See Case of Bishop Remigius, Placita Ang.-Norm. 30,

60 HISTORY OF PROCEDURE.
court for deciding the cause — could arise only when the action
was to be tried by compurgation, party-witness, or ordeal;
all of which modes of trial prevailed in the clerical courts.
The other modes of proceeding were not party-proof, but
inquiries into the whole truth. This was as true of trial by
charters as of trial by inquisition or recognition. In a matter
of charters, if but one of the parties had a charter, he pro
duced it without regard to the state of the pleadings : if both
parties had charters, both produced them for the consideration
of the court.
As to party-proof, however, the rule in most cases
required the party making the last good pleading, in answer
to a presumption against him, to substantiate the same by the
prescribed proof, otherwise the opposite party might prove
his allegation ; as will later be seen to have been the rule in
the lay courts. Perhaps there were no real exceptions to this
rule.1 The law above quoted concerning the number of
witnesses required to prove bishops, priests, deacons, or the
lower clergy guilty of crimes appears merely to indicate the
value of the oath of denial of such persons respectively ; not
that they could not still produce witnesses or make other
proof of innocence when the accuser brought forward
sufficient witnesses to prevent the efficacy of mere denial on
oath. The procedure appears to have been this, that the
accused cleric gave simply the oath of denial in case the
accuser failed to produce the stated number of witnesses,
and that he (the cleric) added to his own oath such other
evidence as the court might by law prescribe, when the
accuser produced the number of witnesses necessary for
conviction in a case defended. Thus, in the case of Arch
bishop Roger v. Bishop Geoffrey,2 several times referred to,
1 Peter of Blois mentions some exceptions to the following proposition : "Re-
gulare est, ut qui allegat ignorantiam, cam probare compellatur." But the
exceptions are where there can be no presumption of knowledge. Proof was never
necessary unless a presumption was raised against the party.
" Placita Ang.-Norm. 223.

THE COURTS. 61
the defendant gives his oath of denial ; and this was sufficient
because the plaintiff had not brought forward witnesses, or
witnesses enough.
If it were clear that the term "synod" was used in a
strict sense in the pre-Norman records, such could be referred
to as very satisfactory confirmation of this rule concern
ing the ecclesiastical procedure of the Norman period ; for
though the higher English clergy had been supplanted by
Normans before the end of the eleventh century, there is no
reason to suppose that ecclesiastical procedure in Normandy
differed materially from that in England. It had the same
origin, and was mainly under the same influence. But the
records of clerical litigation in England before the Conquest
generally relate to the temporalities of the church ; and
though such litigations are often said to have been before
synods or synodal councils, the records strongly suggest the
Witenagemot.1 The Witenagemot itself, however, might be
a clerical as well as a lay court. The witan of the kingdom
might be assembled as a Great Synod, to legislate for the
church, as well as to legislate for the people at large ; and
hence the practice before such a body cannot be without
significance. The record of some of the cases, however, is
clear. Thus, in the Case of Beornwulf of Mercia,2 the
assembly is described as "pontificale et synodale concilia-
bulum." Suit was brought by the monastery of Berkeley
against bishop Heaberht for possession of the monastery of
Westbury ; and the oath-proof was given to the defendant,
who held a charter.
This rule that the last good pleading gave the case into
the hands of the party who made the pleading is illustrated
by the cases of the trial of the Albigensians for heresy in
the years 1176 and 1178; which, though they occurred at
Toulouse, may safely be considered as exhibiting the pro-
1 See ante, p. 44, n. 4.
2 Essays in Ang.-Sax. Law, 327, and Thorpe, Dipl. 67, anno 824.

62 HISTORY OF PROCEDURE.
cedure of the Ecclesiastical Court in England as well. In
the first trial, after the accused had been inquired of con
cerning their belief (for the purpose apparently of enabling
the accuser to make a formal accusation), and judges had
been chosen by both sides, and the pleadings on the one side
and on the other set forth with argument and authorities
(the question being one of law), judgment is pronounced
against the defendants in an argued ruling of the court,
resembling an opinion in the Law Reports of the present day.
Thereupon the defendants turn to the people present and
make a statement of their belief, at variance, as it seems,
with what had been already stated by them or imputed to
them on the trial ; and this statement, notwithstanding its
apparent irregularity, seems to have been deemed a good
answer (a " traverse ") to the accusation and judgment. It
was not enough, however, that they had verbally answered
the charges preferred ; they must also prove their answer.
For this an oath was required, and this the defendants
refused to give, basing their refusal on the scriptural injunc
tion against swearing. l Authorities are again quoted against
them on this point, and an additional judgment of heresy is
now pronounced.
The second trial further and more definitely illustrates
the same feature of the procedure. In this instance they
deny at the outset of the accusation the imputed heresy ; and
although their present statement was doubted, " the cardinal
and bishops ordered them to swear that they believed in their
hearts as they had confessed with their lips. But they," as
Roger de Hovenden says, " like men of distorted minds and
crooked intentions, were at length unwilling to abandon their
heresy where any semblance of authority seemed to aid their
crass and drowsy intellects, using as an excuse the words
which the Lord is mentioned in the Gospel as having said,
'Swear not all.'" There is nothing to indicate that the oath
1 Comp. Peter Blesensis, c 35.

THE COURTS. 63
was to be promissory, — that they would conform to the faith
in the future, — in which case of course it would lose all
significance as an illustration of the point under consideration.
The defendants deny the truth of the accusation, and are
asked to swear to their belief as stated in the denial. l
What has been said shows that the party-proof of the
temporal courts, 2 in all its forms, was in use by the clergy.
Trial by inquisition and recognition prevailed also in the
Ecclesiastical Court The Case of Matilda3 affords a graphic
view of that mode of procedure at the very beginning of
the twelfth century (anno 1101), and deserves to be stated at
length. This was the famous case of the English lady who,
as the result of the decision, was joined in marriage to King
Henry the First. She had been charged by the Normans,
who opposed Henry's marrying a lady of English blood, with
having taken the veil of a nun ; and as she had finally
accepted the king's proposal, it became necessary for her to
show that she was eligible for marriage. She accordingly
lays her case before archbishop Anselm, stating that she had
indeed, in her youth, sometimes appeared veiled, but* that she
was then under the charge of an aunt, who, to protect her
from the libertinism of the Normans, had occasionally placed
a piece of black cloth over her face. This, however, she had,
as she affirmed, always refused to wear, and had torn it off
as soon as her aunt was out of sight.
Anselm, unwilling to act alone in the matter, now sum
mons a council of religious persons, bishops, abbots, ancl
even (as was common) nobles, and other men of orders to try
the question raised against Matilda. The cause was brought
before the court in accordance with the prescribed course
("juxta prsscriptam seriem");4 and competent witnesses
("idonei testes") were present to support the statements of
1 Both trials as here stated will be found in Roger de Hovenden, under the
years .11 76 and 11 78. 2 See chapter ix. 3 Placita Ang.-Norm. 79.
4 This no doubt refers to the formal plaint made by some Norman, ancl the
defence by Matilda.

64 HISTORY OF PROCEDURE.
Matilda. Two archdeacons, whom Anselm had sent to
Wilton, where Matilda had been brought up, to ascertain the
truth, testified "publica voce" that they had made most
diligent inquiry of the women there, and that there was
nothing opposed to what Matilda affirmed. J The facts had
now been found, and the only remaining question was whether,
as matter of church law, Matilda had, upon the facts, barred
herself from the right of marriage. The rest of the case is
not without interest, and may be added. Anselm submits
the law question to the judges, and, that they may deliberate
wholly uninfluenced by him, then withdraws. The matter is
considered in his absence, and an unanimous decision reached,
based upon a precedent (upon similar facts) afforded under
Anselm's predecessor, Lanfranc, that Matilda was at perfect
liberty to marry if she chose. Anselm is called in, the deci
sion stated, and the precedent rehearsed ; the judges, how
ever, declaring that the case would have been equally clear
without the precedent. Matilda is then brought into court
and informed of the decision. She thereupon offers to confirm
the same by oath or in any other manner prescribed by
ecclesiastical law, but is told that nothing more is necessary.2
The most complete view of ecclesiastical purgation is
found in the Ecclesiastical Laws of Cnut, chapter v., " De
Purgatione Ordinatorum,"3 which though perhaps relating to
the government and discipline of the members of monasteries
and other religious houses, and not primarily to the diocesan
court of the bishop or archdeacon, probably reflects the pro
cedure of the latter court, with which we are mainly concerned.
1 Here is an exemplification of the modern jury in its most essential features.
The archdeacons are the jury (recognitors), appointed by o. disinterested party.
They inform themselves as to the facts through credible witnesses, and report
accordingly ; and their verdict settles the facts. They are not under oath because
they are men of high position in the church. The subject of the jury will be
considered in another chapter.
2 For continental documents illustrating the like procedure, see Regino de
Synodalibus Causis, lib. 2, c. 2 ; and see Dove, Zeitschrift fur Kirchenr. v. 23 ;
Brunner, Schwurg. 463. 3 1 Thorpe, Anc. Laws, 362 ; 2 ib. 522.

THE COURTS. 65
It is there declared that if "a priest who lives according
to rule is charged with an offence and with evil practices,
and he knows himself innocent thereof, let him celebrate
mass if he dare, and clear himself on the housel [eucharist] in
a simple suit ; and in a three-fold suit [that is, in a heavy
accusation] let him also, if he dare, clear himself on the housel
with two of his fellow-ecclesiastics. If a deacon, living ac
cording to rule, be accused in a simple suit, let him take
two of his fellow-ecclesiastics, and with them clear him
self; and if he be accused in a three-fold suit, let him take
six of his fellow-ecclesiastics, and with them clear himself,
and be himself the seventh. If a secular mass-priest be
charged with an offence, who has no regular life, let him clear
himself as a deacon who lives a life of rule ; and if a friend
less servant of the altar be charged with an offence, who has
no support to his oath, let him go to the corsnaed ordeal, and
then fare as God will, unless he may clear himself on the
housel. And if a man in orders be charged with the feud
["fsethe"], and it be said that he was perpetrator or adviser
of homicide, let him clear himself with his kinsmen, who must
bear the feud with him or make compensation for it ; and if
he be kinless, let him clear himself with his associates or
betake himself to fasting, if that be necessary, and go to the
corsnsed ordeal, and fare as God may ordain. . . . And if a
mass-priest stand anywhere in false witness or in perjury, or
be cognisant and perpetrator of thefts .... if he desire to
clear himself, let him clear himself according to the degree of
the deed, either with a three-fold or with a simple purgation,
according as the deed may be." '
Depositions were often sent to the court by the clergy in
civil cases, and usually closed with or contained the formula
of the appeal or plaint of a plaintiff in a lay court — " and this
I am prepared to prove "2 or " to prove as may be ordered,"3
1 Much of this may also apply, probably, to the trial of clerics in the lay courts.
2 Placita Ang.-Norm. 194, 195. 3 lb. 196. F

66 HISTORY OF PROCEDURE.
or " to prove in the sight of all, at a place and time." r On one
occasion the deponent offers to undergo the ideal of iron, or
whatever equity should dictate, nothing hesitating.2 The
same practice of sending. depositions had prevailed, as might
be supposed, before the Conquest.3
Trial by record, called " lex recordationis " in law books of
the thirteenth century, was the decision of a question at issue
by proof of a judgment, or of pleadings or proceedings, accord
ing to the nature of the question, in a previous cause between
the same parties or others under whom they claimed, as at the
present day, though the litigation itself must generally, in the
absence of an enrolment, have been proved by witnesses, as
in the lay courts.4 'Indeed, this oral proof of the prior cause
was itself the record, the recalling it to mind. That this form
of trial prevailed in the Ecclesiastical Court in England the
Case of Matilda furnishes indirect evidence. The judgment
referred to in fhat case was cited as a precedent of law
merely, and not, since it was inter alios, as res judicata, and
inapplicable to prove any fact now in issue. But the use of
the precedent shows the value attached to a former decision ;
and what was said or done on a previous trial could not have
been held in lighter esteem than in the lay courts.
In contrast with the foregoing kinds of trial must be
mentioned trial by charters, in which commonly, as in ques
tions of law, the decision devolved upon the judges. As for
trial by charters, documentary evidence had been intro
duced into use in the lay courts, it seems, by the church
probably with the conversion of the people, as the most satis
factory of all modes of ascertaining the truth ; and wherever
it could be used in ecclesiastical causes, it was no doubt
received with like favour. Its uses in such causes, prior to
the reign of Stephen, however, when trials of property in
terests first came into general vogue in the Court Christian,
1 Placita Ang.-Norm. 193, 194. ".Ib. 196. 3 Thorpe, Dipl. 378, 379.
4 See Placita Ang.-Norm, 290, for such a case in a lay court.

THE COURTS. 67
must have been somewhat limited. From that time on the
use of charters in that court was frequent ; and when the
issue in a cause turned solely upon a document, other modes
of proof, except by witnesses (who were frequently called
in support of the charters),1 must have been dispensed with
and the case decided by the court, as questions of law were
determined. A good illustration of trial by charter in the Ecclesiastical
Court will be found in the case heretofore referred to, of
Godfrey de Luci v. Abbot Odo.2 This was an action for a
moiety of the living of Wye, claimed by the plaintiff under the
king, and withheld by the defendant on the ground of the
invalidity of the plaintiff's title, and the ancient title of the
defendant. It was, therefore, in reality a lay cause under
the Constitutions of Clarendon and under the later law. It
occurred, however, anno 1176, during the eclipse of the king's
independence, consequent upon the death of a, Becket ; and
jurisdiction was entertained by order of the pope's legate,
Hugezun, without question, before a general synod of "the
whole clergy of the kingdom." But though it was properly
a lay cause, and though the king's own grant was freely
questioned, there is nothing to indicate that the procedure
as to the charters was at all unusual.
The court having convened, the plaintiff, who was abroad,
appeared in the person of a procurator; who opened the
cause by producing letters patent from Godfrey, authorising
his appearance. He then proceeds to state the plaintiff's
case in language free from technical formalism ; declaring
that during a vacancy by death in the defendant's abbey
(Battel), to which Wye had been attached, the king had
granted him the church at that place, including the moiety
of the living in question. So saying, he exhibits the king's
' Placita Ang.-Norm. 27 ("per cartas suas et per testes suos"), 151, 152.
2 The case will be found in the Appendix, No. 3. For other examples of trial
by charters in the Ecclesiastical Court, see Abbot Gausbert v. Bishop Stigand,
Placita Ang.-Norm. 15 ; Abbot Walter v. Bishop of Chichester, ib. 156.
F 2

68 HISTORY OF PROCEDURE.
charter of gift. He then proceeds to assert that Godfrey
was now inducted, upon the king's presentation, by Richard,
archbishops/^ of Canterbury ; who gave letters under such
seal as he then had, " for he was not yet come to full
authority." The letters are produced. The procurator then
proceeds to declare that the archbishop, upon consecration,
confirmed his late act by a new institution, and shows the
charter. He now demands, upon these allegations and docu
ments, full possession, and adds, what is worth noticing, the
statement : " And full possession being had, if any question
arises against us, I am ready to reply to the abbot and monks,
and to make satisfaction according to due course of law " — a
common phrase, it is apprehended, in lay causes.1
The suggestion of a plea to the jurisdiction of the court
seems not to have occurred to the defendant, though he was
in great straits over the situation. At all events, no such
step was taken. The defendant's answer, made by counsel,
was in the nature of a demurrer (to evidence) argued at
length. " Fearless alike of the king, of the archbishop, of the
great men, and of all their retainers, master Gerard expressed
himself with ready speech on behalf of the abbot." He
denied the right of the king to give the vacant church as he
had attempted to do ; and the institution by the archbishop
was argued to have been null, especially by reason of a
particular declaration of the pope. The defendant's position
could not be overturned ; and (with a prudent regard for
the king's seal) the case was now, by advice of the court,
compromised. Here then was trial by oath (including compurgation),
witnesses, ordeal, inquisition, recognition, record, and by
charters, as in the lay courts. Trial by duel alone was want
ing. This had always been discountenanced by the church ;
and it was, possibly, owing to the opposition of the English
clergy that the judicial duel played no part in the Anglo-
' See rrivilcgium Raimundi, in the Appendix, No. 2.

THE COURTS. 69
Saxon procedure.1 At all events, decrees forbidding the
clergy from engaging in battle were numerous.2 Thus closely
did the procedure of the Ecclesiastical Courts conform to
that observed in the temporal courts ; a fact which does
not cause surprise when it is known how extensively the
canon law itself was permeated at this time with Teutonic
influences.3 Appeals could be taken at any stage of an ecclesiastical
cause ; to the bishop if the trial was in the archdeacon's
court ; to the archbishop and his bishops if the cause was in
the court of a particular bishop ; and to the pope if it was in
a general council or synod of the church, or in the special
court of the archbishop.4 It was not necessary for a party
to await a judgment of the court before taking an appeal,
even to the pope. He could do this at the very outset of the
cause, or at any time in the progress of the trial ; and both
sides could appeal in one and the same cause. An example
may be seen in the case of The King v. Bishop William of
St. Carilef,5 anno 1088, of an appeal to the pope by the
defendant in the course of a cause ; another in the case of
The Kingv. Thomas a Becket,6 anno 1164, of the same kind ;
and another in the case of Richard de Anesty v. Mabel de
Francheville, 7 at mis 1 1 58-1 163, of like appeals by both parties.
Irregular and frequent resort to appeals, however, resulted
in abuses requiring the correction of the church. At a council
convened by the pope in the year 1179, one of the decrees

1 See the suggestion of a learned writer in the London Athenceum for July 19,
1879. "We have no doubt," he says, "of the original existence among the
English of trial by battle. . . . The influence of the bishops in the Witan over
the written legislation of the kings, and the declaration of the law in the County
and Hundred Courts by the bishop or archdeacon along with the earldorman,
easily account for the disappearance of an institution abhorred by the church."
2 See, for example, Excerpts Ecgb. c. 155; 2 Thorpe, Anc. Laws, 124;
c. 161 ; 2 Anc. Laws, 126.
3 For example, see Regino de Synodalibus Causis, pp. 226 et seq. 332
(Wasserschl. ). 4 Const. Clarendon, c. 8.
s Placita Ang.-Norm. 307, 309. 6 Ib. 213. i Ib. 311. 313.

70 HISTORY OF PROCEDURE.
promulgated recited that a very reprehensible custom, by
reason of irregular appeals, had sprung up ; bishops and
even archdeacons, fearing that an appeal might be taken in
causes before them, having proceeded without notice to pro
nounce sentence of suspension and excommunication. On
the other hand, ran the decree, others, dreading the sentence
of their superiors, interposed their appeals without difficulty,
usurping the right as a defence to their iniquity; whereas
appeals were instituted as a safeguard for the innocent.
Therefore, to the end that neither the sentence of the prelate
might be used to oppress those subject to him, nor those
subject enabled at their sole option, under pretext of an
appeal, to escape correction by their superiors, it was decreed
that prelates should not pass sentence of suspension or of
excommunication without first issuing canonical admonition
(unless the fault was such as of its own nature to require that
penalty) i ; nor should those who were subject seek to take
refuge in an appeal before the commencement of a trial. If,
however, anyone should feel obliged to appeal, then a com
petent time was to be named for him within which to prosecute
it. If he should then neglect to prosecute his appeal within the
time named, the bishop should be at liberty to proceed with
the trial. And if after taking an appeal the party appealing
did not appear, but the other party did, the latter should be
entitled to his costs against the former if he was able to pay
them. And finally it was enjoined that monks and men of
inferior order, when about to receive correction for their
excesses, should not appeal at all against the discipline of
their prelate and chapter, but submit humbly and dutifully to
the same.2
The punishments following conviction were all of a
penitential nature ; though if pecuniary damage had been
1 Cases in which the "ordo judiciarius" was omitted. — Ante, p. 56.
" Roger de Hovenden, anno 11 79. See further as to appeals, Peter Blesensis,
cc 43> 59- Tue latter chapter treats of appeals by contumacious persons.

THE COURTS. 71
inflicted, compensation was also enjoined. Chapter Ixxiii. of
the Laws of Henry the First, concerning homicides com
mitted by the clergy, will afford a sufficient illustration of the
nature of ecclesiastical punishments. " If a bishop commit
homicide, let him be deposed and repent for twelve years,
seven on bread and water, and for five years let him fast
three days in a week, and the rest of the time eat common
food. If a priest or monk slay a man, let him lose his orders
and repent for ten years, six on bread and water, and for
four 'years let him fast three days in a week, and the rest of
the time eat his own food. If a priest wound a man, let him
fast for one hundred days. If a deacon slay a man, let him
be deprived of his orders and repent seven years, four on
bread and water, and for three years let him fast three days
in a week, and the rest of the time eat common food. If a
clerk slay a man, let him repent for six years, four on bread
and water, and for two years let him fast three days in a
week. If a layman slay a man, let him repent five years,
three on bread and water, and for two years let him fast
three days in a week. If anyone slay a man in orders or his
next of kin, let him leave his country and go to Rome, and
report to the pope and his council. Of adultery, or fornication,
or lying with a nun, let the like penitence be made." :
As an auxiliary to the secular courts, the Ecclesiastical
Court (of the bishop or archdeacon especially) must, within
its proper jurisdiction, have been of the greatest service.
Without it, provincial administration of justice at least must
have been very defective. It was a court of equity to remedy
such difficulties as have been noticed, arising from the rules of
evidence in the lay courts;2 but if a suggestion is justified
from the turbulence of the Norman period, the power and
haughtiness of the rich, and their frequent defiance of the law
1 For a more detailed view of penitential punishment, see Regino de Synodal
ibus Causis, pp. 216 et seq. 310 et seq, 388-392 (Wasserschl.).
" Ib. p. 251, c. 97.

72 HISTORY OF PROCEDURE.
— enforced by the chief ground for the exercise of chancery-
jurisdiction in the early history of the Court of Chancery1 —
the Ecclesiastical Court may have served the purpose of a ,
court of equity in other respects certainly not less important.2
The dread of ecclesiastical pains and penalties operated in
the middle ages as a wholesome restraint upon lawlessness.
Before the Conquest the bishop had sat with the sheriff in the
County Court, and the parish priest with the reeve in the
Hundred Court, to aid in the administration of justice, not so
much, it appears, in the capacity of judges as, by the voice of
the church, to compel respect and obedience to the law. And
the clergy continued to sit in the secular courts throughout
the Norman period. As has already been stated, the Con
queror's charter of jurisdiction did not require the clergy to
cease attendance upon the lay courts. In point of fact
they appear to have attended more numerously after the
Conqueror's law than before.3
In the time of Henry the First the bishops and vicars
inter alios were expressly enjoined to be present at the
County Courts, and to strive diligently that the poor should
not suffer by the escape of evil men from punishment, the
depravity of oppressors, or the setting at naught of the
judges.4 In the interminable litigations in which Battel
1 The early jurisdiction of the Chancery was more frequently exercised in favour
of the poor and weak against the rich and powerful than in any other way.
" Comp. Regino de Synodalibus Causis, p. 245, c. 80 ; p. 329, c 296.
3 See Placita Ang.-Norm. 2, 4, 23, 36, 69, 78, 100, 113, 133, 136, 176.
4 "Intersint autem episcopi, comites, vicedomini, vicarii, centenarii, alder-
manni, prsefecti, propositi, barones, vavasores, tungrevii et ceteri terrarum domini,
diligenter intendentes ne malorum impunitas aut graviorum pravitas vel judicum
subversio solita miseros laceratione confidant." — Leges Hen. I. c. 7, § 2. See
another passage to the same effect, ib. c. 31, § 3. The position of the church
may be seen in the statement following the one just quoted, to wit, that pleas per
taining to the rights of the church were first in order (Laws of Edw. Conf. c. 3),
then pleas of the king. This part of the Leges appears to have been -written before
the middle of Henry's reign ; for there is a plain reference to a charter of the king
as "recent," which was issued between the years 110S and 1112; Stubbs, Sei.
Ch. 103, 104. The statement of Thorpe (1 Anc. Laws, pp. 514, 534, 613, "8vo
ed.), impeaching (not the genuineness, but) the correctness of these passages is
based upon a misconception of the Conqueror's charter ; which, as has repeatedly

THE COURTS. 73
Abbey was involved in the twelfth century, the Ecclesiastical
Court was often invoked, apparently in aid of the temporal
courts. In the turbulent reign of Stephen, the parson of the
church of Middlehale — a church given to Battel Abbey by
Rufus — having died, Robert de Crevequeor usurped the right
of presentation, and granted the church to the canons of
Leeds in Kent. The abbot of Battel seeks restitution of
Robert and the canons in vain. Now he seeks " royal
justice," and then ecclesiastical ("qussritur hine justitia
regalis, inde ecclesiastica")-; but by reason of iniquity it
could not be had. Upon the accession of Henry the Second
the abbot sues again, now in the King's Court, now in the
Ecclesiastical ; from which latter court an appeal is taken by
both sides to the pope. The pope sends the case back with
his- mandate directing a trial of the cause by two English
bishops. The defendants elude the pope's mandate in every
way, until finally, after manifold fatigues, the bishops are
commanded, both by apostolical and royal authority (" turn
apostolica turn regia auctoritate "), to hear and decide the
cause. The defendants still refuse to appear ; but no further
delay could be allowed, " and the judges, observing the
manifest contumacy of the other side, were very determined
concerning the right of the abbot and convent of Battel.
Sentence was therefore given with apostolical authority" in
favour of the abbot.
Immediately following is an account of a dispute between
the same abbot and a certain priest named Roger, who had
withheld from the abbot rent due to the monastery. The
abbot institutes legal proceedings to enforce payment ; and
when at length Roger finds himself unable to resist, knowing

been said, did not forbid the attendance of the clergy upon the secular courts.
The idea of some persons that Henry I. had reunited the spiritual and temporal
jurisdictions is based upon the same error. It would have been strange indeed if
a priest (for such the author of the Leges clearly was, as see c. 5, much of which
is the homily of a priest), writing on law and procedure, and frequently quoting
the old laws, had not been familiar with the Conqueror's charter.

74 HISTORY OF PROCEDURE.
that he should be expelled from possession of his church (the
subject of the rent) "with ecclesiastical censure," he yields
and makes due amends.
Subsequently, in the reign of Henry the Second, the
same church, upon the occasion of the death of the incumbent,
was seized by Haymo Peche, lord of the manor in which it
was situated, and a clerk presented by him without the con
sent of the abbot. The latter again seeks redress, now from the
King's Court, now from the Ecclesiastical ; complaining on
the one hand of the violence of Haymo and on the other of
the intrusion of the clerk, who had been inducted by orders
of the king. The whole case was finally determined in a
special session of the Ecclesiastical Court, upon papal
mandates obtained by the abbot ; the judge (Gilbert, bishop
of London) declaring in favour of the plaintiff, and removing
the clerk by apostolical authority, and restoring the church to
the abbot. Another difficulty arose after the death of the
parson now instituted over the church by the abbot ; the
same clerk before rejected again seizing it under the support
of Haymo. The matter is now brought before the King's
Court alone, and there decided again in favour of the abbot. r
The cases, or the first two certainly, were tried before the
adoption of the Constitutions of Clarendon; and it may
therefore be said that they only serve to show that the Ecclesi
astical Court at that time exercised jurisdiction of disputed
rights of presentation and of debts due from one church to
another. But while they do show this important fact, they
also show that the King's Court entertained concurrent
jurisdiction, without the ability at times to enforce justice.
Hence the necessity of resorting to the Ecclesiastical Court.
The usefulness of such examples could not have been lost in
other cases, when violence set at naught the administration
of law by the temporal courts. Whether a bishop or priest
1 Hist. Mon. de Bello, H3-H9(Ang. Christ. Soc.) ; Placita Ang.-Norm. 174,
note, and 245.

THE COURTS. 75
acted alone or in solemn court is immaterial : in either case
judicial functions were assumed. The warning, censure, or
excommunication was the act of a judge.
The King's Court.
With the Norman Conquest the King's Court proper
became a disturbing and an uncertain influence in adminis
tration. It appeared furnished with new processes of law,
and with claims to jurisdiction of unknown extent. It
early showed a disposition not to be restricted by the limits
of the old Aula Regis, which had been content with exercising
jurisdiction over the king's great thegns and offences touching
the personal rights and dignity of the king. What the new
court was, and by what means it made its way among and
over hostile jurisdictions existing on every side, and clinging
to their ancient privileges with the tenacity of imperilled
existence, and how it finally established its own supreme and
almost universal authority, are now to be considered.
The inevitable result of the gradual change from locali
sation to centralisation, indeed the inevitable accompaniment
of the change in its later stages, as part of that change,
began to manifest itself long before the Conquest, not only in
the redress of rights specially appertaining to the Crown, and
of infractions upon its dignity, but also in the interference,
occasionally, of the king in the local and provincial (county)
administration of justice.1 But it was reserved for the
Norman kings to make direct way for the great jurisdiction
of the royal tribunals, by systematic encroachment upon the
jurisdictions of the popular and franchise courts ; a fact,
however, not fully manifested before the twelfth century.
The King's Court proper of the Norman period has
sometimes been called a committee of the Witenagemot or
' Mr. Freeman has traced the matter down to the Conquest, and, somewhat
generally, afterwards. —5 Norm. Conq. 298, 299.

76 HISTORY OF PROCEDURE.
of the Great Council ; but the expression is so inapt andmis-
leading that no considerations even of convenience should
permit its use. A committee is the delegate of the superior
body, working for it, and subject to its order and control.
The King's Court stood in no such relation to the Great
Court. It was in no sense the delegate of that court ; it was
not created by it, and it did not act for it. It was coeval in
the (Anglo-Norman) Constitution with the Great Court itself;
it had sprung at the same time from the same parentage, the
Conquest. It had therefore the same right to exist ; and its
functions could not be abrogated without its own consent,
that is to say, the consent of the king. It was not from the
indistinct and flickering representative which the King's Court
had in the pre-Norman Theningmannagemot (Thegn-men's-
Court),1 or from the more distinct Aula Regis of the Con
fessor, that the King's Court had derived its origin : it was
from the strong arm of conquest and of the Conqueror that
both that and the Great Court obtained their power and
authority. The King's Court represented the king : when
he was not present, it was his delegate alone. In its
relation to the Great Court, it was simply a smaller body of
great men attendant upon the king, who had their place also
in the larger court. Its composition will be noticed later.
Under special commissions, the jurisdiction of the court
was limited to the trial of such causes as had been delegated
to the special members of the court. The ordinary King's
Court, however, the full court sitting with the king, exercised
a jurisdiction limited in fact only by the king's will. That is,
there was nothing to prevent the king from drawing into his
court all the causes of the people ; and on one pretext or
another he did seriously invade the jurisdictions of other
courts, especially of the Manorial Courts. This practice had

1 See 5 Freeman, Norm. Conq. App. note NN. This court was already
enlarging in the time of the Confessor, and must finally have become the most
important judicial tribunal of the kingdom had there been no Conquest.

THE COURTS. 77
become such a grievance to the baronage in the reign of king
John that it was made a clause of Magna Charta that the, writ
of praecipe should not be allowed to anyone concerning any
frank tenement, whereby a freeman might lose his court.1
This writ of praecipe was suited to the bringing of any
cause relating to lands into the King's Court, wherever the
lands lay, and whoever had primary jurisdiction over ques
tions relating to them. When anyone complained to the king
or to his justiciars, says Glanvill, concerning his fee or his
freehold, if the complaint were such as was proper for the
determination of the King's Court, or the king was pleased to
have it decided there ("vel dominus vex velit in curia sua
deduci "), this writ of praecipe was granted.2 The writ
directed the sheriff to command the defendant to surrender,
without delay, to the plaintiff the land in question ; and if he
failed to do so, to summon him before the king or his jus
ticiars, at a certain time and place, to show why he had
failed.3 There was another writ of praecipe of a similar
character, designed to give the King's Court jurisdiction over
the debts of the laity.4 These writs were not limited at all to
the king's tenants in chief; and hence it is evident that the
proceeding, was an invasion of the jurisdiction of the private
courts of the baronage, unless indeed they were granted only
on a failure of justice in the local court.5 There is no evidence
that this was the ground of the writs ; and the passage above
quoted from Glanvill, showing .that the first-named writ of
praecipe was issued at the pleasure of the king, indicates that
that was not. Glanvill would not have used such an expres
sion of a case in which the king was in duty bound to grant
the writ ; however true it is that the king's writ at this time
was always matter of grace.6 These writs were the more
1 Magna Charta, c. 24. 2 Glanvill, lib. 1, c. 5. 3 Ib. u. 6.
4 Ib. lib. 10, cc. 1, 2. s Even then it was a novelty. See infra.
6 "Der Konig hat das Recht, jeden Process viber ein liegendes Gut aus dem
Untergerichte zu evocieren und an das Konigsgericht zu ziehen." — Brunner,
Schwurg. 405.

78 HISTORY OF PROCEDURE.
desirable in that they gave the aid and security of trial in the
most powerful judicial tribunal of the land. Whether the
plaintiff who had thus brought the defendant before the
King's Court under the writ for the recovery of lands could
have the benefit of the peculiar procedure of that court, the
recognitions, is not clear. An eminent writer has stated that he
could.1 But there is ground to question this statement. The
writ was a writ of right, as the plaintiff counts upon his right
of property, and tenders the duel.2 Unless therefore this fact
were accidental, and the plaintiff could now, in ordinary
course, have a new writ demanding a recognition, being
content (for the Magna Assisa was for defendants) to sue for
seisin,3 the plaintiff had gained nothing in point of the mode
of trial. And if the plaintiff wished to try seisin only, why
did he not in the first place obtain a writ of recognition,
instead of taking upon himself such unnecessary trouble and
expense ? The natural purpose of the praecipe was to try the
right of property ; and the plaintiff must (unless he had acted
in ignorance) have changed his mind in afterwards seeking a
recognition. However, the party would have no difficulty in
obtaining a writ of recognition if he were ready to pay the
(arbitrary) price demanded by the king.4 It may be added
that it is not improbable that the advantages of the new pro
cedure of the King's Court may explain the outcry sometimes
raised against the assises and other novelties of the reign of
Henry the Second ; the objection probably springing from
the private jurisdictions.5
Jurisdiction obtained by the King's Court in this way
may be called the extraordinary jurisdiction of the court.
It was acquired by direct usurpation, in derogation of the
rights of the popular courts and manorial franchises, upon
1 Brunner, Schwurg. 406. - Glanvill, lib. 2, c. 3.
3 The writ of recognition "de feodo vel laico" appears to have resulted in
determining the right of property : Glanvill, lib. 13, c. 25 ; Bracton, 285 b ; ante,
PP- 4, 5-
4 See the chapter on the Writ Process,
s Sec 2 Houard, Anc. Lois, 287 ; Brunner, Schwurg. 301.

THE COURTS. 79
the sole authority of the king ; giving us a glimpse of the
extent to which the royal prerogative had been pushed after
the Conquest. But this was not the limit of the usurpation
of jurisdiction by the King's Court. All of the manorial
writs (writs to the manors) issued by the king or justiciar
provided that if the lord addressed failed to do justice (the
" nisi feceris " clause) in favour of the party who sought it, the
king's officer (the sheriff or justiciar usually) should do it.
In so far as this resulted in drawing a cause into the King's
Court — and it was through this clause, along with the writs
of praecipe, that the private courts ultimately fell into decay —
it was a novelty and a usurpation. There is nothing to show
that causes could be taken from the Manorial Courts to the
king for trial before the Conquest. The Thegn-men's Court
and the Aula Regis appear to have been aristocratic courts of
original jurisdiction only, or at all events having appellate
jurisdiction only over disputes of the king's thegns. Indeed,
it follows, if this observation be correct, that the entire jurisdic
tion exercised by the King's Court after the Conquest, except
as to disputes between his tenants in chief, and matters
affecting the king, was extraordinary, being a usurpation of
the authority of other courts. The provision of the old Anglo-
Saxon law that cases should be taken to the king only upon
failure of justice in the local jurisdiction does not imply
that the cause was then to be tried in his court, but only that
he would take measures to see that the cause was fairly tried,
probably in the local court, or in the Hundred or County
Court. The jurisdiction of the King's Court, including the king's
prerogative, according to the Leges Henrici Primi — a custumal
partly of the early years of the reign of Henry the First, and
completed, as we have it, before the reforms of Henry the
Second, if not before his reign — embraced the following
matters : The preservation of peace with security, breach of
the king's peace given by his hand or writ, danegeld, pleas of

So HISTORY OF PROCEDURE.
contempt of the king's writs or commands, slaying or injuring
the members of his household, disloyalty and treason, contempt
or evil speaking of the king, " castellatio trium scannorum "
(an expression the meaning of which is not understood "), f
outlawry, theft punishable with death, murder (secret slaying),
counterfeiting of the king's money, arson, housebreaking,
assault in the king's highway (" forestel "), the fyrd or ex
pedition, the harbouring of runaways, premeditated assault,
robbery, destroying of ways, invasion of the king's land
and property, treasure-trove, shipwreck, "algarum maris"
(a term of doubtful meaning),2 rape, invasion of forests,
reliefs of the king's barons, fighting in the king's house or
precincts, the breaking of the peace in hostico, failure to
repair fortresses or ships, having and keeping (that is, har
bouring) a person excommunicated or outlawed, breaking of
pledge, fleeing in a land or naval battle, unjust judgment,
failure of justice, and perverting the king's law. All army-
ways (places for the execution of criminals) were in the king's
socn. The king was the special protector of all men in orders,
strangers, poor persons and mean, who had no protector.
Pleas relating to such matters, it is added, are the king's own
pleas, and do not belong to sheriffs, apparitors, or to his
ministers.3 Following this category there is an enumeration
of certain rights of the king personally in respect of pleas
pertaining to the church, arising apparently in the Court
Christian ; a matter heretofore considered.4
Most of the particulars of the foregoing catalogue must
have been special subjects of the king's socn in the Anglo-
1 Schmid does not know its meaning : Gesetze, 442, note, and Glossary,
Castellatio. See also Spelman, Glossary, Castellacium ; 1 Thorpe, Anc. Laws,
518, note (Svo ed.).
2 See Thorpe, Glossary to Anc. Laws.
3 Leges Hen. I. c. 10. Quare as to the meaning of " apparitores " in this
connection. See the acts of Fule, apparitor, in the Case of Ailward, Placita Ang.-
Norm. 260. In the Glossary to Stubbs, Select Charters, the word is said to mean
a summoner ; but it seems to have a wider meaning here, if not in Ailward's Case.
4 Ante, pp. 53, 54.

THE COURTS. gr
Saxon period as well as after the Conquest. A new phase
of the murdrum had come to pass in the stringent, but
necessary, legislation of the Conqueror for the protection of
his Norman followers in England. The old law had been
that the king was entitled to a fine of forty-six marks against
the hundred or wapentake which did not produce the slayer ; J
after the Conquest it was proclaimed, upon a presumption not
unnatural under the circumstances, that when a person was
found slain, and the slayer was not produced, the person slain
was considered to have been a Norman, and a fixed fine of
forty-six marks, as before, imposed upon the hundred or
wapentake, but finally varying in different localities accord
ing to the frequency of such cases.2 By the last quarter
of the twelfth century, the time of the Dialogue of the
Exchequer, the distinction in blood between Norman and
Englishman had almost faded out; but the fine was still
imposed in all cases of secret slaying, upon the old pre
sumption.3 Still, if in fact it could be proved that the person
slain was of English blood alone, the act was not murdrum.*
The murdrum must, however, have been more a matter for
the Eyre, after the establishment of provincial visitations,
than of the central King's Court.
In the time of Glanvill, the King's Court had criminal
jurisdiction of causes of treason to the king's person, of
sedition in the kingdom or army, of the fraudulent conceal
ment of treasure-trove, of breaches of the king's peace, of
homicide, of arson, of robbery, of rape, of forgery and counter
feiting (crimen falsi), and of other things of a like nature.5
From this last general enumeration were excluded theft,
scuffles, blows, and wounds, as being within the sheriff's juris
diction ; though the last three offences were cognisable in the
1 Laws Edw, Conf. c. 15.
2 Laws Wm. I. c. 22; Hen. I. cc. 91, 92; Dialogue of the Exchequer, lib. I,
c. 10; Stubbs, Sei. Ch. 201 (2ded.). 3 Dialogue, ut supra.
4 Bracton, 135 b ; Fleta, lib. I, c 30.
s Glanvill, lib. I, c. 2.

82 HISTORY OF PROCEDURE.
King's Court if alleged to have been committed against the
king's peace.1
As to civil pleas, the King's Court had at this time
cognisance of causes concerning baronies, advowsons of
churches,2 status, when the question was one of freedom or
servitude,3 dower when the widow had received nothing at
all, breaches of fines (concords) made in the King's Court,
matters of homage, reliefs, purprestures (boundaries), and
debts owing by the laity. And to these were added causes
relating to seisin, tried by process of recognition,4 and causes
relating to the right of property arising under the writ of
praecipe, already referred to as extraordinary process. The
recognitions mentioned by Glanvill were the assise of mort
d'ancestor, of the last presentation to a church, de clerico vel
laico feodo, whether anyone were seised of a freehold on the
day of his death as of fee or as of pledge, whether anyone
were under age or not, whether any one died seised of a
certain freehold as of fee or as of ward, and whether anyone
presented the last parson to a church, by virtue of the fee
that he held in his demesne, or by virtue of a wardship (the
difference between the second and the last being this, that
in the former case the question was which of two claimants
had had the last presentation, and in the latter the character
under which an admitted presentation had been made), and
the assise of novel disseisin.5
The fact has often been pointed out by competent writers
that the Norman kings of England, among other means
adopted for strengthening their position, sought the support
of the people, and to this end not only refrained from over
turning the local and popular courts, but even encouraged
the exercise of jurisdiction by them in matters of litigation.
1 Glanvill, lib. I, c. 2.
2 As to cases affecting the church, see the consideration of the jurisdiction of
the Ecclesiastical Court.
3 Glanvill, lib. 5, c 1. 4 Ib. lib. 1, c. 3. 5 lb. lib. 13, c. 2.

THE COURTS. 83
In a charter issued between the years 1108 and 1112, pointing
apparently to obstacles put in the way of the old popular
courts, the king orders that the County and Hundred Courts
thereafter sit in the same places and at the same times as in
the time of King Edward, and not otherwise ; and that all of
the county should attend those courts as in the time of the
Confessor.1 But this must not be understood as implying too much.
It was equally important to strengthen the influence of the
King's Court. This court must be made to the king what
the Duke's Court in Normandy was to the duke, and, on a
far greater scale, what the Manorial Court was to the lord
of a franchise. Like these courts, it must further be made
profitable to its head : litigation must be brought there.
How the jurisdiction of a local court could be covertly
invaded and taken away at the very beginning of the Norman
supremacy by virtue of the " nisi feceris " clause of the king's
writ, has already been noticed ; how later, perhaps not until
the reign of Henry the Second, the local and popular courts
could be directly ousted of their jurisdiction by the king's
writs of praecipe, has also been remarked ; and how in the
same reign an effectual mode of bringing questions of seisin,
which certainly had been proper and actual subjects of
litigation in the local courts, into the King's Court through
the recognitions has also been alluded to. Most questions
relating to real property were now brought within the juris
diction of the King's Court ; and this too without legislation
aimed at the authority of the local courts. And with the
right to bring into the King's Court, under the nisi feceris
clause, a trial of the right of property in lands went the
right to draw to the same court, in the same way, all litiga
tions touching rights growing out of the tenure of lands, e.g.
of rent withheld.2 And then, just as there was introduced
alongside, of the manorial writ of right as to lands a praecipe
1 Stubbs, Sei. Ch. 104 (2d ed.). 2 Glanvill, lib. 12, cc. 1-8.
G 2

84 HISTORY OF PROCEDURE.
quod reddat, as to lands, to give the King's Court jurisdiction
regardless of the question whether the local and sheriff's
courts (for the case usually went from the local court to the
sheriff in the County Court and then to the King's Court — in
each case by virtue of a nisi feceris clause) had done justice
or not, or had been asked to do so ; so, alongside of the
manorial writ of right as to rent or services, there was intro
duced a praecipe quod reddat concerning debts (of the laity)
generally, giving the King's Court original jurisdiction in the
same manner.1 Jurisdiction in property causes was com
pleted by the writ of dower unde nihil, the King's Court
arrogating exclusive jurisdiction when the widow applied for
a writ, claiming that she had received nothing at all of her
dower.2 By such means, without the aid of literal statute, the
King's Court established its jurisdiction over nearly all civil
questions ; over all, indeed, that did not belong exclusively to
the Court Christian.
But one step more was necessary to give the King's Court
universal jurisdiction, under forms outwardly regular. Juris
diction of crimes, from theft to homicide, had been assumed
in the course, if not from the beginning, of the Conqueror's
reign. This was certainly true of the higher crimes ; but
assaults, blows, and trespasses generally remained as before
the Conquest, cognisable solely by the local courts, except
when the parties were the king's tenants in chief. Glanvill,
as we have seen, tells us how the King's Court was enabled
to complete the circuit of its jurisdiction and encroachment,
and to draw to itself the trial of delicts. To the sheriff in
the County Court, he says, pertains the cognisance, in case
of failure of justice in the Manorial Courts,3 of scuffles, blows,
and wounds, unless the plaintiff allege that the act was "de
pace domini regis infracta." A short allegation— a pure
1 Glanvill, lib. 10, cc. i, 2. » lb. lib. 6, c 14.
J "Per defectum dominorum," the substantial equivalent, it seems, of the
nisi feceris clause in the manorial writs.

THE COURTS. 85
fiction, also — was sufficient to prevent a defendant from
successfully pleading to the jurisdiction of the King's Court.
The hint was readily availed of ; and before the end of the
twelfth century parties appear in the King's Court trying
cases of trespass de bonis asportatis, of false imprisonment,
and the like.1 It should be added, however, that the records,
by their silence, leave it .uncertain whether the parties may
not have been of such rank as to entitle them to sue in the
King's Court.2 Be this as it may, it seems clear that that
court had found the means in Glanvill's time, if not earlier,
of entertaining jurisdiction of trespasses to the person or to
the property of an individual. The phrase " in pace domini
regis" — within the peace of the king — is predecessor of and
equivalent in legal effect to the later phrases " in pacem " or
"contra pacem domini regis;" for the defendant, having
committed the act while within the king's peace, had there
fore committed it against the king's peace. The term was
merely jurisdictional in its origin. There was no limit of
pecuniary value, it may be added, to the trial of causes of
this kind in the King's Court before the thirteenth century.
Thus, by the writ process generally, partly by virtue of
an insidious clause in the manorial writs of right, partly by
open usurpation under the writs of praecipe, and partly by
the use of a fiction in a plaintiff's appeal of trespass or theft,
was finally obtained the jurisdiction which has supplied the
superior courts of England and their new successor with busi
ness until the present day. Out of this jurisdiction of the
King's Court was set apart, or rather fixed, by Magna Charta,
the hearing of common pleas at Westminster, resulting in
the Court of Common Pleas, with concurrent jurisdiction with
the elder court ; and later the Court of Exchequer, by the use
1 Placita Ang.-Norm. 285; 1 Rot. Cur. Reg. pp. 4, 11, 14, 17, 112; 2 Ib.
120, 121.
2 In some cases the term " in pace " is omitted from the rolls, and in some cases
it appears there. It would seem unnecessary to use the term when the parties were
the king's tenants in chief, while the contrary would be true if they were not.

&6 HISTORY OF PROCEDURE.
of a more ingenious and not less effectual fiction (the fiction
of king's debtor) than the one which in Glanvill's time had
been resorted to by the King's Court, carried away from the
parent court such civil causes as litigants chose to take to the
Exchequer, without, however, depriving the King's Court of
any part of its jurisdiction. The Court of Exchequer thereby
regained the jurisdiction which it had begun to exercise con
currently with the King's Court in the twelfth century, but
which had, apparently, been largely taken away upon the
establishment of the Court of Common Pleas (or rather,
probably, by reason of the familiar clause of Magna Charta
which resulted in that court) > and abrogated by the Articles
upon the Charters in the twenty-eighth year of Edward the
First. It need only be added that the fluctuation of juris
diction over matters pertaining to the church and the clergy
has been considered in treating of the Ecclesiastical Court;
and also that the King's Court entertained causes which in
modern times would be termed equitable,2 a matter further
considered in the chapter relating to the Writ Process.
As distinguished from the Great Court, the King's Court,
as has already been stated, was a smaller body; it was
of indeterminate number, composed ordinarily of the king,
justiciar, and the chief of the king's household and immediate
retinue—" the great officers of the household, the justiciar,
chancellor, treasurer, and barons of the Exchequer, with such
of his clerks as the king might summon"3 — or of persons
specially delegated to hold royal pleas. It had no invariable
staff of judges before the last quarter of the twelfth century,
but changed with times and circumstances, and the king's

' Madox took the same view. He says : " But it seems the Exchequer was
understood to be forbidden to hold common pleas by those general words in the
clause which appoint that from henceforth common pleas should not follow the
King's Court, but be held in a certain place, to wit, the Bank."— Hist. Exch, 145
(fol. ed.); and see ib. 544, 594-602.
2 See Placita Ang.-Norm. 221, 241 ; post, App. No. 56,
3 Preface to vol. ii. p. 74 of Stubbs's ed. of Benedictus.

THE COURTS. 87
pleasure. It was presided over by the king in person, or, in
his absence, by his great justiciar ; the second man in the
kingdom until the time of William Longchamp in the last
decade of the twelfth century.1
But there were two courts of the king, not reckoning the
Great Council or the Exchequer. There was a court which
attended the king's person — the one just described — which
was the King's Court by distinction ; and there was also a
court held from time to time in the counties by delegates of
the king, sent out usually from the court which attended his
person, which was also the King's Court. The former body
continued to be of indeterminate numbers and membership,
so far as history informs us, until the year 1178; when a
third royal court of litigation was created. By the counsel
of the wise men of the kingdom the king now selected five
men, two clerks and three laymen, all of his own private
household, and ordered them to hear all the complaints of
the people and to do right.2 It was also ordered that the
five should not leave the King's Court (that is, they should
always attend the king), but remain there to hear the causes
of the people. What is also of special interest, it was further
provided that if any question arose before them which they
could not decide, they were to present it to the king, and
then it should be determined as seemed good to him and the
wise men of the land.3
This last-named provision was a substantial, or rather a
1 In the absence of the king the justiciar was first in the kingdom, his powers
being viceregal and nearly universal. Longchamp, bishop of Ely, arrogated to
himself both the office of chancellor and that of justiciar (the chancellorship had
before his advent become worthy the position of an archbishop), holding the
justiciarship, however, only during 1 190-91, but holding the chancellorship
from 1 189 to 1 197. The justiciar still retained most of his ancient powers through
the first third of the next century ; but the position of chancellor was greatly
enhanced in dignity under Longchamp. From the very outset of his appointment
as chancellor, the justiciar (Hugh of Durham) became jealous of his power. —
2 Benedictus, 101 (Stubbs's ed.). See further as to Longchamp's position, ib. 108,
109, 143, 158, 207, 210-222.
2 I Benedictus, 207. 3 Ibid.

gg HISTORY OF PROCEDURE.
partial, repetition of a clause in the Assise of Northampton,
anno Wj6. At the council which resulted in the statutes
known by that name, the kingdom had been divided for
judicial purposes into six parts, over each of which three
persons had been assigned as justiciars of the king. These
judges were to decide all suits involving half a knight's fee
and less ; unless the complaint was so important that it could
not be decided without the king, or unless it were such that
the judges should report it to him, or to those who should be
in the king's place (in his absence), by reason of the judges'
doubts.1 These provisions are the first mention that has come
down to our day of anything like revisory authority over the
King's Court. The earlier provision (anno 1176) cannot
create surprise, since the questions referred to would arise on
the circuits ; and such especially as might affect the rights of
the king or of his great men ought not, judging from the
ancient rights of the king and of his tenants in chief, to be
determined elsewhere than before the central court attending
the king's person. And it was natural, further, that the
judges should have the right to report questions of difficulty
to the same body. Nor, indeed, rightly considered, should
the later provision (anno 1178) create surprise. The court
was indeed the central court of the king ; but it was a new
creation, partly taking the place of the larger body which had
hitherto constituted the King's Court par excellence, and which
now, it may be observed, became the germ of the King's
Council of the thirteenth century.2 And whether the five
had been and were still members of the larger body (they
probably were), or were new men entirely — in either case it
would not be safe to give the new court unlimited jurisdiction.
The provisions referred to do not, it will be noticed,
provide for any appeal in the proper sense of the term, but
1 1 Benedictus, no.
2 The Great Council was of course the original of Parliament.

THE COURTS. 89
only for a reservation of difficult and important causes for the
decision of the whole court ; which may now be called, from
its later name, the Council. Still, we are probably justified
in looking upon these provisions as the origin and germ of
an appellate jurisdiction above the (smaller) King's Court.1
The smaller court appears to be the direct original of the
modern King's Bench ;2 which therefore, unlike the original
King's Court, if this be true, is a tribunal of legislative
creation. In the course of the next year, however, the kingdom
was divided into four circuits, each with five justiciars of the
king, except the fourth (Northern) circuit, to which six were
assigned, Glanvill being one of them, and becoming in the
following year chief justiciar. These six, the assignment de
clared, were constituted justiciars in the King's Court for hear
ing the complaints of the people — " Isti sex sunt justitiae in
Curia Regis constituti ad audiendos clamores populi."3 The
meaning of all this appears to be that the arrangement about
the five of the previous year, that they should not depart from
the king, was changed, and that the six acted both on circuit
and in the presence of the king, in the latter case as the
Bench."' Of the later history of the court in the twelfth cen
tury, we have no information beyond an occasional allusion ;
as when Benedictus tells us that Richard the First, upon his
departure for the Holy Land (anno 11 89), made Hugh, bishop
of Durham, chief justiciar, and appointed as his associates
Hugh Bardolf and William Bruer.5 This shows that there
was still no fixed number of judges in the Bench.
This smaller court may well be called a judicial committee
of the larger body;6 which latter (from being the King's
1 See 2 Benedictus, pref. 76 ; Stubbs, Sei. Ch. 23 (2d ed.).
2 See 2 Benedictus, pref. 75 ; Hardy's Introd. to Close Rolls, 95-105 (8vo ed.).
3 1 Benedictus, 239.
4 This has been, it seems, truly suggested to be the meaning of the "justiciarii
sedentes in banco" of Glanvill, lib. 2, c. 6, lib. 8, c 1, and lib. n, c. 1. —
2 Benedictus, pref. 75. 5 Ib, (text) 101. 6 2 Ib. pref. 75.

90 HISTORY OF PROCEDURE.
Court, which it is still sometimes called) becomes now the
King's Council, more familiar in the history of the following
century, but to be distinguished from the Great Council. The
great justiciar, as a natural, though not as an immediate con
sequence, becomes degraded from first officer of the realm to
the position of chief justice of a purely judicial tribunal, and
one not of last resort.1 But one step was needed to place the
chancellor above him in rank, and to substitute him to the
justiciar's position of second man of the kingdom. That step
was taken when the chancellor became presiding officer (in
the king's absence) of the King's Council; and this step
followed soon after the death of Glanvill, when the office
of chancellor (which was soon followed by that of justiciar)
fell to William Longchamp, the chief minister of Richard the
First.2 From the time, then, of the creation of this smaller dele
gate court attendant upon the king's person, we have what
almost immediately came to be called the Bench, and what,
as we have several times observed, came afterwards to be
called the Council. Records early in the thirteenth century,
long before the establishment of any new staff of judges as
the judges of the Common Pleas (to which court the term
Bench — " in banco " — has sometimes been supposed to apply,
from the time of Glanvill) constantly distinguish between the
two courts. Thus, in a writ issued by Henry the Third, in
the third year of his reign, to the justices itinerant for Kent,
the king orders the justices to stay all demands preferred
before them concerning franchises by the archbishop of
Canterbury, by Geoffrey, Earl of Clare, or by others, until
the fifteenth day after the feast of St. Hilary "before our
Council at Westminster." In like manner if any difficult
pleas arose before them, such as they could not easily deter-
1 Hubert de Burgh, chief justiciar from 1216 to 1232, is considered to have
been the last of the ancient justiciars uniting political with judicial powers.—
2 Benedictus, pref. 77. ' Ante, p. 87, note,

THE COURTS. 91
mine " without the advice of our Council," they should also
stay these causes for trial at the same time and place.1 The
reservation, it will be noticed, is to the King's Council, not
to the Bench ; and this appears to have been the uniform
practice of the time.
It may sometimes be difficult, especially in the twelfth
century, to distinguish between the Exchequer and the
Council, if there were any great distinction in point of
personnel. The same persons frequently sat in different
characters in the courts. The Exchequer was composed,
inter alios, of barons attending regularly, ex officio or by
special summons, at Easter and Michaelmas, upon the king ;
and these were the persons, with still others, especially the
higher clergy, who constituted the fluctuating body of the
Council. Before the men composing either of these bodies,
but often sitting in the hall of the Exchequer at West
minster, at the close of the fiscal terms of Easter and
Michaelmas, or at other times, common pleas were frequently
tried ; the court being sometimes designated as the King's
Court at Westminster " ad Scaccarium," 2 and sometimes
simply as the King's Court at Westminster.3 The Ex
chequer may be distinguished from the delegate body when
the membership is disclosed, as well as when the record
shows that the particular proceeding was an accounting of
the revenue ; and in a case of this latter kind, the body may
of course be distinguished from the Council. So, too, when,
upon completing the accounts of the fiscus, members of the
same court continued to sit for the hearing of common pleas,
it was still called a session of the court "ad Scaccarium."
This was sometimes true even when the body sat for the
hearing of common pleas at a time entirely distinct from the
fiscal sessions of the Exchequer.4 There appears to be only
1 Madox, Hist. Exch. 367 (fol. ed.). " Placita Ang.-Norm. 267. 3 lb. 276.
4 See 2 Rotuli Curix Regis, 155, Hilary term, essoins (excuses for non
appearance) taken "coram domino G. et baronibus de Scaccario."

92 HISTORY OF PROCEDURE.
a question of names in such a case. Sitting for judicial pur
poses within the hall of the Exchequer, the body would
naturally be considered as the Court of Exchequer, though
it might have been sitting elsewhere the day before with the
king in council.
The central King's Court sat at times and places suited
to the king's convenience and pleasure, when he was in
England. It followed the king in his uncertain progresses
until Magna Charta required the holding of common pleas
"in aliquo loco certo." l Judging from the Rotuli Curiae
Regis and the Placitorum Abbreviatio (both of which begin
with the sixth year of Richard the First),2 there must have
been a large amount of litigation in the court, requiring pro
tracted and frequent sessions ; but the uncertainty of place
and time of the king's movements must have operated greatly
to the detriment both of persons actually litigating in the
court and of persons desiring to do so. The sessions of the
Eyre in the counties, and the stated terms of the fiscal court,
the Exchequer, at Westminster, were the necessary resort of
many litigants in this state of things ; a matter to be adverted
to again in treating of the Exchequer. What was the state
of things when the king was absent from England does not
appear. But it seems not improbable that the court was
then more stable, having sessions, whenever necessary, at
Westminster, under the justiciar.
Of the other royal court, held in the counties, away from
the king's person, there are traces as early as in the reign
of Rufus ; and probably, if all were known, iters of the
judges might be found to have been made in the reign of the
Conqueror. Indeed, this early date for occasional iters can
1 Magna Charta, c. 17.
2 The rolls of the King's Court began at least as early as the seventh year of
Henry the Second (1160). At the end of the Appendix, No. 56, there will be
found a transcript from the MS. roll of Michaelmas, 9 John, quoting pleadings
from a roll of that early time.

THE COURTS. 93
be assigned with some degree of confidence, with the sug
gestion of Domesday book before us. It is certain that the
commissioners of the Great Survey had frequent occasion to
consider questions of property affecting the interests of the
king, or of his tenants in chief. Thus, almost at the begin
ning of the Domesday record there appears a report of a trial
relating to customs taken in Kent from foreign merchants by
an officer named Bruman, in violation of the rights of the
church of the Trinity and of the monastery of St. Augustine.
And as a result of the confession of the defendant, the church
and the monastery had their customs "judicio baronum regis
qui placitum tenuerunt." l To this could be added many
other cases decided during the survey touching claims of the
king or of his chief barons.2 Nor, indeed, was the idea of the
judicial iter wholly new in England at the Conquest.
Not a few of the trials in the counties, during the reign of
the Conqueror, were held by the king's immediate justiciars
away from the king ; some of them rising to the dignity of
Witenagemots, as has already been pointed out.3 Others
were smaller bodies. There was a trial at a court of three
counties, held at Kenetford, in the year 1 1 80, for the hearing
of extensive claims of the church of Ely, almost attaining to
the rank of a Witenagemot. Among those present were the
king's justiciar, bishop Geoffrey, three delegates of the king,
and many sheriffs.4 The case of Bishop Wulfstan v. Abbot
Walter5 was tried before the same justiciar, by virtue of the
king's writ ; and the case of Gundulf v. Picot 6 was tried in
Cambridge, under the king's writ, before his justiciar Odo ;
the king himself being interested, but not being present.
But these are isolated cases; and there is no indication of
any system of circuits in this reign.
The earliest record of anything like a modern judicial iter
by the royal justiciars appears to be that of the case of The
1 Placita Ang.-Norm. 37. " Ib. 37-61, 293-307. 3 Ante, p. 23.
s Placita Ang.-Norm, 22, s Ib, 16", 6 Ib. 34,

94

HISTORY OF PROCEDURE.

King v. Abbot of Tavistock,1 in the latter part of the reign
of Rufus, anno 1096. That record exhibits the king sending
bishop Walkelin and his chaplain, the hated Flambard, into
Devonshire, Cornwall, and Exeter, to hold royal pleas. But
this is all that is known of the reign of Rufus. The earliest
Pipe Roll 2 in existence is of the thirty-first year of the next
king, Henry the First ; and this exhibits a system of iters by
the royal justiciars in full and regular working order.3 This,
it is reasonable to assume, continued through the remaining
five years of that reign, and until the anarchy of Stephen and
Matilda ; when it certainly ceased. The system was renewed
by Henry the Second, as early as the second year of his reign,
from which time the Pipe Rolls begin again, and continue
without interruption thereafter.
The earlier iters of this reign, however, were mostly fiscal,
and held generally by the sheriffs, and were not marked with
the perfectness which characterised them in the latter part of
the reign of Henry the First. It was not until the year 1166
that the judicial eyres, held before deputed justiciars, become
annual and general.4 From this time the system has con
tinued until the present day, though not without much change
in the adjustment of the machinery.5
The results of the reintroduction by Henry the Second of
the system of provincial visitations by justiciars from the
central court of the king are as important as the causes lead
ing to the system are easy to seek. The sheriffs were, indeed,
the king's missi, whether considered as the vicecomites of
Normandy or as a continuation of the pre-Norman shire-
reeves, who long before the Conquest had become the king's
officers. But the sheriffs were hereditary officials. Though

1 Placita Ang.-Norm. 69.
2 The Rolls of the Pipe contain entries of the fiscal proceedings of the
Exchequer. 3 See 1 Stubbs, Const. Hist. 391, 4 2 Benedictus, pref. 64.
s The facts are traced by Professor Stubbs in his preface to vol. 2 Benedictus,
PP- $l~ll> and >n ' Const. Hist. 604, 605.

THE COURTS. 95
subject to removal, they were not assigned for temporary
duty, but for service of indefinite duration ; and this gave
them ample opportunity for personal promotion and for
oppression and extortion, which they seldom failed to im
prove. They went the fiscal circuits of the king, and some
times the purely judicial ; but the king was defrauded, and
the people cried out against their abuse of office. The
remedy was most natural. The king sent out the trusted
men of his own immediate court, and others in whom he had
confidence, to hold the provincial Eyres ; and from being at
first chiefly fiscal visitations, it was found desirable to give
the iters a wider scope, and allow the people of the counties
the benefits of the peculiar procedure and the more ample pro
tection of the King's Court. The result was that before the
end of the reign of Henry the Second the chief feature of the
iters was the hearing of common pleas and judicial causes
generally; and this result was encouraged in the most deci
sive way, to the extent of making direct inroads upon the
jurisdictions of the courts of franchise.
Ralph de Diceto is the chief authority in support of the
cause above assigned for the re-establishment of the iters of
the royal justiciars, so far as the king personally was affected
by the conduct of the sheriffs. He tells us graphically that
having upon inquiry found the sheriffs intent mainly upon
their own personal interests, the king, growing more and more
anxious for the common welfare, committed jurisdiction in
certain places to other faithful men, that the known advent
through the counties of the power of the public might strike
terror to delinquents, and that those who retained the royal
revenues in their own hands, and injured the majesty of the
prince, might incur the king's wrath. And the remedy
appears from de Diceto to have been faithfully applied.
But the king's own men were not allowed to stay long
from the royal presence ; Henry endeavouring, by frequently
changing his delegates, to secure the best possible results.

95 HISTORY OF PROCEDURE.
"Now he sends out abbots, now earls, now chaplains, now
men of his household, now his most intimate companions to
hear and try causes." Finally he appoints (though tempo
rarily, it seems) the bishops of Winchester, Ely, and Norwich
as archjusticiars (" archijusticiarios") of the kingdom. By
these and their associate judges causes were decided, certain
matters being reserved, however, for the hearing of the king,
as provided by the Assise of Northampton above referred to.1
Of the outcries of the people against the sheriffs, and
of the willingness of the king, for the moment at least, to
give heed to the same, the Inquest of Sheriffs gives ample
evidence. Upon the king's return to England, in the year
1 170, after an absence on the Continent of four years, he
holds a Great Council at London, and there in answer to
general complaint removes nearly all the sheriffs of the land,
and orders them to give pledges to answer for their wrongful
conduct. This, however, was followed by a restoration of
some of the parties to their old positions ; when they made
good their revenge upon the people.2
The sheriffs were not, however, the only offenders. As
has been intimated, the king could not fully trust his own
special justiciars. These also were found oppressing the
people, and willing apparently to defraud the king. We have
seen that at the council of Northampton, in the year 1176,
the kingdom was divided into six circuits, with three justiciars
assigned to each.3 But this arrangement was short-lived. In
the year 1178 the king caused an inquiry to be made con
cerning these judges, if they had treated well the men of the
kingdom. In answer, he learned that the land and the people
were sorely oppressed by reason of the great number, to wit,
eighteen, of justiciars ; and it was upon this occasion that the

1 These passages of de Diceto may be found in 1 Twysden, Script. 605, 606,
and are also briefly quoted in 2 Benedictus, pref. 72.
2 Tlacita Ang.-Norm. 216. See the entire inquest in Stubbs, Sei. Ch. 147-150.
3 Ante, p. 88.

THE COURTS.

97

central court of five was established. The passage referred to
is not clear upon the question whether these justiciars had
been guilty of misconduct; but they appear to have been
removed, and fluctuation in the justiciars going the iters
continued.1 The Pipe Rolls show that the itinerant justices were
occupied with the hearing of legal causes of all kinds, and
that the peculiar process of the central King's Court was in
use before them.2 Three or four examples will suffice.
Geoffrey de D. was accounted as debtor in three marks in
the tenth year of Richard the First (i 198), for having the
justiciars itinerant inquire in what manner a certain recogni
tion was taken against him in the earl of Mortain's court,
during the war between the king and the earl ; which
recognition, as Geoffrey alleged, had been taken contrary to
law.3 In the Northampton iter, Walter T. and his son John
gave ten marks in the first year of John (1199), to have
an inquisition by oath of the burgesses of Northampton,
to find certain facts in issue concerning the leaded house
of Northampton ; among other things, if King Henry,
father of the present king, had dismissed the demandants
because they had not rendered at the appointed time the
auxilium required of them.4 In the Kent iter of the seven
teenth year of Henry the Second, Walter, son of A., rendered
account of five marks for having a recognition of the county
concerning land of R.5 In the Hampshire iter of the twenty-
second year of Henry the Second, William, son of S., pro
mised ten marks for having a recognition of certain lands
in Normandy.6 These examples might be multiplied in
definitely. The Assise of Northampton assigns for the Eyre
recognitions of the seisin of heirs and other cases.7 And in
1 See 2 Benedictus, pref. 70, 71.
2 See various cases in Placita Ang.-Norm. 268-278, and in chapters 12-14
ofMadox. 3 Madox, Hist. Exch. 299 (fol.ed.). 4 Ibid.
s Placita Ang.-Norm. 271. e Ib. 273.
1 Assise North, c. 5 ; I Stubbs, Const, Hist, 617. ft

98 HISTORY OF PROCEDURE.
the agenda of the Eyre, anno 1194, besides recognitions in
general, the Magna Assisa is mentioned as within the
jurisdiction of the judges, where the amount in controversy
did not exceed a hundred shillings ; an amount raised to ten
pounds four years later.1 The whole agenda of this Eyre of
1 194 will be given later, in treating of the County Court; to
which part of the present chapter the reader is referred for
some further consideration of the relation of the Eyre to the
ancient court of the county.
To the ordinary judicial business of the Eyre, the "per-
lustrantes judices," as the judges were often called, especially
in the Dialogue of the Exchequer, united a variety of duties
pertaining to the interests of the king. Indeed, they, with
the sheriffs, were the king's representatives through the
counties for all matters of the Crown. While gradually, by
act of the king, superseding the sheriffs2 in judicial busi
ness (except in the ordinary County Court), they were also
exercising jointly with them most of the duties which had
formerly been performed by the sheriffs alone. Among other
functions, they appear to have constituted a sort of limited
Court of Exchequer for the county, not, indeed, as possessing
the functions of the real court of that name, but as exercising
an oversight of the interests of the treasury in the counties,
and often adjudicating upon claims of, if not against, the
king. In a word, using the term Exchequer in the modern
sense, as meaning a judicial tribunal, with jurisdiction of
fiscal matters, it may be said that the Eyre was both the
Court of Exchequer and the King's Court for the counties,
besides having the consideration of much business not of a
judicial character. The Rotuli Curiae Regis are a continuous
exemplification of this fact in both particulars at the close
of the twelfth century, representing also the greater part of
the reign of Henry the Second.
1 I Stubbs, Const. Hist. 617; Sei. Ch. 259, 260 (2ded.).
2 The gradual limit of the sheriffs' judicial functions, from the first half of the
reign of Henry the Second, is traced by Professor Stubbs, 1 Const. Hist. 606, 607.

THE COURTS. 99
How far the causes above mentioned operated to effect
the next movement — perhaps not next chronologically — in
favour of the exercise of the royal jurisdiction in the country,
to the degradation of the local franchises by one step further,
is not altogether clear. The causes which, through the Assise
of Clarendon, anno 1166, led to the opening of the Manorial
Courts for the visitations of the sheriffs and the royal jus
ticiars, are not distinctly stated. The assise begins with the
mere statement that its provisions were enacted for the pur
pose of preserving peace and keeping justice. To this end
it was decreed that inquiry should be made on oath in every
county and in every hundred, by twelve legal men of the
hundred, and by four legal men of every vili (manor),1 whether
anyone had been accused of being a robber, or a murderer, or
a thief, or a harbourer of robbers, murderers, or thieves, since
the king was crowned. And this inquiry was to be conducted
before the justiciars (itinerant) or before the sheriffs.2 Nor
did the matter stop here, or end by putting the accused under
bonds to answer before the local court : on the contrary, the
justiciars proceeded to try and determine the causes thus
brought within their jurisdiction.3 If, however, the lord of a
man taken, or the lord's steward or his men, demanded the
accused on pledges within three days, he was to be given up
with his chattels, until he made his law (by the ordeal ? ).4
The next article of the statute gives us a view of the division
of jurisdiction, or rather of function, between the sheriffs and
the justiciars, showing that, in ordinary matters at" least, the
duties of the sheriffs on the Eyre of the justiciars were
ministerial, and not judicial. Thus early was the change
coming about which was at last to strip the sheriffs of their
ancient function of judges. The clause referred to provided
1 " Constantiensis episcopus .... ducenas et octoginta villas (quos a manendo
manerios vulgo vocamus) obtinuit. " — Orderic Vitalis.
2 Assise of Clar. c. I. 3 lb. c. 2 et seq.
4 Ib. c. 3. If found guilty, the accused was then, it seems, turned over to the •
justiciars for punishment, who also probably took his chattels in the name of the king.
H 2

,I00 HISTORY OF PROCEDURE.
that, when a (person accused of being a) robber, murderer, or
thief, or a harbourer of such, was taken, then, if the justiciars
were not to come soon into the county in which the accused
was taken, the sheriff was to make the fact known (inandet)
to the nearest justiciar. The justiciars should then inform
(remandabunt) the sheriffs where they desired that the accused
should be brought before them.1 The sheriff should then
bring them before the justiciars ; and two legal men of the
hundred and vili where the accused were taken should appear
before the justiciars to record (report) the presentment of the
hundred and county. And then the accused were thus to
make their law (the ordeal) "before the justiciars." 2
The next article of the Assise is important and emphatic
on the point of jurisdiction. It declared that as to those who
had thus been taken under the oath of the sixteen men no
one should have court or justice or chattels except the king,
in his own court, before his justiciars.3 But this was not all.
The following article directed that as to those prisoners who
had been taken otherwise than upon the oath of the sixteen,
the sheriffs should still bring them before the justiciars with^
out any other summons ; and that all persons accused as
robbers, murderers, or thieves, and those who had harboured
them, whether taken by this oath or not, should be given into
the custody of the sheriffs.4
It was further provided that all persons should attend at
the court for making this oath, and that no one should stay
1 The original reads : "Si justitisa non fuerint tam cito venturi in ilium comi-
tatum ubi capti fuerint, vicecomites mandent propinquiori justitije per intelligentem
hominem, quod tales homines [sc. roboratores etc.] ceperint ; et justitire remanda
bunt vicecomitibus ubi voluerint quod illi ducantur ante eos." In connection with
the clause " quod tales homines ceperint" — "that they have taken such men"—
the natural meaning is that the sheriffs "shall report" and the justiciars "shall
reply." The meaning " to report " is common to " mandare " in the middle ages.
"Mandate mihi magnitudinem terra," Placita Ang.-Norm. 25. So in c. 17 of
this same Assise.
" Assise of Clar. c. 4. Compare the agenda of 1 194, post.
3 Ib. c. 5. See Dial. Exch. lib. 2, c. 10 (Stubbs, Sei. Ch. 225, 22S).
* Ib. c. 6 ; Assise North, c. 12.

THE COURTS. 101
away by reason of any franchise, court, or jurisdiction which
he had.1 Ancl, still more stringently, it was decreed that no
one within any town or without, not excepting even the honor
of Wallingford, should refuse to allow the sheriff to enter
his court or land for taking the view of frank-pledge.2 And
the same provision is repeated still more definitely in another
article, in respect of persons accused of being robbers, mur
derers, thieves, or the harbourers of such, and in respect of
outlaws and of persons accused of violating the king's forest
laws.3 The reason for the general and frequent iters of the
justiciars which date from this time now sufficiently appears.
A jurisdiction had been created for them, though at the
expense, and intended expense, of the local franchises. The
uncertain state of things introduced with the Conquest by
the addition of the disturbing influence of a court not to be
restrained by any ascertainable bounds had now come sub
stantially to an end. The king had succeeded at last in
building up and establishing a jurisdiction for his own courts,
not merely where he chanced in person to be, but in every
part of the kingdom, over causes of all kinds, civil and
criminal, legal and equitable. The machinery of the King's
Court, as fashioned and set into operation by Henry the
Second, has been preserved in substantial integrity to the
present day. There have been some additions to it ; but

1 Assise of Clar. c. " Ib. c. 9.
3 Ib. c. 11. See the whole Assise in Stubbs, Sei. Ch. 143-146. But some of
the franchises held out against the entry of the sheriffs. See the case of the liberty
of St. Edmund, Jocelyn de Brakelond, 98, 99 (Camden Soc), anno 1202. "Vice-
comes, sciens quod non potuit intrare libertates Sancti ^Edmundi," etc On
another occasion, perhaps anno 1 191, a windmill having been erected by a neigh
bouring proprietor, to the detriment of St. Edmund, the abbot addressing the
offender, says : " Senex es, et scire debuisti quod nee rcgi nee justiciario licet
aliquid immutare vel constituere infra bannamleucam [the league, territory, sur
rounding and belonging to the monastery] sine abbati et conventu." — Joe. de Brake].
43. See also 1 Rotuli Curiae Regis, 426, anno 1199, where William de Braosa
says that neither king, sheriff, nor justiciar has any right to enter his liberty ; and
the sheriff refused to enter even under the king's writ.

102 HISTORY OF PROCEDURE.
there have been few changes of a permanent nature until
within half-a-dozen years.
As to the relation in which the Eyre stood to the popular
courts, or Folkmots as they are often and aptly called, the
provisions already referred to of the Assise of Clarendon show
that the justiciars itinerant exercised concurrent criminal juris
diction in the counties with that of all the other courts ; and
passages in the Pipe Rolls, without number, show that this
was equally true of civil jurisdiction.
The Case of Geoffrey de D., referred to on a preceding
page,1 affords decisive evidence of the revisory jurisdiction
of the Eyre over causes tried in the franchise courts ; the
judgment of the court of so powerful a man as the earl of
Mortain, the king's brother John, being there made the sub
ject of inquiry. Nor is there any reason to suppose that the
statements of Glanvill concerning appeals from the local,
through the County, to the King's Court,2 mean that litigants
in the country must pass by the Eyre in appeals, and carry
their causes from the provincial courts directly to the central
court of the king. The Eyre itself was often called the
County Court, and was doubtless included in it by Glanvill.
The familiar practice of later times probably had its begin
ning with the establishment of the judicial iters. The king's
tenants in chief could perhaps refuse to go before the jus
ticiars itinerant; but the causes and appeals of all others
were certainly entertained by them.3
It only remains to say that the coming of the justiciars
' Ante, p. 97.
" Glanvill, lib. 12, cc. 1, 7. Glanvill merely says that the causes may be trans
ferred " ad capitalem curiam domini regis ; " as was done in the case of John the
Marshal, Placita Ang.-Norm. 212.
3 The superior jurisdiction of the justiciars itinerant is spoken of as matter of
course by Jocelyn de Brakelond, p. 100, anno 1202. "Comitatus vero posuit
loquelam in respectum usque coram justiciariis errantibus." See also I Stubbs,
Const. Hist. 607. The tenants of escheated honors, who were bound to attend
the visitation of the justiciars, did not by the escheat become tenants in capite of
the king.— Dialogue of the Exchequer, lib. 2, c. 24; Magna Charta, c. 43;
I Stubbs, Const. Hist. 401.

THE COURTS. 103
into the counties was announced to the sheriffs in advance,
and that they proceeded thereupon to summon the county ; all
freemen being required to attend, including, as we have seen,
those who were exempt by special franchise from attendance
upon the popular courts. The court, therefore, though a court
of the county, was not the ancient Shiremot. The latter court,
indeed, still had its own sessions, but it was bound to give
way to the superior jurisdiction of the king's justiciars, in case
their visitation occurred at the time for the session of the
ancient court. The Exchequer.
The Exchequer, as it existed throughout the twelfth cen
tury, was the work, largely, of Roger, bishop of Salisbury and
treasurer to Henry the First, so far as its fiscal character and
incidents are concerned. It became gradually, to a limited
extent, a court for the trial of common pleas in addition to
its chief function ; or rather the trial of common pleas came
to be permitted before the Exchequer. But it is improbable
that this was any part of the scheme of its famous reorganiser.
Of the existence of some institution, prior to the reign of
Henry the First, for the regulation of matters of the royal
revenues we" might be certain even if the records of the time
did not tell us of a Thesaurium ; but as to details concern
ing the machinery and working of the same, we are left in
comparative ignorance.
The Dialogue of the Exchequer, written in the year 1177,
by Richard, bishop of London, grand nephew of the re-
organiser of the court, himself also treasurer to the king, is
the great storehouse of information concerning the court of
Roger ; and that gives us, also, some information of the pre
decessor of the Exchequer, the Treasury, and of the causes
which led to the substitution of the better machinery. The
author says1 that, according to the report of the fathers, silver
1 Dialogue of the Exchequer, lib. 1, c. 7 ; Stubbs, Sei. Ch. 193. The
Dialogue is to the Exchequer what Glanvill is to the King's Court.

104 HISTORY OF PROCEDURE.
and gold, in the primitive state of the kingdom after the
Conquest, were not paid by the tenants to the king from the
royal manors (the old folkland) but provisions only ; out of
which the necessities of the royal household were supplied.
And persons were deputed to ascertain how much should be
furnished from each estate. But for the purpose of money
payments to be made by the king, gold and silver were paid
by reason of pleas and offerings (" conventiones "') had in the
kingdom, and from the cities and towns in which agriculture
was not practised.
This institution, the author continues, lasted throughout
the reigns of the Conqueror and of Rufus; and he adds that
he himself had known men who had seen provisions brought,
in the eleventh century, from the royal estates to the court.
The officers of the royal house brought in a certain amount of
wheat from every county ; and from every county divers
kinds of meat, fodder for horses, and other necessaries were
due. These were paid in upon an established modus for each
article ; the royal officers computing the matter to the sheriff
(who had brought the articles) by reducing their value to a
money basis (" in summam denariorum ") ; for a quantity of
wheat, e.g. for bread for a hundred men (daily ?), one shilling ;
for an ox pascualis, one shilling ; for a ram or sheep, four
pence ; for provender of twenty horses, four pence.
Afterwards, when the king (the sequel shows that Henry
the First is meant) found it necessary to put down warlike
uprisings on the Continent, there arose the greatest need
of money to accomplish his objects. In the meantime a
multitude of complaints from the tenants reached the King's
Court, or, what to the king was more annoying still, plough
shares were frequently offered to him in his journeyings as a
sign of the failing of agricultural industry. The people com
plained of being oppressed by infinite demands for provisions.
Influenced by these complaints, the king took counsel of his
1 What these were will be seen later.

THE COURTS. 105
great men, and appointed persons of prudence and discretion
through the kingdom to go about and make inquiry at each
of the estates, making a computation of the amount of pro
visions which was being required, and reducing the same to a
money value. For the total sum which arose from all the
estates in any county, these persons now ordered that the
sheriff of that county should be held to account at the
Exchequer (" ad Scaccarium ") ; from which expression alone
it would appear that this was during the reign of Henry the
First, before whose time that name was not used, at least in
England.1 It was further decreed that the sheriff should pay
" ad scalam," for every pound of money value, six pence. It
was soon found necessary further to decree that the ferm
of the manors should be paid not only "ad scalam," but also
" ad pensum," because, it seems, of the clipping of the money.
This mode of accounting was retained in the Exchequer for
several years. Hence, says the author of the Dialogue, from
whom we continue to translate, it will often be found written
in the ancient rolls of that king (" regis illius ") " in thesauro c.
libras ad scalam [liberavit], vel, in thesauro c. libras ad pensum."
Meanwhile, adds the writer, a prudent man, foreseeing in
counsel, discreet in speech, and in all great matters of business
especially distinguished,2 was called by the same king to his
court ; who growing in favour with the king, the clergy, and
the people, was made bishop of Salisbury, and received the
highest honours. He had very great knowledge concerning
the Exchequer, and it was clear from the rolls themselves
that the Exchequer flourished very greatly under him. The
Dialogue then proceeds with the reforms instituted by Roger
in respect of the kind of payment made by way of revenue ;
especially the testing of the money by melting it.
1 See I Stubbs, Const. Hist. 377, note, 378, note.
2 Before his accession to the throne, the king is said to have been first struck
with the expeditiousness of Roger, while a clerk near Caen, in saying the mass, and
at once called him to be his chaplain. — William of Newbuigh, 144 ; William of
Malmesbury, Gesta Reg. pp. 441, 442, note (Bohn).

I06 HISTORY OF PROCEDURE.
This is all, or nearly all, we know of the Treasury ; but it
is sufficient to indicate that the efforts of Roger were devoted
mainly to reforms — to making the existing machinery more
effective than he found it — rather than to the creation of a
new system of finance. There had been a central court of
the fiscus in the eleventh century, composed of royal officers
(" regii officiales "), as there was in the twelfth century, under
Roger's reforms ; and to this body the sheriffs, then as after
wards the taxgatherers, made, as they did in the time of
Henry the First and Henry the Second, their report and
received their discharge or not according to the particular
case. There is every reason to suppose, also, that the court
acted judicially, and not merely as a body of auditors, as
well before the time of Roger as afterwards. Through this
Treasury of the first Norman kings the Exchequer of Henry
the First is thought to have unbroken connection with the
Anglo-Saxon Hord ; one of the special features of the
Exchequer, the blanch -ferm, being the result of a state
of things peculiar to the ancient monetary system of the
kingdom.1 Concerning the Exchequer of Roger our information is
ample. The Dialogue goes into minute details. Not only
is the meaning of the term " Scaccarium " unhesitatingly
given, the familiar one of the chequered cloth with the game
of chess,2 but speaking of it physically, it is described as
a table, whose precise dimensions are stated, and the fact
mentioned that it was surrounded by a rim of a certain
height, to prevent the treasure from falling off. Whatever
was done by common counsel at this table was said to have

1 See Stapleton's Introd. to the Norman Exchequer Rolls ; i Stubbs, Const.
Hist. 378, note. The blanching, as described in the Dialogue, was the testing of
the money by fire, a thing unknown, it is said, in Normandy, and introduced into
England in consequence of the monetary system of the Anglo-Saxons. The
German writers have thought the Exchequer a bodily importation from Normandy,
1 Gneist, Verwalt. 194, 201 ; Brunner, Schwurg. 154.
" "Scaccarium lusile," Dialogue, lib. 1, t. 1 ; Stubbs, Sei. Ch. 171 (2d ed.).

THE COURTS. 107
been done " ad Scaccarium," as formerly it was said to have
been done " ad Taleas," at the Tallies. The Dialogue informs
us that in another sense the Exchequer was composed of an
upper and a lower room ; the table being situated in the
former, around which sat the court, while the lower room was
used for purposes of testing the money. The order of sittings
about the table is also described, with the official names of
the occupants, and the order of precedence.
Inquiring as we are into the judicial aspects of the Ex
chequer, the membership of the court is the only one of these
curious details with which we are concerned. The presiding
and in all respects most distinguished officer of the body was
the king's justiciar ; that is to say, when the king himself was
not present. He (the justiciar) sat at the head of the table.
First, at his left, sat the chancellor, "ratione officii," if he
happened, says the Dialogue, to be present. Next to the
chancellor sat the constable ; after him two chamberlains ;
and next came the marshal. When these were absent, others
sometimes took their place ; and sometimes even when they
were present the king deputed others to sit in precedency of
them. This completed the first of the four sittings or sides
of the room. At the head of the left side of the table sat the
clerk or other servant of the chamberlains, with counter tallies
" de recepta." Then, after seats for certain ones who did not
sit ex officio, but were specially delegated by the king, there
was a place in the middle of the side for the one who put in
position the matters of account for the counters. Other per
sons, not ex-officio members, followed ; and then at the end
of the seat, the principal secretary ("clericus qui scriptorio
praeest"). At the right side of the chief justiciar, next to
him, sat (at this time) the bishop of Winchester, not ex officio,
but by a new law ; so that he might be next to the treasurer
and carefully scrutinise the writing of his roll ; the document
to which is given the name of Pipe Roll, or Roll of the Pipe,
from its form. Next sat the treasurer at the head of the

108 HISTORY OF PROCEDURE.
right-hand side seat, whose duty it was to exercise most
diligent care over all that was done, as being the person to
render account to the king if need were. His clerk sat next,
acting as writer of the roll of the treasurer. Then another
scribe, the writer of the chancellor's roll, and then the chan
cellor's clerk, who looked diligently to see that his own
answered to the other (the treasurer's roll) in all respects, so
that not an iota might be wanting (" ut nee iota unum desit ").
At the end of this seat sat the constable's clerk, a great man,
full of business in the King's Court, but holding office also
here, acting either in his own person, or, if the king needed
him elsewhere, by a discreet clerk. At the head of the fourth
side of the table, opposite the justiciar, sat (at this time)
master Thomas Brown (" Brunus "), with a third roll,1 who
also had been added by a new law, "hoc est," adds the
author of the Dialogue, " a domino rege nostro," a man of
great skill, whom the king had brought from Sicily. Next
to him sat the sheriffs and their clerks, prepared with tallies
and other necessary things, to render their accounts.
Such in outline was the court which exercised at the
same time judicial and supervisory powers over the returns
of the government revenues. A more particular description
of the special functions of each of these officers follows.
The chancellor was first in rank of those on the left of the
justiciar, as his seat would indicate ; and he, we are told, was
a great man both in the Exchequer and in the King's Court,
commonly spoken of in the Dialogue as The Court. Without
his consent no important business could be transacted ; but
this was true (only ?) while he sat in the Exchequer. The
custody of the king's seal, kept in the treasury, belonged to
him ; and so did the custody of the second roll above-
mentioned. In case of a mistake by the treasurer the
chancellor or his clerk could correct him, but if the treasurer
1 The reason for having three rolls was expressed by the proverb, ' ' Funiculus
triplex difficile solvitur."

THE COURTS. 109
should refuse to make a change, the matter must be brought
for argument and decision before the barons.
The constable's position at the Exchequer was that of a
witness, with the justiciar, of the writs issued from the
treasury and of certain of the accounts for those who
rendered them ; for, it was said, there ought to be two sub
scribing witnesses to all writs of this kind, according to
ancient usage (" ex antiqua institutione"). In this particular
the practice of the Exchequer differed from that of the
King's Court, and the greater importance attaching even in
the latter quarter of the twelfth century to the proceedings of
the fiscus than to those of a court of general litigation
strikingly appears. The constable, with his clerk and the
marshal, also attended to the payment of the stipendiaries,
and had various other duties of no legal interest.
The marshal among other things had charge of the
tallies1 and of the king's writs "de computandis, vel per-
donandis [i.e. discharges], vel dandis," as to things required
of the sheriffs by summons. If a debtor was to be taken
into custody for not satisfying the summons upon him, he was
given into the hands of the marshal, and when the court
adjourned for that day the marshal might put him into the
public prison ; but the debtor was not to be put in chains or
thrust into the lowest place, but placed by himself or " supra
carcerem." It also belonged to the marshal, after the account
. of the sheriff, or " custos," or other person sitting at the
accounts, was passed, to receive in public the party's oath,
-that he had rendered an honest account, according to his
conscience. If the person accounting was still held by any
debt, he added that he would not depart from the Exchequer,
which was said to mean the league (" leugata ") of the town
in which it was sitting, unless to return on the same day,
without permission of the barons. He also received the
1 What the tally sticks were, see Madox, Hist. Exch. 708 (fol. ed.) ; 1 Stubbs,
Const. Hist. 379; Dialogue, Stubbs, 181, 182 (2ded.).

no HISTORY OF PROCEDURE.
summonses made to the next term of the Exchequer, signed
" a latere sigilli regii," and delivered them to the usher of the
upper room, to be sent through the country.
The treasurer's duties were of course of the highest
importance. So far as the present inquiry is concerned with
them, they began with receiving the accounts of the sheriffs.
The treasurer and the sheriff were indeed the chief players
in the game of chess. When the court was assembled
the treasurer inquired if the sheriff was prepared to render
his account. If he answered, " I am ready," the treasurer
said: "Tell us then, in the first place, if the ' eleemosynae,
decimae, liberationes ' have been attended to, and if given
[named] lands stand as in the last year." If the sheriff
answered in the affirmative, the treasurer's secretary followed
carefully the roll of the last year for the purpose of writing
down the appointed matters, the treasurer looking on to see
that the hand of the writer made no mistake. These things
having been attended to, the treasurer inquires of the sheriff
if he has expended anything of the ferm of the county
under the king's writ, in addition to the established matters,
Whereupon the sheriff delivers to the chancellor's clerk, one
by one, the writs sent him by the king, and the clerk, as he
reads them openly, delivers them to the treasurer, that he
may put the proper words, according to the form of the
writs, for the writing of his roll ; for, as the Dialogue states,
the treasurer prescribed the language to be used, and the
other secretaries, as well as his own, received the same from
him. As to this matter, the treasurer had to take great care
not to discharge some one who was still liable, or to make
one liable who ought to be discharged ; for such was the
authority of his roll that it was not lawful to contradict or
change it, except in a case of manifest error, patent to all.
Nor ought it to be changed unless by the common counsel
of all the barons, and during the same term of the court.
After the adjournment of the court it was not lawful for

THE COURTS. m
anyone except the king (who in this matter could do what
he pleased, "cui super his licent quaecunque libent") to
change the writing of a roll of the last or even of the present
year. The roll, it will thus be observed, became res judicata at
the close of the term, beyond the recall of the court itself;
but the king had the power afterwards, like a modern judge
in equity, except that he acted at his will (a fact which
everywhere reappears in matters judicial until the thirteenth
century, and should be sufficiently observed), to order a
change of the record. There was no situation in which the
kingdom was without the principle of equity.
It pertained to the chancellor's secretary to write the writs
of the king that issued from the Treasury concerning those
things which, by the consideration of the barons during the
sitting of the Exchequer, ought to be paid out by the treasurer
and chamberlains, but not the general writs de computandis or
perdonandis. It was his duty also, when the sheriff's accounts
were passed, and the debts due the king taxed, concerning
which summonses were required, to write the summonses
carefully for transmission throughout the kingdom.
The chancellor's clerk had similar duties in many respects
to those of the treasurer. He might correct the mistakes of
the treasurer, as has been observed ; and his first duty was to
follow the treasurer in everything done in the court, especially
in the matter of the writing of the rolls and writs. He
carefully watched the writing of his secretary to prevent
mistakes, and scrutinised diligently the roll of each year until
satisfaction had been made by the sheriff concerning the debts
there stated, for which he was summoned. Then, as has been
stated, when the sheriff was ready to account for what he had
done by virtue of special writs of the king, the clerk received
from him the king's writ of summons, and pressed him con
cerning the debts named therein, saying : " Render account
to such an amount of this or that." He now cancels debts

n2 HISTORY OF PROCEDURE.
paid in full by drawing a line through them. He was also
charged with correcting and sealing the writs.
The constable's clerk was an important officer in the
King's Court as well as in the Exchequer. He took part
with the great men in the most important matters, and the
king's business was transacted with his consent. It was his
duty to go to the Exchequer for the king with the counter-
writs (" contrabrevia," copies, after the service of the originals),
concerning those matters only which had been transacted in
the court ; for the fines imposed in the King's Court were to
be accounted for in the Exchequer.
Little of legal interest attaches to the other officers, except
perhaps the usher. The duties of this officer are for the most
part sufficiently indicated by his title ("ostiarius," doorkeeper).
But some of his ordinary duties were connected with the inner
working of the court ; which the author of the Dialogue
proceeds to state. The barons, we are told, were wont to go
to the usher whenever_ a doubtful question was proposed
before them, to be admitted to a private room where the
matter could be considered by them alone, and also so that
the taking of the accounts might not be hindered in the
meantime. Here, it is to be presumed (if not generally, in the
Dialogue), we are to understand by the "barons" the judges,
to the exclusion of the merely ministerial officers, who may
be considered in part as auditors of the accounts. And this
is confirmed by the statement that to them, that is, to these
barons, was referred every question which arose. This appears
to furnish not only good ground for asserting as to fiscal, not
to speak of other matters, a division of functions into auditorial
and judicial — as to which indeed there could be no doubt —
but also the general basis for the division, in respect of
personnel. And on this division of functions, the final separation
of the body into a fiscus solely and a judicial tribunal took
place. The name "barons" was always retained by the
judges ; but that is merely an historical fact.

THE COURTS. 113
The usher further received the summonses which were
made and signed by the marshal, as has been stated"; and
when the session was adjourned for the term, he served them
either in person or by some faithful messenger throughout the
land. He also convened the sheriffs, by orders from the
justiciar, when they were wanted.
The judicial feature of the Exchequer as such was peculiar.
What has already been said is sufficient to indicate this. But
this was not all. The procedure throughout had its special
aspects, which found no perfect counterpart in the other
courts either in the twelfth century or in later times. The
sheriff or other party bound to account was proceeded against
as a debtor to the king ; and it might very naturally be
supposed that the constantly recurring causes of this kind,
with the Writs "of course" which attended them, making such
actions of debt probably far more familiar to the judges than
the corresponding actions in the other courts, would have led,
if not to a substitution of the procedure of the Exchequer in
debt, at least to a modification, under the hands of the judges,
of the popular procedure. But nothing of this sort appears
to have taken place, and the other courts — so strong was the
hold of custom — continued to use the ancient procedure, as if
the Exchequer were not in existence. Indeed, when the
Exchequer itself emerged somewhat later into a court for the
trial of litigated causes, including common pleas, it was with
the procedure of the Folkmot and the King's Court.
The procedure against a party bound to account for the
ferm of a county or burgh began by a summons, the writ of
debt of the Exchequer. No one was bound to come to court
as a debtor to the Crown unless summoned by a writ bearing
"the image of the royal authority;" and some came, says
the Dialogue, to sit and judge, others to pay and be judged.
The barons came as judges ex officio, or by special command
of the king ; while the sheriffs and many others came to pay
and be judged, some to make voluntary offerings (for having,

II4 HISTORY OF PROCEDURE.
hastening, or delaying justice in the other courts), some to
make necessary payments. And it was essential in every
summons to state how much was (deemed to be) due at the
instant term, with the "cause " thereof; as "have this or that
sum, for this or that cause." No demand, as a rule, could be
made, for example, of a sheriff concerning anything due from
any debtor in his county concerning whom no mention was
made in the writ of summons, though there were payments
which the sheriff had to provide and account for, as to which
the summons was silent.
Surnmons to a sheriff was made by a writ in the following
form, the writ of debt above referred to : " H. rex Anglorum,
illi vel illi vicecomiti, salutem. Vide sicut teipsum et omnia
tua diligis, quod sis ad Scaccarium ibi vel ibi, in crastino
Sancti Michaelis, vel in crastino clausi Pascha;, et habeas ibi
tecum quicquid debes de veteri firma vel nova, et nominatim
haec debita subscripta ; de illo x. marcas pro hae causa, et sic
deinceps." 1 Then followed a category of all the debts
seriatim, with the causes, as contained in the great annual
roll heretofore mentioned ; and to these items there were
added from the lesser rolls of the itinerant justices all that
was enrolled as due through the counties and taxed a
majoribus. All these being put down in order, the writ for
mally closed with these words : " Et haec omnia tecum habeas
in denariis, taleis, et brevibus et quietantiis, vel capientur de
firma tua ; teste illo vel illo, ibi ad Scaccarium."
How the sheriff appeared and was addressed by the
treasurer as to the appointed alms, tithes, and liveries, which
appear not to have been set out in the writ (such, of course,
not being debts, but payments made by him), has been stated.
Then he is asked by the treasurer what moneys he has
expended under special writs of the king ; which matters
also, it seems, were not contained in the writ of summons.
Having answered this question and produced his vouchers
1 Dialogue of the Exchequer, lib. 2, c. I ; Stubbs, Sei. Ch. 21 1 (2d ed.).

THE COURTS.

"5

(the king's writs) and such other evidence of the payments
as the case required, and proceeded similarly with certain
other items, the writ of summons is finally reached, with
which alone we are now concerned. Of the items charged in
the summons, that concerning pleas and conventions ( " de
placitis et conventionibus " ), the last item of all, shows fully
the procedure. The chancellor's clerk now takes the writ
(the treasurer apparently having had it before him, for the
preceding items) and presses ( " urget " ) the sheriff concerning
each charge set down, saying : " Redde [compotum] de illo x,
libras ; pro hae causa." This, of course, answers to the
count in an ordinary action for debt. The sheriff's answer
is usually a confession and payment in whole or in part, and
is written down by the clerk accordingly, thus : " N. reddit
compotum de x. 1. pro hae causa." In some cases his answer
to the demand would be that he had been discharged by writ
of the king, which would be produced ; and then the entry
was, "N. reddit compotum de x. 1.," adding the cause, and
concluding, " Per breve regis ipsi N. x. 1., et quietus est." In
other cases it was, " In perdonis per breve regis " so much
" et debet " so much.
In some cases it happened that the sheriff had not collected
the tax due from a particular person ; and he was allowed to
plead the fact if he could explain it. If he answered that he
had made diligent but ineffectual search for goods of the
person in question, the treasurer would say, " Be careful, for
you must make oath of this matter," and adding, "When
you have given the oath, you shall confirm it corporaliter." l
But if the sheriff replied, " I am ready," the taking of the
oath was postponed to the end of the accounting, when in any
case he was bound to swear the truth of his answers.
Such was the course of proceeding in a typical case in the
Exchequer as afscus. In form it differed widely from a plea
of debt in the King's Court ; but yet not so much in substance.
1 This probably refers to the ceremony of the oath. Comp. pp. 120, 121.
1 2

n6 HISTORY OF PROCEDURE.
The sheriff is summoned into court by his creditor, the king,
for a variety of debts due by him as collector of the revenue ;
each one of which may be taken as a separate legal demand.
The defendant confesses judgment as to one, pleads the king's
own discharge as to another, and affirms as to a third that by
the exercise of all reasonable diligence he was unable to collect
the sum charged. And then, to establish the truth of any
defence, such as the last, he makes oath and offers to prove
the same " corporaliter." This entitles him to a discharge, so
long as there is no such evidence against him as to bar him
from giving the oath, and no one appears to contest it with
an offer of the duel. The chief difference in substance between
this and an ordinary plea of debt contested between lord and
man is, that in the latter case the plaintiff would tender the
duel with his demand, and that the defendant (in the time
of Henry the Second) would have the choice of accepting the
tender or of putting himself upon the Grand Assise as to the
question of right.
Summons in the foregoing form appears by inference from
the language of the Dialogue to have been in use in the time
of Henry the First ; so that if this be true, writs de cursu
are older in the Exchequer than in the King's Court. The
author says that as new diseases require new remedies, so
there was added to the summonses, by a new law, " hoc est,
post tempora regis Henrici primi," this subscript : " Si forte
de alicujus debito summonitus es, qui terram vel catalla non
habet in baillia tua, et noveris in cujus baillia vel comitatu
habuerit ; tu ipse vicecomiti illi vel ballivo breve tuum hoc
ipsum significes, deferente illud aliquo a te misso, qui ei breve
tuum in comitatu, si potest, vel coram pluribus liberet." l
The cause of this addition to the writ need hardly be
suggested ; but the picture is so vividly drawn, and the facts
so far exceed the suggestion of our times (unless they find
a parallel in the American excise), that the digression of a
' Dialogue, lib. 2, c. I ; Sei. Ch. 212.

THE COURTS. 117
moment, If it be digression, may be suffered. The proceedings
ad Scaccarium were directly noised abroad, and the conse
quence was that the report of the summonses to the individual
debtors reached their ears in advance, long before the sum
mons in fact reached the county ; and immediately every man
set his house in order. The granaries were emptied, and the
movables scattered hither and thither or transferred to safe
places. The tenant now sat in his empty house, awaiting in
security the coming of the sheriff and the other officers. The
sheriffs of the adjoining counties were powerless : they could
not levy upon the goods of non-resident debtors not enrolled
upon their lists. And by such artifice the authority of the
royal summons was for many years eluded with impunity.1
The law required no impossibilities in those days more
than in these ; and the sheriff was permitted in proper cases to
excuse (essoin) himself from personally answering the sum
mons served upon him, provided always he sent on the money
collected. This he sent by legal men, who bore also his letters
of excuse to the justiciar ; which they were to confirm by oath
corporaliter, if the justiciar desired. He was thus saved from a
fine ; but these persons could not undertake the rendering
his account, though in his letters he had said : " Mitto vobis
hos servientes meos N. et N., ut loco meo sint, et quod ad me
pertinet faciant, ratum habiturus quod ipsi fecerint." No one
but his eldest son, except by special writ of the king or by
authority of the chief justiciar in the king's absence, could
undertake his accounts. 2
Among the lawful excuses of the sheriff, besides the
sickness of himself, and of his eldest son when deemed nigh
unto death, and of his wife when confined, he could sometimes
excuse himself by reason of his duty to his lord, to whom by
reason of tenure he owed his first duty after his allegiance to
his king. Such a case arose when the lord had summoned
1 Dialogue, lib. 2, c. I ; Sei. Ch. 212.
2 Dialogue, lib. 2, 0. 4; Sei. Ch. 218.

i,8 HISTORY OF PROCEDURE.
him to come and aid him in a cause in which the former had
been drawn into court as to his whole fee or the largest part of
it ; provided the cause could not be delayed. Another case of
excuse arose when his lord, weighed down with infirmity,
wished to make a will in the presence of his men, and to this
end had called the sheriff to him with his other tenants. And
a third case arose upon the death of his lord, or his lord's wife
or son ; when it was his duty to attend the obsequies.
The profits of the county jurisdictions, called the ferm
(" firma " ), were put down separately in what was called the
"rotulus exactorius;"1 while the other subjects of revenue
were enrolled in annual and other rolls. The ferm was a
fixed minimum, which was often increased by the diligence of
the justiciar. The annual rolls were subject to variation,
according to the needs of the king. These were made up of
the scutage, the murdrum, the danegeld, essarts, purprestures,
escheats, census of the forests, and pleas and conventions ;
though scutage and danegeld were exceptional taxes. Each
county appears to have been separately charged in the annual
roll with its proportion of these several items, in the lump at
first ; and then, upon the adjournment of the (Michaelmas)
term, the amount fixed upon each county, with the subjects
thereof, was taken out of the annual roll and copied down in
shorter rolls by the treasurer's clerks. After this was done
those of the court whom the " majores " called went aside, and
considering each county by itself, determined in the case of
every tax-payer for how much he ought to be summoned ;
having regard to the condition ( " qualitatem " ) of the person
and to the nature ( " qualitatem " ) of the business and cause
for which he was bound to the king.
The result was that two classes of writs of summons, of
which we have had some hints already, were issued ; one to
the sheriff, containing the itemised sums to be collected from
each of the debtors of his county as determined in the manner
' Dialogue, lib. I, c. 18 ; Sei. Ch. 209.

THE COURTS. 1 19
just mentioned, an example of which writ we have already
seen ; the other to the individual debtors themselves, corre
sponding to the items of the summons to the sheriff. No ex
ample of this latter writ is given, nor is it anywhere described ;
but it issued in the king's name, it may be inferred, and
required the debtor to make payment to the sheriff on pain of
compulsion. If the tenant had any excuse or answer to make
in whole or in part to the writ, this was probably made by him
at the coming term of the itinerant justiciars. Here would
then be a session of an inferior Exchequer, as has elsewhere
been suggested, corresponding in some respects to the central
court about the king.
If a particular debtor failed to obey the summons to pay,
and made no appearance before the itinerant justiciars, it was
the duty of the sheriff to proceed to make forcible collection of
the sum named, if sufficient property were to be found. Levy
upon and sale of the debtor's property were to be made.
This, however, was to be done in a specified manner, and
it behoved the sheriff to warn the sellers to observe the same.
Movables were first to be sold, sparing oxen of the plough,
that the cultivation of the soil might not be prevented and
the means of future coercion of the debtor taken away. Still,
if the movables levied upon were insufficient to pay the
demand, then oxen of the plough were to be taken ; and if
still there was a deficit, the officers were to go to the land
of the debtor's adscriptitii, and proceed to sell their movables,
observing the same order as before; for such property was
known to belong to the lord or debtor. When this was done
the law required the sellers to desist whether full satisfaction
had been made or not ; unless scutage were demanded of the
lord. In that case if a tenant in capite had not paid this
special tax, the chattels of his knights could be taken as well
as his own goods and those of his adscriptitii. But the chattels
of the lord's knights were not to be sold until after the sale of
the lord's. And if the knights had paid to the lord the

120 HISTORY OF PROCEDURE.
produce of their fees, and would give security to prove this,
the law prohibited any sale of their chattels.1
When such proceedings failed, it was the sheriff's duty to
make diligent inquiry to ascertain if anyone in his county
owed the debtor anything, or had any property of the debtor
in his hands ; and in case such a person were found, he was
required to pay the amount of the debt, or to turn over the
debtor's property held by him to the sheriff, to the amount
of the debt, and the party was then discharged as to his own
creditor ; the modern process of garnishment.
A person of such rank as to hold a barony of the king
was treated with a consideration which men of lower rank,
even tenants in chief, did not receive. All below the holders
of a barony appear to have stood upon a common level as to
the requirement of the personal summonses ; their duty was
to make payment or to show some just excuse for not doing
so. A person, however, who held a barony, upon hearing the
summons, was entitled to pledge his faith, either in his own
person or in that of his steward (wconomus, senescallus), in the
hand of the sheriff that he would make settlement in respect
of the sum demanded and of the summons on the day of
accounting before the barons of the Exchequer. This pledge
of faith was to be received by the sheriff in open County
Court, before the eyes of all, so that if the party giving it
should wish to deny the fact, the (verbal) record ("recordatio")
should suffice against him ; which is an interesting illustration
of a general limit upon the right of proof by oath, a limit
prevailing in all the courts in favour of an offer of the witness
of the community. If the sheriff confessed that the oath had
not been taken in this way, he was adjudged to have done
nothing ; and he himself was then to make good the amount
required, according to the words of the writ, " vel capientur de
firma tua." 2 1 Dialogue, lib. 2, c. 14 ; Sei. Ch. 237.
2 Dialogue, lib. 2, cc. 19, 20; Sei. Ch. 240.

THE COURTS. 121
If, however, after the sheriff had received the oath indue
form, such party failed to appear at the accounting when
required by the herald's voice, and made no satisfaction in
person or by procuration, the sheriff was adjudged to have
done his duty ; and the matter was directed by the treasurer
to be kept by itself in memoranda of the Exchequer for con
sideration at the end of the term. Then, taking counsel
together, the judges imposed a severe punishment upon the
delinquent. But if, after the sheriff's account was passed, the
party came and made satisfaction, then, as matter of favour on
the part of the judges, he could be absolved.1
If the party came to court on the appointed day and did
not deny that he had pledged his faith, but still failed to make
satisfaction, he was to be detained, if a lord (of lands), at the
Exchequer during the session, giving his faith in the hands of
the marshal not to go beyond the league of the place without
permission of the barons. If at the end of the term he had
not made satisfaction, he was to be kept in a safe place under
a liberal custody ("sub libera custodia") until the king him
self, if present, or, if not, the justiciar with his associates,
should decide what should be done with a man who had thus
pledged his faith and had not fulfilled his promise. If a
knight or other person, his steward, who had given the pledge
for him, came and did not offer satisfaction, he should be
taken for the breach of faith and given into the custody of
the marshal, to be put in chains and sent to prison after the
close of the term. But a knight who had pledged his faith
concerning his own debt, and had not kept his promise, was,
after the dissolution of the court, to be kept in free custody,
not in the prison but within the walls of the prison grounds,
after making oath corporaliter that he would not leave with
out permission of the king, or of the president of the court,
i.e. the justiciar. For the king had decreed that everyone of
the dignity of knighthood, if accounted poor by the sheriff
1 Dialogue, lib. 2, c. 20.

122 HISTORY OF PROCEDURE.
and by the vicinage, should not be cast into prison for his
own debt, but should be kept in free custody as stated. But
he who, by command of his lord, had pledged his faith, and
then on coming to court had failed to satisfy the claim, was
to be imprisoned, whether a knight or not ; and the sheriff's
officers were to be directed to seize his goods and sell them,
bringing the proceeds to the Exchequer. The party thus in
default was also to be fined, according to the extent of his
property, for breaking his faith, and was not to be permitted
to pledge his faith again concerning the same debt, even if
his lord commanded.
The relation of the Exchequer to the other courts of the
king, that is, to the central court which attended him and to
the Eyre, may be inferred from remarks upon the pleas and
conventions. The former term ("placita"), as used in the
Dialogue and in the Pipe Rolls, meant the pecuniary fines
imposed in the royal courts proper, central and itinerant,
and in such other jurisdictions as were in the ferm of the
sheriff, perhaps only the County Court (which in a measure
was a royal court, the king being entitled to the third
penny therefrom). The " conventiones " are described as
spontaneous offerings ("oblata spontanea"); but in a peculiar
sense. They were of two classes, " oblata in rem " and
"oblata in spem." The former were offerings for having
some franchise, or fee, or ferm in the gift of the king, or for
the custody of some minor until he arrived of age, or for
anything else obtainable, tending to promote the party's
welfare or honour. The offerings might or might not relate
to the administration of justice, according as a franchise of
jurisdiction were sought or not. The " oblata in spem " were
the offerings heretofore mentioned, for having, hastening, or
delaying justice in the courts. In so far as payment was
not made directly to the king in full equivalent and dis
charge for the object sought, it devolved upon the sheriffs, in
connection often with the justiciars itinerant, to make collection

THE COURTS. 123
through the counties according to the nature of each particular
case and the agreement as to payment.1 Through whom the
fines imposed in the King's Court, payment of which was
not at once made, were reported to the Exchequer does not
clearly appear. Perhaps it was through the constable's clerk,
who as we have seen was much occupied in the King's Court
as well as in the Exchequer. It was his duty, among other
things, to sit in the Exchequer with the counter-writs con
cerning the things done "ad curiam."2 Probably, however,
such debtors themselves were individually summoned to the
Exchequer to account there.
Some examples from the Pipe Rolls will serve to show
more definitely the relation of the Exchequer to the other
courts, by showing what particular matters could be adjusted
only in that court. In the thirty-first year of Henry the First,
William of St. E. and Jordan, his son, were reported to the
Exchequer as owing ten marks of silver for having right
concerning land of Roger, uncle of Jordan ; and if they
succeeded in recovering they were to pay twenty marks.3
Tierric, son of R. F., in the same year, owed ten marks of
silver for having right concerning his inheritance.4 Robert,
son of G., rendered account as to a charge of two ounces of
gold, to 'recover his land by his body ; for which he paid
thirty shillings "et quietus est."5 Ralph B. rendered account
of ten marks of silver that he might not plead concerning
his land in his lifetime ; of which sum he paid into the
treasury forty shillings, and owed seven marks of silver,6
which shows the value of the silver mark to have been
thirteen shillings and four pence. Robert G. rendered account
in respect of a war-horse that he might not plead concerning
land which Richard of H. claimed against him.7 Matthew
de V. was reported as owing one hundred measures of wine
1 Dialogue, lib. 2, c. 12; Sei. Ch. 232, 233.
2 Dialogue, lib. 1, c. 6 ; Sei. Ch. 189. 3 Placita Ang.-Norm. 140.
4 Ibid. s Ib, 141. 6 Ibid. ' Ibid.

124 HISTORY OF PROCEDURE.
for the concord of a duel.1 These were all cases of the thirty-
first year of Henry the First.
The following were cases of the reign of Henry the
Second : In the second year of this king (i 1 56) the sheriff of
Norfolk rendered account of eight pounds seven shillings and
four pence of the assise of the county.2 The sheriff of
Suffolk rendered account in the Exchequer of fifteen pounds
and seventeen pence of the assise of the county and of the
auxilium of Ipswich.3 The same sheriff, at the same time,
rendered account of five marks of silver of the assise of
Ipswich ; also one hundred marks of silver for a false judg
ment.4 Richard de Luci, the justiciar and also sheriff of
Essex, rendered account of fourteen pounds two shillings of
the assise held by the chancellor (Thomas a Becket) and
Henry of Essex. "In perdonis per breve regis comiti
Warreno xiv. lib. et ii. s. et quietus").5 Henry of Essex,
sheriff of Buckingham and Bedford, rendered account of one
hundred marks of the assise of the two counties.6 In the
session of the next year after these entries the sheriff of
Surrey rendered account of fifty-two shillings of the assise of
the bishop of Chichester.7 A year later Robert, son of G.,
rendered account of forty marks of silver of the assise of
Rutland.** Turning now to the entries in the unpublished rolls, the
following may be noticed : The sheriff of Lincoln a few years
later than the foregoing entries rendered account of chattels
of fugitives and of men who had perished in (consequence of
failure in) the water ordeal.9 Adam, son of A., rendered
account of one hundred marks to have record of the King's
Court concerning a plea between himself and Agnes of R.10
Hugh of K. was found owing a mark for absenting himself
from the duel.11 William of O. owed twelve marks for default
1 Placita Ang.-Norm. 142. 2 Pipe Roll, 2, 3, & 4 Hen. II. p. 7.
3 Ib. 9. 4 ibid. s ib. 17. 6 Ib_ 23_ 7 Ib. 94, a ib. 145.
9 Placita Ang.-Norm. 268. "Ibid. "Ibid.

THE COURTS. 125
of prosecuting his suit.1 Robert of H. accounted for one
hundred and six shillings and eight pence promised for
putting off a plea between him and Ralph M. to the term
of the Exchequer ("usque ad Scaccarium").2 Reimund
de B. owed twenty marks for the appeal by W. (who had
turned king's evidence) of forgery.3 Ralph de F. owed ten
marks for hastening judgment of Richard the Smith, who
had appealed him and his men of taking a stag (in the king's
forest, perhaps), and then retracted his appeal.4 Michael
de. S. rendered account of forty shillings because he did not
have before the justiciar a man whom he had pledged.5 One of
the sheriffs rendered account of eight pounds for false judgment
of a duel.6 Roger de E. rendered account of half a mark for
refusing to answer in the court of the dean of Waltham
according to the king's writ, to which he saw no seal.7 Hugh
B. rendered account of ten marks for deferring a recognition
"usque ad Scaccarium."8 Swetman K. was debtor in half a
mark for leaving the King's Court without permission.9 Joslin
of H. rendered account of twenty shillings for falsely accusing
Osbert L. of the death of a person, and not having his war
ranty.10 Robert, son of E., was debtor in five marks that a
plea between himself and Hugh M. might be tried before the
justiciar in the Exchequer.11 The dean of Wells rendered
account of four marks for casting one of the king's servants
into prison.12 William B. was debtor in one hundred marks
for a fine which he made with the king concerning a "jurata"
made about him ("de jurata facta super eum'') in the Inqui
sition of Sheriffs of England by Walter of the Isle and
Eustace son of Stephen13; the earliest mention of a jurata
by that name, so far as the writer is aware, that has been
noticed, being in the year 1172.14 Robert of L. rendered
1 Placita Ang.-Norm. 268.
2 Ib. 269. 3 Ibid. * Ibid. s lb. 270. ° Ibid. 1 Ibid.
8 Ibid. -' lb. 271. 10 Ibid. " Ibid. I2 Ibid. I3 Ibid.
** The Inquest of Sheriffs was anno 1 1 70. Sei. Ch. 147.

126 HISTORY OF PROCEDURE.
account of three marks and a half concerning P. and five
others for judgment of iron twice carried with one heating.'
The foregoing cases were before the Exchequer from the
twelfth year of Henry the Second until the twenty-first. These
examples will be closed with a few special illustrations of the
complementary relation of the Exchequer to the King's Court,
and of the dependence of the latter court upon the former for
the final execution of process relating to the king's revenue.
Of the pleas of William, son of R., and Bertram de V. and
William B. in the King's Court, William G. rendered account
of ten marks and a hawk for imprisoning G. of York.2 William
of C. rendered account for retracting a plea against earl
Simon in an assise.3 Oger, son of O., rendered account of
half a mark for the enrolment of a chirograph concerning a
final concord made in the hall of the Exchequer (as it seems)
at Westminster in the twenty-eighth year of Henry the Second
before R. of Winton, Geoffrey bishop of Ely, Ranulf de Glan
vill, the king's justiciar, and Richard, the treasurer,4 Geoffrey
de Luci, R. son of Renfrid, Michael Belet, Geoffrey de Colvill,
R, de Geddingis, Gervase of CornhiU, Osbert, son of Hervey,
and other barons and justiciars of the king there and then
present.5 But the Exchequer began even in the reign of Henry the
First to present another face. We have already noticed the
trial of common pleas in that court. The earliest record of
the kind now known is, as might be expected, somewhat
obscure. It relates to a trial that occurred in the year 1 109 ;
which must have been soon after the advent of Roger of
Salisbury, the reorganiser of the court. In that year the
1 Sei. Ch. 147.
- Placita Ang.-Norm. 272. 3 lb. 274.
4 This Richard was the author of the Dialogue.
5 That the cause made the subject of the concord in this case was business of
the King's Court appears probable from the fact that it related to a plea of dower
"de rationabili parti," and the added statement that the same was "in curia
domini regis " ; which in view of the subject-matter of the suit could not mean
the (fiscal) Exchequer.— Placita Ang.-Norm. 276.

THE COURTS. I27
abbot of Abingdon recovered judgment as to the manor of
Lewknor in the hall of that court; and what, besides the
date, shows that the trial could not have been long after the
new administration is the fact that in the record of the cause,
a writ by queen Matilda, the court-hall is spoken of as the
Thesaurum. It is highly probable that such a trial there was
no new thing.
The writ of the queen is interesting as possibly indicating
one of the motives for trying common pleas in the Exchequer ;
to wit, because the Domesday book was kept there, and could
there be used in evidence, when the evidence of its entries
was required to establish a title. The writ is as follows :
" Mathildis, Anglise regina, Roberto episcopo Lincolniensi, et
Thomae de Sancto Johanne, et omnibus baronibus, Francis et
Anglis, de Oxenefordscira, salutem. Sciatis quod Faritius ¦
abbas de Abbendona in curia domini mei et mea apud Win-
toniam, in thesauro, ante Rogerum episcopum Salesberiensem,
et Robertum episcopum Lincolniensem,. et Richardum epis
copum Lundoniensem, et Willielmum de Curceio, et Adam
de Porto, et Turstinum capellanum, et Walterum de Gloe-
cestria, et Herbertum camerarium, et Willielmum de Oileio,
et Goisfredum filium Herberti, et Willielmum de Enesi, et
Radulfum Basset, et Goisfredum de Magnavilla, et Gois
fredum Ridel, et Walterum archidiaconum de Oxeneford et
per Librum de Thesauro1 disratiocinavit quod Leuecanora
manerium suum nihil omnino debet in hundredo de Perituna
facere ; sed omnia quae debet facere, tantummodo habet
ecclesia de Abbendona x. et vii. hidas. Testibus Rogero
episcopo Salesberiensi, et Willielmo de Curci, et Adam de
Porto; apud Wincestriam." 2
Whether this was not merely a session for convenience in
the treasury hall of the royal court for the trial of common
pleas is not clear. Indeed, it is impossible at present to affirm
the existence of any distinction so early as this in member-
1 Domesday book kept at Winchester. 2 Placita Ang.-Norm. loo.

128 HISTORY OF PROCEDURE.
ship between the body which composed the fiscal court as
such and that which composed the king's tribunal of general
pleas. The most that can safely be said is that the king's
judiciary at this time (as afterwards) were engaged in two
kinds of duties, fiscal business and general litigation, and that
the writ just quoted shows that litigation was sometimes
conducted in the fiscal hall as well as in the king's palace.
The next mention we have of the trial of an ordinary plea
in the Exchequer is more definite. It is in a writ of the same
reign, addressed by the king to the same Richard, bishop of
London. In this writ the court is expressly called the
" Scaccarium." The writ ran thus : " Mando tibi ut facias
plenum rectum abbati W., de hominibus qui fregerunt eccle-
siam suam de Wintonia noctu et armis. Et nisi feceris,
barones mei de Scaccario faciant fieri, ne audiam clamorem
inde pro penuria recti." l
There are no further records as yet known of common
pleas " ad Scaccarium " before the reign of Henry the Second.
The regular sessions of the court were probably broken off
during the anarchy of Stephen and Matilda, at least after the
arrest by Stephen of the treasurer (the same Roger, bishop of
Salisbury, already mentioned) in the year 1 139. From this
time until the second year of the reign of Henry the Second
we know little or nothing of the court even as a fiscus. The
Rolls of the Pipe begin with the year 1156, saving the single
roll of the thirty-first year of Henry the First ; the treasurer's
roll being absolutely complete from that time and the
chancellor's nearly so.
We have already seen indications in these rolls of the
trial of common pleas at the Exchequer. Many entries of
the same nature might be found in the rolls of the later years
of Henry the Second.2 Nor are the chronicles of the period
1 Placita Ang.-Norm. 127,
2 The student must, however, beware of the word "placitum" or "placita."
In the rolls this term often xsuexas fines or merely business.

THE COURTS. ,29
wanting in examples. The Chronicle of Abingdon contains
an account of a case before Glanvill when chief justiciar and,
as such, presiding officer of the Exchequer, anno 1185. The
abbot of Abingdon having deceased, the king, taking the
abbey into his own hands, 'gives the same into the charge
of Thomas of Esseburn ; who thereupon proposes to take
possession of the whole property, including that which per
tained to the prior and monks. Complaint is made before
Glanvill and the judges "ad Scaccarium ;" and the prior and
monks, having established their rights against the claim of
Thomas, obtain from the justiciar a writ in the nature of the
modern writ of injunction, by which Thomas was notified
that the property of the plaintiffs must be kept separate from
that pertaining to the abbot, and commanded not to lay
hands upon the former, but permit the plaintiffs to have full
right and power over both their tenements and their tenants. '
This case is of special interest as showing that the Court
of Exchequer exercised, among its other functions, a juris
diction which in later times pertained only to the Court of
Chancery ; a court as yet without existence, as has already
been remarked.2
It only remains to explain how the Exchequer came to
be made use of in the trial of private causes. A suggestion
has already been made which would account for some of
the causes there tried, namely, the need of making use of
Domesday book in the trial of questions of ancient demesne ;
and this book appears to have been kept always in the
treasury, first at Winton (Winchester), whence* it was called
" Liber Wintonius," and afterwards at Westminster. But such
cases could not have been numerous, and further explanation
is necessary. This, it is apprehended, can be satisfactorily
made. In the first place, convenience may occasionally have
caused the royal court of general litigation to sit in the hall
1 Placita Ang.-Norm. 234. 2 Ante, p. 19. K

130 HISTORY OF PROCEDURE.
of the Exchequer ; when of course the tribunal would still
be the King's Court as distinguished from the Exchequer.
But, further, as to common pleas before the fiscal judiciary)
this body was composed of persons who constituted the
council ; to which difficult cases were by law to be taken,
And, finally, it is safe to say that the grievance against king
John as to "communia placita" was founded upon no new
state of things. The King's Court — the central court of the
king — had, it is true, always been a court for the trial of pleas
between man and man ; but it is equally true that its sessions
had always been subject, both as to place and time, to the
king's pleasure and convenience, when he was in the kingdom.
This must have been a source of constant annoyance to
litigants who desired the advantage of the royal process in
the trial of their causes. The remedy, when the Eyre was
not at hand, was found in the Exchequer, when it could be
had. This court sat regularly, at Easter and .at Michaelmas,
as the writ of summons heretofore quoted shows. l But the
first and chief business of the court was fiscal ; and those
who obtained permission to sue " ad Scaccarium Paschae " or
" Michaelis " must wait until the regular business and session
of accounting were finished before they could be heard.
Hence it was, probably, that the final concord in the case of
Oger above mentioned is stated to have been made "in
crastino Sancti Andreae." But the sessions of the Exchequer
— the Michaelmas session at least, at which term the accounts
were taken2 — were tedious ; and it is not to be supposed that
it would be an easy matter to hold the judges together after
they had finished the business for which they had assembled.
The trial of common pleas there must consequently have
been a matter of special grace, not readily obtained. How
ever, the needs of litigants and the necessities of the king
1 Ante, p. 114. See also the Dialogue, lib. 2, u. 2 ; Sei. Ch. 212.
2 As to the preliminary work of the Easter term, see Dialogue, lib. 2, c. 2 ;
Sei. Ch. 212. •

THE COURTS. 131
combined to make cases of the kind of increasing frequency ;
and the result was to make the Exchequer like the King's
Court, to some limited extent, a court for the trial of common
'pleas at Westminster. The difficulty, however, of inducing
the judges to remain after the accounts had been passed
must have remained to the last ; and the King's Court con
tinued to follow the king in his varying progresses. The
familiar clause of Magna Charta concerning the holding of
common pleas in some certain place was the consequence.1
Common pleas, however, did not, it seems, wholly cease in
the Exchequer until the very end of the thirteenth century ;
when the Articuli super Cartas forbade the holding of them
thenceforth before that court. From the twenty-eighth year
of Edward the First the Exchequer became purely a fiscal
court, and so remained until the invention of the familiar
fiction of king's debtor. The County Court.
The County Courts of the Anglo-Saxon period continued
to exist throughout the period of the Norman supremacy, and
with no constitutional change before the last decade of the
twelfth century. The charter already referred to, by which
William the Conqueror sought to separate more fully the
clergy and laity in matters of litigation, related, as we have
seen, to spiritual causes only. The bishops and other clergy
continued to exercise their right to sit with the sheriff and
earl in the County Court, as before the Conquest. The first
legislative change directly affecting the ancient court of the
counties occurred in the year 1194, when the sheriffs were
prohibited to sit as judges therein, and the holding of pleas of
the Crown was committed to officers to be chosen (three
knights and a clerk) , the coroners of the thirteenth century.2
1 "Communia placita non sequantur curiam nostram sed teneantur in aliquo
loco certo." — Magna Charta, c. 17.
2 Capitula placitorum coronee regis, cc. 20, 21 ; mfra, p. 138. K 2

i32 HISTORY OF PROCEDURE.
But while the County Courts suffered no loss of dignity by
reason of legislation, they did suffer in common with the other
local jurisdictions, by reason of the gradually overshadowing
influence of the King's Court, and the general desire of litigants
to resort to that court for the trial of their causes. The Shire-
mot, however, suffered less than the other Folkmots.
Throughout all the changes effected by the rise and
establishment of the jurisdiction of the royal tribunal, the
County Court still maintained much of its ancient authority
and usefulness, as numerous records show. The king himself
sometimes made use of it for purposes both judicial and fiscal,
long before the systematic establishment of the judicial Eyre.
Henry the First ordered the continuance of the sessions of the
county as in the time of Edward the Confessor. " I command,"
he says in a writ to bishop Samson, Urse, the sheriff, and others,
of Worcestershire, " that from this time my counties and hun
dreds sit in those places and at the same terms as in the time
of king Edward, and not otherwise. For I shall have them
sufficiently summoned for my royal necessities, at my own
will. . . . And I will and command that all the people of
the county go to the County and Hundred Courts as they did
in the time of king Edward."1
The county, further, was not unfrequently assembled during
the reigns of the Conqueror and of his sons, before the system
of the Eyre, as occasionally before the Conquest, by the king's
mandate for the trial of causes between his subjects alone.
The court before which the case at Penenden Heath was tried
was perhaps more a Witenagemot than an ordinary County
Court ;2 but the trial between Wulfstan, bishop of Worcester,
and Walter, abbot of Evesham, occurred in a County Court at
Worcester, by virtue of a writ in which the king directed his
1 Stubbs, Sei. Ch, 104 (2d ed.). This writ seems to be referred to in the
Laws of Hen. I. c. 7, § 1, and is there stated to be general and recent. The
writ was issued between the years 1108 and III2 ; from which the date of this part
of the custumal may be approximately inferred. See also Laws Wm. I. iii. c. 14.
2 Placita Ang.-Norm. 4 ; ante, p. 23.

THE COURTS. 133
justiciar, Geoffrey of Coutances, to preside in his own (the
king's) place.1 Rufus orders William de Cahannis to assemble
the shire of Hants for the determination of the question
whether land of I. had been subject to the monks of St. Benet
in the time of the Conqueror.2 And Henry the First com
mands the sheriffs of Buckingham and of Oxford to assemble
their counties, and require the men to speak the truth
concerning a claim between R. of A. and the abbot of
Abingdon to three virgates of land.3
In their ordinary work the County Courts convened at
stated times and places,4 at the summons of the sheriff ; and
speaking generally they were attended by the sheriffs as
presiding officers,5 and by bishops, earls, vicars, hundred-men,
aldermen, prefects, bailiffs, " barons," vavasours, town-reeves,
and other lords of lands,6 but not by villeins, cottagers, ferdingi
(freemen of the lowest grade), or lower men.7 The priest,
reeve, and four best men of a town were to be present
(" assint ") for all who were not specially summoned, in the
necessary absence of the local baron and of his steward.8
The passage to this effect in the Leges leaves the nature of
representation somewhat in doubt. The villeins and other
classes but partially free were not specially summoned, clearly ;
and these are probably, in part at least, the persons to be
represented.? Those specially summoned must come dr suffer
fine : they could not excuse themselves by calling upon the
priest, the reeve, and the four men to represent them. The
only way by which the fully free could avoid attendance was
by compounding the matter with the king. Between the
villeins, who seem to have been the pre-Norman ceorls, and
1 Placita Ang.-Norm. 287. 2 Ib. 71. 3 Ib. 74. * Laws Hen. I. c. 7, § I.
s See 1 Stubbs, Const. Hist. 606. 6 Hen. I. c, 7, § 2. See also c. 31, § 3.
7 Ib. u. 29, § 1. 8 Laws Hen. I. c. 7, § 7.
9 "Regis judices sunt barones comitatus, qui liberas in eis terras habent, per
quos debent causte singulorum alterna prosecucione tractari ; villani vero, vel
cotseti, vel ferdingi, vel qui sunt viles Vel inopes persone, non sunt inter legum
judices numerandi ; unde nee in hundreto vel comitatu pecuniam suam vel
dominorum suorum forisfaciunt, si justiciam sine judicio dimittant." — Ib. c. 29, § 1.

134 HISTORY OF PROCEDURE.
the four larger landholders, there was a great mass of " minuti
homines" (mean men), who now stood perhaps in the position
of the old ceorls ; but these, judging (if we may) generally from
several entries in the Pipe Rolls, were required to attend at
the County and Hundred." Hence the representation could
not have been for them. Peculiar local customs, however,
everywhere prevailed ; and special entries in the rolls cannot
be implicitly relied upon as proving a general, much less a
universal rule.
The statement further in the passage in question that the
reeve, priest, and four men represented the lower classes when
the baron and his steward were necessarily detained, probably
does not mean that the attendance of such representative
persons was dependent upon the absence of the baron and
steward, but that if the latter were (excusably) absent, then
the lower classes, such as were represented by the baron or
his steward, when present, were to be represented by the
delegates attending with the parish priest.2 And if this be
true, it follows that this delegation (being regularly present)
properly and always represented others than those represented
by the barons.
The classes who constituted the court, with a voice in the
decision of questions, the "judices," the "judices et juratores,"
and the "minuti judices et juratores," of the Pipe Roll of
Henry the First,3 were the body of landholders above the
1 See I Stubbs, Const. Hist. 396.
The "representation" of these classes, whether by their lords or by the
priest, reeve, and four men, was apparently protective merely ; finding practical
expression only when men were brought before the Hundred, or possibly before
the County, charged with the commission of some offence, for want of jurisdiction
or for failure of justice on the part of their lords. See Laws Hen. I. c. 8, § 3,
quoted infra, p. 143. Representation could mean nothing as to them in other
matters, since they were not (to use a modern term) constituents.
3 See I Stubbs, Const. Hist. 396, 397. The familiar entry in the Pipe Roll of
31 Hen. I, as to compounding attendance should not be overlooked. "Judices
et juratores [the general suitors and those sworn to present criminals?] Ebora-
ciscira debent c. lib., ut non amplius shit judices nee juratores."— Placita Ang.-
Norm. 142 ; Pipe Roll, p. 34. See Brunner, Schwurg. 354, 355 ; 1 Stubbs,
Const. Hist. 396, 397. See also as to fines for non-attendance upon the Hundred
and County, Laws Hen. I. c. 29, §§ 2, 3 ; c 53 ; Laws Wm. I, iii. c. 14.

THE COURTS. 135
villeins in rank, from the mean men to the sheriff and lords
not possessed of a criminal jurisdiction, excluding the king's
tenants in capite, and from the parish priest to the bishop.
These, save the clergy, were bound to attend, unless they
could present a satisfactory excuse or the king's writ of
exemption. In the time of Henry the First the Shiremots met, like
the Burghmots, twice a year ; ' but by the end of the twelfth
or early in the thirteenth century monthly sessions were
held.2 Causes were taken to the County Court for failure
of justice in the Hundred and Manorial Courts, either, as it
seems, by the sole act of the complaining party or by writ
of the king, addressed to the sheriff. Original jurisdiction,
to a limited extent, appears also to have been entertained.
In the charter of Henry the First above referred to, the king
declares that causes arising between the vavasours of two lords
should be tried in the County Court ; and the same was true
in the time of Glanvill.3 The allusions in Glanvill to the
sheriff's jurisdiction generally relate, however, to the appellate
jurisdiction of the county. The crime of theft is stated with
out qualification to belong to the jurisdiction of the sheriff;4
but this could hardly have been intended in the broadest
sense. The jurisdiction of such matters certainly belonged in
the first instance to the lords within whose domains the theft
was committed;5 but if the theft were not committed within
a private jurisdiction, or if the thief succeeded in making his
escape, and justice could not be had upon him in the place in
which he had taken refuge, or if for any other reason justice
could not be had upon him in the local court, the case was
probably brought before the County Court.6 Each of the
other cases mentioned in that connection by Glanvill as
1 Laws Hen. I. c 7, § 4. =1 Stubbs, Const. Hist. 605.
3 Glanvill, lib. 12, c. 8. But see Laws Hen. I. c, 25, probably wrong. See
also c. 57, § 1, where the matter is differently stated.
* Glanvill, lib. I, c. 2. 5 Laws Hen. I. cc. 25-27 ; c. 57, § 3 ; c, 61, § 9.
6 Ib. c. 26.

136 HISTORY OF PROCEDURE.
within the sheriff's jurisdiction (scuffles, blows, wounds, the
writs of right and villenage), is stated to be so on account
(i.e. in case) of the failure of justice in the local courts,1
unless the question of villenage be an exception.2 Elsewhere
Glanvill says that when a person complained that his lord
exacted customs and services not due, or greater services than
he ought, or when the complaint concerned a villein -born, or
when any other matter arose of which the sheriff had the
king's writ or that of the justiciar, giving him jurisdiction
absolutely, or conditional upon the failure of another to do
right ; in any of these cases the sheriff might entertain the
cause.3 In important causes the freemen of several counties were
often convened. An example of the time of the Conqueror
will be found in the case of Bishop Wulfstan v. Abbot
Walter,4 in which there was a great assembling of neighbour
ing counties and barons before the king's justiciar, the bishop
of Coutances. In the case of Bishop Odo v. Walter of
Evesham,5 five shires were present and participated in the
cause ; and afterwards the same cause was tried over again
before seven shires.6 But the practice appears to have become
less frequent in the twelfth century.
Thus far, however, of the ancient County Court held by the
sheriff. A system of visitations of the counties by itinerant
justices was in regular operation, as we have seen, at least
as early as the thirty-first year of Henry the First. The
entire circuit of the counties was made by these justiciars
independently of the ordinary sessions of the Shiremot.
Discontinued during the disturbance of Stephen's reign, the
visitations were renewed by his successor ; and as early at
least as the year 1159 there were "-errantes justitise" by
name ; these, however, being the sheriffs themselves. From
' Glanvill, lib. I, c. 4. " Ib. lib. 5, c. 1 ; lib. 12, cc. 9, II.
3 Ib. Kb. 12, c. 9. See also lib. 9, cc. 8, lo.
4 Placita Ang.-Norm. 16, 17. s lb. 20. 6 Ib. 22.

THE COURTS. 137
that time on there were stated, and at one time in the reign of
Henry the Second very frequent, iters ; the persons making
them being called "perlustrantes judices," "barones errantes,"
and finally, in the year 1176, "justitiarii itinerantes," a term
which in the Anglicised form of "justices in eyre" has con
tinued until the present day.1 By this time the judicial func
tions of the sheriff had come to be restricted in ordinary cases
to the regular session of the ancient court of the county.
The courts held by these itinerant justices of the king
possessed a dignity altogether above that of the ordinary
judicial assembly of the county. These were the king's
courts held in the counties. The shire assembled (at the
summons of the sheriff, as in other cases) to meet the royal
judges with a more perfect representation than attended the
ordinary assise held by the sheriff. The private jurisdictions,
exempted from the regular session of the county, made part
of the court held by the itinerant justices. The represen
tation is said to have been thoroughly organised ; " side by
side with the reeve and four men of the rural townships ap
peared," says a distinguished writer, " the twelve legal men
of each of the chartered boroughs which owed no suit to the
ordinary County Court."2 The old Shiremot, indeed, with
its ancient constituency, with the bishop, earl, and chief men
-of the county sitting with the sheriff, still continued to exist ;
but the great men of the provinces, who sat in it with exalted
authority, were not the judges of the king's provincial juris
diction, except by special appointment. " The constitutional
presidents " of the county were for the most part set aside for
men fresh from the side of the king.3
1 The change in name, as Professor Stubbs has suggested, may indicate the
loss of judicial function which the sheriff was gradually sustaining. In 1194, as
we have said, it was provided that sheriffs should no longer hold pleas in their
own counties ; and finally Magna Charta took away their right to hold pleas of
the Crown altogether. But these provisions did not fully effect the purpose. See
I Stubbs, Const. Hist. 605-607.
2 Ib. 607.
3 5 Freeman, Norm. Conq. 299. See ante, pp. 95, 96.

138 HISTORY OF PROCEDURE.
The nature of the business transacted in the counties before
the itinerant justiciars may be seen in the agenda of the year
1 194. Aside from some special, temporary provisions, the
capitula may be taken, probably, as a fair exemplification of the
work of the Eyre for the last forty years of the twelfth century.
The capitula are prefaced with a most important statement as
to the election of a grand jury. The form of proceeding in pleas
of (i.e. business concerning) the king's crown, says the docu
ment in question, began thus : In the first place four knights
were to be elected from the whole county, who, on oath, were
to elect two legal knights from each hundred or wapentake, and
the latter were then to elect, on oath, ten more knights from
their several hundreds or wapentakes, or if knights were want
ing, legal and free men ; so that the twelve might together
give answer in all capitula of every hundred or wapentake ; a
provision, we may venture to suggest, to be read in connection
with the twelve senior thegns of ^Ethelred's law, with the
"juratores" of Henry the First, with the twelve legal men of
the hundred and the four legal men of the township of the
Assise of Clarendon, and with the twelve knights of the Assise
of Northampton ; the whole forming an evenly progressive
history of the grand jury to the end of the twelfth century.
The capitula placitorum coronm regis follow : 1. The first
matter was the placita of the Crown, new and old, and all (busi
ness) that had not been finished at the last Eyre. 2. Then
all recognitions and all placita that were sent before the jus
ticiars by writ of the king or chief justiciar, or by the chief
court of the king. 3. Escheats that had fallen after the king
(Richard the First) had gone to Jerusalem ; what were then in
the king's hand, and whether they were still in the king's
hand ; all escheats which had passed out of his hand, how and
by whom and into whose hands they had fallen, and who had
the issues thereof and how, and their value then and now ; and
if there were any escheat which belonged to the king but
was not in his hands. 4. Churches in the gift of the king.

THE COURTS.

139

5. Custody of boys, so far as the same pertained to the king.
6. Marriage of girls and widows, so far as the same pertained
to the king. 7. Malefactors, and those who had harboured them
or colluded with them. 8. Forgers. 9. Slayers of Jews, who
they were ; pledges given the slain Jews, their chattels, lands,
debts, and charters (concerning the debts) ; who had these
things, and who owed the slain, and how much, and who had
the issues. All the pledges and debts of the slain Jews were
to be taken into the king's hand ; and they who were present
at the killing and did not make fine (i.e. compound) with the
king or his justiciars were to be taken and not released except
by command of the king or of his justiciars. 10. All aids
given for the redemption of the king (from captivity in Ger
many), who had promised money and how much, and how
much they had paid and how much they still owed. 1 1 . The
partisans of earl (afterwards king) John, who of them had
compounded with the king and who had not. 12. The
chattels of earl John and of his partisans, which had not been
turned over to the use of the king, and how much the sheriffs
and their bailiffs had received, and who had given anything
contrary to the ancient customs of the kingdom. 13. Lands
of earl John, his own, those held in ward and in escheats,
and his gifts, and the reason thereof. These and all gifts of
John were to be taken into the king's hand, except gifts
confirmed by the king. 14. Debts and fines due John, and
for what reason ; and what were to be exacted for the
king's aid. 15. Usurers, and the chattels of those (usurers)
who were dead. 16. Wine sold contrary to the assise,
and false measures of wine and of other things. 17. Those
who had taken the cross, and had died before undertaking
their journey to Jerusalem, who had their chattels, what they
were, and how much they amounted to. 18. The Magna
Assisa in cases of lands of the (annual) value of a hundred
shillings and less. 19. Defaults. 20. Besides these matters
as capitula for the inquiry of the justiciars, there were to be

140 HISTORY OF PROCEDURE.
elected in every county three knights and one cleric as keepers
of placita of the Crown ; an office which grew into that of
coroner in the next century. 21. No sheriff was to act as
justiciar in his county, or in any county which he had held
since the king's first coronation. 22. All the cities, town, and
demesne possessions of the king were to be subjected to talliage.
23. This article is more lengthy. By it it was provided that
the appointed justiciars, together with the bailiffs of William
of the Church of St. Mary, of Geoffrey FitzPeter (afterwards,
in the same reign, chief justiciar), of William de Chimelli, of
William Bruere, of Hugh Bardulf, and of the local sheriffs,
were to cause the knights of the county to be summoned, to
come at a day and place named, and before the justiciars to
cause them to swear to do their utmost towards augmenting
the king's wardships and escheats, omitting nothing for fear
or favour. The said knights nominati were, on oath, to elect
twelve legal knights, or free and legal men, if knights could
not be found for the purpose, through the parts of the several
counties in the iter of the said justiciars ; which knights also
were to swear to do their utmost towards augmenting the
king's wardships and escheats in their districts. And these
latter knights were, on oath, to elect out of the free men in
the escheats and ward-property such as were necessary to aid
them in the king's business. Then follow certain regulations
as to the escheats and ward-property. Most diligent inquiry was
next to be made concerning the assised rent of the several
demesne manors, how much all other assessed property in the
manors was worth, how many carucates of land there were, and
how much they were worth, "not estimating them at the price
of twenty shillings merely, but according to the state of the
land, whether it was good or bad, and whether it had increased
or decreased in value." Similar inquiry was to be made con
cerning chattels. 24. This article related to debts due the
Jews, the pledges held by them, their lands, houses, rents, and
possessions, and the regulations required in the making of

THE COURTS. 141
loans by them to Christians. 25. Finally, it was directed that
the inquisition should be delayed, which was to have been
had concerning exactions and taxes by all the king's bailiffs,
justiciars, sheriffs, constables, foresters, and their servants,
since the first coronation of the king, why such were taken
and by whom, and of all chattels, gifts, and promises made
by reason of the seisin of lands given earl John and his
retainers, who received them, what they were, and of how
much worth.1 The Burghmot.
The Burghmots, called also Hustings,2 were courts of the
same dignity and authority as the ordinary County Courts,
being established for, or having from early times been held
in, those cities which had municipal privileges distinct from
and independent of the body of the county. There is nothing
in their judicial aspect to call for special remark.
The Hundred or Wapentake Court.
The Hundred Courts, called Wapentake Courts in the
North or Danish-Norse districts of England, being courts of
one or more (usually several) townships, continued after
the Conquest with no further constitutional change than' was
effected by the Conqueror's charter concerning jurisdiction of
spiritual causes.
These courts, like those of the county, were held at stated
terms, but met every month. Summons of attendance pre
ceded the session by six or seven3 days. The lords of lands
not possessed of a jurisdiction of their own, exclusive of that
of the hundred, or the stewards of such lords, and (in some
sort by way of representation) the parish priest, the reeve,
1 Stubbs, Sei. Ch. 259-263 (2d ed.).
2 This name is still preserved in the United States in the Court of Hustings of
Richmond, Virginia.
3 In the printed Laws of Hen. I. c. 7, § 4, the time is said to be six days,
but one MS. says seven days ; and with this agrees the passage inc. 51, § 2.

142 HISTORY OF PROCEDURE.
and four best men of each town in the hundred, attended.1
The attendance of all full freemen appears to have been
required, as at the County Court.2
Presided over by the bailiff of the hundred,3 causes with
out the jurisdiction of the Manorial Courts, such as questions
arising between the tenants of different lords, and all the
causes of the tenants of lords not possessed of a jurisdiction,
and also, as appears from the Rotuli Curiae Regis, appeals de
pace regis infracta* probably in minor cases, were brought
before this court.
The judges in the Hundred Court were the body of suitors
themselves, and these, as intimated, were the same persons
who appeared accumulatively in the County Court. So, too,
several hundreds were sometimes convened for the trial of a
cause, as in the case of the counties ; one of the occasions
mentioned for this being the want of judges ("penuria
judicum") in a particular trial.5
The Laws of Henry I. show the existence also of another
court of the hundred, or rather of another session of the
Hundred Court, which was held by the sheriff twice a year for
the purpose of taking the view of frankpledge (or ten-manne-
tale), in the interest of police regulation.6 This was the
session called in later times the Sheriff's Tourn. All the
freemen of the hundred, those who had fixed dwellings and
those who had not, were to assemble in their hundreds to see,
among other things, if the decennaries were full, and what
ones, and how and for what reason, were not full or were over
full. The headman, one selected from the best men in all the
' Laws Hen. I. t. 7, §§ 4, 7 ; c 51, § 2.
3 See e.g. the writ of Henry II. to all barons, vavasours, and lords of lands
within the wapentake of W., commanding their attendance at a " plea and wapen
take " of the bishop of Lincoln, and to do their duty there, on pain of distraint of
their goods.— Placita Ang.-Norm. 139. See also 1 Stubbs, Const. Hist. 398;
Pipe Roll 31 Hen. I. pp. 71, 151, fines imposed upon the mean men ("minuti
homines ") for default of the Hundredmot.
3 1 Stubbs, Const. Hist. 398. 4 j. R0t. Cur. Reg. 205, 207.
s Laws Hen. I. c. 7, § 5. Comp. c. 29, § 4. 6 lb. c, 8, § I.

THE COURTS. 143
hundred, was to be present with his nine ; and the ealderman,
whose endeavour was said to be to promote the laws of God
and men by watchful observance, was to be summoned. It
was the duty of the court to see that everyone of the age of
twelve years and upwards was in the decima or frankpledge,
who cared to be reckoned worthy of " were," " wite," or the
rights of a freeman.1
It is further, but rather obscurely stated, that every lord
should have with him at (probably) this session of the
hundred such as were accountable to him for offences com
mitted ; to have them stand to right, or to render account for
them.2 This statement (the first part of which is taken from
the laws of ^Ethelred and the laws of Cnut)3 probably refers to
lords of lands who had no right of sac and soc. Persons who
came into the county to visit, having no lands, were to be
brought to justice in public by those who were entertaining
them in case they committed any offence.4
The Manorial Court.
The Manorial Courts were generally courts of the same
rank as the Hundred Courts, just as the Burghmots were of
the same rank as the County Courts. But as they were often
created by royal charter, the exact extent of their jurisdiction,
as well as the nature thereof, can only be known, when special,
by inspection of the king's grant,5 or by the practice of the
particular franchise. These courts were attached to the
possessions of lords of lands and of monasteries, and in many
cases, especially in the case of religious houses, had existed
before the Conquest ; and many of them appear to have been
independent of the Hundred, and some of them even of the
(ancient) Shiremot. 1 Laws Hen. I. c. 8, §§ I, 2. 2 Ib. § 3.
3 yEthelred, i. c. 1 ; Cnut, Sec. cc. 19, 28.
4 Laws Hen. I. c. 8, § 4, from ^Ethelstan, i. c. 8.
s See 1 Stubbs, Const. Hist. 399.

r44 HISTORY OF PROCEDURE.
The manors had anciently, it seems, been townships ; and
the courts, though perhaps derived from ancient Townmots,
were the natural development of the manorial system and of
the existence of great religious houses.1 There existed in
every manor a private court, in which was transacted business
relating to the interests of the manor, including the enforce
ment of the tenure and other obligations of the tenantry,
There was also generally, not always, a criminal jurisdiction
connected with the court, possessed usually of a similar juris
diction to, and created or become independent of, that of the
Hundred Court.2 Some of these manorial jurisdictions were
great baronial franchises, excluding altogether the ordinary
courts both of the hundred and the county, and apparently
even the king's justiciars, until the reforms effected by Henry
the Second.3 The townships appear to have had no courts
possessed of full judicial functions.4 The parish meetings for
town administration probably served all ordinary purposes.
The Forest Court.
The Forest Courts were royal courts held by the foresters
or by the sheriffs of counties within which the king's forests
were situated. They had exclusive5 jurisdiction of wrongs
of every kind committed therein in violation of the king's
sole right to the proprietorship, possession, and enjoyment of
the forests.6 All suitors of the County Court and those re-
1 See I Stubbs, Const. Hist. 399.
" Laws Hen. I. u. 27. This must have exempted them from attending the
leet oi the hundred. — 1 Stubbs, Const. Hist. 399.
3 Assise of Clar. Stubbs, Sei. Ch. 238 ; ante, p. 101.
4 The " Tunscipesmot " of the charter by Richard I. to Wenlock Priory
(1 Stubbs, Const. Hist. 399) is generally understood to be a mere affair for the
regulation of the police and town matters'.
= See 1 Stubbs, Const. Hist. 403 ; Assise of the Forest, Sei. Ch. 156 (2d ed.).
6 " Placitum quoque forestarum multiplici satis est incommoditate vallatum :
De essartis ; de cessione ; de combustione ; de venacione ; de gestacione arcus et
jaculorum in foresta ; de misera canum expeditacione ; si quis ad stabilitam non
venit ; si quis pecuram suam reclusam dimisit ; de edificiis in foresta ; de sum-
monicionibus supersessis ; de obviacione alicujus in foresta cum canibus ; de corio
vel came inventa." — Hen. I. c. 17^ But these general terms are doubtless to be
understood of infractions of the forest laws.

THE COURTS. 145
quired to meet the justiciar's itinerant were bound to attend.1
These courts were, in a word, a kind of inferior and limited
Exchequer, established and managed partly in the interests
of the royal treasury, but having this distinction from the
Court of Exchequer, that their object was the punishment of
offenders and the infliction of fines for wrongs committed
with respect to one particular subject, the forests. The
jurisdiction of the Forest Courts was mainly ex delicto, the
only exception perhaps arising from cases of leases or
privileges of portions of the forest and of the clearings
(essarts) on payment of rent or tax ; while the jurisdiction
of the Exchequer as a fiscus was mainly ex debito, arising
partly upon the engagement of the sheriffs with respect to
the ferm of the counties, including the collection of the king's
share of the fines inflicted in the courts, and partly upon
special obligations of individual debtors, discharged directly
at the court.
The procedure of the Forest Courts, when it took its
legal course, was probably conformed to that of the popular
courts.2 Their jurisdiction appears, however, to have been
summarily exercised. There is no indication of the existence
of stated terms for trials, and the probability is that the
forester, sheriff, or his officer was in little danger of punish
ment if he pronounced speedy and heavy judgment on
behalf of the king against an unfortunate trespasser of mean
degree. The jurisdiction of the foresters arising ex debito was also
exercised in a summary manner, sometimes even against the
great. Indeed, there was strong and continuous outcry in all
directions against the forest administration. Few men were
more powerful than the abbot of Battell, and the foresters
1 I Const. Hist. 608; Sei. Ch. 156.
2 The Case of The Fifty Men, Placita Ang.-Norm. 72, accused of violating
the forest laws in the time of Rufus, and compelled, as in other cases, to undergo
the ordeal, was probably tried in a Forest Court. The king certainly was not
present. — Eadmer, p. 48. L

146 HISTORY OF PROCEDURE.
did not fear to make harvest of his rich estates within their
jurisdiction. " There was in the time of Henry the Second," says
the chronicler of Battel Abbey, " a certain Alan de Neville, chief
forester of the king, who took advantage of the power given
him to vex all the counties of England, maliciously, with
innumerable and unheard-of claims. Because he feared not
God or man, he spared not ecclesiastical or secular dignities."
And he proceeds to narrate, " among other works of iniquity,"
the levying by Alan upon sums of money, in the king's
absence from the country, upon exempt clearings of the
abbot, as essarts, and doing so against the will of the tenants ;
"pro exartis vi exegit." The abbot, hearing of the affair,
finds redress only by sending one of his monks to the
Exchequer, whither the money had been taken by the sheriffs,
and there exhibiting his charters ;' but Alan was considered
a faithful, if a somewhat zealous, servant, and the office of
forester became, or continued to be, hereditary in his family.2
In making up an estimate of the prime movers in the legal
reforms of the reign of Henry the Second, as men actuated by
a sincere love of justice and a desire to promote the interests of
the people by making justice more certain of attainment, even
within a very limited sphere, the administration of the forest
laws (and not merely the laws themselves) as permitted, if
not fostered, by the king, cannot be left out of the account.
1 Placita Ang.-Norm. 173.
2 Lower, Chronicle of Battel Abbey, 122, note. The chronicler says that he
pleased the king during his (Alan's) lifetime, but that, upon his death, when the
brethren of a certain monastery sought a portion of his substance for their house,
the king showed his regard for his late forester by replying : " I shall have his
wealth, but you may have his carcass, and the devil may have his soul."

CHAPTER IV.
THE WRIT PROCESS.
In a previous chapter we have seen the part played by the
writ process in making a pathway for the jurisdiction of the
King's Court. We have now to consider the English history
of the writ itself. We are to show not only that the old writs
" de cursu," in existence when actions on the case were first
authorised, were not created by a stroke of the pen, or im
ported into perfect form from Normandy, but also how,
though of continental origin, they were gradually developed
on English soil, out of rough and even shapeless material.
The result, it is apprehended, will be a not unimportant step
in the history of the modern forms of action. It will show
that the forms of action not founded upon the Statute of
Westminster II. (anno 1285) did not take their rise in the writ ;
that it was originally, indeed entirely foreign to any purpose of
the writ to set forth the formal language of an action.1 It
will appear that its connection with forms of action was a late
affair, later in the main than the Norman period. Something
will thus have been accomplished towards establishing the
proposition that our oldest common-law forms of action are
1 For example, the characteristic words of the modern writ of right, "plenum
rectum teneas," as will be seen, were used in the Norman period, not only in all
real but even in personal actions. L 2

148 HISTORY OF PROCEDURE,
the direct lineal descendants of the Germanic formulae of pre-
Norman and Norman England. The writ and the count are
two converging forces, approaching almost to contact by the
time of Glanvill, fully meeting only in the next century.
But the count is unbroken from Alfred to Victoria.
Before attempting, however, to trace the development of
the writ process, a classification of the materials is necessary,
in order to fix upon an intelligible basis of investigation. A
proper analysis of the materials will disclose the fact that two
entirely distinct classes of writs reached an established form
by the time of Glanvill ; and that of the two other classes,
certain writs of one of them passed over, by a change in the
party addressed, into one of the first two classes above men
tioned, while the last of these classes was not, in any just
sense, judicial process at all.
This analysis, besides removing the confusion of a mass of
writs spread out in no other than chronological order, will
also show that an antecedent lineage for a particular writ in
Glanvill cannot be made out by an arbitrary piecing of writs,
wherever one can be found containing any resemblance to
another,1 but that, on the contrary, each class must be kept
by itself, or its connection with another carefully pointed out,
when such connection exists. The absence of materials in a
particular case will alone justify transporting one class of
writs into the borders of another, except in the instance
above alluded to, where one class develops into another. We
turn now to the analysis.
The first branch of the writ process, in point of importance,
embraces the various writs of summons. Summons of the
defendant into court continued to be made by the plaintiff in
causes before the popular courts, after the Conquest as before;
this part of the procedure, as we shall later see, being a private,
' For example, the writs for the redress of trespass, which issued to the local
courts, strongly resemble the writ of right used in those courts ; but they cannot
properly be used to establish a development of the latter, when at all events there ¦
is sufficient material in the writs of right themselves.

¦ THE WRIT PROCESS. 149
extra-judicial matter. In the royal courts, however — that is,
in the King's Court and, in the twelfth century, in the Eyre
and in the Exchequer — a new system, which has ever since
prevailed, came into use, or rather was in use in the first-named
court, to a greater or less extent, from the time of the Conquest,
to wit, summons by the subordinates of the sheriff or other
chief officer of the king. This was effected by virtue of a writ
issued by the king, or by his justiciar, or by some chief member
of the king's household, in the king's absence, as by his wife
or son. There were also writs of summons of the vicinage,
for the purpose, for example, of a general inquisition as to a
particular fact, or of a special recognition, such as that of mort
d'ancestor or the Magna Assisa; which writs were issued and
served in the same manner as those just mentioned. These
writs, with rare exceptions, were process of the royal courts
only, and for the greater part, of the King's Court; and all
were " de cursu " in the time of Glanvill, using that term here
and elsewhere in the sense merely of " fixed " in respect of
form. Besides this ordinary process of summons, there was a
special system of writs of the kind in the Exchequer, as we
have already seen. These and other writs de cursu were in
use in the Exchequer as long as the ancient system of ad
ministering the revenue continued ; but they have no bearing
upon the present inquiry. They had no connection with
ordinary judicial process, and they are only mentioned now
that their existence may not be thought to have been
overlooked. Reserving the subject of the rise of the writ of summons
of Glanvill for later consideration, a distinction should here
be pointed out. A writ of summons must, indeed, from the
first have contained a definite statement of the subject-matter
or cause of action. The defendant was entitled to know the
nature of the plaintiff's demand, that he might be able to
answer it in court, or, if he did not dispute it, that he might

150 HISTORY OF PROCEDURE.
have an opportunity to pay it intelligently. And when
summons was thus effected by virtue of a writ, the act was
performed (not as by the old procedure, by the plaintiff, but)
by persons1 whose knowledge of the cause of action must
generally have been obtained from the writ.
But it does not follow that the writ would employ the
language of the plaint. The summoners were not interested
in that, and it was no part of the writ in Norman times to
instruct them or the plaintiff in such matters. Whatever
formalism of language, if any, was necessary in making the
summons, the summoners, it is to be presumed, were bound
to be familiar with. A single example from Glanvill will
show that, even in his day, the writ did not employ the
technical language of the count. A writ of praecipe in the
King's Court, as to an advowson, ran as follows : " Rex vice-
comiti salutem. Precipe N., quod juste et sine dilatione
dimittat R. advocationem ecclesiae in villa ilia, quam clamat
ad se pertinere et unde queritur, quod ipse injuste deforciat ;
et nisi fecerit, summone per bonos summonitores eum, quod
sit ea die coram nobis vel justiciis nostris ostensurus, quare
non fecerit. Et habeas ibi summonitores et hoc breve." 2
The count, however, was thus : " Peto advocationem illius
ecclesiae sicut jus meum, et pertinentem ad hereditatem
meam, et de qua advocatione ego fui seisitus, vel aliquis ante-
cessorum meorum fuit tempore regis Henrici avi domini H.
regis vel post coronationem domini regis, it ideo seisitus
ad eandem ecclesiam vacantem presentavi personam aliquo
predictorum temporum," etc.3
The second branch of the writ process is what for conve
nience we shall call manorial and vicontiel writs. Questions
relating to the title to lands as between the tenants of a
manor or of a religious foundation, questions arising out of
the tenure of lands, and questions relating to the conduct of
1 The " good summoners " of the old writs.
• Glanvill, lib. 4, c. 2. 3 lb. c. 6, § 2.

THE WRIT PROCESS. 151
tenants, such as alleged trespasses, were, as we have seen,
cognisable in the local courts, when not drawn into the King's
Court by the king's writ. In case of a failure of the local court
to do justice in respect of a complaint within its jurisdiction,
the complaining party had the privilege df recourse to the king
for his writ, commanding the lord of the manor or the head
of the religious house, or if necessary, some other person
specially delegated for the purpose, generally the sheriff in
the County Court, to do "full right" or to "do justice" on
behalf of the plaintiff. These are the writs of "justicies" of
later times.
The king's writ is here seen in its most advantageous
light. There was no way, without the royal mandate, of
compelling the local courts to do justice on behalf of their
suitors ; and to require parties to resort to the King's Court
in case of failure of justice at home would have resulted,
often, in the total defeat of a just demand. It is perhaps
upon such a ground that we are to understand the writs
issued to the sheriff or other local officer, when justice could
not be obtained in the Manorial Court of the plaintiff's lord.
It is improbable that the Shiremot had lost its ancient,
inherent jurisdiction to act upon a failure of justice in the
lower courts ; and the king's writs to the sheriff, it is appre
hended, are commands implying a reluctance to act, rather
than commissions of authority.
A few instances of true writs of commission to try causes
occur in pre-Norman times in England. In a case, anno
1011, between bishop Godwine and Leofwine,1 the plaintiff
claimed that the defendant had disseised him (or rather, his
predecessor) of land at S. And the record proceeds to state
that the case was made known to the king (.Sithelred), who
thereupon sent his writ and seal to archbishop Elfric, com
manding him that he and his thegns in East Kent and in
West Kent justly decide between the parties by plaint and by
1 Thorpe, Dipl. 301.

i52 HISTORY OF PROCEDURE.
defence.1 Two or three other records of a similar import
exist ; but the practice was probably exceptional until the
advent of William the Conqueror, when it became common.
The practice had prevailed extensively on the Continent;
but it is not necessary to suppose that the idea had been
borrowed in the Anglo-Saxon period. It was in the natural
course of things. The king's duty to his subjects required
him to see that justice was dispensed ; and as his own court
did not undertake small causes, and as it would be unjust in
many cases to require suitors, with their witnesses, to go
there, his only course was to commission special judges to do
what the local court had failed to do.
It was not an uncommon thing for the king or justiciar to
address his mandate directly to a recusant defendant, requir
ing him to do what the plaintiff prayed, or rather, what the
king was pleased to order. Of a similar nature were writs
issued to the king's judges, or to his officers and bailiffs
generally or in particular, commanding them to do, or more
commonly to refrain from doing, and to prohibit others from
doing, certain specified things, or to respect certain specified
rights. Such writs are the third branch of the writ process.
Writs of this class never became de cursu as a whole, but
some of those addressed to defendants passed over into de
cursu writs of the second class, to which the whole of this
third class bore some likeness. Such will be considered in
treating of the manorial writs ; and a further reference will be
made to them towards the close of the present chapter.
The connection of the writs addressed to a defendant with
the manorial writs — the connection by which they pass over
into the de cursu writs of the second class — is found in a
" nisi feceris " clause, which all the writs having such a con
nection possess. The defendant was commanded, e.g., to
1 It is not without interest to notice that the record of this case shows that the
use of the writ was attended with no change in the mode of trial common to such
cases. The writ was simply a special grant of jurisdiction.

THE WRIT PROCESS. 153
perform services due by him to the plaintiff, " et nisi feceris,"
said the writ, the sheriff or some other person named would
compel him. Then, if the defendant disobeyed the writ,
another writ of the second class, de cursu in Glanvill's time,
was granted when needed, in accordance with the warning of
the clause referred to. It will further be seen, when the
investigation of these writs is reached, that they ran in the
same general form at last, as might be expected, with the
manorial and vicontiel writs. The only essential difference
between the two, as has been intimated, is that one commands
a party defendant to do something, and the other commands
someone else to compel him to do it.
There was still another branch of the writ process. Some
times a person was able to obtain from the king at the outset
a writ in the nature of final process, like a modern writ of
execution, without a trial before the courts. Of this nature
may possibly be the writ in Abbot Scotland v. Hamo,1 by
which William the Conqueror commanded Lanfranc, Geoffrey
of Coutances, and others, to cause the plaintiff to have seisin
of the town of Fordwick, of which he had been disseised.
There is no mention of trial had or to be had concerning the
plaintiff's claim ; though this fact is not conclusive that the
writ was not part of an ordinary judicial proceeding.2
It is unusual, however, for a true writ of final process to
omit all mention of the trial and judgment — or, rather, there
are many writs of execution which do refer to judgment
obtained — and it is hardly probable that all the writs of this
kind which make no mention of a trial were issued upon
judgment rendered in the courts. The writ in favour of the
monastery at Abingdon against claimants under Modbert (?) 3
can hardly be mistaken. Henry the First therein directs
Hugh of Bocland to go to Abingdon and give reseisin to the
1 Placita Ang.-Norm. 13.
2 This, like the writ in the case of Modbert v. Prior and Monks of Bath,
Placita Ang.-Norm. 114, is perhaps an instance of a conditional mandate.
3 Placita Ang.-Norm. ill.

154 HISTORY OF PROCEDURE.
monastery of all the lands which Modbert had given away or
mortgaged, or had bought from anyone and given to another ;
language which fairly excludes the idea of a trial.
If, however, there be doubt as to the foregoing cases, the
case bf the Church of Abingdon v. William ' is clear. The
record of the case declares that after the death of abbot
Faritius, William complained to the king (Henry the First)
concerning a mill of which he said he had been disseised by
Faritius; "wherefore by the king's command he was put in
seisin thereof." But afterwards, so the record proceeds, " by
intercession of the monks through Walter, chaplain of William
of Bocland, the king, having learned the truth, commanded
that the church have seisin again."
There is very clear evidence of the same nature in a
case of the abbot of Crowland.2 The abbot had been dis
seised of certain lands by execution upon judgment of court
obtained by the prior of Spalding. Conceiving his monastery
to have been made the subject of an unjust judgment, the
abbot proceeds to the court of the emperor of Germany,
where the king (Richard the First) was then held in captivity,
and having persuaded the latter (with a consideration, no
doubt) of the justness of his cause, obtains from him a writ
addressed to the archbishop of Canterbury, the king's jus
ticiar, in which the latter is commanded without delay to
restore the abbot to seisin of the lands in question. And
upon the abbot's return to England he presents the writ to
the archbishop, who thereupon sends it to the sheriff of
Lincoln, with an order to execute it. And "the undersheriff,
Eustace, therefore, on behalf of the king and his justiciar,
caused solemn reseisin of their marsh to be made to the
abbot and house of Crowland at the beginning of Lent." 3
1 Placita Ang, -Norm. 130.
" Though this case is in the false Ingulfs Chronicle of Crowland, there is no
ground known to the writer for doubting the genuineness of this particular record.
3 See also I Rot. Lit. Claus. 99, anno 1207 : " Terra ilia fuit in manu comitis
Leicestrie Simonis quem de terris suis precepimus [king John] disse;siri." As to
the sale of justice, impost, pp. 186-190.

THE WRIT PROCESS. 155
Sometimes, however, writs of this kind, when addressed
to persons possessed of a judicial franchise, were treated as
not peremptory, and the disputed claim put in trial ; as in
the case of Modbert v. Prior and Monks of Bath.1 In that
case the king's son sent a writ to the bishop of Bath, then
holding his court, in these words : " Praecipio ut saisias Mod-
bertum juste de terra quam tenuit G. de S., sicut haereditavit
eum in vita sua." The bishop said, " Si tamen justum est
acquiesco," and then laid the case before his court. And the
king confirmed the judgment rendered, though the result was
against Modbert.2
The practice of granting writs of execution without trial
in the courts appears to have been common, so as to have
become one of the chief grievances of the baronage and
commonalty against king John ; resulting, with other like
influences, in the famous article of Magna Charta by which
it was provided that the king should not disseise or imprison
his free subjects unless by the legal judgment of their peers
or the law of the land.3 This ancient prerogative of the
king, however, was extinguished only after a long and deter
mined struggle, of which Magna Charta was but the begin
ning. It was not until the reign of Edward the First that the
constitutional change was finally settled. The root of this
1 Placita Ang.-Norm. 114.
2 This may be an instance of a practice that afterwards prevailed in Normandy
under the writ of praecipe, which was treated as a conditional mandate. See
Brunner, Schwurg. 330-332.
3 " Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur .... nisi per
legale judicium parium suorum vel per legem terrse." — Art.* 39. As to the expres
sion "per legem terrse," which has caused so much discussion in the law books,
and generally been interpreted by the courts to mean that defendants in criminal
cases must be tried by jury upon presentment or indictment, it may be observed
that jury trial in criminal cases had not come into use at this time, except as
matter of special grace on the part of the king. It was not until after the aboli
tion of the ordeal (an. 1215-16) that trial by jury began to come into use in criminal
cases ; and even then it could only be resorted to by consent of the prisoner.
Hence the origin of peine forte et dure to compel him to consent. The expression
" per legem terra " simply required judicial proceedings, according to the nature
of the case ; the duel, ordeal, or compurgation in criminal cases, the duel, witnesses,
charters, or recognition in property cases.

156 HISTORY OF PROCEDURE.
enormous evil probably lay in the old and common but repre
hensible practice of the kings in taking money for hastening,
having, or delaying justice.1 We shall have nothing further to
say of writs of this class. They could not become de cursu.
Turning now to the history of the writs which became
de cursu, and beginning with the second class, the manorial
writs of right, it should be observed at the outset that
prior to the reign of Henry the First (1100-35), as far as
existing materials indicate, the writs generally fail to give
us any clear light as to the nature of the action involved in a
particular case, except when there is a direction for an inqui
sition. Even the subject-matter of the suit, not to speak
of the cause of action, was often very vaguely stated. Tech
nical language, having any significance in respect of the mode
of trial, was entirely, or almost entirely, wanting. And even
where some term occurs in a particular writ suggestive of the
technical language of later process, it would be unsafe to infer
that the writ points to the mode of trial required by the
subsequent writ to which a resemblance is seen. In one
of the earliest English writs, William the Conqueror orders
Geoffrey, bishop of Coutances, to be present at a plea between
Wulfstan, bishop of Worcester, and Walter, abbot of Evesham,
" et, ut plene episcopus Wulstanus suam rectitudinem habeat,
stude.".2 This may suggest the "plenum rectum teneas" of
the writ of right ; but the process which actually followed was
1 The Pipe Rolls are full of such cases. See instances in Placita Ang.-Norm.
140, 141, 269 (R. de F. debet x. marcas, pro festinando judicio suo de R. F.),
273 ; Madox, Hist. Exch. ch. 12, p. 293 (fol. ed.). The result is hinted at in the
Dialogue of the Exchequer, lib. 2, c 23 (Stubbs, Sei. Ch. 242, sub fin. 2d ed.),
where it is said : "In spem vero dicuntur offerri, cum quis exhibendse sibi justitiee
causa, super fundo vel redditu aliquo regi summam aliquam offert ; non tamen ut
fiat, ne in nos excandescas, et venalcm penes eum [sc. regem] justitiam dicas, immo
ut sine dilatione fiat." That which follows this quotation should be specially
noticed, as showing that the king was accustomed to act judicially of his own right.
Delay of the courts was equally purchasable. — Madox, 309. The Dialogue was
written anno 1 1 77, nine or ten years before Glanvill's treatise. Glanvill puts the
king's charter on the level with a judgment. — Lib, 13, c. II, § 6.
2 Placita Ang.-Norm. 287.

THE WRIT PROCESS. 157.
that of party-witness, and not the duel.1 With the reign of
Henry the First, however, a change appears, and language
characteristic of the later writ of right is found in writs which
would naturally be followed by the duel. It should be ob
served, however, that the duel did not become an established,
prescribed mode of trial in real property causes in England
before the twelfth century. It was a new and disturbing
force with the Conquest, and was continually jostling and
jostled among other modes of trial until the reign of Henry
the First, if not later. This fact would make it difficult at
best to trace the English writ back of the reign of Beauclerc
into the period of shapelessness.
The writ of right, as it appears in Glanvill, was granted for
the trial in a manorial or other local court2 either (i) of a
right of property in lands, such as a claim of frank tenement -
or dower, or (2) of a right to things connected therewith of an
incorporeal nature, such as services due by reason of tenure ;
differing in form accordingly. In either case it was directed
to the lord of the manor, or other proprietor, of whom the land
was held ; or in case of his inability or want of disposition to
do justice, to the sheriff in the County Court, or to some
special delegate. The characteristic language of Glanvill's
writ for the recovery of lands (the growth of which writ will
be first considered) appears in the words with which it begins:
"Praecipio tibi quod sine dilatione plenum rectum teneas N.
de decern carucatis terrae," etc. The italicised words gave
the writ, even in Glanvill's time, the technical nam: of "writ
of right " (" breve de recto "), because they called in terms for a
trial of the " full right " (that is, the right of property) to the land
in question. It is fair to presume that earlier writs of the twelfth
century, containing the same command, employed the words in
the same sense, and thus looked to a trial of the right of property.

1 Placita Ang.-Norm. 17, 18.
2 There was another and different writ of right in the King's Courts, described
by Glanvill in his first book, the praecipe quod reddat. See ante, p. 77.

158 HISTORY OF PROCEDURE.
The first writ to be noticed is granted by Henry the First,
perhaps in the year 1108, in favour of the abbot of Abingdon,
and addressed to J. de S. as defendant. It is therefore an
example of the third class of writs. The writ runs thus:
" Praecipio tibi ut plenum rectum facias x Faritioabbati et
ecclesiae de Abbendonia de terra quam abstulisti eis, quam
R. de C. dedit ecclesiae in eleemosyna; et nisi sine mora feceris,
praecipio quod W. G. faciat, et si ipse non fecerit, H. de B.
faciat, ne inde clamorem audiam pro recti penuria."2
The defendant fails to obey the writ, and another is issued
to W. G., according to the intimation of the first writ. The
language of the second precept is substantially the same as
that of the principal writ ; but it should be given for com
parison with the writs which are to follow. The king says :
" Praecipio ut teneatis plenum rectum Faritio abbati de Abben
donia de terra quam R. C. posuit ad Abbendonam vestra
concessione, et unde ecclesia fuit saisita ; et ita facite, ne inde
clamorem audiam pro recti penuria."3
The next writ of this kind is granted by Stephen in the
year 1141. It is addressed to the archdeacon of Canterbury,
and proceeds thus : " Praecipio tibi quod sine dilatione et
escampa4 teneas plenum rectum abbati Sancti Augustini et
monachis de ecclesia, de Newyntone ; ne super hoc inde
clamorem audiam."5
The last writ prior to Glanvill is executed by Robert, earl
of Leicester, the king's justiciar, anno 1162, to R. of W., and
is as follows : " Praecipio quod sine dilatione plenum rectum
teneas Roberto de M. de terra quae fuit Willelmi de M., fratris
ejus, de D. cum pertinentiis suis, quam clamat tenere de te.
Et nisi feceris, R. de V. faciat. Et nisi fecerit, ego faciam fieri."6
1 The difference between "plenum rectum facias " and "plenum rectum
teneas " should be noticed. The latter is an order to entertain a suit ; the former,
merely to do right. But the terms are not always used with discrimination.
2 Placita Ang.-Norm. 99. The "ne inde clamorem" clause became one of
the most familiar clauses of the writs.
3 Ibid. * Evasion. s Placita Ang.-Norm. 146. 6 Ib. 210.

THE WRIT PROCESS. 159
All of the foregoing writs bear a sufficient resemblance to
each other to be classed together, and to be called from
the characteristic words in each of them, "writs de recto."
Glanvill's writ of right in full is as follows : " Rex comiti W.
salutem. Praecipio tibi quod sine dilatione teneas plenum rec-.
tum N. de decem carucatis terrae in M., quas clamat tenere de
te per liberum servitium [various alternative tenures are here
inserted], quas R. filius W. ei deforciat. Et nisi feceris, vice-
comes de N. faciat, ne amplius clamorem audiam pro defectu
justitiaa."1 The resemblance between this and the preceding writs is
so striking as not to require more than a cursory reading.
The variations, however, show that there was no prescribed
form of writ before the time of Glanvill ; and Glanvill's writ
shows that the form finally established was an easy adaptation
of the language of the older writs.
The foregoing writ of right had an offshoot in a writ for
the redress of trespasses. Such wrongs were commonly re
dressed in the local court of the district where they were
committed ; and in such cases no writ was used. When,
however, the lord of a- locus failed to do justice by the injured
party, resort was had to the sheriff in the County Court, or
to some specially delegated person. In the latter case the
plaintiff obtained a writ from the king commanding the person
delegated (as in the manorial writ of right) to " do full right "
to the plaintiff.2 A single example will serve to show the
near relation of this writ for the redress of trespass to the writ
of right mentioned. The following is perhaps of the year 1 108 :
" H. rex Angliae, Rogero episcopo Salisb. salutem. Mando
tibi quod plenum rectum teneas abbati de A. de hominibus
meis de F. de foeno suo, quod vi ceperunt de prato suo."3
1 Glanvill, lib. 12, c. 3.
2 See Placita Ang.-Norm. 89 (both cases), 98 (second case), 127, 166.
3 Ib. 98. Roger, bishop of Salisbury, was at this time justiciar as well as
treasurer, and his hand may probably be seen in the development and regulation
of process in the King's Court as well as in the reorganisation of the Exchequer.

160 HISTORY OF PROCEDURE.
Sometimes in these writs, for " plenum rectum," we have
"plenariam rectitudinem,"1 or "plenam justitiam;"2 but the
variations are as slight as in the contemporaneous writs of
right already considered. As trespasses, however, came to be
redressed more and more in the king's courts, these manorial
writs appear to have undergone much change in form after
the Norman period, assuming at length the language of the
count.3 We have already seen that by an allegation of breach of
the king's peace, trespasses, which primarily belonged to the
local courts, were redressible in the King's Court in the time
of Henry the Second, if not earlier.4 But no very general
advantage appears to have been taken of this privilege before
the thirteenth century. At all events there is no indication in
the twelfth century of the existence of the familiar writ of
trespass of later times, in any settled form. Some approach
to the modern form may, however, be seen in appeals and
writs of the last quarter of the twelfth century.5
The writ of right for the enforcement of services due by
reason of tenure and the writ of right for money-debt are
closely related. They grew out of common, or rather out of
general nebulous materials, and were undistinguishable until
about the time of Henry the Second, as will appear from an
examination of the writs themselves. The modern action of
debt is lineally descended from the second of these writs, and
is therefore in its origin, what that always was, a real action.
The earliest of these writs extant in England is of the year
1 106, and is directed by the king to Gotselin de Riparia. It
is in this language : " Praecipio ut faciatis Faritio abbati de
Abbendona tale servitium de feudo quod de eo et de abbatia
sua tenes, quale fratres tui fecerunt antecessori suo A.6 Quod
' See Placita Ang.-Norm. 89. - Ibid. 3 Fitzherbert, Nat. Brev. 194.
4 Ante, pp. 84, 85 ; Glanvill, lib. I, c. 2. For an example, see Placita Ang.-
Norm. 285, anno 1 195.
3 See Placita Ang.-Norm. 239, 283, 285
6 Athelelm, predecessor of Faritius.

THE WRIT PROCESS. i6r
nisi feceritis, ipse abbas inde te constringat per feudum
tuum."1 The writ, it will be observed, is addressed to the defendant,
being a warning to perform engagements of tenure on pain
of distraint ; the usual consequence in some form of disobe
dience in such cases. It belongs to the third class of writs,
as do most of those which follow.
The next writ in favour of the same party, directed by the
king to another tenant, is to the same effect, though some
what differently expressed. It is as follows : " Praecipio tibi
ut abbati Faritio facias servitium terrae quam tenes, sicut tui
antecessores fecerunt tempore Adelelmi abbatis. Et nisi feceris,
tunc praecipio ut abbas paedictus de terra sua quam tenes
suam voluntatem faciat."2
The following writ was granted about the year mo by
Roger, bishop of Salisbury, the king's treasurer and justiciar,
against two tenants of the church of Abingdon, jointly sued
for money-debt due by express contract of tenure. The writ
is substantially the same as the foregoing, and serves to
confirm the statement above made that the writ of debt was
originally undistinguishable from the writ concerning services-
by reason of tenure. The precept runs thus : " Praecipio vobis
quod reddatis ecclesiae de Abbendona rectitudines, quas illi
debetis de ecclesia vestra Kingstuna. Et nisi feceritis, Ilbertus
decanus interdicat divinum officium apud Kingstuna."3
The next writ, issued by the king, perhaps anno 1 1 1 r, is
of a different nature, but should be noticed in this connection.
Instead of being directed to the tenant, it is directed to the
lord of the lands (abbot Faritius), and belongs therefore to the
second branch of the writ process. It proceeds thus : "Si Hugo
filius Turstini noluerit facere servitium quod terrae suae tibi
pertinet, in operatione parcorum et pontium, et de omnibus
aliis rebus, tunc praecipio ut tu ipse inde justitiam facias, ut
omnia quae facere debet, faciat."4
1 Placita Ang.-Norm. 92. " Ib. 97. 3 Ib. 105. 4 lb. 109.
M

162 HISTORY OF PROCEDURE.
Another writ was issued by the king in favour of Faritius,
requiring the same Hugh to pay money-dues. This writ is
directed to the tenant, and proceeds as follows: "Praecipio tibi
ut ita geldas cum Faritio abbati de Abbendona, sicut geldare
solebas, et ita ne amodo terra sua sit esnamiata pro terra tua
super decem libras forisfacturam meam. Quod nisi cito feceris,
Albricus de B. te constingat per pecuniam tuam ut cito facias,
et ita ne inde amplius clamorem audiam super decem libras
forisfacturse." *
The next writ is addressed by Henry the First to all
tenants of the bishop of Lincoln in the wapentake of W., and
runs thus : " Praecipio quod omnes veniatis ad placitum et
wapentachium episcopi Lincoliensis quod de me tenet, per
summonitionem ministrorum suorum ; et faciatis ei omnes
rectitudines et consuetudines in omnibus rebus quas eis debetis,
de terris vestris ad illud wapentachium, ita bene et plenarie
sicut unquam plenius fecistis Roberto episcopo vel alicui
antecessori suo, et quas juste facere debetis : et nisi feceritis
ipse vos justiciet per pecuniam vestram donee faciatis, ne
perdam pecuniam meam quam episcopus mihi inde reddere
debet."2 The next writ is issued by Henry the Second, anno 1160,
and directed to the tenant. It is as follows : " Praecipio quod
juste respondeas abbati Sancti Augustini de operibus expensis
de parte tua terrae de P., sicut tu et antecessores tui solebatis
facere tempore regis Henrici avi mei ; et nisi feceris, vicecomes
Cantiae faciat fieri, ne amplius inde clamorem audiam pro
penuria recti."3
The same king directs the following writ to the tenants of
the abbot of Gloucester, within the town : " Praecipio vobis quod
reddatis abbati Gloucestriae de terris quas de ipso tenetis
omnes consuetudines et rectitudines quas inde solebatis reddere
tempore avi mei regis Henrici; quia de illis quae ad jus
ecclesiae pertinent, nullam quietudinem vobis concessi."4
1 Placita Ang.-Norm. no. " lb. 139. 3 lb, 207. 4 ib. 254.

THE WRIT PROCESS. 163
The last writ before Glanvill's treatise is of the year 11 80,
and is witnessed by Glanvill himself. It is addressed by the
king to the men of Thanet, tenants of the abbot of St. Augustine,
and is as follows : " Praecipio vobis qucd juste et sine dilatione
faciatis praefato abbati, domino vestro, omnia servitia et con
suetudines et jura quas ei facere debetis de feodis vestris, et
qua; predecessoribus suis facere solebatis ; et nisi feceritis, vice-
comes de Kent faciat fieri, ne inde amplius clamorem audiam
pro defectu recti." I
Glanvill's treatise contains no writs of this kind addressed
to the defendant. But writs addressed to the sheriff, implying
the refusal of the defendant to perform the services or to pay
the money due the plaintiff, are given. The following is one :
" Praecipio tibi quod justicies N. quod juste et sine dilatione
faciat R. consuetudines et recta servitia, quae ei facere debet
de tenemento suo, quod de eo tenet in villa ilia, sicut rationa-
biliter monstrare poterit eum sibi debere, ne oporteat eum
amplius inde conqueri pro defectu recti."2
Glanvill's writ of debt for money due by loan is process of
the King's Court. It appears to be one of the writs heretofore
mentioned by which the King's Court acquired jurisdiction of
causes which formerly belonged exclusively to the local courts.
The writ referred to is as follows : " Rex vicecomiti salutem.
Praecipe N. quod juste et sine dilatione reddat R. centum
marcas quas ei debet, ut dicit, et unde queritur quod ipse ei
injuste deforciat, et nisi fecerit, summone eum per bonos sum
monitores quod sit coram me vel justiciis. meis apud West-
monasterium a clauso Paschae in quindecim dies ostensurus
quare non fecerit."3
The first of these two writs is but slightly varied from
those which precede it, though the variation is sufficient to
show the freedom of the process from fixed formalism. The
second writ varies more from its predecessors ; but the diver
gence marks little more than the fact that Glanvill's writ is
' Placita Ang.-Norm. 225. 2 Glanvill, lib; 9, cc. 9, 10. 3 Ib. lib. 10, c. 2.
M 2

1 64 HISTORY OF PROCEDURE.
process of the King's Court. Such process, as a remedy, was
at -some time new to the Kings Court; but it is conceived
that it was new only to the forum. The remedy itself, we
apprehend, was not new as a form of action. Debts had
always been created by mere loan of money, and payment
enforced by the local courts ; and though the manorial writs
above quoted as to money dues were issued to enforce dues
arising by reason of tenure, it is hardly supposable that when
the debt arose from a loan or the like — the subject of the last
quoted writ from Glanvill — any materially different process
was sought from the king on failure of the local courts to do
justice. The language of the writ of debt of Glanvill, from
the words " et nisi fecerit " on to the end, is the peculiar lan
guage of process of the King's Court ; but the first half of the
writ is of the same tenor as the manorial process, and serves
somewhat to confirm the view that the writ of Glanvill is an
adaptation of ancient process, and not the creation of a new
form of action.1
It should be added that Glanvill has also a writ of right
for debt, which may be compared with the writ of Roger,
bishop of Salisbury, above quoted. There is a gap of at least
seventy years between the two writs ; during which time such
writs may have diverged from the others which we have
quoted. At all events Glanvill's writ is modelled after another
class of precepts, to wit, the general writs of right heretofore
quoted. It runs as follows : " Rex N. salutem. Precipio tibi,
quod sine dilatione plenum rectum teneas N. de centum

1 The writ not being new, there is no need of supposing the creation of any
new form of action. Indeed, the practical difficulties in the way of introducing
any new form of action in those times of the supremacy of usage must have been
fairly insurmountable. Remedies grew, but were not made before the thirteenth cen
tury. Invention did not come before the reign of Edward the First. Usage then
first began to yield to statute. Nor would an entirely new writ in Glanvill's time
(if such there were) necessarily imply a new form of action. For every common
violation of law there was an ancient, established form of plaint. And it may be
added that in all the remodellings of process this underwent no further change than
was inevitable by mere lapse of time.

THE WRIT PROCESS. 165
solidatis redditus in villa ilia, quam clamat tenere de te per
liberum servitium, etc. Et nisi feceris, vicecomes Oxonie
faciat, ne amplius inde clamorem audiam pro defectu recti."1
It is sufficient to say that the modern writ of debt did not
spring from this writ. The history of the modern writ may
be thus summarised : 1. A period in which the precept was
formless, unsettled material. This was coming to an end in
the time of Henry the First. 2. Then a period tending to
distinct settlement of form, during which there is little dif
ference between a writ for the non-performance of services
due by reason of tenure and a writ for the non-payment of
money loaned. This ended in the time of Henry the Second.
3. The time of Glanvill's treatise, when each of these writs
assumes definite form and becomes de cursu ; the writ for
money loaned being the parent of the modern writ of debt.
Before leaving the writs of right of the foregoing class, it
should be noticed that, dissimilar from the writ of right of
debt as the familiar writ of entry of modern times might at
first be considered, the latter writ appears in fact to have
been framed directly from one of the writs of debt; the dif
ference between them being scarcely more than the matter of
a single word. Glanvill's writ '' de summonendo creditore de
restituendo vadio debitori " is as follows : " Rex vicecomiti
salutem. Precipe N. quod juste et sine dilatione reddat R.
totam terram (vel terram illam in villa ilia) quam ei invad-
iavit pro centum marcis, ad terminum qui preteriit, ut dicit,
et denarios suos idem recipiat vel quam inde acquietavit,
ut dicit, et nisi fecerit, summone eum per" bonos summoni
tores," etc.2
By the substitution of the word " dimisit " for " invadiavit "
and omitting the (for the writ of entry) inappropriate clause
" et denarios . . . . ut dicit," the writ is verbatim the writ of
entry of Bracton 3 and later times. Thus this writ is as nearly
1 Glanvill, lib. 12, c. 4.
* Ib. lib. 10, c. 9. See c. 7 as to the converse case of the creditor.
3 Bracton, 317 b, 318,

1 66 HISTORY OF PROCEDURE.
related to the old (Glanvill's) writ of debt as detinue is to
the modern writ of debt ; and it is actually nearer to the
form of Glanvill's writ of debt than is the very offspring of
that writ, the modern writ of debt.1 Out of the writs of right,
therefore, have arisen the (manorial) writ of trespass, the writs
of debt and of detinue, and the writ of entry.
The history of Glanvill's writ of right "ne injuste vexes,"
which was intended to restrain landlords from oppressive
exactions upon their tenants,2 though it has not the interest
attending connection with more modern process, affords an
equally clear illustration of the growth of the English writs.
The number of writs in the nature of the writ referred to is
almost without limit, and their variations in form are very
great ; but it will not be necessary to refer to any that are
not in the direct order of development towards Glanvill.
These writs belong to the third branch of the writ process ;
mandates addressed to defendants, or to persons who might
be defendants,3 including commands and prohibitions.
In a writ addressed by William the Conqueror to his
justiciars, he says : "Defendite ne Remigius episcopus novas
consuetudines requirat infra insulam de Heli. Nolo enim ut
ibi habeat, nisi illud quod antecessor ejus habebat tempore
regis Edwardi, scilicet qua die ipse rex mortuus est, et si
Remigius episcopus inde placitare voluerit, placitet inde sicut
feeisset tempore regis Edwardi, et placitum istud sit in vestra
praesentia." 4
The next is by the same king, and is addressed to the
abbot of Peterborough. It is as follows: "Mando tibi et
praecipio ut permittas abbatem Sancti Edmundi sufficienter
accipere de petra ad ecclesiam suam sicut hactenus habuit, et
non amplius sibi impedimentum facias in adducendis petris
ad aquam, quam antea fecisti." 5
1 See Fitzh. Natura Brevium, 273. 2 See Magna Charta, c. IO.
3 The writs to the king's officers infra are probably both commands to them in
the nature of injunctions and also commissions of authority to them to restrain the.
acts of others. * Placita Ang.-Norm. 27. 5 lb. 32.

THE WRIT PROCESS. 167
The next writ to be noticed is by Henry the First, anno
mo. It is addressed to all the king's barons, sheriffs, and
servants, and proceeds thus : " Prohibeo ne aliquis disturbet
ullo modo carreiam Sanctae Mariae de Abbendona, nee aliquid
aliud quod sit dominicum abbatis vel monachorum ejus, vel
per terram vel per aquam disturbet." l
In a writ similarly addressed, Henry the Second says :
" Praecipio quod abbas et monachi de Gloucestria habeant et
teneant aquam quae currit per abbatiam suam bene et in pace
et juste et integre, sicut habuerunt melius tempore Henrici
regis, avi mei. Et prohibeo ne quis disturbet cursum illius
aquas, desicut ivit tempore Henrici regis, avi mei, super decem
libris forisfacturae."2
In another writ addressed to the same persons, the same
king says : " Praecipio quod permittatis abbatem et monachos
Gloucestriae facere et habere bene et in pace et juste piscariam
suam de Bramptona in eodem loco ubi fuit tempore regis
Henrici, avi mei ; nee inde eos disturbetis, nee aliquam eis
injuriam vel contumeliam faciatis."3
In still another writ addressed to the sheriff of Hereford
apparently about the same time, the king says : " Praecipio
quod juste deducas abbatem et monachos Gloucestriae de una
hyda terrae de la Hyde quam tenent. Et prohibeo ne ipsi
inde injuste vexentur, vel in placitum ponantur, aut in aliquas
consuetudines quas facere non solebant tempore Henrici, avi
mei. Et nisi feceris, justitia mea faciat, ne amplius inde
clamorem audiam pro penuria recti."4
The last writ to be noticed before the time of Glanvill is
the following, by the same king, addressed to Adam de Port :
" Prohibeo tibi ne injuste vexes, vel vexari permittas, abbatem
Gloucestriae de libero tenemento suo de Litletone, nee ab eo
inde exigas, vel exigi permittas, consuetudines vel servitia quae
inde facere non debeat vel solebat, nee ullam ei inde injuriam
vel molestiam facias aut gravamen. Et nisi feceris vicecomes
1 Placita Ang.-Norm. 105. 2 Ib, 253, 3 Ib, 256, ¦'ibid.

1 68 HISTORY OF PROCEDURE.
de S. faciat, ne inde amplius clamorem audiam pro defectu
recti vel justitiae." l
This writ differs only in the slightest possible manner from
Glanvill's writ,2 and may here be taken for it, to save un
necessary repetition. The writ is without date, and may
possibly be of Glanvill's time ; but the probability is that it is
earlier. The common writs for the return of fugitives, also of the
third class, may next be noticed. About the year 1107,
Henry the First issued three writs of this kind in favour of the
abbot of Abingdon ; each differing somewhat in form from
the others. The first is addressed to all the king's sheriffs and
officers in whose bailiwicks fugitives of Abingdon might be
found, and runs thus : " Praecipio vobis quod plene et juste
faciatis habere abbati Abbendone omnes fugitivos suos, cum
tota pecunia et catallo suo, ubicumque ipsi inventi fuerint ; et
prohibeo ne aliquis eos ei vel pecuniam suam super hoc injuste
detineat, super decem libris forisfacturae."3
The second writ is addressed to Hugh of Bocland, Robert
de F., and others named, and proceeds : " Praecipio vobis ut
juste et sine mora faciatis redire ad abbatiam de Abbendona
omnes fugitivos suos, et cum tota pecunia sua, ubicumque sint,
et ita ne inde amplius clamorem audiam pro recti penuria,4 et
nominatim hominem qui est in terra Roberti de F., et cum
tota pecunia sua."5
The third writ is addressed generally, and runs as follows :
" Praecipio vobis ut sine aliqua mora faciatis habere Faritio
abbati de Abbendona omnes homines suos, qui de terra sua
exierunt de Walingeford propter herberiam curiae meae, vel
propter alias res, et cum omni pecunia, ubicumque sint."6
The next writ is dated in the year 1175, the year before
1 Placita Ang.-Norm. 252. 2 Ib. 315. 3 lb. 94.
* This clause indicates that the writ was not final process after judgment in
the court.
* Placita Ang.-Norm. 95. 6 Ibid.

THE WRIT PROCESS. 169
the Assise of Northampton, at which Glanvill was appointed
one of the three justiciars for the northern circuit.1 This writ,
after a general address, proceeds thus : " Praecipio vobis quod
juste et sine dilatione faciatis habere R. abbati de Abbendonia
omnes nativos et fugitivos suos cum catallis suis, ubicumque
inventi fuerint in bailliis vestris, nisi sint in dominis meo, qui
fugerunt de terra sua post mortem regis Henrici, avi mei ; et
prohibeo ne quis eos injuste detinent, super forisfacturam
meam."2 This writ varies even less from Glanvill's writ than it does
from the preceding precepts. The writ in Glanvill is addressed
to the sheriff; it adds the words "et cum tota sequela sua"
(i.e. with all their issue) ; and for the limitation clause " post
mortem regis Henrici, avi mei," substitutes "post primam
coronationem meam."3 In other respects the writs are exactly
alike. We proceed now to the first branch of the writ process,
to wit, the writs of summons ; the question for consideration
being whether the recognitions of Glanvill have probably gone
through a course of development similar to that of the writs
already examined. The only one of the recognition writs of
which there exists material for pursuing such an inquiry is
the writ of novel disseisin; and the material suited to the
thorough study of this writ even is not abundant. Indeed,
no such material is known to exist as that which has been
used in the examination of the several writs heretofore under
consideration. Those writs were process for instituting suits
in the County, in the Hundred, or Manorial Courts, affecting
for the greater part religious houses ; and they were preserved
as part of the muniments of title of those corporations. The
writ of novel disseisin, however, issued as process for the trial
of a cause in the King's. Court, where the religious houses,
1 1 Benedictus, 108 ; ante, p. 89.
2 Placita Ang.-Norm. 220. 3 Glanvill, lib. 12, c. ii,

170 HISTORY OF PROCEDURE.
which would be most likely to preserve the writs, seldom
litigated. Actions affecting realty were brought then as now
where the land lay ; and as the courts of franchise possessed
or readily obtained jurisdiction over causes affecting their
interests, there was ordinarily no occasion for resorting to the
King's Court for trials of that sort. Then, the final adoption
of the writs of Glanvill rendered it useless to preserve, among
the records of the King's Court, the old and superseded writs.
The consequence is, that no writs of novel disseisin, in the
strict sense of the term (as process of the King's Court), are
known to exist, except those given by Glanvill. It can
not therefore be decisively and finally demonstrated that
Glanvill's writ of novel disseisin was a development in
regular course from older material. But it can be made to
appear more than probable that this was the case ; or rather
it can be shown to be highly probable that the writ referred
to was an adaptation of the essential features of earlier
process. It is the general opinion of competent writers that the
recognitions of Glanvill, in the form in which they appear in
Glanvill's treatise, are of the reign of Henry the Second, or
at all events of the latter half of the twelfth century ; one
writer thinking they shortly antedate the accession of that
king to the throne of England. r Now it is only necessary to
show that writs exist among the monastic records which
served, though in no fixed mode, the same special purpose,
the redress of disseisins, as did the writ of novel disseisin,
and that these writs, in all their stages, make use of language
characteristic of the writ under consideration, to make it
reasonably safe to infer a connection between them and the
writ of novel disseisin. Or rather, it will be safe to infer the
existence of similar writs in the King's Court, of which the
monastic writs mentioned2 are an imitation; which writs in
the King's Court will supply most if not all that is wanting
1 Brunner, Schwurg. 302-304. 2 Writs to, or in favour of, the monasteries.

THE WRIT PROCESS. 171
in the monastic precepts to make a perfect model of the writ
in question. The writs directing the trial of a cause in the
County, Hundred, or Manorial Courts, it must be remembered,
are issued for the mere purpose of requiring or authorising
the trial, and contain no further directions ; while the writs of
the King's Court are directed to the procedure with which
the particular suit is to be brought to trial, specifying the
precise nature of that procedure and the steps to be taken to
carry it out. The latter writs always contain an order of
summons ; the former seldom.
The characteristic language of Glanvill's" writ of novel
disseisin (apart from the language which makes it process of
the King's Court) is found, as in the writ of right, in the
words with which it begins : " Questus est mihi N. quod R.
injuste et sine judicio dissaisivit eum de libero tenemento,"1 etc.
The italicised words were now the language only of a trial of
seisin ; that is, of a possessory action. They never occur in
any writ in Glanvill except in that of novel disseisin ; nor
is there any known writ prior to Glanvill in which those
words are used where the trial can be shown to have con
cerned anything more than seisin, unless the writ were double
process.2 It is by no means certain, however, that trials of the right
of property may not sometimes have taken place under the
process which we shall endeavour to show was the nearest
relation to the original (if it were process of the King's Court
instead of manorial or vicontiel process, it would, in our
view, be the actual original) of the process of novel disseisin.
The writs to which we refer merely informed the sheriff,
or other person addressed, of the complaint, by a party
named, of a disseisin " injuste et sine judicio," and by implica
tion or by express language required him to try the cause if a
defence were made. Unlike the later writ of novel disseisin,
1 Glanvill, lib. 13, c. 33.
2 As in Abbot Walkelin v. Turstin Bassett, Pladta Ang.-Norm, 197.

172 HISTORY OF PROCEDURE.
there was usually no direction for a recognition, nor indeed
for any particular mode of trial. There is a suggestion of the
cause of action, and a command to put the demandant into
seisin again if the same be established. All else is left for
development and determination at the trial. The pleadings
may then assume a form leading to the duel, or the issue
may turn upon the interpretation or the existence of charters,
just as we shalr hereafter see might be the case under the
writ of novel disseisin ; or the case may be such that the
court would order a trial by inquisition, recognition, or party-
witness. And in either of the latter cases, though the ques
tion ordinarily put is a simple question of fact (e.g. Was the
demandant in peaceable possession at such and such a time,
and did the tenant disseise him ?), it may be a question of the
right of property (e.g. Of whose tenure ought this land to
be ?). Inasmuch, then, as no recognition, generally speaking, was
summoned in advance, that is, by virtue of the writ, what
happened in Glanvill's time could not have happened in the
first half of the twelfth century or before ; x to wit, the setting
aside of the recognition because, upon the issue afterwards
joined on the pleadings, a question had arisen different from
that for which the recognition had been summoned, and for
the answer of which the particular recognitors, as acquainted
with the fact, had been chosen. Glanvill's recognition pro
ceeded under the question implied by the writ, or not all ;
and the purpose of the writ failed with the failure of the
recognition.2 The result is, that if our view of the connection of the
earlier writs in question with Glanvill's writ of novel disseisin
is correct, an important change had in the meantime trans
pired in the mode of procedure. We say in the mode of
procedure, for the writ underwent little change in respect of
1 Unless of course the writ did prescribe a recognition.
2 This subject will be further considered in a future chapter.

THE WRIT PROCESS. 173
form, except by way of adding the summons of the recogni
tion. The formal, characteristic language of the old writs is
still used in the later precept. That addition to the writ,
however, produced clearly all the change that had occurred in
the procedure. Take it away from the mandate, and nothing
of substance remains but the form of the older writs ; to wit,
the statement of a complaint of a disseisin " injuste et sine
judicio," with a command to put the demandant into seisin
again, subject of course to the result of the trial. The change
referred to consisted in the general adoption of possessory
actions. When and how had this change of procedure come into
operation ? This is a question that has never been conclu
sively answered ; nor can it be so answered upon any evidence
now known. A suggestion may, however, be ventured which,
so far as the writer is aware, has not before been made.
Vacarius taught the Roman law at Oxford in the closing years
of the reign of Stephen, beginning perhaps in the year 1149.1
In the course of his labours he composed nine books out of
the Digest and Code ; and one of his chapters bears the title
of the corresponding head in the Digest, " De actionibus et
obligationibus." This title in the Digest, as is well known,
treats only of the division of actions into real, personal, and
mixed ; and the same, it may be presumed, is true of the
chapter in the (unpublished) MS. of Vacarius. But when
lecturing upon actions, Vacarius could hardly have avoided
teaching of the other division of actions, that of the canon
law, to wit, into petitory and possessory actions.2 At all
events, it is clear from the writers of the time, John of Salis-

1 Upon this subject we refer generally to Wenck's Vacarius.
2 This distinction of the canon law as to actions was perfectly understood in
the church courts of England at the beginning of the thirteenth century. — Chron.
Evesham, p. 130 (Rec. Com.). And there is good reason to believe that it had
, then been understood there for half a century, and that it was adopted, or perhaps
adapted, into the temporal courts from Rome. The only question is, when and
how this was done.

174 HISTORY OF PROCEDURE.
bury in particular, that, notwithstanding the inhibition of the
teaching and use of the Roman law which followed upon the
work of Vacarius, an interest in the study of that law was
excited among the clergy, which went on regardless of the
inhibition, and of the burning of books. The distinction
between actions petitory and possessory, it must be believed,
was thus learned by those who were the chief men of affairs
at that particular time more perhaps than at any other.
The clergy had preserved the only semblance of order
and good government during the turmoil of Stephen and
Matilda ; and it was through their power and intervention
that the peace of Wallingford had been effected and the
succession of Henry the Second settled. These men were
foremost in the state in the earlier and formative years of
Henry's reign ; and if it should turn out that, in the execution,
gradually carried out, as they were, of the reforms provided
for by the peace of Wallingford and Winchester (anno 1153),
which occurred four or five years after Vacarius began to
teach at Oxford, the clergy had suggested that, without doing
violence to English procedure, the nicety and precision of the
Roman classification could be established in England, it would
not be matter of surprise. The courts and the people were
perfectly familiar with inquisitions and recognitions ; the
clerical courts had constantly made use of them during the
late anarchy,1 regarding them, we may well believe (since
they were men of sense and intelligence), as the most satis
factory modes of trying causes when there were no charters ;
and it would be a natural and an easy matter to tack the
order for a recognition permanently upon the existing writs of
disseisin.2 And if the precedent of similar action in Normandy
was already before them, as has been thought by several
1 Ante, p. 63.
2 For what we know of the peace of Wallingford, see Roger de Wendover,
anno 1153; 1 Twysden, Script. 527; 1 Stubbs, Const. Hist. 332-334; 5 Freeman,
Norm. Conq. 220,

THE WRIT PROCESS. 175
eminent writers,1 the result would be all the more probable.2
It is possible, however, that the attainment of the Roman
system was accidental.
This change merely supposes that what was occasional, or
rather, frequent, but not uniform and stable, was now made
the established order of things in actions for disseisins ; not,
however, that the writs were to be had as matter of right, as
will hereafter be seen, but that, when authorised to issue, they
were to take the now established form. That writs ordering
recognitions for the trial of disseisins were in use in England
prior to the reign of Henry the Second, and that therefore the
newly-established writ of novel disseisin was no essential
innovation upon the ancient procedure, may now be shown.3
The principle of Glanvill's writ of novel disseisin was
that of an inquiry per patriam (that is, by a body of men of
the community sworn to speak the truth de visit et auditu*)
1 The evidence of this, however, is slight and unsatisfactory.
2 It would certainly be not less interesting if it should appear that the Magna
Assisa was also one of the results of the reforms agreed upon in the peace of
Wallingford. For seventeen years property litigations had been conducted in the
clerical courts, as we have seen in another chapter (ante, pp. 34, 37) ; and the
duel, we may well believe, was not permitted in such cases. What more natural
than that the clergy should now have insisted upon carrying this reform into per
manent effect, so far as the circumstances and prejudices of the times would permit ?
And for this they would have the precedent of not a few of the king's writs, as we
shall see later on.
- In a collection of "Assisa?" attributed to David I., king of Scotland, from the
year 1124 to the year 11 53, writs both of novel disseisin and of mort d'ancestor are
spoken of and regulated by name ; but the language used shows that the article
could not have been earlier than the last quarter of the twelfth century, even if so
early as that. The article is as follows: "Statuit dominus rex quod brevia de
morte antecessoris et nove dissaisine nunquam erunt placitata per calumpniam
petentis nisi tantum per assisam bone patrie et non alitur quia illi duodecim qui
electi sunt de bona patria ad assisam faciendam dicent solummodo suum veredictum
secundum punctos et articulos utriusque brevis et secundum hoc indicabitur
partibus.-" — Assise Regis David, c. 35 ; I Acts of Pari, of Scotland, 325.
4 The distinction between a. mere inquisition and a recognition was that the
former might be held by the court itself as the inquisitors ; while a recognition
was effected by a chosen body of men, not sitting as part of the court. An
example of the former may be seen in Glanvill, lib. 2, c 6. Both made inquiry
as to the facts in dispute, but the recognition had to report (recognoscere).

176 HISTORY OF PROCEDURE.
as to how the seisin stood at some stated previous time.
The question was, Was the demandant (or his prede
cessor in right) in peaceable possession at such and such
a time ? This principle of the writ of novel disseisin
was indeed as old as Domesday in England, and much
older on the Continent. We turn now to the ancient
records ; and first to the informal writs of the eleventh
century. In one of the earliest English writs extant, issued for the
recovery of lands, William the Conqueror thus addresses his
justiciars, archbishop Lanfranc, Roger, earl of Mortain, and
Geoffrey, bishop of Coutances : " Mando vobis et praecipio ut
iterum faciatis congregari omnes scyras quae interfuerunt
placito habito de terris ecclesiae de Heli, antequam mea
conjux in Normanniam novissime veniret. Cum quibus etiam
sint de baronibus meis qui competenter adesse poterunt, et
praedicto placito interfuerunt, et qui terras ejusdem ecclesiae
tenent. Quibus in unum congregatis, eligantur plures de
illis Anglis qui sciunt quomodo terrae jacebant praefatae
ecclesiae die qua rex Edwardus obiit, et quod inde. dixerint
ibidem jurando testentur. Quo facto restituantur ecclesiae
terrae quae in dominio suo erant die obitus Edwardi, exceptis
his quas homines clamabant me sibi dedisse. Ulas vero
litteris mihi signate, quae sint et qui eas tenent." *
The essential feature of this writ is the direction for an
inquiry upon testimony of the vicinage concerning lands
which had been the subject of an unsatisfactory trial ; the
inquiry being ordered in respect of the title on the day upon
which Edward the Confessor died. The title as it then
existed was to prevail, except in cases of gifts made by the
king since the Conquest.2 Disseisins prior to that time, if any,
were to be disregarded, if the occupant was then peaceably
possessed : later ones were within the letter of the writ.
1 Placita Ang.-Norm. 24.
2 This was made the basis of decision in all the disputes noticed in Domesday.

THE WRIT PROCESS. 177
Domesday book contains numberless cases of this sort, though
no writs have been preserved.1
In immediate connection with the foregoing writ there is
another relating to the same lands, addressed by the Con
queror to the same persons in this language : " Facite simul
venire omnes illos qui terras tenent de dominico victu ecclesiae
de Heli, et volo ut ecclesia eas habeat sicut habebat die qua
Edwardus rex fuit vivus et mortuus, et si aliquis dixerit quod
inde de meo dono aliquid habeat, mandate mihi magnitudi-
nem terrae, et quomodo earn reclamat, et ego secundum quod
audiero aut ei inde escambitionem reddam, aut aliud faciam.
Facite etiam ut abbas Symeon habeat omnes consuetudines
quae ad abbatiam de Heli pertinent, sicut eas habebat ante
cessor2 ejus tempore regis Edwardi. Praeterea facite ut abbas
saisitus sit de illis theinlandis quae ad abbatiam pertinebant
die quo rex Edwardus fuit mortuus, si illi qui eas habent secum
concordare noluerint, et ad istud placitum summonete W. de
G. . . . et alios quos abbas vobis nominabit."3
Beyond the fact that inquiry is directed as to the state of
the tenure at a prior specified time, there is nothing in either
of these writs in point oi form in common with the later real
property writs ; and they are here quoted partly for the pur
pose of showing the kind of material from which we must
start in the study of the history of writs for the trial of
seisin ; in other words, the shapelessness, looking to form, of
process of the kind in the eleventh century. It should be
added that these writs, as their terms fairly imply, relate in
fact to disseisins ; from which kind of wrongs the church at
Ely had suffered greatly after the Conquest.4

1 See Placita Ang.-Norm. pp. 38-40, 50, 53-56; Appendix C. pp. 293-307.
Seisin itself might be decided by the duel in some cases. Earl Alan v. Wido,
Placita Ang.-Norm. 60. Such indeed would always be the result upon impeaching
the word of a witness.
2 This word uniformly means "predecessor" in the language of the -Norman
period, and not "ancestor" in the sense of modern times.
3 Placita Ang.TNorm. 24. ' Ib. 22. N

178 HISTORY OF PROCEDURE.
The essential fact with regard to the foregoing writs is
that they contemplate a trial of the question stated in them
by the testimony of witnesses in some form, and that that
question is a simple, single question of fact. The decision
would determine nothing but that question of fact, if the
terms of the writ were followed, and such a decision did not
necessarily determine the right of property. Hence the
process in effect was like that of the later novel disseisin. If
the writ were granted after an issue joined upon the matter
of the right of property, the question of title turning solely
upon the question stated in the writ, then the decision would
reach the right ; but the writ was granted at the outset, before
the pleadings. In the ordinary course of things a property
writ did not at that time issue in advance with a direction to
try the right by inquisition or recognition.1 Indeed, when
in later times the Magna Assisa was introduced, the writ for
the recognition of " the greater right " was granted only after
issue upon the pleadings.2
What form of trial in fact followed after the issuance of
the writs quoted does not appear ; nor would that be material
unless it were clearly stated that the particular form of trial
had was a recognition, summoned in accordance with the
terms of the mandate. Even in the time of Glanvill, as we
have already observed, the course of a cause begun by a writ
for the trial of a question of seisin could be entirely deflected
by the defendant's plea on the appearance of the recognitors.
From a simple question of seisin, the cause might turn into a
question of the right of property.3 But this put an end to the
recognition, and other process followed.4 The recognition
proceeded only when the original question suggested by the
writ— whether there had been a disseisin of the plaintiff with
out authority of law — remained to be put to the jurors.
In the absence, then, of complete records of causes (and
' Some exceptions will be noticed later. = Glanvill, lib. 2, c 3 § 2
3 Ih. lib. 13, l. 11, §§ 3, 4J c. 20, § 3. < Ibid. '

THE WRIT PROCESS. 179
we generally have only the writ), the investigation and con
clusion must be based mainly upon the language of the writ.
Thus far we certainly have none of the technical language of
the writ of novel disseisin of Glanvill.
No distinction was made, it seems, before the middle of the
twelfth century between disseisins of lands and of movables,
such, for example, as ships ; and writs for the redress of dis
seisins of personalty may therefore be quoted in the present
connection. The abbot of St. Augustine had been disseised
of a ship in the time of the Conqueror ; to recover which he
obtains from the • king's son the following writ addressed to
the sheriff of Kent : " Praecipio quod praecipias Hamoni, filio
Vitalis, et probis vicinis de S., quos Hamo nominavit, ut dicant
veritatem de nave abbatis de Sancto Augustino, et si navis
ilia perrexit per mare die qua rex novissime mare transivit,
tunc praecipio ut modo pergat quousque rex in Angliam
veniat, et interim resaisiatur inde abbas praedictus." '
Here was clearly the whole principle (as to movables) of
Glanvill's novel disseisin. A recognition is summoned in
advance to answer a particular, simple question of fact, of
recent date, knowledge as to which was the basis of the
election of the recognitors ; and it would seem to follow, as it
did with Glanvill's writ, that if at the trial an issue were
raised different from that involved in the question of the writ,
the recognition must have been set aside as unqualified to
decide the case. But that such a turn did not occur, and that
a recognition (probably) tried the question of the writ, ap
pears from another writ, issued afterwards by the same son of
the king to the sheriff of Kent, as before, in these words :
" Praecipio quod resaisias abbatem de Sancto Augustino de
nave sua, sicut ego praecepi per meum aliud breve, et sicut
recognitum fuit per probos homines comitatus, quod inde
abbas erat saisitus, die qua rex mare novissime transivit ; et in
pace teneat."2 1 Placita Ang.-Norm. 33. 2 Ibid. N 2

180 HISTORY OF PROCEDURE.
This second writ does not indeed state that a recognition
took place, but the language used, " et sicut recognitum fuit,"
is the language usually applied in later times to that mode of
trial ; and this taken in connection with the direct command
in the first writ to summon men " quos Hamo nominavit,"
leaves little room for doubt that the trial was by recognition.
But even if it was by community (party) witness, the fact
would still remain that a simple question of the recent
seisin was the only question put. However, we have yet no
characteristic, formal language.
The two following writs of Henry the First indicate some
what of change from the shapelessness of the foregoing. They
do not, indeed, resemble either of the preceding ones ; nor is
either of them used as a perfect precedent of the other. There
is, however, sufficient resemblance between them to be worthy
of notice ; and the suggestion of Glanvill in the one, " unde
ipsi sunt injuste et sine judicio dissaysiti," and in the other,
" si sine judicio dissaysisti abbatem," is to be observed.1
The first of these writs is addressed to Walter, son of
Wisceo, and runs thus : " Praecipio quod juste et plene resaisyas
abbatem et monachos Gloucestriae de terris et ecclesiis et
decimis et omnibus rebus quas pater tuus eis dedit in elemosi-
nam, unde ipsi sunt injuste et sine judicio dissaysiti ; et bene et
in pace et juste et honorifice teneant, sicut ipsi hoc dirationare
poterint per suos legales testes quod pater tuus eas eis in
elemosinam dedit ; et nisi feceris, episcopus Sancti David
faciat ne ipsi quicquam perdant pro penuria recti vel justitiae,
neque ego amplius inde clamorem audiam."2
The other writ, addressed to William, the constable, is as
follows : " Si sine judicio dissaysisti abbatem Gloucestriae de
1 This expression, used possibly in a technical sense, occurs in England as
early as in the reign of Rufus. See Placita Ang.-Norm. 308. And it is not im
probable that we should find it in writs of the eleventh century if more were known.
ft cannot be positively affirmed that technical language was unknown to the writs
of that time without a knowledge of all that were used ; but those that we do
know are shapeless and untechnical.
2 Ib. 128.

THE WRIT PROCESS. 181
Coleby quod pater tuus dederat monachis Gloucestriae in
elemosinam, tunc praecipio quod eum juste inde resaysias, et
teneat ita bene sicut tenuit die qua pater tuus fuit vivus et
mortuus, ita ne super hoc amplius ei injuriam facias, ne sine
justo judicio dissaysias. ... Et nisi feceris, justitia mea et
vicecomes faciant."1
Passing over the reign of Stephen, as wanting in writs of
the kind under consideration, we come to the time of Henry
the Second. Here we shall find the course of development
renewed at the very outset ; almost every writ for the recovery
of lands pointing directly to Glanvill. The two following writs
of the king were executed in the course of one and the same
litigation, perhaps in the year 1 154 :
The first is addressed to the sheriff of Berkshire, and
proceeds thus : " Si abbas de Abbendonia injuste et sine judicio
dissaisatus est de terra sua de Mercheham et de Middletona,
et de Appelford, tunc praecipio quod eum inde sine dilatione
et juste resaisias ; et teneat ita bene et in pace et juste sicut
ecclesia de Abbendonia melius earn tenuit tempore Henrici
regis, avi mei ; . . . et nisi feceris, justitia mea faciat fieri."2
This writ having been disobeyed, a second, in the nature
of an alias, is addressed to the sheriff of Oxford and his
officers, and runs as follows : " Praecipio vobis quod si abbatia
de Abbendonia injuste dissaisiata est de ecclesia de Mercheham
et pertinentiis suis, et de una hida terrae et dimidia in
Middeltuna, et de una hida in Appelford, sine dilatione earn
inde resaisiatis, et in pace tenere faciatis, sicut melius tenuit
tempore Henrici regis, avi mei ; et nisi feceritis, justitia mea
faciat."3 These writs were succeeded within a few years by the
following, issued by the king and directed to the sheriff of
Berkshire and his bailiffs : " Si ecclesia de Abbendona habuit
decimam de Mercham ad luminare ecclesiae, tempore Henrici
regis, avi mei, et anno et die qua fuit mortuus et vivus, et post,
1 Placita Ang. -Norm. 130. 2 Ib. 169. 3 Ib. 170,

182 HISTORY OF PROCEDURE.
et inde sit dissaisita injuste el sine judicio, tunc praecipio quod
sine dilatione inde cam resaisiatis ; et ita bene et in pace et
libere et juste et quiete tenere faciatis sicut melius et liberius
tenuit tempore Henrici regis, avi mei." 1
About this time the abbot of Abingdon was disseised of a
market at Abingdon by a temporary mandate of the king, on
complaint of men of Wallingford that the abbot was not
entitled to it ; his prescription, as they affirmed, not running
back to the reign of Henry the First. The abbot now pro
cures, in turn, a writ from the king, ordering a recognition
upon this very point of the duration of the prescription; and
on that point the recognition proceeds. The writ of course
omits to speak of the disseisin as " injuste et sine judicio,"
because it was effected by the king's own order. It is addressed
to the justiciar, Robert, earl of Leicester, and runs thus : "Prae
cipio ut, convocato omni conventu [comitatu ?] B., xxiv.
homines de senioribus qui Henrici regis, avi mei, tempore
fuerunt, eligere facias. Qui si jurare poterint quod in diebus
ejus plenum mercatum in A. fuerit, ita sit et nunc. Si vero
nee viderint, nee jurare poterint, ut rectum est, prohibeatur,
ne amplius inde clamorem audiam."2
The last writ of this reign to be noticed before quoting
Glanvill is the following, addressed by the king to Ralph
Suessio : " Si monachi de Abbendonia sunt dissaisiati injuste ct
sine judicio de terra Nigelli de Colebroc quam clamant, tunc
praecipio quod juste et sine dilatione eas inde resaisias, sicut
inde saisati fuerunt tempore regis Henrici, avi mei ; et nisi
feceris, justitia vel vicecomes metis faciat fieri."3
In a series of writs relating to disseisins, therefore, from
the time of Henry the First to about the fifth year of Henry
the Second, possibly a little later, we have the technical,
characteristic language of Glanvill's writ of novel disseisin ;
with at last a state of tolerable regularity in the whole make
up of the precept. And in the next to the last writ, the whole
1 Placita Ang.-Norm. 197. 2 lb. 200. 3 Ib. 250.

THE WRIT PROCESS. 183
writ of Glanvill, save its verbal aspect, is barely escaped by
the accident that the disseisin could not be spoken of in the
usual way. With these precedents before the reformers of the
time, especially with the writ as to the market of Abingdon,
or others like it, of which there were doubtless not a few, the
establishment of Glanvill's writ was an easy matter, and not
open to objection as a foreign (Roman) innovation. We now
quote Glanvill's writ in full.
The following is his writ applicable to a case of disseisin
of pasture lands : "Rex vicecomiti salutem. Questus est mihi
N. quod R. injuste et sine judicio disseisivit eum de communi
pastura sua in ilia villa quae pertinet ad liberum tenementum
suum in eadem villa post ultimam meam transfretationem in
Normanniam. Et ideo praecipio tibi, quod si praefatus N.
fecerit te securum de clamore suo prosequendo, tunc facias
duodecim liberos et legales homines de visineto videre pas-
turam illam et tenementum et nomina eorum imbreviari facias
et summone illos per bonos summonitores quod tunc sint
coram me vel justiciis meis parati inde facere recognitionem." l
It will be seen, as we have previously stated, that Glanvill's
writ makes use of all the technical language of the writs above
quoted, except the nisi feceris clause ; which would of course
be inapplicable to process of the King's Court.2 If the writ
had stopped with the first sentence, it would have been sub
stantially and technically like the manorial writs, though
expressed with more precision ; but what follows, apart from
the order of a recognition, is nothing more than is contained
in other writs issuing for the trial of causes in the King's
Court. Nothing therefore has been added to the manorial
writs, or rather to the writs presumed to exist and to furnish
models for the manorial writs, except the command for a
recognition. 1 Glanvill, lib. 13, c. 37.
2 A nisi fecerit clause occurred in the writ of right issuing from the King's
Court, but that had reference to another matter. — Glanvill, lib. 1, c, 5.

1 84 HISTORY OF PROCEDURE.
It could probably be shown without much difficulty that
the principle of each of the recognitions of Glanvill had been
in use in England ever since the Conquest. Domesday was
itself a great inquisition ; and it contains many cases which
were litigated apparently under the new procedure. There
can be little doubt that the variety of causes thus determined
in the taking of the survey was sufficient to furnish examples
of the principle of all the recognitions of the twelfth century.
The almost uniform inquiry put to the community as to a dis
puted claim to property in Domesday was, How stood the
case "tempore regis Edwardi ? " ; just as in the time of Henry
the Second the question put to the recognitors in most cases
was, How stood the case in the lifetime of A., or in the time of
Henry the First, or before the king's last voyage to Normandy?
Inquisitions and recognitions in a great variety of cases
continued throughout the reigns of the Conqueror's sons and
of his grandson, as well as of the reign of Henry the Second.
The following writs, not before quoted, may be specially
noticed :
In the year 1094, William Rufus to the sheriff of Kent :
" Fac recognosci per homines hundredi de M. quas consuetudines
abbas Sancti Augustini habere debet in villa de N., et quas
olim habuit. Et tales fac ei habere sine mora et nominatim
de isto auxilio, sicut olim habuit."1
It will be noticed of this last writ that the inquiry
directed to be made relates to the customs which the abbot
of St. Augustine ought to have in N. The case of The Monks
of St. Stephen v. The King's Tenants2 is of the same import.
A writ of Henry the First, perhaps anno 1124, in like manner
directs R. B. "inquirere per legales homines de O. quod
habere debeat [abbas Vincentius] curiam suam."3 A writ of
Geoffrey, earl of Essex, contains the following direction :
" Fac recognosci per vicinum et probos homines illius pro-
vinciae, si quinque acrae terrae quas W. L. tenet et illos inde
1 Placita Ang.-Norm. 66. 2 Ib. 119. 3 Ib. 121.

THE WRIT PROCESS. 185
dissaisivit, quas illi canonici calumniant, sint de eorum
tenuera ; et si recognitum fuerit, fac inde eos saisiri." l
Not a few of the records of Domesday are of a similar
nature to the writs quoted. Thus, in the case of a claim of
Ralph Pagenel against the church of St. Peter of York to six
oxgangs of land in M., "homines qui juraverunt dicunt esse
Sancti Petri."2 Another case is still more definite. " Socam
quam clamat G. T. in Birland, dicunt esse debere episcopi
Dunelmensis in Houedon."3 In another disputed claim, the
men of the hundred "nesciunt quis eorum habere debeat!'*
Again, "sex bovatas terrae in Rudetorp quas clamat archi-
episcopus testantur [homines de hundredo] Gisleberti Tison
esse debere!"* In another case the men swore that certain
land in dispute "regis esse debere!'^ In another case "homines
de treding dicunt quod non debet habere (R. de B.) nisi socam
in C."7 In another "affirmant homines de treding quod
archiepiscopus jure debet habere hanc socam."8 In another
"wapentac portat Widoni testimonium quod jure ejus sunt
tres carucatae terrae." 9 But whether these findings may not
have gone beyond the question actually submitted, as might
be the result in any clear case, it is impossible to say. The
questions have not been preserved.10
The language of the writs last quoted, in its natural and
probably true import, requires or permits a determination of the
present right to the subject of dispute, and not merely the
seisin. No distinct, simple question of fact is put ; and it could
not surpass the terms of the writ to submit the question of
property. Writs having this kind of language were a clear
precedent for the Magna Assisa, the reform of Henry the
Second by which the tenant in a writ of right or in a praecipe
quod reddat was enabled to escape the duel, and put himself
upon a recognition as to " the greater right " to the property ;
1 Placita Ang.-Norm. 160. B Ib. 47. 3 Ib. 48. 4 Ib. 50.
s Ibid. 6 Ib. 51. ? Ib. 55. 8 Ib. 58. 5 Ib. 60.
10 As to questions of right of property under this and the earlier Germanic
procedure of the Continent, see Brunner, Schwurg. 47, 122, 176.

186 HISTORY OF PROCEDURE.
only that these writs went further than the Magna Assisa in
that they were given to the plaintiff, while that was ordinarily
available only to the defendant. It was probably considered
impracticable in those times to make a settled policy of an
occasional proceeding, such as that evidenced by the foregoing
writs. The duel was now too firmly rooted to be struck away
at a blow.
Except as touching a sentiment of national feeling in
an Englishman, it is of no special importance whether the
recognitions of Glanvill were in use a short time in Normandy
before they were introduced in their settled form in England
or not. They were at all events, it is conceived, a develop
ment from common Norman and English materials. But if
we would arrive at a correct conception of the amount of
legal progress made in the twelfth century, a question arises,
relating to the adoption of the recognitions in England, of
great importance ; to wit, the significance of the step as to the
right to have process from the King's Court.
The only point of importance made in the argument for
the priority of Normandy in respect of the recognitions (not
of course to prove that priority1) is that they were invented,
or rather fashioned, by Henry the Second before he had
ascended the throne of England, for the purpose of giving
his people in Normandy the use as matter of right of what
had theretofore been mere matter of grace.2
That this view of the object of the settlement of the form
of the recognitions cannot be sustained, or that, at all events,
it failed of accomplishment, is, in our opinion, clear, for the
1 The priority of Normandy as to the principle of the recognitions is questioned
by no one : whether the particular fixed recognitions of Glanvill were first put
into form and use in Normandy is another question. But the question is of little
importance. Whether first put into final shape in Normandy or in England, it is
apprehended that we have shown that they were the result of a gradual develop
ment, and not the creation of specific reform. The point now to be made,
however, is that these recognitions were not put into set form for the purpose of
making justice (so far) free and equal; that they were no more to be had as matter
of right now than before.
2 Brunner, Schwurg. 303, 304,

THE WRIT PROCESS. 187
following reason. The fees paid for having recognitions were
of widely varying amounts. There appears to have been
nothing like uniformity in regard to them ; and the sums
paid, as reported in the Pipe Rolls, are generally, if not
always, high. They seldom fall below ten shillings (a very
large sum, surely, in those times), and sometimes are as high
as sixty pounds, certainly an enormous price for having that
form of justice which was to be had as matter of right. The
more common fees in Normandy ranged from twenty to forty
shillings.1 Now this variation applied to the familiar recognitions of
Glanvill. No distinction is made in favour of the process
supposed to have been fashioned in the interest of the people
and to be had as matter of right. There is another fact that,
in this connection, is not without some significance. The
writers of the thirteenth century state that the recognitions
were introduced in the interest of the poor and feeble, espe
cially for widows and orphans, against the rich and powerful.2
But, aside from the fact that even the lower fees of the Ex
chequer Rolls were very high, there are instances where the
heaviest fees are paid by the very class to be specially pro
tected. Thus there are several entries in the Norman Rolls
for the year 1 180, where widows paid high sums " pro habenda
recognitione de dote." 3 In one case the sum of two marks
of silver4 was paid ; while in another case the great price of
sixty pounds was exacted.5
The same irregularity in the price of writs prevailed in
England until well on in the thirteenth century, at least. The
following are examples of sums paid for having inquisitions
1 See the examples given by Brunner, Schwurg. 307. These were the fees
accounted- for at the Exchequer by the sheriffs. It may be that smaller fees were
paid directly to the king and not accounted for in the fiscus ; but that would not
affect the view taken in the text.
2 See also Glanvill, lib. 2, c. 7, as to the Magna Assisa.
3 In England the process in cases of dower was the writ of right. — Glanvill,
lib. 6, cc. 4, 5 ; ante, p. 5,
4 26s. 8d. s Brunner, Schwurg. 308.

1 88 HISTORY OF PROCEDURE.
or recognitions : Walter, filius A., pays five marks " pro recog
nitione comitatus habenda de terra de R."1 William, filius S.,
owes ten marks " pro recognitione quam habuit de terra de T."2
William, filius U., owes one hundred shillings " pro habenda
recognitione de maritagio matris suae."3 Mauricius de W.
owes three marks " pro habenda recognitione de i. carucata
terrae in H."4 William de H. pays five marks "ut inquiratur
per legales mulieres si Emma de S., quae dicitur peperisse,
haberet puerum annon."5 Henry de M. owes forty shillings
"pro habenda recognitione de morte W. fratris, de ii. jugis
terrae."6 Hugh, filius R., owes one mark "pro recognitione i.
masagii in civitate L."7 William de L. pays fifteen marks
"pro habenda recognitione de terra de B."8 Robert de H.
pays thirty-two pounds four shillings and eight pence " ut
habeat assisam de morte W. fratris sui de feodo ii. militum et
dimidii in S."9 Humphrey B. pays forty shillings "pro recog
nitione de feodo dimidii militis."10 Henry de K. and his wife
pay forty shillings "pro habenda Magna Assisa de i. hida
terrae in C."n Henry, filius A., owes ten " fugatores pro re
cognitione feodi i. militis."12 William W. pays four pounds six
shillings "pro habenda recognitione de visineto si appellatus
fuit per A. necne." l3 William O. owes one hundred shillings
" ut inquiratur si fuit cum comite Johanne contra regem." l4
Robert de E. pays one hundred shillings " ut inquiratur utrum
R. C. et W. et H. appellent eum de roberia et latrocinio per
invidiam vel atiam, annon."15 Heniy de B. owes ten marks
"pro habendo brevi de morte antecessoris." l6 Walter and
John T., his son, owe ten marks "pro habenda inquisitione per
sacramentum legalium hominum burgi de N. si domus plum-
bata in N. fuerit jus Julianae matris ipsius Johannis, quae
mortua est, et cum ea data in maritagio praedicto Waltero."17
William de S. owes ten " bisantia pro habenda recognitione de
1 Placita Ang. -Norm. 271. 2 Ib. 273. ' Ib. 274. 4 Ib. 276.
s Ibid. 6 Ibid. ' Madox, Hist. Exch. c. 12, § 2 ; fol. ed. p. 297,
8 Ibid. 9 Ibid. '° Ib. 298. » Ibid. " Ibid. '3 Ibid. "* Ibid,
¦s Ibid. This suggests the later writ de odio et atia. '6 Ibid. '' Ib. 299.

THE WRIT PROCESS. 189
dimidia virgata terrae in W."1 Alice de B. and others owe ten
marks " pro habenda Magna Assisa . . . . de c. acris terrae
de gavelkinde in B."2 Galfridus M. owes thirty marks " pro
habenda recognitione de terra de C."3 John de M. A. owes
ten marks "pro habenda inquisitione si ecclesia de L. sit amota
a feodo ipsius .... injuste et sine judicio,"4 — the writ of
novel disseisin. Earl Patricius pays forty marks and four
palfreys "pro habenda recognitione .... si E. avunculus
.... patris comitis Patricii fuit saisitus in dominico suo sicut
de feodo de villa de B."5 The abbot of St, Edmund owes
fifty marks "pro habenda inquisitione .... utrum mer-
catum quod monachi de E. de novo habent .... sit ad
ocumentum .... Sancti Edmundi necne."6
These are some of the cases between the seventeenth year of
Henry the Second (1170) and the fourth year of John (1203).
Many other cases of the purchase of writs at the like irregular
rates could be added as enforcing the meaning of the clause of
Magna Charta concerning the sale and denial of justice. It is
worth notice that if it be true, as is generally believed, that the
knight's fee had a fixed valuation at this time — it had not a
fixed acreage — there is convincing evidence in the examples
above given that the sum to be paid for a real property writ
was not dependent upon the value of the land in litigation.
Thus, Robert de H. pays thirty-two pounds four shillings and
eight pence for an assise of mort d'ancestor concerning two-
and-a-half knights' fees, while Humphrey B. pays but forty
shillings for a recognition concerning half a knight's fee.
Henry de K. pays the same amount for having the Grand
Assise concerning a hide (one hundred acres) of land.
If, however, it be said that the price of the writ varied with
the meatis of the party together with the amount involved 7 in
the particular litigation, the answer is, that the new regulation
then amounted to nothing ; for this was always true, before as
1 Madox, Hist. Exch. supra. 2 Ibid. 3 Ibid. 4 Ib. 300.
s Ibid. 6 Ib. 301. i See Brunner, Schwurg. 308.

1 90 HISTORY OF PROCEDURE.
well as after the reign of Henry the Second. All that was ever
necessary to obtain an inquisition or a recognition was to pay
enough to satisfy the king's demands. There was little
restraint upon his will in such matters, so far as history
indicates. Besides, no great progress in the reform of the
law in this respect was made until the matter of having
justice ceased to be the subject of a price, even though the
price were proportioned to the sum involved and the means
and merits 1 of the plaintiff. The idea that litigants were to
be taxed as such, and that too without uniformity, for pur
poses of general revenue, and not merely to the extent of
the cost of the clerical and ministerial work2 required in the
course of an action, was never abandoned or relaxed in the
twelfth century, even if the justice of it was questioned.
It was not Henry the Second, in the middle of the twelfth
century, much less the youth Henry, Duke of Normandy, but
Stephen Langton, more than sixty years afterwards, at the
head of the clergy, baronage, and people of England, who
struck the effectual blow at the vicious practice (prerogative3)
of selling justice. "Nulli vendemus, nulli negabimus aut
differemus rectum aut justiciam" — the most familiar passage
of Magna Charta — has an unmistakable meaning.4 The
practice, introduced by the Conqueror, of setting a price upon
the dispensation of justice in the new forms continued without
intermission until a power had arisen strong enough to assert
its right to stamp it out. No successor of the Conqueror
ever willingly relinquished it.
It is highly probable, indeed it is almost certain, as we
1 Comp. Dialogue of the Exch. lib. 2, c. 23 ; Stubbs, Sei. Ch. 243 (2d ed.).
2 It is more than doubtful if other costs of the judiciary should be put upon
litigants. The judiciary is part of the general government administering both the
civil and the criminal law in the interest of the State, as well as of litigants.
3 King John was right in a strictly legal point of view. He was only defending
a prerogative as old as the Conquest. But the day of such things was now well-
nigh past.
4 Madox has also enforced this view in the last section of the twelfth chapter
of his History of the Exchequer (p. 314, fol. ed.), as a result of the teaching of the
facts presented in that chapter.

THE WRIT PROCESS. 191
have already seen, that some special regulation of the form of
the writs used for recognitions was made in the reign of
Henry the Second. We have already ventured the suggestion
that an admiration for the Roman system of actions may
have influenced the movement. The result, even if accidental,
certainly was to fix the Roman system of possessory and
petitory actions definitely in English procedure. The regula
tion would also operate in the interest of the clerks of the
courts, as a saving of time and labour. It may also be
believed, perhaps, that the advisers of the king hoped to
secure a more just and equal administration of justice for
litigants ; and possibly the king may have given his sanction
to this purpose. But the time was not ripe for the con
summation of such an end. The king's pecuniary needs were
too urgent to permit an abandonment of a bad policy for a
sentiment ; and there was no party as yet strong enough to
compel him.
The history of several classes of writs has now been
examined, down to the close of the reign of Henry the
Second ; the result of which can scarcely be considered
matter of doubt. The English writs in question, save, perhaps,
the Magna Assisa writ, were not, according to the results of
this investigation, created by Glanvill or by any other person,
but passed through a natural development from shapelessness
and lack of formal language to something like definiteness of
framework, prior to the appointment of Glanvill as chief
justiciar. Probably before his time, and under the adminis
tration of his predecessor, Richard de Luci, the materials at
hand were from time to time subjected to general revision,
and put into the final form in which they appear in Glanvill's
book. It must be conceded that few clear prototypes of the other
familiar recognitions of Glanvill (mort d'ancestor, de ultima
presentatione, and utrum aliquis sit infra etatem) can be
found among known English materials; though we have

192 HISTORY OF PROCEDURE.
already remarked that it would not be difficult to find
sufficient evidence in litigation of the principle involved in
them. We are not justified in supposing that the progress
indicated in the adoption of them was anything more than
had been the case in respect of the writ of novel disseisin ; a
regulation of process. In no significant sense were these new
writs obtainable as matter of right ; and it is extremely im
probable that they were made itno ictu. Violations of the
rights for the redress of which they were used had not arisen
upon a sudden.
Besides the formal writs, there are, it will be remembered,1
others, belonging to the third class, which never became de
cursu. Some of these were of a kind which in modern times
would be called equitable. The most numerous were what
may be termed writs of protection. These writs are interesting
as being the forerunners of modern writs of injunction, and
perhaps of the protective process generally of the early
Chancery. Among the examples, the Conqueror issues a writ (already
quoted) in favour of the church of Ely, addressed to Lan
franc, bishop Geoffrey, and Robert, earl of Mortain, in these
words : " Defendite ne Remigius episcopus novas consue
tudines requirat infra insulam de Heli. Nolo enim ut ibi
habeat nisi illud quod antecessor ejus habebat tempore regis
Edwardi,"2 etc.
The following, quoted once before, is by the same king,
being addressed to the abbot of Peterborough : " Mando tibi
et praecipio ut permittas abbatem Sancti Edmundi sufficienter
accipere de petra ad ecclesiam suam sicut hactenus habuit,
et non amplius sibi impedimentum facias in adducendis petris
ad aquam, quam antea fecisti."3
Rufus issues the following to Walter, filius Oteri : "Mando
tibi et praecipio ut abbati Abbendonae permittas habere suam
' Ante, p. 152.
" Id. p. 166 ; Placita Ang.-Norm. 27. A similar writ follows on p. 28,
3 Ib. 32 ; ante, p. 166.

THE WRIT PROCESS. 193
terram et suam silvam omnino liberam, praeter silvestram
silvam,et pascuam suorum hominum habeat in praedicta silva ; et
vide ne amplius de hae silva vel terra injuriam abbati facias."1
Henry the First to W. de Montefichet : " Permitte esse in
pace terram de Langleia, quam regina Mathilda, uxor mea,
dedit in eleemosynam Sanctae Mariae de . A., sicut melius
umquam fuit in pace tempore antecessoris tui,"2 etc.
The same king to Ared, his falconer, and to all his
foresters: "Volo et praecipio ut omnia ligna et virgus, quae
fuerint data, vel vendita hominibus abbatis F. de A. ad opus
suorum operum, sine omni impedimento et disturbatione
possint ea conducere in pace quocunque voluerint."3
King Stephen to his sheriffs and bailiffs and the townsmen
of Canterbury : " Prohibeo ne aliquis prohibeat quin homines
civitatis C. et provinciae eant et veniant ad molendinum quod
concessi et dedi Deo et ecclesiae Sancti Augustini infra
civitatem C, cum blado suo ad molandum,"4 etc.
Early in the ' reign of Henry the Second, Nigel, bishop
of Ely, "et baro de Scaccario" (as he describes himself in
the writ), issues the following to the sheriff of Gloucester :
" Praecipimus tibi ut facias monachos de Bordesleia tenere
suam terram de Cumbe bene et in pace, sicut saisiti sunt
per breve regis,"5 etc. This writ is of interest as suggesting
the exercise thus early by the Court of Exchequer (of which
Nigel was the chief financial member) of quasi equity powers.
There is difficulty, otherwise, in explaining the authority of
the bishop of Ely to issue a mandate to a sheriff in one of the
western counties. Nigel was neither chancellor nor chief
justiciar; and he acts expressly as a member of the Ex
chequer. We shall presently see another clear instance in
that court, somewhat later in date.
The last writ to be noticed is the following, directed by
Henry the Second to Jordan de S. : " Praecipio quod juste
manuteneas abbatem et monachos G. de elemosina mea et

Placita Ang. -Norm. 64.

2 Ib. 91. 3 Ib. 96.

* Ib. 159. See also 166.

s lb. 188, anno 1 156. O

194 HISTORY OF PROCEDURE.
antecessorum meorum de C. quam H. rex, avus meus, eis
confirm [ab]at carta sua, nee permittas quod aliquis eis injuriam
faciat, vel contumeliam,"1 etc.
This class of writs never became de cursu ; and that
accounts, in part at least, for the fact that the Court of
Chancery subsequently acquired exclusive jurisdiction over
such remedies. Had the writs of protection become de cursu,
the Provisions of Oxford (to be further considered hereafter)
would not have cut down the jurisdiction of the royal courts
in this particular.
Equity jurisdiction in the modern sense being considered
as resting upon the idea that parties owe no obedience to the
specific orders of a common law court — that is, that the
common law courts lack the power of coercing obedience
by orders in personam2 — there is evidence, apart from that
exhibited in the foregoing writs, and more directly to the
purpose, of the exercise of equity powers by the superior
courts of the Norman period.
In the case of the Prior and Convent of Abingdon v.
Thomas de Esseburn,3 the Court of Exchequer, by Glanvill,
having given judgment in favour of the plaintiffs, " praecepit
etiam praedicto Thomae, qui praesens erat, ut quoniam rationes
nostrae,4 sicut per nos coram eo [Glanvill] sufficienter pro-
batum erat, separatae sunt a rationibus abbatis, de his tantum
quae ad cameram abbatis spectant,5 curam haberet. Ad ea
vero quae ad nos spectant manum non apponeret, sed plenum
jus et potestatem, tarn in tenementis nostris quam in tenen-
tibus, nos habere permitteret. Dicebat enim tota curia quod
periculo nostro fieret, si quid a custodibus regis temptaretur,
quod abbatibus licere non debet."
1 Placita Ang.-Norm. 250. " Langdell, Summary of Equity Pleading.
3 Placita Ang.-Norm. 234. 4 The writer was a monk of Abingdon.
5 The abbot had deceased, and his interest in the' monastery had been taken
into the king's hand by Thomas ; who, however, had been seeking to get posses
sion also of the entire property of the monastery. The suit in its essence was a
proceeding for an injunction.

THE WRIT PROCESS. 195
This was in the year 1185. Two years later the case
of the Monks of Canterbury v. Archbishop Baldwin ' came
before Glanvill at Westminster, whether in the Exchequer
or in the King's Court does not appear. In this case the
monks of Canterbury had obtained a mandate from the pope,
directing three abbots to restrain the archbishop from acts
of alleged oppression. But while the three abbots " were in
deliberation on the form of executing the pope's mandate,"
the archbishop obtained from Glanvill the following writ,
addressed to one of them, apparently the leader in the
interests of the monks : " Praecipio tibi ex parte domini
regis2 per fidem quam ei debes et per sacramentum quod ei
fecisti, ut nullo modo procedas in causa quae vertitur inter
monachos C. et dominum C. archiepiscopum donee inde
mecum locutus fueris."
This writ may contain a suggestion of the familiar writ
of prohibition which the King's Court has always had juris
diction to use over courts usurping its authority. In reality,
however, it is another thing : it is not addressed to any court,
but to an individual, appointed and seeking a mode to execute
process on behalf of a court, the court of Rome.
But another writ follows in the same case, of which the
suggestion mentioned cannot be made. This is also issued
by Glanvill, and is addressed to the subprior and convent of
the monastery ; that is, to the parties complaining of the acts
of the archbishop. It is as follows : " Praecipio vobis ex parte
domini regis ne aliquo modo utamini contra dominum C.
archiepiscopum aliqua perquisitione quam contra eum quae-
sistis, donee inde mecum locuti fueritis. Et tu supprior
absque occasione et dilatione sis Londoniis in festo Sancti
Jacobi cum consilio conventus tui, auditurus et facturus quod
tibi dicetur ex parte domini regis, et ibi tunc tecum habeas
1 Placita Ang.-Norm. 240.
2 This was not done at any actual instance of the king, for he was then in
Normandy. O 2

i96 HISTORY OF PROCEDURE.
perquisitiones quae perquisitae sunt contra dominum C. archie
piscopum." '
There can be no doubt of the meaning of such a writ ; and
as to the second part of it, addressed immediately to the sub-
prior, it did not need the " sub-poena " clause of the later
chancery writ to make obedience compulsory. Refusal to
obey the writ would be contumacy, the last offence, almost,
known to the old law. Indeed, the contrast between the
ancient practice of the courts, back to the earliest times, and
the modern is nowhere so sharply drawn as in this matter of
requiring specific obedience to the authority of the courts.
Whoever refused to obey final summons even was in contu
macy, and liable to the fate of the " wolf's head." 2 Obedience
in all courts was the consummate requirement of the law.
We have now proceeded far enough with the investigation
proposed at the commencement of this chapter to justify the
statement of some conclusions ; the first one of which has
already been anticipated more than once.
I . Originally the writ had signified nothing in respect of
the form of action in a particular case, or rather, it had no
necessary connection with the formalism of the actual plaint
or count (to use a later term), further than that it ordinarily
specified the nature of the demand. The office of the writ
was simply to set on foot a suit under supreme authority ;
and this continued to be the case until perhaps the thirteenth
century. Few of the writs of Glanvill had become so fully
formulated as to show the technical language of the count :
that was for the most part a matter of later times, involving
another advance in the framework of the writ process. We
may also venture to affirm again, in this connection, as a
reasonable inference from what has been seen of the devious
course of the writs, that the formalism of an action was shown

1 In this connection the writs to defendants, quoted ante, p. 152, may be
referred to for comparison.
2 See the last chapter of this book, at the end.

THE WRIT PROCESS. 197
only by the count, and not (before the thirteenth century) by
the writ. The writ advanced at last to the count, but only
by slow and halting steps. The English forms of action are
older than the oldest formal writs. Behind the obscuring veil
of the writ process, the ancient formalism of the Folkmot,
modified somewhat by time, somewhat by the new procedure,
but still in its essential integrity, went on until at last the
old plaint had faded into the later count.
2. Throughout the Norman period the king's prerogative
to issue writs at will was unquestioned. There is no evidence
that the adoption of the writs of Glanvill laid any restric
tion upon the king in this particular.1 He continued to
issue writs whenever it suited his pleasure or answered his
pecuniary needs. The king sanctioned the use of the writs of
Glanvill ; and probably his justiciar generally felt bound to
follow them. The court clerks certainly were bound to do
so. Suitors must have had to go to the king (or possibly
to the Council) for writs adapted to special and peculiar
cases. This must have been the case from the time when
writs assumed the state of settled forms of action. But the
fact that special application must be made to the king, or, in
his absence, to the justiciar, for special writs must have made
such applications exceptional ; and actions " on the case," to
borrow a modern term, could not at this time have played a
very general part in the administration of justice.
No limitation, however, had yet been placed upon the
royal prerogative; and the kings of England continued to
issue special writs, without any effectual restraint, until after
the middle of the thirteenth century. In the year 1258 the
Provisions of Oxford were promulgated ; two separate clauses
1 Compare Glanvill, lib. I, c. 5, for instance, where it is said that the king, if
he wish, may give a writ to a party seeking a trial in his court. So, too, the king's
charter could be set up in bar of a recognition (Glanvill, lib. 13, c. 11), which
before Magna Charta could always be obtained for a price. Indeed no inquiry
could be made into the king's charters or acts even in the time of Bracton. —
Placita Ang.-Norm. 28, 29; Bracton, 34.

igg HISTORY OF PROCEDURE.
of which bound the chancellor to issue no more writs except
writs " of course " without command of the king and of his
Council present with him.1 This, with the growing indepen
dence of the judiciary on the one hand, and the settlement
of legal process on the other, terminated the right to issue
special writs, and at last fixed the common writs in unchange
able form ; most of which had by this time become developed
into the final form in which for six centuries they were treated
as precedents of declaration.
The result was that within thirty years it became necessary
to pass a statute to put the procedure of the courts upon its
ancient footing. The Statute of Westminster II. c. 24, anno
1285, authorising actions on the case, was only an attempt to
return to what had existed throughout English history until
writs of course, supplemented by the restrictions contained in
the Provisions of Oxford, had tied the hands of the courts.
In so far as the attempt was a failure, the result was the
1 " Ceo jura le chanceler Engletere. Ke il ne enselera nul bref fors bref de curs
sang le commandement le rei et de sun conseil ke serra present." — Ann. Monast.
448. " E ke il [le chanceler] ne enseler hors de curs par la sule volunte del rei ;
mes le face par le cunseil ke serra entur le rei." — Ib. 451.
That these clauses were aimed, in part at least, if not mainly, at judicial
process, seems clear both from the Provisions themselves, especially in connection
with the Provisions of Westminster (made in pursuance of the former), and the
circumstances which called them forth. The Oxford articles are largely occupied
with regulations for the administration of justice in the courts ; while those of
Westminster are given up to minute and extensive ameliorations of procedure. To
understand the restriction upon sealing writs out of course to refer to judicial
process is in keeping with the tenor of the Provisions. The strongest evidence as
to the purpose of the clauses in question, however, lies in the circumstances under
which the Provisions of Oxford were promulgated. The Provisions point in terms
to Magna Charta, which had failed of its object. Justice was still sold and denied
by the. king at his pleasure.1 The courts must now not only be put into the hands
of men representing the baronage and commonalty, but the exclusive right of such
to settle the disputes brought to litigation must at length be asserted and upheld.
This could not be effectually done if the king retained and continued to exercise
his ancient prerogative of issuing writs at will. Hence the clauses abridging his
prerogative. Litigation was to be forced into the courts, where justice was not
sold or denied for money.
1 "Nulli vendemus, nulli negabimus .... vectuin aut justiciam," had ihe present king
(Henry the Third) as well as his fsuher said.

THE WRIT PROCESS. 199
natural consequence of the state of things following upon the
use of the writ process, and finally established by the Provisions.
Such was the history of the development of the writ
process in England until the end of the twelfth century j1 and
it may now be inquired what purpose had been served by its
introduction and use. Prior to the Conquest, writs were
almost unknown in England as judicial process. No use for
them had been found, except for authorising the trial of a
cause before some special delegate not possessed of the
requisite jurisdiction. It served this purpose afterwards use
fully, upon a more extensive scale ; but it was now the
embodiment of the principle that the king personally was the
fountain of justice. It was, indeed, the symbol and expression
of arbitrary power. It expressed the king's sole right over the
dispensation of justice, a right which the king exercised on
his own terms until Magna Charta was extorted from John,
The sale and denial of justice for money were chief features
in the use of the writ ; and the very term by which at the
present day process is said to be obtained — the purchasing
of a writ — points to one of the main purposes to which, in
England, it was directed from the beginning. The writ
certainly was no part of what by some has been called " the
consummate wisdom " of the common law.
This, however, is but a half truth ; and to stop here would
be to leave a false view of the uses of the writ. The most
salutary result accomplished in the history of English juris
prudence was the establishment of the (nearly) universal
jurisdiction of the King's Court, including both of its branches,
the central court about the king's person (with the Exchequer
and the Council) and the Eyre. The appearance of the
King's Court, with its unwillingness to be cramped by the
limited jurisdiction of the old Theningmannagemot and of
the Confessor's Aula Regis, was, indeed, as we have seen in a
previous chapter,2 a disturbing element ; but the disturbance
1 And in one particular for nearly a century later. 2 Ante, p, 75,

266 HISTORY OF PROCEDURE,
affected in the main only the local franchises, whose exclusive
privileges were fatal to the existence of national power. The
nation, and in the end certainly the people through the
counties, were vastly benefited by the breaking down of the
exclusive jurisdiction of the manors. Legislation was indeed
necessary, as we have seen,1 to open the franchises to the
sheriffs and justiciars itinerant; but how far the King's Court,
by means of the writ process, was able to accomplish the
result has been pointed out.2 It was largely, indeed mainly,
by this process that the wholesome jurisdiction of that court
was built up and established. And this was the case not only
as against the franchises, but also as against miscarriages of
justice in the popular courts of the county and the hundred.3
' Ante, p. 101. 2 Id. pp. 77-79. 3 Id. pp. 79, 83, 84.

CHAPTER V.
DISTRAINT.
The distinction which prevails in the English law between
actions of contract and actions of tort is, from an historical
point of view, as well as internally considered, clearly marked.
In the earliest of the Germanic codes, the Salic law, breaches
of contract were attended with a substantive right of distraint,
while torts were not ; I and this distinction, under modifica
tions, has continued throughout the history of the English
law. The fact of the existence of a right to distrain upon
cattle damage-feasant has no bearing against the correctness
of the distinction ; which right, if not akin to the notion — it
did not spring from it probably — that a thing, whether an
animal, a slave, or an inanimate object, which had done
damage to a man, might be appropriated by him in compensa
tion, was at all events only a special exception, dictated as
well by good sense as by human nature. The cattle were
1 In Normandy distraint was exercised in cases ex delicto in the thirteenth century.
— Summa, lib. 2, c. 8, in 7 Ludwig's Reliquiae, pp. 159 et seq. Whether this was
as a substantive proceeding or as auxiliary to summons does not clearly appear.
But the subject there begins with the sentence : "Justiciatio est coactatio super
aliquem facta ut juri pareat ex commisso." See also §§ 5, 9, pp. 160, 161.
Glanvill also speaks of distraint in a case ex delicto (assault by a tenant upon his
lord), but the distraint appears to have been auxiliary, upon failure of summons. —
Lib. 9, c. I, § 8. Criminal distraint is of course another thing. As to civil dis
traint generally, comp. the pignoris capio, Gaius, lib. 4, cc. 26-29, 32 > Keller, Der
Rbmische Civil Process, § 20.

202 HISTORY OF PROCEDURE.
upon the premises of the injured party, and already in his
hand, by the act or fault of the owner ; and they were most
naturally detained until compensation was made for the
damage they had done. Nothing was taken out of the hand
of another. Exceptions of this sort, the promptings of human
nature, are to be looked for in the case of every rule.
This substantive right of distraint, though it was enforced
by leave of court, as will be seen, was an entirely different thing
from auxiliary distraint following upon ineffectual summons to
court. Substantive distraint was, like foreign attachment at
the present day, a distinctive mode of suit, corresponding to,
and running parallel with, the institution of suit by summons.
Auxiliary distraint was a secondary matter, resorted to
because of the failure of summons. Substantive distraint
was designed to compel speedy payment of a debt, auxiliary
distraint to compel the party for any cause to come into court.
By the one mode of redress a creditor obtained immediate
security for the payment of his demand ; while the other was
not granted until after the third or fourth disobedience of
summons. But there was no determination upon the rightful
ness of the demand in the taking of a distress, though all the
forms of the law of distraint may have been properly observed,
any more than there is in a modern attachment or distress.
The legality of the claim could afterwards be tested by the
party distrained replevying ; the result of which would be to
bring the matter before the court for trial.
There is no greater mistake, it is apprehended, than to
suppose that private distraint as it has existed in modem
times in England and in America — 'distraint made without
judicial permission — is archaic, as having been transmitted in
its present form from the period of supposed early Anglo-Saxon
law. The time perhaps was, when non-judicial distress was
exercised among the Germanic peoples ; but that time was
prehistoric, and is only matter of inference from the course
of events in actual history, and not capable of proof. But

DISTRAINT. 203
whether private distress once prevailed or not, it is certain
that from the time when the Germanic nations first appear in
legal history until the period of which we are writing, distraint
between freemen of the same gau, hundred, or (later) munici
pality1 was lawful only when effected under judicial authority.
In the earliest of the German codes it is declared that if
anyone should distrain his debtor without authority of a
judge, he should lose his debt, though he had acted in
ignorance merely.2
The later Germanic codes are not so clear, but there is no
instance, so far as the writer is aware, in which it is said that
distraint can be made without license of court. Whenever
anything is said upon this point, there is always a prohibition
of proceeding in that way ; and some of the prohibiting edicts
clearly relate to substantive distraint. As to the case of
auxiliary distraint, there is no doubt of the requirement of
judicial authority in all cases. It will be necessary to quote
the Continental codes upon the subject of substantive distraint,
since the English law, as given in the custumals, is meagre,
and probably relates only to auxiliary distraint, with the
exception of a single passage in the Laws of Henry the First.
In the Laws of the Ostrogothic kings, we find the following
provisions : We deny license to anyone to take distress at his
will : if there be cause for it, the authority for doing it belongs
to the judge.3 If a creditor take by force from his debtor pro
perty not obligatas to him (the creditor), he must restore the
same within a year under a fourfold penalty : after a year he

1 Comp. Customs of Newcastle-upon-Tyne, temp. Hen. I. "Burgenses possunt
namiare foris habitantes infra suum forum et extra, et infra suam domum et extra,
et infra suum burgum et extra, sine licentia prtepositi, nisi comitia teneantur in
burgo, et nisi in exercitu sint vel custodia castelli. Super burgensem non potest
burgensis namium capere sine licentia propositi. "—Stubbs, Sei. Ch. 111 (2d ed.).
2 "Si quis debitorem suum per ignorantiam sinejudice pignorare prasumpserit
antequam eum nesti canthechigio [putting him under the ban], et debitorem perdat,
et insuper similiter si male pignoraverit," etc. — Lex Sal. c. 74 ; Hessels and Kern,
408. " Edicta Regum Ostrogothorum, c. 123 ; I Cane Leges Barb. 12.

204 HISTORY OF PROCEDURE.
shall pay in simphtm.1 According to the Laws of the
Lombards, if anyone having a debtor call (" appellet ") him
once, twice, and thrice, and he does not pay the debt, or
arrange the matter (" composuerit "), then may he distrain him
in his property such as it is lawful to distrain.2 If anyone has
presumed to distrain another for any debt or caussa before he
has demanded (" pulsaverit ") him the third time, "pignus,
quod ante contestationefh tulerit, sibi nonum (vel novum)
reddat in potestate domini sui."3 If anyone take away
another's mares or swine in the name of distress for debt
("pignoris nomine") without the king's order, he must die or
pay nine hundred shillings, half to the king, half to him from
whom he took the pignus .* If anyone has distrained tamed
horses or oxen or cattle of the yoke without the king's order,
he must pay ninefold.5 The next chapter but one is of interest,
in stating the procedure in a particular case. If any freeman,
who is a debtor, has no property except horses or oxen tamed,
or cows "junctorias," then the creditor should go "ad scul-
dasium," 6 who is appointed in the place, and state that he has
nothing else than the things just mentioned. Then the " scul-
dasius " takes the oxen or horses and puts them into possession
of the creditor (to remain) so long as he (or the debtor?) acts
justly. If the "sculdasius" delay to do this, he must be
amerced in the king's palace in twelve shillings ; and after
justice has been done, let the pignus be restored.'' If anyone
has distrained (" pignoraverit ") another before the time ap
pointed for payment, and the fact is proved, let him compound
the distress ("pignus") eightfold.8 We are willing to grant
to all free persons that no public judge or public servant shall
1 Edicta Regum Ostrogothorum, c. 124 ; 1 Cane 12.
2 Leges Langobardicse, c 249 ; 1 Cane. 84.
3 Ib. c. 250; 1 Cane. 84. There is some variance in the MSS. as to the clause
quoted, but nothing to affect it as to the point under consideration.
•> Ib. c. 253; 1 Cane. 84. s lb. c. 254; 1 Cane 85.
0 The "sculdasius" appears to have been an inferior magistrate; "pedaneus
judex." — Du Cange.
' Ib, 256; 1 Cane. 85. 8 Liutpr. lib. 5, c. 12 ; 1 Cane III.

DISTRAINT. 205
distrain them contrary to law, to wit, in cattle. Nor are they
to be forced (" cogantur," i.e. it seems, distrained in property)
to come to pleas except thrice a year, etc. l
In the Laws of the Bavarians it is decreed that no one
may distrain ("pignorare") without leave of the judge; and
then follows a decree that contumacious persons who refused
to come to court and do right might be distrained ("distrin-
gatur": the change of words should be noticed. "Pignorare"
is dropped when the distraint is not for debt.).2 If anyone has
distrained ("pignoraverit") another contrary to law, without
the duke's leave, he must return the pignus without injury.3
That distraint of property was a legal mode of coercion in
England prior to and during the Norman period is directly
shown by the custumals ; but whether substantive distraint
was in use the custumals prior to the twelfth century afford
no certain evidence. The only pertinent mention of civil
distraint of property prior to the Conquest is in the Laws
of Cnut ; and the provision there pretty clearly relates to
auxiliary process. " Let no man take any distress, either in
the Shire or out of the Shire [gemot], before he has thrice
demanded his right in the Hundred [motj. If at the third
time he have no justice, then let him go at the fourth time to
the Shiregemot ; and let the Shire appoint him a fourth time.
If that then fail, let him take leave, either from hence or
thence [that is, anywhere] that he may seize his own." * This
provision reappears in the same language in the so-called
Laws of William the Conqueror.5
1 Lothar. c. 74 ; I Cane 205.
2 Lex- Bajuvariorum, tit. 12, c. 1 ; 2 Cane. 380. As to the word "distringere,"
see 2 Cane. 73, 74, 160, 184, 195, 261 ; 3 Cane. 275, 334; 4 Cane 101, 476.
- Ib. c. 3. See also cc. 4, 5 ; 2 Cane 381. See further 3 Cane 69 ; 4 Cane
19, 124; 5 Cane 361. "Pignus est quod datur propter rem creditam, quae dum
redditur, statim pignus aufertur." — Ib. 375. We refer the student lo Sohm's
Procedure of the Lex Salica generally, especially to the opening sections, e.g. § 3.
4 Laws of Cnut, Secular, e 19. Comp. Lawsoflne, u. 9. "If anyone take
revenge before he demand justice, let him give up what he has taken, " etc. And see
St. Marlborough, anno 1267, I St. of the Realm, p. 19. "Et nullus de cetero
aut districtiones faciat per voluntatem suam absque consideratione curiae domini
ultiones regis," etc. 5 Laws of Wm. I, i.e. 44.

206 HISTORY OF PROCEDURE,
This is all that is to be found in the custumals prior to the
Leges Henrici Primi ; and there is nothing sufficiently specific
there to found a broad conclusion upon. The first passage
in point to be quoted is to the following effect : It is not
lawful for anyone, without judgment or license, to distrain
("namiare") another in his own (the distrainer's) or another's
(fee ?).* But this passage, given here in full, is contained in a
chapter on summons to the Hundred (" De Summonicione
Hundreti"), and follows directly after a provision that every
man should be summoned to the County Court seven days be
fore the session. The other passage is to the following effect :
From him who, when summoned to the Hundred [mot],
refuses to come without any true, necessary cause, let there
be taken of his own (property) thirty shillings value, the first
and the second time, and let there be distraint in the Hundred
[mot] ; and let him be sent away to the day of trial or of
payment on the giving of security, and being in seisin (again)
plead, and let it (the fine for the last default, it seems) be for
his full wite ("pro capitali suo"), and let this distress not be
taken beyond the hundred.2 These provisions are in cognate
chapters, and it is fair inference that the first as well as the
second relates to auxiliary, and not to substantive, distraint.
The only passage which gives any hint of distraint for
debt (substantive distraint) is the following: "Let no one
presume to take away from justice or from his lord a distress,
whether it has been seized justly or unjustly, but let him seek
it again justly by offering security and a term for making
satisfaction."3 It is certainly not a little strange to find no more definite
mention than this of substantive, civil distraint in either the
pre-Norman or Norman codes of England. The evidence of
1 Laws Hen. I. e 51, § 3. " Et nulli, sine judicio vel licencia, namiare liceat
alium in suo vel alterius."
2 Ib. t. 29, § 2.
3 Ib. c. 51, § 5. See further the passages following concerning the forcible
recovery of a distress.

DISTRAINT. 207
the custumals does not justify an assertion of the use of such a
procedure before the time of Henry the First. That it did
exist at and from this time is clear ; the chroniclers now
coming to our aid upon the subject. And it is hard to believe
that it was an importation from the Continent after the
Conquest. The absence of any mention of it in the Anglo-
Saxon codes is more remarkable than the absence of any
allusion to the duel, because of the stronger probability of its
existence. But if, as is most probable, substantive distraint
for debt was in use in England before the Conquest, there is
strong reason in what has gone before for supposing that it
could be exercised only upon authority of court.
In the earliest case of distraint for debt mentioned in the
accounts of litigation in England under Henry the First, it is
not clear whether the distraining party had obtained leave of
court or not. The record merely states that abbot Faritius of
Abingdon (who died anno 11 17) ordered all the movables to
be found upon the land of one of his tenants, in arrears of
rent, to be distrained.1 In other cases of the same reign the
necessity of obtaining judicial authority to distrain is indi
cated. The same abbot in the year 1106 obtains a writ from
the king commanding a tenant to perform the customary land
service due the plaintiff; otherwise the abbot should have
liberty to constrain him by his fee.2 Within half-a-dozen
years abbot Faritius obtains another writ from the king, com
manding a recusant tenant to pay his dues on penalty of
distraint by the king's officer.3 The same king grants his
writ in favour of the bishop of Lincoln, commanding all who
hold lands of him within a certain wapentake to come into
1 Ermenold v. Abbot Faritius, Placita Ang.-Norm. 131. We conjecture that
this was a case of distraint at the sole will of the abbot, against a weak tenant,
and that it furnishes a suggestion as to the origin of the practice in England of
private, non-judicial coercion between landlord and tenant.
2 " Quod [servitium] nisi feceritis, ipse abbas inde te constringat per feudum
tuum." — Faritius v. Gotselin, Placita Ang. -Norm. 92.
3 Faritius v. Hugh, Ib. 109. A writ follows authorising the abbot himself to
do justice upon Hugh. — Ib. no.

208 HISTORY OF PROCEDURE.
the bishop's court and there do right in respect of their lands
on pain of distraint of goods.1
At the time of Glanvill's treatise, whatever may have been
the case in earlier times, judicial distress was common process
by lords against their homagers. But no evidence is yet fur
nished of extra-judicial distraint. After stating that the law
permits a lord by judgment (i.e. by leave) of his court to
distrain his homager to appear in court to answer charges,
Glanvill says that the lord may also by law distrain his men
to answer for default of services, without a writ of the king
or of his justiciar.2 In another chapter, which probably
explains this last statement, he says that lords may of right,
without writ of the king or justiciar, but by the judgment of
their own courts, distrain their tenants to compel payment of
reasonable aids.3
That the (presumed) pure archaic form of distress did not
exist in England in the time of Henry the Second, for debt
not arising between lord and man, is pretty clear from the
instructive Case of Ailward.4 Here was primitive distraint
(if distraint without license ever prevailed) in plainest form.
But it proved a very unfortunate undertaking for the dis
trainer. Ailward was creditor of a recusant debtor, and at
length determined to secure himself. For this purpose, he
goes to the house of his debtor in the latter's absence, and
tearing off the lock (for the house had been locked by the
owner), he takes the same in pignus, and entering takes
possession of an auger and some gloves, and departs.
The breaking of the house was certainly a high-handed
proceeding ; but it is evident that this was not done with any
felonious intent, since the record states that the things carried
off (at least the lock, and doubtless the auger and gloves) were
taken as security — "in pignus" — for the debt. Nor does the
housebreaking appear to have been considered in the accusa-
1 Bishop Robert v. Men of W. Ib. 139.
2 Lib. 9, e 1, §§ 8, 9 ; Beames's transl. 221. 3 ib. c. 8.
4 Placita Ang.-Norm, 260.

DISTRAINT. 209
tion which followed. The charge was solely the larceny
of things of small value by a thief caught in the act (" fur
manifestus") ; and the offence deemed so slight that the
public accuser (apparitor) suggested the addition of other
charges, so as to subject the offender to mutilation. This was
done ; the additional charges being also of the commission of
thefts, with no mention (so far as the record shows) of the
housebreaking. But the result of this attempt at " primitive
distraint" was judgment that the offender must undergo
the ordeal of water, and this was followed by conviction and
mutilation. The precise nature of the preliminaries to distraint required
by the early English law is not certainly known. The Salic
law required the creditor in the fideni facere to go with three
witnesses (" rachimburgii ") to the house of the debtor and
there make demand of payment. The witnesses accompanied
the creditor for a double purpose, first, to be able to testify
that the proper formalities of law had been observed, and
secondly, to fix a price or valuation upon the goods to be
distrained.1 The demand of payment was called the testare.
Upon the debtor's refusal to comply, the creditor summons
him to the Hundred Court (Mallus or Mallum). Having come
to court, the creditor proves by the oath of himself and his
witnesses the legality of the steps taken, and the debtor's
refusal to make payment. Then, supposing the debtor does
not propose to contest his liability,2 he addresses the president
of the court, called the thunginus, thus : " I call upon you,
Thunginus, to strictly oblige ('nexti canthicus') my adversary
who has made a promise to me and owes me a debt " — not, it
1 "Si quis ingenuus aut letus alteri fidem fecerit, tunc ille cui fides facta est,
in xl. noc'tes aut quomodo placitum fecerit quando fidem fecit, ad domum illius
cum testibus vel cum illis qui precium adpreciare debent venire debet, et si ei
noluerit fidem factam solvere, . . . solidos xv. culpabiiis indicetur super debitum
quod fidem fecerat."— Lex Sal. c. 50, § 1 ; Hessels and Kern, 316-324.
2 Sohm appears to think there could be no denial of the debt at the Mallus,
further than to produce the royal rescript against the proceeding. — Gericlltsver-
fassung, 62, note. But this is by no means clear, P

210 HISTORY OF PROCEDURE.
should be observed, to pay the debt, but to fix upon him the
disability of lis pendens (in modern phrase) ; in other words,
to restrain him from disposing of his property, and the thun
ginus answers : " I strictly oblige him in this respect, in
accordance with the Salic law." 1 Then the creditor must give
notice of the act of the thunginus, requiring all persons to
refrain from buying or distraining upon his goods until pay
ment of the present claim.2 Whereupon he proceeds directly
to the debtor's house, before sunset, taking witnesses with
him, and makes another demand of payment. Upon refusal,
he tarries till sunset ; and this adds to the debt the sum of
three shillings. The same ceremony precisely is twice re
peated (supposing payment to have been refused each time)
at intervals of a week's time ; and the result is an addition of
nine shillings to the debt.3
Payment being still refused, the creditor, after the third
waiting till sunset, receives permission to distrain upon his
debtor's goods, and proceeds to do so in accordance with the
appraisement of the rachimburgs who attended him at the
first testare. Some question has arisen (upon what directly
follows in the Lex Salica) if the seizure now granted is not
after all made by the reeve ;* but the better opinion is that
the passage following relates to execution at the second term,
after the promise to abide judgment.
The language, though meagre, of the English custumals
concerning auxiliary distraint, to which reference has already
1 "Si adhuc noluerit conponere quod debet, ad Mallum eum mannire debet
et sic nexti canthichius mallare debet : ' Rogo te thungine ut nexti canthichius
gasacio [adversary] meo illo qui fidem fecit et debitum debet,' et nominare debet
quale debitum debeat unde ei fidem fecerat. Tunc thunginus dicere debet :
'Nexti cantichio ego ilium in hoc quod lex Salica habet.'" — Lex Sal. c. 50, § 2 ;
Hessels and Kern, 316-324.
2 "Tunc ipse cui fides facta est testare debet ut nulli alteri nee solvat nee
pignus donet solucionis nisi ante ille impleat quod ei fidem fecit." — Ibid.
3 See the passages immediately following those here quoted. On the words
"solem collocare," see Hessels and Kern, 516, § 1S5.
4 Comp. Laws of Bavarians, i_. 7 ; 2 Cane 380, where distraint is said to be
by the judge. But that may mean only the permission of the judge to the party.

DISTRAINT. 211
been made, makes it probable that the foregoing fairly repre
sents the process of substantive distress in England. The
same procedure probably prevailed as to loans. The Salic
law, which must again be appealed to in the absence of better
evidence, presents the testare part of the process in full, but
omits the rest. The law declared that one who refused to pay
for or return a thing loaned to him should be summoned to
court. To this end, the plaintiff, as in the case above pre
sented, went with witnesses to the house of the defendant,
and, on demanding his dues, waited till sunset. Seven days
afterwards he does the same thing, and at the end of another
week repeats the formality, waiting each time till sunset with
his witnesses ; ' the effect of which is to add nine shillings to
the amount of the defendant's liability.2
The remainder of the process of satisfaction is not directly
stated, but there are indications that it was the same as in the
fidem facere above presented. The plaintiff summons the
defendant into court, and upon his failure to contest the
claim, calls upon the thunginus to restrain him from alien
ating his property, and obtains an order to proceed to
private distraint.3 If the loan consisted of goods still in
the possession of the defendant and obtainable, it is probable
that seizure was made of these : in other cases, of course,
the defendant's own goods must have been taken.
The observance of all the formalities of the law was, in the
early times as well as in the later history of the English law,
a matter of the utmost importance to the creditor. He not
only lost the goods seized in case he had made a false step,
but he was also subjected to a fine in favour of the debtor,4
1 Upon refusal the plaintiff each time says : ' ' Quia res meas noluisti reddere
quas tibi prestiteram in hoc eas tene nocte proxima quod lex Salica continet." —
Lex Sal. c. 52. 2 Ibid. 3 Sohm, Procedure, § 6.
4 " Se quis debitorem suum per ignorantiam sine judice pignorare prassumpserit
antequam eum nesti canthechigio, et debitum perdat et insuper similiter si male
pignoraverit cum lege conponat, hoc est capitale et xv. solidos culpabilis judicetur.''
Lex Sal. c. 74 ; Sohm, Procedure, § 6. P 2

212 HISTORY OF PROCEDURE.
just as in later times the landlord, in the like event, became
liable as a trespasser in respect of all acts subsequent to the
misstep, sometimes a trespasser ab initio.
Another action in which private seizure as substantive
process was a mode of bringing suit by the early English law,
was the proceeding for the recovery of movables lost or stolen
from the owner or lessee. And for the purpose of the plaintiff's
case it was immaterial whether the'goods or animals had been
lost or stolen, though as a matter of fact, if the chattels when
found by the owner or lessee were not surrendered, the accu
sation following was theft. The same was true when a person
into whose lands lost animals had been traced by the plaintiff
refused to allow search therein, or to make search himself, or
to deliver the animals.
The first step of the plaintiff who had missed his property
was to raise the cry ("hue and cry"),1 and to call upon his
neighbours to follow the trail with him — vestigium mmare of
the Salic law. The laws of iEthelstan declared that " every
one who hears the call should be ready to aid another in
pursuing the track, and in riding with him as long as he
knows the track ; and after the track has failed, always let
one man be found where there are many people, as well as
from a tithing where there are less people, for the riding or
going — unless there is need of more — wherever it is necessary,
and where all choose."2
Edmund's laws declare that "it has been decreed con
cerning the pursuit and search for stolen cattle, that the pursuit
be carried on to the vili, and that there be no assault or any
prevention of the way or search. And if the track cannot be
traced out of the land, let accusation be made wherever there
is suspicion or doubt."3 When the cattle had been traced into
1 The " harou '' of Normandy, sometimes thought to be a call to Rollo, but
probably without foundation.
2 Laws of TEthelst. (Judicia Civitatis Lundonire) v. c. 4.
3 Laws of Edm. c. 3, § 6.

DISTRAINT. 213
another jurisdiction ("staeth"), it was provided by the Ordi
nance respecting the Dunsetas, that the owner should commit
the tracing to the men of the country, or show by some mark
(" mid mearce ") that the pursuit was right. " Let him then
take to it who owns the land, and have the inquiry to himself,
and nine days afterwards compensate for the cattle, or deposit
an under-pledge on that day, which shall be worth half as
much again as the cattle ; and in nine days from that time let
him redeem the pledge by lawful payment. If it be said that
the track is wrongfully pursued, then must he who traces the
cattle lead to the boundary (' staeth '), and there himself, one
of six unchosen men who are true, make oath that he, according
to folk-right, makes lawful claim on the land, as his cattle
went thereupon."1
If the search led to a man's house, the plaintiff had the
right, according to the laws of Burgundians, to require that
the doors should all be opened, the outer and the inner, other
wise the occupant (unless he delivered the property) was to be
deemed the thief.2 The same was true under the Ribuarian
code;3 and there is no reason to suppose that the law was
different in England. The Salic law placed a fine of sixty-two
shillings and a half upon the occupant for closing his house to
the plaintiff;4 but this merely represented the highest fine
that could be imposed upon the thief.5
But the plaintiff had no right to make forcible entry into a
house to search for his property : it was enough for him that
the law pronounced the occupant the thief, and subjected him
to the liability attaching thereto. If the plaintiff forced an
entrance, he was liable, by the Ribuarian law, to a penalty of
fifteen shillings.6
Having discovered his property, the plaintiff was to put
1 Dunsetas, c. 1. 2 Laws of the Burg. c. 16, § 1.
3 Laws of the Rib. e 47, § 2. 4 Lex Sal. c. 66, Hessels and Kern.
s Sohm, Procedure, § 10; and comp. Lex Sal. c. 2, § 17; e 3, § 8; c. 4, § 5.
6 Laws of the Rib. e 47, § 3.

2t4 HISTORY OF PROCEDURE.
his hand upon it by way of claim, and summon to court the
party in whose possession he had found it. The object was to
bring the possessor and the chattel before the tribunal, in
order there to test the truth of the plaintiff's accusation and
claim.1 A third kind of substantive process of distraint, of the
Norman period, was what was called in the Salic law the
"ligare." This was criminal process, the term "ligare" itself
indicating its characteristic feature, to wit, the binding of the
defendant ; which was lawful either when he was taken in the
act or caught on the pursuit.
Like the procedure for the recovery of movables, the
ligare was begun (when the party was not taken in the act)
by raising the hue and cry ; and it was incumbent upon all
who heard it to join in the pursuit. He who heard the cry
and failed to follow was to pay a fine to the king, unless he
could purge himself of the presumed violation of law.2 And
on the other hand, he who, without pursuit and cry, appre
hended a thief and delivered him to the person from whom he
had stolen was entitled to receive from him the sum of ten
shillings at the first court, or, if justice were not then granted
him, forty shillings at the next court.3 But if a man met a
thief and permitted him to go without raising the cry, he was
liable to the thief's wergeld, unless he could prove that he did
not know the man to be a thief.4
The subject is well illustrated by the Case of Ailward,5
1 Sohm, Procedure, § 10.
2 "Qui, clamore audito, insequi supersederit, de sursisa erga regem emendet;
nisi se juramento purgare potuerit." — Wm. I. i. c. 50.
3 See Kelham's ed. of the laws of the Conqueror, c. 5. " Is qui prehenderit
latronem absque secta et absque clamore, quem dimiserit ei cui damnum fecerit, et
venerit postea, justitiam postulaturus, rationi conveniens est, ut det x. solidos de
hengwite et finem faciat justitise ad primam curiam, et si confirmetur in curia,
absque licentia justitia;, sit forisfactura de xl. solidis." — Comp. ib. i. 0. 4, in Thorpe
and in Schmid,
* "Si quis latroni obvians, sine clamore eum transire permittit, in forisfactura
sit ad valenciam latronis ; nisi juramento probaverit quod eum latronem esse
nescivit." — Wm. I. i. c, 49. s Placita Ang.-Norm. 260.

DISTRAINT. 215
already referred to for another purpose. Ailward breaks into
his debtor's house, in the latter's absence, to obtain security
for his debt, but being discovered flees, and is pursued and
caught by the debtor, having in his hands property of the
latter. Ailward having apparently resisted capture, the
debtor, after wounding him on the head with a stone, draws
a knife (cultellus) and thrusts it into the creditor's arm
and then secures him and takes him to the house he had
broken into, and there binds him as a thief manifest, " cum
concepto furto." Charges of the commission of other offences
having been added, so as to subject the party to mutilation,
a pack containing skins, a cloak, some linen cloth, and a
gown, was hung upon his neck, to which was added some
sharp instrument, the whole probably representing what he
was charged with stealing ; and in this condition he was
brought before the County Court at Bedford on the following
day.1 The debtor probably incurred no liability for the wounds
inflicted upon the alleged thief, since it was lawful even to slay
a thief if he fled or resisted capture. " If anyone," said the
law of Ine, " claim the wergeld of a slain man, he [the slayer]
may prove that he killed him as a thief," 2 and he swore (or
might swear when such were the fact) that he killed him in
flight.3 The Case of Ailward is of further interest as an illustration
of the Germanic rule that when the accused was taken in the
1 The passage deserves literal quotation. ' ' Qui [i. e'. the debtor] insecutus eum
comprehendit, et cotem a manu bajulantis extorquens caput vulneravit. Extrac-
toque cultello brachium transfigens, eum quasi furem manifestum cum concepto
furto reductum ligavit in domo quam fregerat. . . . Posita est itaque juxta
ligatum sarcinula pellium, lsense, lintei, togse, cum ferramento quod volgonium
vulgus appellat. Postera die ad cognitionem Ricardi cujusdam vicecomitis mili-
tumque comitatis cum praedicta sarcinula ductus est, quae et collo ejus appensa
est." 2 Ine, c. 21.
3 Ib. e 35. "Qui furem occiderit, licet ei probare jurejurando, quod eum
fugientem pro fure occidit." See also cc. 12, 16; c. 28, § I ; -lEthelst. (Jud,
Civ. Lond.) v. c. 1, §§ 1, 4.

216 HISTORY OF PROCEDURE.
act, he could be brought to trial immediately, not being entitled
to demand a term preceded by a fixed delay. If, in such cases,
according at least to the Salic law, the court were not in
session, the neighbourhood immediately convened to give
judgment upon the flagrant act.1
' Sohm, Procedure, § 17.

t "ni

CHAPTER VI.
SUMMONS.
Prior to the Norman Conquest, personal summons to the
trial of a cause was always a private, extra-judicial act, per
formed by the plaintiff; and this continued afterwards to
be the case to some extent in all the courts except in the
superior tribunals of the king. The same, indeed, was
probably true to some extent, for a considerable time, even
in the King's Court : probably at first this was the usual
practice of the suitors there. But as time progressed, the
custom of sending summons by an officer furnished with the
king's writ became established, and finally entirely superseded
the ancient mode.
But there was a general summons, also, which concerned
the entire community ; the common summons to the Eyre,
County, Burghmot, or (it seems) Hundred, which was pro
claimed through the cities, boroughs, and markets. This
summons, being publicly made, could not be denied, in
distinction from the. special summons to a particular trial;
though-essoins could be sent for absence in the one case as
well as in the other.1
Private summons was effected, according to the laws of
Henry the First (which may be taken as representing upon
1 2 Nichols, Britton, 339.

218 HISTORY OF PROCEDURE.
this point, probably, the entire Norman period), by the
plaintiff proceeding with witnesses to the house of the defen
dant, and, after having made demand of payment without
avail, requiring the defendant to come to court. "He who
was resident at his own house," says the custumal referred to,
"ought to be summoned for every plea with witnesses;"1
whose duty it was to see that the steps required by law were
duly taken, and then to give evidence thereof before the court.
If the defendant were at home, summons was to be made
openly to him, or to his steward, or to his family. A term of
seven days was to be allowed for appearance if the defendant
were in the county ; if in the next county, a term of fifteen
days ; if in the third county thence, three weeks ; if in the
fourth county, four weeks. More time than four weeks was
not to be allowed him wherever he might be in England,
unless a competent essoin detained him. If he were beyond
sea, he was to be allowed six weeks and a day for coming to
and crossing the channel, unless he were in the king's service,
or unless sickness or a storm or some other sufficient cause
further delayed him.2 A defendant could not, in the first
instance, be required to come into court immediately, except
in criminal cases when he was taken in the act, or apprehended
upon a charge of theft, murder, treason, robbery, outlawry,
housebreaking, arson, or counterfeiting.3
If a person held several estates as tenant of different lords,
and was impleaded by any of his lords, he was to be summoned
at the estate which he held of the plaintiff, wherever it was,
and not elsewhere.4 If the defendant held several fees of one
lord, he was to be summoned at such fee as the lord chose.5
And a person who held several estates in the county, that is,
it seems, within and beyond the hundred in which he resided,
1 Laws Hen. I. c. 41, § 2. " Ibid.
- Ib. e 47 ; e 61, § 17. In these cases the accused was at once put upon
trial, and that without counsel. In other cases he was entitled to take counsel of
his friends and relatives. — Ib. c. 46, § 3 ; e 48, § 1 ; c, 49, § 1 ; post, p. 229.
4 Ib. c 41, §3; c. 55, § I. s Ib. c. 41, §4.

SUMMONS. 219
was to be summoned at that estate at which he dwelt with
his family, even though he were sued about another.1 The
cause was to be tried in ordinary cases (that is, when the
parties did not hold of different lords) in the forum of the
locality where the demand arose, unless resort was had to the
King's Court.2
The proceeding being summons to court upon refusal of
payment, and not intended to lead to distraint, nothing more
could be done after the summons until the day set for the
court. If the defendant then appeared, the case proceeded
to the pleadings. If he did not appear, the plaintiff must
summon him again as before to another term, and, in case no
essoin had been sent, require him, besides answering, to pay
the fine of thirty pence, imposed by law for refusing to obey
the first summons. If he failed to appear, without excuse, at
the second term, he was liable to another fine of thirty pence,
unless he had a lawful essoin ; and then, as it seems (the Leges
are not clear upon the point), he could be distrained in the
Hundred Court. The plaintiff, however, was to surrender the
distress to him upon his producing pledges, and then, being in
seisin again of his property, he was entitled to plead ("saisiatus
placitet ") at the day for pleading or for paying his fines
("emendandi ").3 In the King's Court of the time of Glanvill
distress followed, at least in cases of writs of right, only upon
the fourth ineffectual summons, as will be seen presently.
Great stress was laid upon this right of the party to replevy
his property; and a digression may for convenience here be
made. Upon a tender of pledges, the defendant could not be
impleaded by the creditor or other plaintiff who had distrained
unless the latter would return the property. " Let no one while
disseised plead," that is, be compelled to 'plead, said the Leges,
1 Laws Hen. c. 41, §5. Comp. Bracton, 333 b; 2 Nichols, Britton, 340;
Fleta, 378, § 4.
2 " Et ibi semper causa agatur ubi crimen admittitur." — Laws Hen. I. c. 5,
§ 12. " Actor forum rei sequi debet." — Placita Ang.-Norm. 240, note.
3 Laws Hen. I. c. 29, § 2.

220 HISTORY OF PROCEDURE.
" unless the suit is brought about the disseisin itself," I that is, to
recover seisin ; as in the later writ of novel disseisin. " And
after anyone disseised has pledged his law or right to his lord,
and has added sureties if necessary, he ought to be put in
seisin."2 The common entries in the Pipe Rolls of fines paid
or due to the king, for permission to plead " saisiatus," seem to
refer to the same principle of law. Thus in the year 1175,
Glanvill, when custos of the honour of earl Conan, rendered
account in the Exchequer of a payment of ten marks by
William de L. "ut [Willielmus] placitaret saisitus de terra
sua."3 In like manner William del L, the same year, rendered
account of five marks " ut placitet saisitus de terra sua."4
The meaning appears to be that the party was to have
seisin of his lands, which perhaps had been distrained, and
then stand to right at the plea of the person professing a
claim. The entries in the rolls imply a refusal upon the part
of the distrainer to surrender the property, and a resort
thereupon to the king's writ to compel him.
A similar result may have occurred when a powerful
tenant had forfeited his tenure, but refused to restore pos
session to his lord, holding it, e.g., on account of some claim
against his lord which the latter denied. The tenant, on the
analogy of the cases mentioned, would be required to sur
render the estate to the lord from whom he had received it,
and then the latter might be impleaded as to the tenant's
claim. This, indeed, is conjecture ; but there is an entry in
the Pipe Roll of the year 1 1 74 which, besides being interesting
in itself, lends some support to the suggestion ventured.
Silvester de Bray, says the entry, was accounted debtor in the
Exchequer in forty shillings, that he might be in seisin of his
mortgage of S. when impleaded about it (" ut placitet saisitus

1 Laws Hen. c. 53, § 5 ; e 61, § 21.
2 Ib. c. 53, § 5. The expression "legem vel rectum domino suo vadiaverit"
did not refer to the final act of compurgation, but to the pledge given to make it.
J Placita Ang.-Norm. 273. 4 Ibid.

SUMMONS. 221
de vadio suo de S.") r That is, before the mortgagee in pos
session, to use a modern term, could be allowed to prefer a
claim to the premises he must surrender the property to the
mortgagor from whom he had received it. If this interpre
tation be correct, the existing doctrine of the estoppel of
a tenant to deny his landlord's title has (supposing there
has been no severance of continuity between the ancient
" estoppel " and the modern) an ancient lineage.
The right of being in seisin when impleaded appears in
another form in Glanvill. If in a writ of right in the King's
Court the tenant, summoned the fourth time, failed to appear
or to send a valid essoin, the land was distrained into the
king's hand. Still, if the tenant now appeared within fifteen
days, he was permitted to replevy his property, on giving
pledges and accounting for his failure to obey the sum
monses.2 Being thus saisiatus, he was entitled to plead.
This leads to the further remark that replevying was a con
dition imposed upon the defendant as well as a privilege,
when the distraint was effected under process of law for the
defendant's default of appearance ; a condition upon the per
formance of which his right to defend the suit now depended.
The author commonly reputed to be Peter of Blois,
writing, it seems, in the time of Henry the Second,3 refers to
this subject in the same way, both as to ecclesiastical and
temporal causes ; going, however, beyond the terms of the.
English law. He says that when a priest has been instituted
into a church in an unlawful manner, without the consent of
the bishop or the archdeacon, and the bishop or archdeacon
has expelled him without judicial process ("sine ordine
judiciario"), there was a question whether the priest ought
to be restored to possession ; but it was his opinion that he
ought to be immediately restored, because of the illegal
1 Madox, Hist. Exch. 297 (fol. ed.). z Glanvill, lib. 1, c 16.
3 This would be the case probably whether he was the elder or the younger
Peter.

222 HISTORY OF PROCEDURE.
expulsion, and a plea then preferred against him. " In secular
causes no one was to be expelled from a possession except
by process of law, however bad the possession might be.
Nor was a person when expelled bound to answer before
restitution," according to the canons, except in actions of
inheritance.1 By the English law of the time of Glanvill,
however, the writ of novel disseisin failed if the defendant
set up a title to the property in question ; a thing which he
was permitted to do and thus terminate the recognition
elected to try the simple question of disseisin.2 The person,
therefore, who had been disseised, though violently, by another
who had a better right could not recover the possession by mere
virtue of the disseisin.
A person might appoint his steward or other servant an
attorney to receive summons for him and to take his place
for all purposes ; and service upon such person, made before
witnesses, was valid whether reported to the defendant or not.
And if the attorney failed to appear at the plea, judgment
could be had for the default.3 That is, as it seems, the party
in default was to be amerced : final judgment upon the
plaintiff's demand could not be declared at the first default
nor even judgment of distraint, as we have seen. The cus
tumal of Henry the First adds that if the principal suffered
damage at the hands of his attorney by non-appearance, he
should "speak with him about the matter."4 The attorney
1 Peter Blesensis, c. 42. See post, p. 362.
2 Glanvill, lib. 13, c. 38, § 2. The fact that the defendant could succeed, and
yet that he might be amerced for a violent disseisin, shows this. The subject will
be referred to again in a later chapter. Any of the possessory recognitions could be
defeated, it seems, by a defence of title. See e.g. as to the assise of mort d'ancestor,
Glanvill, lib. 13, t. 10, §§ 3-8.
3 If the attorney were appointed in court "ad lucrandum vel perdendum,"
appearance and defence were to be made by him. — Glanvill, lib. II, c. I, § I.
But if he were appointed only to receive service, appearance by him could not, it
seems, be entered for the principal. It is hardly necessary to say that the term
"attorney" is not used in the modern sense.
4 Laws lien. I. e 42, § 2.

SUMMONS. 223
was to notify his lord by a faithful messenger if he were
unable to appear. '
If anyone had been impleaded according to law, "of
pleas named," and failed to appear at the appointed term, he
incurred penalties in all the pleas of which he had been im
pleaded by name, unless he had been detained by a lawful
excuse. But it was one thing to be summoned by a man's
lord to come to him on this or that day to answer a plea
named to him, and another thing to be summoned when
no plea was named. If pleas vyere named, and the party
made default, he was to pay his " overseunesse" according
to the custom of the place,2 and be summoned to appear
at another day. Then he should exculpate himself of the
plea or make compensation, unless he could send a good
essoin.3 Summons was a matter to be distinctly proved, and hence
was made in the presence of witnesses. These, from being
merely witnesses before the middle of the twelfth century,
afterwards assume the ancient part of the plaintiff and
become themselves summoners (in addition to being witnesses
of the summons) by the time of Glanvill — the "good sum
moners " of the familiar writs. How the change had come to
pass is not known ; nor is it known to have extended beyond
the royal courts. Probably the ancient practice still prevailed
in the popular courts. In the Ecclesiastical Court of the
thirteenth century, as well as in the superior temporal courts
of the time, the summoners become a distinct class of officers ;
and it is not improbable that this was also the case both in
the clerical courts and in the royal tribunals of the time of
Glanvill.4 1 Laws Hen. I. c. 42, § 2.
2 The amount of this fine varied with the rank of the party and the court,- as
well as with the place.— Laws Hen. I. c. 34, § 3 ; cc. 35, 36.
3 Ib. ^. 50.
4 The need of "good summoners" may find an explanation in the writers of
the thirteenth century. It was found necessary for the ecclesiastical councils to
interfere with the corrupt practices of summoners, and make better provisions

224 HISTORY OF PROCEDURE.
Whether the summons to a particular plea was required
to be made in a set formalism of words is unknown ; probably
it was not, but all that can be certainly affirmed is that it
must have sufficiently described the cause of action as to
identify it, and have required the party on refusal of the
demand to appear before such a court on such a day, there to
hear judgment.1
In the Norse procedure the summons was executed in
precise, established form, varying only as the difference of
fact required. In the Icelandic Njal-Saga there is an account
of a suit of Gunnar against Hrut for the recovery of Unna's
dowry. Unna had been the wife of Hrut, but had obtained a
divorce by the aid of her father Mord, who was accounted a
great lawyer. Having then secured a divorce for his daughter,
Mord wished now to recover the dowry which he had given
with her to Hrut ; but upon making demand for the goods,
he was met by the defendant with a challenge to the duel.
Mord, being old and no match for Hrut, declined the duel,
and soon afterwards died. Unna as his heir now hands over
the suit2 to a powerful man named Gunnar, who is advised by
the great lawyer Njal to disguise himself as a pedlar from the
concerning summons. See 3 Matthew Paris, 89, 90 (Bohn). As to the legal sense
of the word "good," see Hengham Magna, c. 5 ; 2 Nichols, Britton, 330. The
summoner was an unsavoury creature in the time of Chaucer, who wrote in the
latter part of the s^e century.
" Now certes " quod this somonour, "so fare I ; "
I spare nat to taken, God it woot,
But if it be to hevy or to hoot,
What I may gete in conseil privily ;
No maner conscience of that have I ;
Nere [but for] myn extorcioun I myghte nat lyven,
Nor of swiche japes [such tricks] wol I nat be shryven.
Stomak, ne conscience, ne knowe I noon ;
I shrewe [curse] these shrifte-faders everychoon. "
Canterbury Tales (Friar's Tale), 11,476-11,484.
' " Suum judicium auditurus," referring to the medial judgment. See chapter ix.
2 As in the appointment of an attorney in England "ad lucrandum vel
perdendum," noticed hereafter.

SUMMONS. 225
North, and go with others to the house of Hrut. Njal says
that conversation will in the evening turn upon the case of
Mord, which had become famous, and of Hrut's success, of
which Hrut was very proud. Gunnar must then request Hrut
to tell him how Mord might still have taken up the suit at
another Thing, as Hrut had said he might have done. Hrut,
complying with the dangerous request, will say : " In this
suit I must be summoned so that I can hear the summons,
or I must be summoned here in my lawful house " — in which
particular the agreement of the Norse procedure with the
English law will be noticed. Gunnar will then desire Hrut to
repeat the proper summons, and then " I," he is instructed to
say, " will say it after thee."
"Then Hrut," says Njal, "will summon himself; and
mind and pay great heed to every word he says. After that
Hrut will bid thee repeat the summons, and thou must do so,
and say it all wrong, so that no more than every other word
is right. Then Hrut will smile and not mistrust thee, but say
that scarce a word is right. Thou must throw the blame on
thy companions, and say they put thee out, and then thou
must ask him to say the words first, word by word, and to let
thee say the words after him. He will give thee leave, and
summon himself in the suit, and thou shalt summon after him
there and then, and this time say every word right. When it
is done, ask Hrut if that were rightly summoned, and he will
answer, ' There is no flaw to be found in it.' Then thou shalt
say in a loud voice, so that thy companions may hear,
' I summon thee in the suit which Unna, Mord's daughter,
has made over to me with her plighted hand.' "
The advice is faithfully carried out, and Gunnar " repeated
the summons a second time, and this time right, and called
his companions to witness how he summoned Hrut in a suit
which Unna, Mord's daughter, had made over to him with
her plighted hand." I
1 I Dasent, Burnt Njal, ch. xxii. Q

226 HISTORY OF PROCEDURE.
The Norse procedure did not require personal summons
in divorce cases. In the suit by Unna for divorce from Hrut,
the plaintiff is instructed by her father to proceed as follows,
in the absence of her husband, upon whom she has practised
a pretty deception : " When men ride to the Thing, and after
all have ridden from the Dales that mean to ride thither;
then thou must rise from thy bed and summon men to go
along with thee to the Thing ; and when thou art all-boun,
then shalt thou go to thy bed, and the men with thee who
are to bear thee company, and thou shalt take witness before
thy husband's bed, and declare thyself separated from him by
such a lawful separation as may hold good according to the
judgment of the Great Thing and the laws of the land ; and
at the man's door [the main door of the house] thou shalt
take the same witness. After that, ride away " to the Thing.
" Into his hands thou shalt never come more." ' The advice
is implicitly followed ; and Unna then goes to the Hill of
Laws at the Althing, and declares herself separated from
Hrut. This was a valid proceeding, and effectual for the
purpose. It has been said that in suits for homicide no summoning
of the defendant was necessary, because the slayer, guilty of
manslaughter only, had openly avowed the killing as soon as
it had been done.2 Failing to do this, his act was murder.
The reason assigned, however, is not satisfactory, since, though
the slayer had confessed the act, he may have considered it
justifiable, and refused to make compensation. It would then
be necessary for the next of kin to summon him to the Thing,
unless they chose to take vengeance. The avowal of the
slaying would appear to have affected only the nature of the
offence and the guilt of the slayer.
The proceedings preliminary to the trial before the Al
thing are related in two cases in the Njal-Saga, first in the
suit for Hauskuld's slaying, and again in the chief suit of the
' Njal-Saga, ch. vii. 2 i Dasent, Introd. Burnt Njal, 145, note.

SUMMONS. 227
saga, that of Mord v. Flosi, for the slaying of Helgi, Njal's
son. The entire record, as modern lawyers would say, is set
out in the latter case.
The first step taken was that whereby Helgi's next of kin,
Thorgeir, Thorir's son (Njal having perished in the burning
of his house in the same general catastrophe), gave over the
suit to the lawyer Mord. " Then Mord took Thorgeir by the
hand and named two witnesses to bear witness ' that Thorgeir,
Thorir's son, hands me over a suit for manslaughter against
Flosi, Thord's son, to plead it for the slaying of Helgi, Njal's
son, with all those proofs which have to follow the suit. Thou
handest over to me this suit to plead and to settle, and to
enjoy all rights in it, as though I were the rightful next of
kin. Thou handest it over to me by law, and I take it from
thee by law.' " J
After taking witness of the assignment of the suit to him
self, Mord calls men to bear witness of the first step necessary
in every suit by the next of kin for homicide ; and the exact
ness of the formula is worthy of notice. " I call you to bear
witness," said he, " that I give notice of an assault laid down
[i.e. declared] by law against Flosi, Thord's son, for that he
dealt Helgi, Njal's son, a brain, or a body, or a marrow wound,
which proved a death wound ; and from which Helgi got his
death. I give notice of this before five witnesses." Here he
names them all. " I give this lawful notice. I give notice of
a suit which Thorgeir, Thorir's son, has handed over to me."
Again he named men to " bear witness that I give notice
of a brain, or a body, or a marrow wound against Flosi, Thord's
son, for that wound which proved a death wound, but Helgi
got his death therefrom on such and such a spot, when Flosi,
Thord's son, first rushed on Helgi, Njal's son, with an assault
laid down by law. I give notice of this before neighbours " —
naming them — " I give this lawful notice. I give notice of a
suit which Thorgeir, Thorir's son, has handed over to me."2
1 Njal-Saga, ch. cxxxiv. (Dasent). 2 Ib. ch. cxxxiv. Q 2

228 HISTORY OF PROCEDURE.
This notice of suit is taken before neighbours on the spot
where the deceased lay, with the body exhumed. The next
step is to summon the neighbours to give their verdict at the
Althing ; the number of whom was to be not less than five nor
more than nine. Beginning as before, and as always, Mord
again calls men "to bear witness that I summon these nine
neighbours who dwell nearest the spot " — naming them all —
" to ride to the Althing and to sit on the inquest to find
whether Flosi, Thord's son, rushed with an assault laid down
by law on Helgi, Njal's son, on that spot where Flosi, Thord's
son, dealt Helgi, Njal's son, a brain, or a body, or a marrow
wound, which proved a death wound, and from which Helgi
got his death. I call on you to utter all those words which
you are bound to find by law, and which I shall call on you to
utter before the court, and which belong to this suit. I call
upon you by a lawful summons ; I call upon you so that ye
may yourselves hear; I call upon you in the suit which
Thorgeir, Thorir's son, has handed over to me." l
The same formula is repeated with the variation used in
the second notice of the suit ; to wit, putting the wounds
first and the assault second.2 Thus is the suit set on foot and
made ready for proceedings before the court. At this stage
the cause must be dropped for the present.
1 Njal-Saga, ch. cxxxiv. 2 Ibid.

CHAPTER VII.
THE ISSUE TERM.
In ordinary cases arising under the ancient, popular proce
dure — excepting the prosecution of criminals caught flagrante
delicto, and (by the laws of Henry the First) of theft, murder,
treason, robbery, outlawry, house-breaking, arson, counter
feiting, and capital crimes generally, in which cases the ac
cused was to be put upon trial at once, without even counsel1
— a litigation passed through two stages, each requiring a
distinct term.2 At the first term the pleadings were con
ducted to an issue, followed by the medial or proof judgment,
addressed to the final test or verdict, and by the giving of
security to furnish the required proofs. At the second term
the test was undergone or the verdict given, supposing the
party or parties to have fulfilled the terms of the pledge of
security. Cases arising under the recognitions of- the latter half of
the twelfth century, including also the occasional examples of
the same mode of trial from the time of the Conqueror to
Stephen, were peculiar. The medial judgment, instead of being
declared by the court, was virtually declared in advance, by
the king's writ. This was always the case in the distinctive
1 Laws Hen. I. c. 47. Counsel was allowed in other cases. Ib. u. 48, § 1 ;
c. 49, § I ; c. 61, § 17; ante, p. 218, n. 3. " Comp. ib. c. 61, § 19.

230 HISTORY OF PROCEDURE.
recognitions of Glanvill. But the writ was granted on ex
parte application, as in the modern times ; the question (vir
tually) submitted to the recognitors, therefore, not arising upon
the pleadings and issue. And when the cause came on for the
pleadings, the result might be, or rather, if pleadings were
then had, it always was, an entirely different issue from that
implied in the writ ; in which case the writ and recognition
were dropped, as we have seen,1 and the cause then went on
as in other cases. The court declared the medial judgment,
security was (it seems) newly given,2 and the final trial came
off at the next term. When, however, no pleadings were had,
the recognition proceeded to a verdict at the same term in
which the pleadings would have been heard if undertaken.
There was thus but one term for causes tried by this form of
action ; unless the day set for the election of the recognitors,
to which the tenant was to be summoned, and at which security
of prosecution was first to be given by the demandant, is to
be treated as a term.
Supposing a general term of court to have arrived, the
hearing of plaint and plea in common causes between suitors
was preceded or accompanied by the hearing of essoins.
These were excuses of various kinds sent to the court for
failure to appear in answer either to the general summons of
the community, hundred, or county, or to the special summons
by a plaintiff. The most of them were such as to be classed
under the following heads : i. De servitio regis. 2. In Terram
Sanctam. 3. De ultra mare. 4. De malo lecti. 5. De malo
veniendi. The last two are often called by Glanvill, Ex
infirmitate de reseantisa and Ex infirmitate veniendi.
Actual examples of these essoins may be found almost with
out number in the (published) Rotuli Curiae Regis of the sixth
' Ante, pp. 171, 172.
2 Security of prosecution had originally been given by the plaintiff as a con
dition to his having a recognition. The new security would be to perform the
requirement of the medial judgment.

THE ISSUE TERM. 231
and tenth years of Richard the First and the first year of John,
They are there given in extensive groups. Thus, in the sixth
year of Richard essoins were taken at Westminster on the
thirteenth of October, filling four pages of the printed text, r
immediately following which are essoins of the fifteenth of the
same month, occupying nearly a page. On the twentieth of
the month essoins were taken which occupy the two following
pages. On the twenty-seventh, directly following in the
Rotuli, are nearly four pages of like proceedings. Seven pages
of essoins are of the third of November, followed by nearly
two pages of the sixth of that month. Then upon the ninth,
tenth, eleventh, and twelfth of the same month, essoins follow,
occupying more than six pages. After this they continue on
different days until the seventh of December, occupying in all
forty-two continuous pages.
The following will serve as specimens : Henry de P. essoins
himself de malo lecti upon the third day (of the term appointed)
before a plea at D., in Yorkshire, against Brian, son of Ralph,
of a plea of land, by (his messengers) John de C. and Hudard
de D. Four knights are then sent (to ascertain the facts), and
if there be no illness (" languor "), then let him be at West
minster on the Sabbath next after the feast of St. Edmund,
one month hence.2 Peter of F. puts in his place (as his
attorney) Walter de F., who essoins himself (i.e. Walter3) de
malo veniendi against Ralph de R. of a plea of land by (his
messenger) Adam de R., and Ralph (the oth er party, demandant
or tenant) puts in his place Elias for hearing his day ; pledges
being given in the octaves of All Saints. Roger, son of R.,
essoins himself de malo veniendi against William de P. of a
plea of warranty of land, by Walter de C. Andrew de C. essoins
himself de malo veniendi against the prior of M. of a plea of
rent, by Roger de M. Reginald H. essoins himself  *
1 I Rotuli Cur. Reg. pp. 95-99.
2 Ib. 95. The other cases referred to immediately follow.
3 Glanvill, lib. 11, c. 3, § I. 4 Sic.

232 HISTORY OF PROCEDURE.
de malo veniendi against Gilbert de C. and Matilda de M.
of a plea of appeal, by Matthew, son of R., and a day is given
them (to appear) on the morrow of All Saints at Westminster.
Richard de E. essoins himself de malo veniendi against
William B. of a plea of land, by Ralph B. Philip H. essoins
himself de malo veniendi against Robert de H., by Walter
de B. (and day is given him) on the morrow of All Saints at
Westminster. Walter de F. (essoins himself) de malo veniendi
against Milo (?) and Milo of St. M. and Ralph of St. M. of
an appeal, by William le F., and pledges are given (to prose
cute) at the octaves of All Saints. Hugh M. (essoins himself)
de malo veniendi against the same persons, by Robert, son of
R., and pledges are given for the same term at Westminster.
Thomas de S. (essoins himself) of the same against the same
persons, by William, son of R. Pledges given for the same
term at Westminster. Richard de H. (essoins himself) de
malo veniendi against Walter, son of E., of a plea of land, by
William de N. Pledges given (for trial) in the octaves of All
Saints. Ralph de P. (essoins himself) de malo veniendi against
Robert E. of a plea of land, by Adelstan de W. Pledges
given (for trial) on the morrow of All Saints at Westminster.
Odo de K. (essoins himself) de malo veniendi against Geoffrey
de C. of a plea of land, by John de M. and Pagan de M., and
awaited an essoin until the fourth day, and Geoffrey came not
nor essoined himself, and he was the demandant. Judgment
that Odo go without day, and let Geoffrey have such recovery
as he ought to have (" et Gaufridus habeat talem recuperacio-
nem qualem habere debet "). Reginald de A. (essoins himself)
that he is in the king's service at Canterbury, against Thomas
de B. of a plea of homage, by Turstan le V, and Thomas
essoins himself de malo veniendi against the same (Reginald),
by William H. Pledges in respect of the essoin to be at
Westminster on the morrow of All Saints.
The foregoing essoins are given as they stand in the
Rotuli, without omission. The following are selected from

THE ISSUE TERM. 233
those of the same year, as of some special interest in the study
of the proceedings of the courts generally, as well as of
essoins: William de K. (essoins himself) de malo veniendi
against Herbert de St. Q. of a plea of appeal, by Ralph de F.
A day is given them in the octaves of All Saints. And
Stephen de F. and Robert de D. were of the same appeal,
and came not nor essoined themselves, and they were attached
by their pledges (given at a previous term, to bring their
proofs or to establish their defence otherwise). And it was
considered that Stephen and Robert be taken, so that they
might be there at the said term. And so the sheriff was com
manded.1 Osbert de L. essoins himself de malo veniendi
against the abbot of B. of a plea of taking his chiro
graph (fine and concord), by Jordan de L.2 Cecilia de M. de
malo veniendi against the brethren of the Temple of a
plea of land, by Walter .... of the Temple, and the
brethren came not nor essoined themselves, and they were
the plaintiffs ; and she waited for an essoin until the fourth
day. Judgment that Cecilia go without day, and the
templars have such recovery as they ought to have.3 Peter
B. de malo veniendi against Christina, who was wife of
William, of a plea of dower, by Ralph, son of T. Pledges
given (to be in court) on the next Lord's day after the feast
of St. Luke the Evangelist in fifteen days.4 Nicholas de F.
de malo veniendi against Robert de F. of a plea of appeal, by
Robert, son of R. And the abbot of St. Edmund sought his
court thence (that is, claimed jurisdiction of the cause) at an
hour and term (named). Day is given them in the octaves of
St. Hilary at Westminster.5 Hugh de L. de malo veniendi
against the friar of L. of a plea of presentation of a certain
church, by R. le M. Pledges given (to be in court) at the
vigil of Sts. Simon and Jude in fifteen days.6 William de L,

1 I Rotuli Cur. Reg. 98. This appears to be a stage of the case of Hubert v.
Stephen, Placita Ang.-Norm. 285 ; 1 Rotuli, 38 ; post, near the end of this chapter.
2 Ib. 99. ' Ibid. " Ib. 100. s lb. io2. 6 Ib. 103.

234 HISTORY OF PROCEDURE.
essoins himself on the third day before a plea de malo lecti at
M. W. against Hubert de H., of a plea of warrantia cartes,
by Alard R. and Clement de B.1 Hamo, son of H., de malo
de ultra mare, that he is in the service of the king, against
Mabel de la W., of a plea of dower, by Roger, son of W., and
R. Considered that the land be taken into the king's hand
then, and Hamo be summoned to be at Westminster on the
morrow of St. Andrew.2 Alan, cleric de H., essoins himself
de malo veniendi against John de G. and Anneis his wife, of
a plea of a charter, by Amiot le P. (Alan), not having a writ (of
summons). Summons was proved by Richard de W. and
William de S., and they (John and his wife) came not nor
essoined themselves.3 William de B. de malo veniendi against
Hugh de C, of his judgment and record, by Geoffrey de B.
" In itinere."4 Walter H., on the third day before a plea, de
malo lecti at B., against John de B. and Richard, son of G., by
John de C, and Osbert, son of H. Considered that there
was no (good) essoin, nor could he say any more why the
assise ought to stop. Recognition summoned to be (heard)
at Westminster on the feast of St. Martin in fifteen days.5
Gilbert M. de malo lecti, on the third day before a plea at S.,
against Cecilia de H. and Robert, her champion, of a plea of
the duel, by Roger C. and Geoffrey M. Considered that there
was no essoin because of breach of the king's peace, and
Cecilia has a writ to the sheriff to have the said Gilbert at
Westminster to make his duel at the feast of St. Martin in
fifteen days, and that he have the pledges of the said Gilbert
then there for hearing their judgment why they had not the
man whom they pledged.6 William C. de malo veniendi of a
plea of land, against Luke de C, by Roger, son of W., and
Luke was plaintiff, and he (William) waited for an essoin his
fourth day. Let William go without day, and Luke have
such recovery as he ought to have.? Thomas de T. de malo
1 i Rotuli Cur. Reg. 106. 2 Ib. 108. 3 ibid. * lb. 109.
5 lb. no. 6 Ibid. 1 lb. in.

THE ISSUE TERM. 235
veniendi against Ralph M., of a plea of imprisonment, by
Hugh T. Ordered that the sheriff cause four men of the town-
of Oxford to come and answer why the citizens did not come
at the day given them in bank, and that Thomas then be
there, on the morrow of St. Martin in fifteen days.1 Margaret,
daughter of W., essoins herself de malo veniendi against
Theobald W., of a plea of marrying without license, by Brown
de S.2 Master John C. essoins himself de malo veniendi
against Emma de C, of a plea of dower, by Gerard, son of G.
Without day, because Emma had not her warranty, and con
sidered that she (still) have it if she wish.3 Robert of St.
John de malo veniendi against Richard, son of R. de T., of a
plea of land, by Richard T. Pledges given (to be in court) on
the next Lord's day before Natale at Westminster, and Olive,
wife of Robert of St. John, came and said that neither she nor
her lord was summoned except in the vigil of St. Edmund,
and that the summons was not legal. Considered that the
sheriff be summoned to be at the'said term at Westminster to
answer concerning that summons.4 Hugh, son of W., essoins
himself against William W., of the church of St. Mary, of a
plea of the separation of the chapel of C. from the mother
church of H., by Roger D.5 The abbot of Thorney de malo
veniendi against William de C, of a plea of the repair of the
bridge of Huntingdon, by Robert de S.6 Master Henry de L.
essoins himself de malo lecti on the day before a plea of
appeal at Winton, against Juliana and Robert, her husband,
of a plea of land, by Richard W. and Hugh, their man. No
(good) essoin, and ordered that the sheriff have him on the
day of St. Hilary in fifteen days at Westminster* to hear his
judgment, and put his surety in pledge that he be at the said
term to show why he had not the man whom he pledged.7
William de B. essoins himself de malo lecti on the third
day before a plea of appeal at M., against Christiana D.
' I Rotuli Cur. Reg. 112. ' Ib. 114. 3 Ib. 126. 4 Ib. 127.
s Ib. 132. 6 Ibid. 1 lb. 133.

236 HISTORY OF PROCEDURE.
of a plea of dower, by Richard de B. and Ralph de B., and the
land was taken into the king's hand on the day of St.
Catherine, by default of the said William, and Hugh de E. (?)
and H. (?) came at an hour and sought it. Let him have it
by replevin, and answer to Christiana, and let the said
Christiana have seisin " de parte Willelmi."1 John de S. de
malo veniendi against John de F., of a plea of appeal, by
Geoffrey de B. Pledge given (to be in court) on the day of
St. Hilary in fifteen days, and John de S., the appellor, came
not nor essoined himself, and John, the appellee, waited his
fourth day. Judgment that John (de F.) go without day, and
John de S. be in mercy.2
The foregoing, it will be observed, are all essoins in actual
causes. The essoins for failure to answer the general summons
of the community are very few as compared with the other
class ; the meaning of which most likely is, that the absence
of ordinary freemen could scarcely be noticed, rather than that
almost every freeman of the district was present.3 The
following are the essoins of the same year for non-attendance
upon general summons : William de V. de malo veniendi
against the court, of common summons, by Ralph de C. and
Richard de L.4 The abbot of Croiland de malo veniendi
against the court, of common summons, by Nicholas de C.5
Adam de B. de malo veniendi against the court, of common
summons, by William, son of R., and William C.6 Robert de
C. de malo veniendi against the sheriff, of a plea of summons.?
1 1 Rotuli Cur. Reg. 134. The MS. is obscure as to some of the words.
- Ib. 136.
3 It may well be doubted whether there was anything like universal attendance
of the freemen throughout the sessions of the Folkmot. Agriculture and business
generally would be jeopardised too much to require it. The people may have
generally attended the first day or two : the law could hardly have required more
than that, except of parties litigant. The above-given essoins, it must be remem
bered, are of the royal courts; but if parties were so largely absent from those
courts, what might be expected of general attendance at the Folkmots ? Fines im
posed for leaving court without license, however, imply a requirement to remain at
court ; but permission to depart or to stay away was obtainable.
4 Ib. 104. s ibid. <> Ibid. ? lb. 112.

THE ISSUE -TERM. 237
There are also two essoins simply " against the court," one by
a certain viewer ("quidam visor"),1 the other by an essoiner,2
without stating whether in answer to general or special
summons, and one sent against the court from master Herbert
"de lege sua facienda."3
The examples quoted show that persons summoned
specially as defendants were bound, upon the non-appearance
of the adverse party, to wait until the fourth day after the
appearance-day, if they would save themselves from difficulty.
If they left the court before that day, the plaintiff might appear
within the time and then have the defendant put in mercy for
a default. If the plaintiff did not appear within the four days,
the defendant was entitled to go sine die ; and if the plaintiff
had failed to send an essoin within the time, he was to be
amerced. The effect of the essoin, it may be added, was not
unlike that of a motion at the present day for a continuance.
It was allowed either party, and resulted in postponing the
cause ; but each essoin by the defendant was to be followed
by a new summons.
The number of essoins allowed by law before a party could
proceed directly with his cause was, in the royal courts, a
point of great nicety, not to say of vexation. In the popular
courts of England there appear to have been no fixed limits
to the number of lawful essoins. Nothing short of the king's
writ (or possibly a judgment of the court) appears to have
been sufficient to put an end to them, so long as they were
proved true and were individually good. Causes in the
popular courts were by means of essoins sometimes post
poned a most unreasonable length of time. Even the king's
ordinary writ was not sufficient to limit them. In the case of
the Abbot of Abingdon v. Turstin4 the king had " once and
again" directed the trial of an alleged wrongful disseisin
before his sheriff of Berkshire in the County Court. But the
' I Rotuli Cur. Reg. 105. 2 Ib. 113. 3 Ib. 98.
4 Placita Ang.-Norm. 167, 169.

238 HISTORY OF PROCEDURE.
defendant, says the record, conscious of his guilt, " feigning
now the king's business, now this and now that occasion,
craftily eluded the county for upwards of two years." The
case of Richard de Anesty v. Mabel de Francheville1 is still
more remarkable. The number of apparently vexatious
essoins and delays, with changes of venue and appeals to the
pope, covering a period of five years, is bewildering, if not
incomprehensible. To put an end to this sort of vexatious
manoeuvring a peremptory writ of the king, ordering the
party to appear and plead without further delay, was some
times required. In ordinary cases, however, there was probably
very little difficulty of this kind, owing to the privilege had by
the adverse party of making inquiry, through men sent by the
court, into the truthfulness of the excuses furnished, and of
treating the party as in contumacy, if they were false, in case
he did not now at once appear.
In the King's Courts the essoins came to an end at the
furthest with the third excuse. If, on the expiration of the
third term 2 set, each with its four days from the appearance-
day named, the party failed to appear in person or to send an
attorney, the court ordered that he be required to come in
person on another day, or send a fit attorney to gain or lose
for him. If he appeared at the fourth term, he was then to
prove the truth of each previous essoin by the oath of himself
and another, and on the same day make answer to the suit.
If he did not appear at the fourth term, in person or by
attorney, the tenement (supposing the suit were for the re
covery of land) was to be taken into the king's hand, whence
it could only be taken by appearance within fifteen days,
exculpation of default, and replevin. The essoiners by whom
the party reported his excuses to the court, were at the same
time to be taken as in default, and detained by the sheriff;
1 Placita Ang.-Norm. 311.
2 The word "term" ("terminus") commonly meant, at this time, simply a
day appointed, rather than the general session of the court.

THE ISSUE TERM. 239
a writ in the nature of the later writ of deceit being issued
against them.
Supposing, still, a suit about land, the premises were now
to remain in the king's hand, as has been intimated, for fifteen
days, unless the defendant appeared and replevied them in
the meantime; but if within that time he did not appear,
seisin was to be adjudged to the plaintiff. The judgment
did not, however, prevent the losing party from suing out a
writ of right, and trying the title to the land. And if within
the fifteen days, the defendant appeared in court and desired
to replevy the premises, he was to be commanded to appear
at a fourth term and have justice there. If he appeared in
accordance with the order, and found pledges to abide by the
judgment to be rendered, he was to have seisin again. The
party might then deny all the summonses and essoins, or
he might acknowledge the first summons and warrant the
three essoins, and save the fourth term by the king's writ
of warranty. Such was the intricate course of procedure concerning
essoins in the King's Court in a writ of praecipe, as set out
in the first book of Glanvill's treatise ; and to add to the
annoyance, an essoiner was himself permitted to send an
essoin, of which we have seen examples.
In the recognition of mort d'ancestor the tenant might
essoin himself twice, but no more ; on the arrival of the third
term set, the recognition could be taken regardless of the
absence of the defendant. In no recognition where seisin
alone was in question were more than two essoins allowed.
In the recognition of novel disseisin no essoin was permitted ;
but before proceedings could be had under the writ, the de
fendant must have been summoned on two different days.
On the third day the recognition was taken.1
If a minor prayed a recognition of any kind against a
person of full age, the defendant was denied an essoin ; and
1 Glanvill, lib. 13, c. 7.

240 HISTORY OF PROCEDURE.
the recognition proceeded upon the first day appointed by
the summons, whether the defendant appeared or not j1 unless,
indeed, he appeared and pleaded some matter in derogation
of the recognition. But if the case were reversed, and a re
cognition sought by an adult against a minor, the latter.might
avail himself of the right to essoins in the usual manner.2
Another important branch of the proceedings of the
term was the fixing of amercements. The Rotuli Curiae
Regis of Richard the First contain, under the title Placita
Coronae, a great number of examples. The following
Amercements of Hertford3 may be quoted to show the nature
of the fines commonly imposed : Hundred of Hodesdon
(amerced) in one mark for murder, liberties (i.e. franchise)
excepted. Land of the hospital in R. (amerced), half a
mark for the flight of Ralph, a rustic. William de M., half
a mark because he did not have (in court) the man whom
he had pledged. Hundred of Hertford, twenty shillings for
murder, liberties excepted. The frankpledge of Richard
C. de S., half a mark because it had not the man whom it
had pledged. Askill B., half a mark for wine sold contrary to
the assise. The town of Hodesdon (being) land of Alan de B.,
half a mark for the flight of Ernold, son of H. The town of
Aldeham, one mark for the flight of Simon and Edmund, his
brother. The frankpledge of Odo de L., half a mark for the
flight of Walter (the) Cook. The town of Munden le F., one
mark for the flight of Callus de M. The hundred of B., one
mark for murder, liberties excepted. The frankpledge of
Adam B., half a mark for the flight of the said Adam. Then
follow amercements of fourteen persons for wine sold contrary
to the assise ; after which : Geoffrey de la M., half a mark for
a dyke unjustly raised. Gerard de F. was to be amerced at
the Exchequer for a disseisin. Richard, son of W., half a mark
for a disseisin. Walter de H., half a mark for a disseisin.
Henry, merchant of St. Albans, half a mark for an unjust sale
' Glanvill, lib. 13, c. 12. ¦ Ibid. 3 1 Rotuli Cur. Reg. 168.

THE ISSUE TERM. 241
of bread. Richard de F., half a mark because he did not
prosecute his suit. Robert clerc de P. de T., half a mark for
a disseisin. Alan, son of G., half a mark for a default.
Reginald de A. to be amerced at the Exchequer for a dis
seisin, in one hundred marks. The county, in sixty marks for
discharge from carucage and hidage. Among the amerce
ments of Essex are fines imposed upon eight tithing men and
their decennaries for flights.1 Ralph de A. was amerced in a
mark for a false clamor. Christopher de B., in half a mark for
leaving court without license.2
The regularity of these amercements in amount is notice
able. However dissimilar the offences, the normal fine im
posed is half a (silver) mark ; and the variance, it may be
presumed, was caused by the special circumstances of the
particular case. .
Besides amercements for matters within the immediate
notice of the Eyre, some of the foregoing examples show that
there were cases brought to the notice of the justiciars from
without. This was partly, if not mainly, done by jurors
chosen through the hundreds, as was provided in the agenda
of 1 194; the reports being commonly given first under the
same head of Placita Coronae. The Rotuli contain many
examples ; of which the following of the tenth year of Richard
the First fairly represent the whole : Hundred of Odesey.3 The
jurors say that John, son of L., and Alice, daughter of S.
were drowned in the mill-pond of E. And Englishry was not
reasonably presented. (Judgment) murder. The same jurors
(say) that a certain woman was found dead in the fields of
E., and it is not known who she was, and no one is accused
thereof. Judgment, murder. The same say that malefactors
slew William (the) Smith in his house at S., and bound his
son Richard and wounded A. and A., and it is not known who
did it. And Englishry was not presented. Judgment, murder.
In the fields of C. a certain man was found slain, and it is not
1 1 Rotuli Cur. Reg. 173. 2 Ib. 174. * Ib. 159.R

242 HISTORY OF PROCEDURE.
known who he was or who killed him. Judgment, murder. The
same say that Ralph, a rustic, is fugitive " pro malo recto " (i.e.
rectato, accused) and was at R. in the frankpledge of the hos
pitallers. Judgment, that the land of the hospitallers in R. be in
mercy for his flight ; and his chattels were worth two shillings,
whence the sheriff, Hugh de Nevill, ought to answer. Hundred
of Edwinstree.1 The jurors say that in the grange of the
monks of C. at T. two mendicants there receiving hospitality
slew a third, and it is not known who they were. Judgment,
murder. The same say that Luke de B. appealed Walter
de M. and Geoffrey T. of the theft of an ox, (that) Walter
essoined himself de ultra mare, and Geoffrey came not, and
his pledge was William de M., and he is in mercy. The
same say that the said Luke appealed the said Walter that
within the king's peace and in felony he robbed him of
Felicia, his wife, and of his seal, and of his goods to the value
of one hundred shillings, and this he offered to prove by the
consideration of the court at the advent of the justiciars (in
eyre). At Hadham, a town of L., a certain man was found
slain, and it is not known who he was. Judgment, murder.
And (Richard S. was put in pledge for his death, and his
pledges were Ralph F. and Robert Q., and they are in mercy
because they have not him whom they pledged2) the jurors
did not afterwards accuse Richard. Judgment that Richard
go quit. Hundred of Hertford.3 The jurors say that in the
forest of C. a certain man was found slain, and it is not known
who he was. Judgment, murder. At W. Ralph and S. were
slain at night in their house by a certain malefactor receiving
hospitality there. Englishry was presented. The same say
that at B. Roger G. slew Andrew, a merchant, and fled and
was outlawed, and that he remained at S. in land of the abbot
of Westminster. And the chattels of the fugitive were worth
two shillings, whence Hugh de Nevill (was to account at the
1 I Rotuli Cur. Reg. 160. 2 This parenthesis is a cancellation.
3 I Rotuli, 161.

THE ISSUE TERM. 243
Exchequer), and he was in the frankpledge of Richard C, and
(that) he is in mercy. Arnulf, son of H. de H., is a fugitive
for robbery, and was out of frankpledge in Hodesden. Judg
ment that the town is in mercy for murder. Hundred of
Dacor.1 The jurors say that in the fields of W. a certain
infant was found dead, and it is not known who it was.
Englishry was not presented. Judgment, murder. The
county declares that Thomas P. was accused of robbery and of
housebreaking, and was taken and put in gaol in the time of
Robert de L., then sheriff, and it is not known what has
becorne of him. Robert says that he was dismissed on bail in
the County Court, the names of the bail being Richard de H.
and five others named. And they defend that they did not
go his security, and put themselves upon the county. And
the county declares that they did not. Judgment, Robert in
mercy.2 The following like reports of local affairs, somewhat more
full, are of the tenth year of Richard (1198) : The jurors say
that in the town of K. William H. was found dead of cold,
and no one is accused thereof. Englishry was not presented.
Judgment, murder. William de P., an officer of the hundred,
(says) that four neighbours had been attached for the death of
that person ; and he brought four men who had not been
attached. And William P. was then sheriff, and Robert de L.
under him, and no one answers for them, and it is testified by
the county that no one was attached in the matter. William
is in mercy for a false presentation.3 In the town of B.
William de S., a lunatic, was found dead, and it is not known
of what race (" unde," whether of Norman or English descent)
he had been born. Englishry was not presented. Judgment,
murder.4 The jurors say that William N. appealed William
de B. and Robert, his son, that in the peace of the king,
wickedly, and in housebreaking, they robbed him. of six shil
lings and six pence worth of his chattels, and of his custody
1 I Rotuli, 162. 2 lb. 164. ' lb. 203. 4 Ibid.
R 2

244 HISTORY OF PROCEDURE.
robbed him of twenty-four bidentes, and broke the doors of
the house in his custody, and the hinges, and other things to
the value of ten shillings, and (that) he had offered to prove
by his body by consideration of the court. (They say that)
William and Robert defended all, word for word, and they say
that Mauricius, "victricius^of the said William (defendant).held
of his fee, who having died, (the defendant William) acknow
ledged that he was of his (the appellor's) fee, and a certain
neighbour of his (defendant's). Alexander, son of Philip,
procured from him pasture in the same fee for twenty-five
sheep, and afterwards came the said William le N. (the
appellor) to that fee and carried off the said sheep, and put
them in another fee, and detained them so that the said
William de B. and Robert, his son, came to William, son of G.,
an officer of the hundred, and retook the sheep through him
by replevin, and the officer testifies this. And the whole
county testifies that he (William le N.) had appealed the men
" ex more solito." (But) it was considered (by the Eyre) that
there was no (good) appeal against them. Judgment that
William le N. be in mercy for a false appeal, and William and
Robert be quit thereof. J (The jurors say, that) Robert F., a
robber, had appealed Walter de B. of complicity (in the crime)
and of flight. And he was in the frankpledge of William B.
and of Elias R., and they are in mercy. And the said Robert
had appealed L. S. and R. H. of complicity. And the jurors
say that there was no evil accusation against L. or R. S.
Judgment that R. S. efforce their pledges, and so let him be
under pledge. And in like manner L.2
The jurors who make these reports possess functions
including indeed, but at the same time far greater than, those
of the modern grand jury. Aside from their duties as jurors
of presentment in the modern sense, under the Assises of
Clarendon and Northampton, they form part of the king's
fiscal machinery in the counties, acting in aid of the justiciars
1 I Rotuli, 205. " Ib. 207.

THE ISSUE TERM. 245
in Eyre in rendering the administration of the revenue efficient.
The plan of the agenda of the Eyre of 1 194, heretofore quoted,
is thus shown to be merely an example, as we have suggested it
was, and not some peculiar requirement of a single year. And
there is good reason to believe that earlier jurors of present
ment exercised similarly extensive functions. It was incum
bent upon the justiciars in Eyre from the first to ascertain
everything (not within the sole province of the sheriffs) that
was of concern to the king ; and this could only be done
through local jurors. The reports of these jurors, it is worthy
of mention, of whatever nature, were called "placita coronae ; "
a term not yet used in the sense now attached to it. It
simply meant business of concern to the Crown, reported to
the Eyre by the jurors as having transpired in the particular
district since the last visitation or repqrt. The " pleas of the
Crown " in the modern sense (i.e. common criminal prosecu
tions) appear to have been tried mostly in the popular courts,
before the coming of the Eyre, at least in the time of the
Rotuli Curiae Regis (11 94-1 199) ; and considered merely as
prosecutions of crime, these were not " placita coronae " at
all. Most prosecutions of crime were carried on, even in the
Eyre and in the King's Court, by private appeals, or by
appeals largely in the interest of some local franchise or lord
of lands ; though the king also might have an interest in the
result. The only other feature of the term to be noticed before
resuming the development of the procedure in a common plea
is the appointment of attorneys in the place of plaintiff or
defendant, to gain or lose. Of acts of this kind the Rotuli also
furnish many examples j1 but the subject has been sufficiently
considered elsewhere, and it is only necessary to mention it
here. It should also be observed, in order, that the great
feature of the term of the King's Court and of the Eyre is the
appearance of the assise in recognitions. This, however, is
1 I Rotuli, 165, 178 (IO Rich. I:).

246 HISTORY OF PROCEDURE.
reserved for consideration later. These four subjects, essoins,
placita coronae (including amercements direct and upon reports
from without, and reports upon matters generally relating to
the interests of the king), appointment of attorneys, and assises
under the recognitions, embrace, with the hearing of common
pleas in general, most of the ordinary judicial business of the
regular term. But other business in great variety, relating to
public interests, was also transacted. The separation of the judi
ciary from the legislative and municipal branch of government,
it need hardly be said, had not yet taken place.
Turning now to the consideration of the common pleas
and supposing the defendant to have appeared in a particular,
case, the pleadings are opened by the plaintiff, demandant,
or appellor, setting out his demand or appeal. This in
common actions was dpne in language formulated by ancient
usage, and requiring great exactness of statement. The
defendant was under no liability to the plaintiff through the
process of the courts except that fixed by law. Legal process
was an innovation upon the ancient right of private redress, a
right not yet obsolete ; and the plaintiff acquired no greater
benefit in court than the law in express terms gave him.
The defendant therefore deemed himself entitled to take ad
vantage of the slightest flaw or miskenning of his adversary.1
The question of the origin and significance of the formal
language itself is another matter. The fact that much of it in
the Anglo-Saxon and early Norman period, like certain formal
parts of general grants, especially those conferring jurisdiction,
was of a rhyming nature has often been alluded to. Of the
Anglo-Saxon oath-formulas it has been observed that it is im
possible to read them without perceiving at every turn their
rhythmical quantity and alliteration. "An ear any way
accustomed to Anglo-Saxon poetry will easily detect the
1 Fine for miskenning (mistake of language in pleading) was abolished in
London by Henry I. See the Charter to the Citizens of London, Stubbs, Sei.
Ch. 108 (2d ed.). Other towns probably obtained a like exemption.

THE ISSUE TERM. 247
disjointed members of their poetic formulae, and instinc
tively arrange them in the order in which they ought to
stand." 1 Neither the metre nor the alliteration, however, is
constant; and the latter, when it does occur, is said to be
usually unlike the common poetic alliteration, having no
"chief letter" in the second line.2 It is proper to add, that
the use of this kind of alliteration, as well as final rhyme, in
early laws and judicial documents was common to all the
Germanic including the Scandinavian nations.3 This may not
be very satisfactory as an explanation of the special formalism
of the earlier Germanic pleadings ; but it is about as far as
explanation can yet go.
Under this formalism of plaint, or rather in it, forms of
action existed as distinctly as they have existed in modern
English law. Indeed, as we have more than once stated,4
modern English forms of actions are lineally descended from
them ; and this, too, with no greater change than had been
effected upon the English people themselves in the same course
of time. There was never any sudden change from the
Germanic to the modern formulae. A gradual progress from
the one to the other may be traced from the pre-Norman
through the Norman period to the time of Edward the First,
when the modern forms of action may be considered to have
assumed their definite type.
The subject is somewhat obscured by the introduction of
the writ process after the Conquest, and the peculiar history
and development of writs into their final, settled form. But
if it be remembered that the writ did not, before the thirteenth
1 I Anc. Laws and Inst. 178, note (8vo ed.). 2 Ibid.
3 Ib. see Grimm's Deutsche Rechts-Alterthiimer, p. 6.
" Wherever a formula, in whole or in part, appears, its relationship to an earlier
one, if known, appears ; and the requirement of almost literal accuracy in the use
of the same is constantly enforced. There was no interval of disuse, and there
was no legislative change. Bracton in the thirteenth century uses language of the
very same tenor as that used before the Conquest and afterwards down to his own
time. He gives the form of appeal, for instance, in the case of an approver (one
who has turned king's evidence) against his accomplice, and adds that he must
state the formula without variation or any change. — Bracton, 153,

248 HISTORY OF PROCEDURE.
century, have any necessary relation to the formulae of plead
ing (further than to indicate in most cases the nature of the
suit), and that the formulae of plaint and defence proceeded as
in the time anterior to the general use of writs, this obscurity
will be eliminated. The technical words of the modern
declaration begin to appear in the language of the ancient
plaint long before they appear in the writ.
The pleadings in criminal and ^¦"-criminal, and perhaps
in some other, cases were begun by a fore-oath ("for-ath,"
"antejuramentum") on the part of the plaintiff, or by some
thing tantamount thereto (as by showing a wound to the court
in the case of an action for a battery), which, with witnesses
or compurgators, accomplished the purpose of making a pre
sumption against the defendant, or, as would be said in
modern times, of making a prima facie case. This fore-oath
contained a statement of the cause of action, and also a solemn
assertion that the suit was not instituted out of fraud, deceit,
or craft. The reason for this is obvious. Upon an issue raised
by the defendant, it devolved upon him to give security, either
by personal sureties or oftener by putting his property in
pledge, to furnish the proof of his innocence, so that, had it
not been for the oath with its consequences, men of property
would constantly have been at the mercy of the evil-disposed.
"Also we have ordained," said the laws of Edward the Elder,
" if there were any evil-minded man who would put another's
property in ' borgh ' (pledge) for ' wither-tihtle ' (lit. cross accu
sation, here false accusation, opposed to the truth), that he
should then declare on oath that he did it, not from any
knavery, but with full right, without fraud and guile, and that
he (the defendant) then should there do as he durst with
whom it is attached ; ' like as he it owned, so he it vouched to
warranty.' " l
Two forms of oath used under this requirement of law have
1 Edw. I. c. i, § 5. The words of the last clause are words of defence used in
the pleading.

• THE ISSUE TERM. 249
been preserved. " Thus shall a man swear," reads the title
to the first, " when he has discovered his property and brings
it in process [' on gange ']. By the Lord, before whom this
relic is holy, so I my suit prosecute with full folk-right, without
fraud and without deceit, and without any guile, as was stolen
from me the cattle N. that I claim, and that I have taken with
N." 1 The reply by " the other's oath with whom a man discovers
his cattle," was as follows : " By the Lord, I was not at rede
nor at deed, neither counsellor nor doer, where were unlawfully
led away N.'s cattle. But as I cattle have, so did I with right
obtain it." And then follow these alternative special pleas :
"And : as I vouch it to warranty, so did he sell it to me into
whose hand I now set it. And : as I cattle have, so did he
sell it to me who had it to sell. And : as I cattle have, so did
it come of my own property, and so it by folk-right my own
possession is, and my rearing." 2
The other form of oath for the plaintiff is given under the
title, "The oath of him who discovers his property, that he
does it neither for hatred nor for envy," and is as follows :
" By the Lord, I accuse not N. either for hatred or for envy,
or for unlawful lust of gain ; nor know I anything soother ;
but as my informant to me said, and I myself in sooth believe,
that he was the thief of my property."3 The denial by "the
other's oath that he is guiltless " was as follows : " By the
Lord, I am guiltless, both in deed and counsel, of the charge
of which N. accuses me."4
These replies appear to have been the exculpatory oaths,
and not merely the issue-answer of the pleading term ; for the
oath last quoted is followed by another given by a compurgator
of the defendant. " His companion's oath who stands with
him" was : " By the Lord, the oath is clean and unperjured
1 Oaths, 2 ; 1 Anc. Laws, 179. In the case of a suit for stolen property, the
owner, in the time of ,/Ethelstan, took five neighbours with him, one of whom
should Bwear with him, when the property was found, that he was putting his hand
upon his own. — ^Ethelstan, i. c, 9.
' Oaths, 3. 3 Ib. 4 ; 1 Anc. Laws, 181. 4 Ibi 5.

250 HISTORY OF PROCEDURE.
which N. has sworn."1 But the defendant's plea was of course
substantially, if not verbally, the same at the issue term as at
the trial term.
Whether an oath that the plaintiff was not actuated by
fraud or guile was required in other than criminal and quasi-
criminal cases does not appear. There would be equal occasion
for it in civil actions. As between lord and man, however, in
actions for non-payment of rent, or non-performance of services
and customs, it probably could not have been required ; but
all that can be said beyond this is that the passages in which
the fore-oath is mentioned relate to crimes. " Let single lad
[purgation]," say the Laws of Cnut, " be preceded by a single
fore-oath, and a threefold lad by a triple fore-oath. And if
a thegn have a true man to take the fore-oath for him, be it so.
If he have not let him begin his suit himself, and let no fore-
oath ever be omitted."2 In the laws of the Conqueror it is
declared that the appellor of theft shall swear by seven legal
men that neither for hatred nor for any other cause has he
accused the defendant, except according to law.3 The laws of
Henry the First, like those of Cnut, declare that a simple lad
shall be preceded by a simple fore-oath, and a triple lad by a
triple fore-oath. "And let no fore-oath ever be excused."4
It may be added that in the case of accusations by men of the
church against inferior laymen, and perhaps of laymen of rank
against men of mean degree, the oath, on the exhibition of a
wound (if the action was for a battery), was perhaps sufficient,
without witnesses or compurgators, to make a prima facie case
against the defendant.5
To make a prima facie case in a civil action relating to
real or personal property or to debt, the plaintiff generally
appeared at the first term with charters or with one or more
1 Oaths, 6; I Anc. Laws, 181. 2 Cnut, Secular, c. 22.
3 Wm. I. i. c. 14. 4 Hen. I. c. 64, § 9. Probably this refers only to
appeals ; not e.g. to actions for debt.
5 Comp. the case of civil actions infra, and the offer of an appellor to make
proof as a maimed man.— 1 Rotuli Cur. Reg. 60, Richard de W., and latter part
of the present chapter.

THE ISSUE TERM. 251
witnesses de visu et audita ; of which there are not wanting
actual examples.1 But the testimony of these witnesses at the
issue term' did not constitute proof. The unsupported allega
tion of the plaintiff was insufficient to compel an answer ; 2
and, unless the plaintiff could call in aid the ecclesiastical
judge,3 the defendant was at once entitled to judgment.4 The
evidence of charters or of witnesses was added so as to make
for the purposes of the issue term, like the fore-oath in
criminal cases, a presumptive case against the defendant. It
availed nothing at the trial term.5
There was one exception, however, to the rule requiring a
plaintiff to bring charters or witnesses before the court at the
issue term, and that was when he was a person of such position,
as compared with the defendant, as to make it derogatory to
his dignity to require support at the first term to his allegation.
When the plaintiff was lord of the manor and the defendant
was one of his common men, or when the plaintiff was an
officer of the treasury or keeper of the royal forests, his unsup
ported allegation was sufficient to require the defendant to
make answer.
Such at least was the rule in Normandy in the thirteenth
century. The Somma says: "Notandum eciam est, quod
nullus in curia sua teste indiget contra eum quem accusat.
Vox enim sola domini curiae in eis quae ad ipsum pertinent,
sufficit ad accusationem subditorum."6 As to fiscal officers it
was said : " Li foretier n'amenront pas tesmoing seur le mesfet

1 See Placita Ang.-Norm. 17, 38. 2 GlanviD, lib. 10, c. 12. 3 Ibid.
4 See e.g. the case of Abbot Gausfrid and the Abbot of Marmoutier, Placita
Ang.-Norm. 122, in which the plaintiff lays claim to spiritual authority over the
abbot of Battel, and is called upon to furnish charters or witnesses to substantiate
his claim ; failing in which, judgment is given for the abbot of B. at the first
term. Comp. also c. 38 of Magna Charta: "Nullus ballivus ponat de cetera
aliquem ad legem [the ordeal] simplici loquela sua, sine testibus fidelibus ad hoc
inductis." 5 See Brunner, Schwurg. 170.
6 Somma, lib. 2, c. 63, § 5. This, however, was subject to limitation. "Li
sires aura sanz tesmoing le serement de son homme une foiz en l'an." — Marnier,-
Etabl. et Cout. p. 29.

252 HISTORY OF PROCEDURE.
de la forest, ni le prevost en leur prevost^, ne li sergent en
leur sergenteries." '
An illustration of the general practice deserving special
mention is found in the demand of the duel by the plaintiff in
a writ of right. The plaintiff brings forward one or more
witnesses to substantiate his claim and compel an answer;
the witness supplementing the plaint of his principal thus :
" Hoc vidi et audivi et esgardium curiae super hoc facere sum
paratus." An example may be seen in the case of Bishop
Wulfstan v. Abbot Walter, temp. William the Conqueror.2 The
record says : " Et inde sunt legitimi testes apud nos, milites,
homines Sanctae Mariae, et episcopi, qui hoc viderunt et audie-
runt, parati hoc probare per sacramentum et bellum contra
Rannulfum," etc.
Unless the defendant (in the writ of right) belonged to the
class of persons exempt from the duel (women, men above
sixty years of age or physically incapacitated to fight, or of
the religious order3), or had charters, he was bound to accept
the offer of battle (before the Magna Assisa) or confess judg
ment. If he resisted the plaintiff's claim, he now denied the
plaint word for word, adding, "quod paratus sum defendere
versus eum per corpus meum."
The requirement in Normandy was that in weighty cases
the defendant should " ad singula verba accusantis respondere
et ea rememorare." But in other cases, at least when the
accused answered without counsel, he was permitted to make
a short and comprehensive denial. " Ego pernego per eadem
verba, per quae me repetatis;"4 adding the "paratus sum"
clause above quoted.
If the appellant (in Normandy) did not care to resort to
trial by duel, he closed his plaint with the words, "et hoc
paratus sum esgardium curiae facere." 5 And his witness then
1 Marnier, p. 130. 2 Placita Ang. -Norm. 16, 19.
3 Notwithstanding the fact that such persons might fight by champion, it seems
that they were never bound to do so. 4 Brunner, Schwurg. 171.
! It is of interest to notice that this forrnulary of closing the plaintiff's case is

THE ISSUE TERM. 253
said: "Hoc est verum ; vidi et audivi et esgardium curiae
super hoc facere eum paratus."
The case, supposing the defendant to have traversed the
demand, was now at issue, and it only remained for the court
to pronounce judgment as to the mode of proof, the time
when the proof was to be furnished, and (when the duel was
not ordered) which party was to furnish it. The last-named
feature of the case depended upon the nature of the suit
and of the issue joined. It will be considered in the following-
chapter. It should be observed that the issue appears to have been
joined upon the statement of the witness, and not upon that
of the plaintiff. The defendant denied, it is true, the plain
tiff's statement, but he denied it, it seems, as affirmed by the
witness.1 This tends to account for the fact that the witness
becomes a champion. The champion appears properly, and
perhaps in earlier times solely, as a witness ; and as it is his
testimony, and not the plaintiff's count, which makes the
proceeding effective, he is the person to be opposed.
When it came to pass that a father could require his son
to defend the claim of a particular person, just as he (the
father) as an eye and ear witness could have done, the first
step was taken which finally resulted in doing away with the
ancient rule that the champion ought to be a witness. The
champion still took an oath that he had " heard and seen "
the truth, or that his ancestor desired him to deraign it, until
in the reign of Edward the First the practice had become so
general of employing persons as champions who were not
witnesses in the one sense or the other, that the champion-

the original, or rather the antecedent, of the formula of modern pleading, "and of
this the plaintiff puts himself upon the country ; " though the more ancient form
has itself been preserved in the closing language of the appeal, ' ' and this he is
prepared to prove as the court may direct," a formulary which continued to be
used until the abolition in England of appeals for murder and felony in 1819.
1 The defendant in Normandy denied the language, both of the plaintiff and
of the witness. — Brunner, Schwurg. 172.

254 HISTORY OF PROCEDURE.
oath generally amounted to perjury. By the Act of West
minster I. c. 41, the champion was relieved of the necessity
of taking an oath; though the ancient principle that the
champion ought to be a witness still manifested itself in
frequent expressions of opposition to paid champions.
In order to show more accurately the state of forms of
action in the twelfth century, and to lay a foundation for com
parison (at another time) with the plaint and plea of later
times, it becomes necessary to quote more at length from
some of the records of the period. Unfortunately, no com
plete formulae in use in England after the Conquest, of an
earlier date than the time of Glanvill's justiciarship (an. 1180-
1189), have been preserved ; but the last twenty years of the
twelfth century may be safely taken as representing, in respect
of the formulae to be quoted, the entire reign of Henry the
Second. Glanvill has given the form of count used in three of the
real actions of his time, to wit, in the general writ of right, in
the writ of right of advowson, and in the writ of right of
dower. In the first of these actions the demandant counted
as follows : " I demand against this H. half a knight's fee, in
such a vili, as my right and inheritance, of which my father
(or my grandfather) was seised in his demesne of fee in the
time of king Henry the First, or after the first coronation of
our lord the king, and whence he took the profits to the value
of five shillings at least,1 as in grain, hay, and other produce ; and
this I am ready to prove by my freeman J., and if any accident
happen to him, by such a one or by a third (and the deman
dant may thus name as many as he may choose, though only
one of them shall wage the duel) who saw this or heard it." Or
the demandant might use other words, thus : "And this I am
ready to prove by my freeman J., to whom his father when on
his death-bed enjoined by the faith which a son owes his
father that if he ever heard a claim concerning that land,
' The esplees, a momentary seisin being insufficient. See Bracton, 372b, 373.

THE ISSUE TERM. 255
he should prove this as that which his father saw and
heard." 1
The demandant's claim having thus been made, it was at
the election of the tenant either to defend himself by the duel,
or to put himself upon the king's Grand Assise and thus
require a recognition to ascertain which of the two had the
greater right to the land in dispute. If he elected the former
mode, he was to deny the alleged right of the demandant word
for word, as the demandant set it forth. If the tenant pre
ferred to put himself upon the Grand Assise, the demandant
had the right to show cause against the assise proceeding; but
the objection was to be taken after the election of the recog
nitors and upon their appearance to give answer as to the right
in question. The same practice prevailed in the case of the
possessory recognitions, and will be illustrated presently.
In the claim of a right of advowson, the demandant said :
" I demand the advowson of this church as my right and
pertaining. to my inheritance, of which advowson I was seised
(or one of my ancestors was seised) in the time of king Henry
the First, grandfather of our lord king Henry (or after the
coronation of our lcrd the king) ; and being so seised, I
presented a parson to the same church when vacant, at one
of the above-mentioned periods. And I so presented him
that upon my presentation he was instituted parson into that
church ; and if anyone will deny this, I have some credible
men who both saw and heard the fact, and are ready to prove
it as the court shall award, and particularly such and such
persons." 2 The tenant might defend as in the writ of right
above referred to.
The claim for dower was expressed more briefly. "I
demand," said the widow, " such land, as appertaining to such
land, which was named to me in dower, and of which my
husband endowed me at the door of the church the day he
espoused me, as that of which he was invested and seised at
' Glanvill, lib. 2, c. 3. 2 lb. lib. 4, c. 6.

256 HISTORY OF PROCEDURE.
the time when he endowed me."1 This proceeding was
against the tenant as well as against the heir; but it was
chiefly against the heir in ordinary cases, i.e. when the
tenant did not claim in his own right, paramount to the heir.2
The latter was separately summoned, and on failing to appear
or to send an attorney after three essoins, might be distrained
in his fee or attached by pledges (it was not clear which was
the proper course). If the heir on appearance conceded the
widow's claim, it was his duty to recover the land from the
tenant or give her an equivalent. But he might deny her
claim and bring the matter to the determination of the duel ;
provided the widow produced in court persons who had heard
and seen the endowment, or some competent witness who may
have heard or seen the act by the ancestor of the heir, at the
church door, at the time of their espousals, and be ready to prove
such fact against him. This part of the widow's plaint, serving
the necessary purpose of making a prima facie case for her, was
probably added to the demand above quoted, as in the counts
already presented.
The following were the pleadings in an actual cause of
"reasonable dower" in the year 1194 ; and they are of special
interest as showing that the practice of bringing the secta was
in familiar use in the twelfth century : Emma,3 who was wife
of Ralph, son of R., seeks against William, son of Ralph, her
reasonable dower which pertained to her of the frank tenement
which was of the said Ralph, formerly her husband, in N. (and
in other places named). And William comes and says that
Ralph, his father, gave the said Emma, on the day when he
espoused her, a certain vili, namely H., in dower, and she
thereupon held herself quitted, and of this he brought his suit
(" sectam produxit ") which was then present, and besides he
said that she, after the death of his father, was put in seisin
1 Glanvill, lib. 6, e 8. Comp. Regiam Maj. lib. 2, c. 16.
2 See for an example of resistance by the tenant, I Rotuli, 20, "Matilda uxor
Walteri," etc. _ 3 Rotu]j fjUr. Reg. 145.

THE ISSUE TERM. 257
thereof, and took the esplees as long as she wished, and if
the secta which he brought did not suffice, he put himself upon
the good men who were present at the espousals and upon that
neighbourhood. And Emma defends all, and says that she
was never endowed of that vili, nor did she hold herself
quitted, and that she was endowed of the third part of all the
land which Ralph, her husband, had, and of this she brought
her suit ("produxit sectam") which was present at the es
pousals, and besides the suit which she brought she puts her
self upon a legal jury of that county. Emma puts in her place
M. to gain or lose at the coming of the justiciars. Let an
assise be had by good men of the neighbourhood.
The following are the pleadings in a record of the same
year, arising in a cause which afterwards would have been
called a writ of entry : Walkelin,1 son of En., seeks against
Geoffrey, son of EL, half a hide of land, with pertinents, in F.,
as his right and inheritance, of which his father En., of whom he
is the near heir, was seised in his demesne as of fee on the day
when he took his journey towards Jerusalem, in which journey
he died ; in which land the said Geoffrey had no entry save by
Silvester, uncle of the said Walkelin, who (S.) had him (W.)
in ward while he was within age. Geoffrey comes and defends
that he had no entry in the said land by Silvester, and says
that he has many lands in the said town of F., and seeks a
view of that land. Judgment that he have view, and a day is
given to them on the morrow of St. Hilary at Westminster,
and in the meantime they have license of concord.
In proceedings instituted by process of recognition there
were no pleadings before the appearance of the recognitors,
come to make answer of the matter submitted to them.2
Glanvill says nothing of any except upon the return-day of
the assise. The writs given by him indicate that there was no
summons of the tenant to anything except to the hearing of
the answer of the recognitors ; though he tells us in his text
1 I Rotuli Cur. Reg. 91. 2 Comp. ante, pp. 229, 230. S

2$8_ HISTORY OF PROCEDURE.
that the tenant was summoned to be present at the election
of the jurors. The writ to summon the recognitors, however,
was peremptory, and there was no chance for pleading then.
The writ itself appears to have supplied the place of plead
ings, issue, and medial judgment. But it would have been
unjust to force the tenant to trial upon what at most was an
imputed traverse of the matter submitted to the recognitors by
the writ, when he might not have cared to dispute the plaintiff's
allegation (e.g. of a disseisin), but still might have had a good
defence in avoidance of it ; and an opportunity was accordingly
given him when the demandant brought his writ into court
("tulit brevem ") upon the return -day and demanded the hearing
pf the recognition,
The course of the procedure under a writ for any of the
recognitions appears to have been as follows : The demandant
goes with his process (obtainable from the king or justiciar) to
the sheriff in court, and there gives security, as in other cases,
to prosecute.1 An election is then had before that officer,
according to the command of the writ, of twelve free and
lawful men of the neighbourhood (prior to the time of
Glanvill the number was irregular, and it still varied some
what), prepared on oath to make return upon the particular
matter submitted in the writ. The tenant was summoned to
this election ; but though he did not appear, the election still
proceeded. No essoin was received to postpone the business.
The names of the recognitors were imbreviated by the sheriff,
and, as it seems from the Rotuli Curiae Regis,2 pledges were
taken from them, to secure their attendance and answer upon
the return-day. After the election the tenant was summoned

* It seems that the security to prosecute was sometimes given before the writ
was granted. — I Rotuli Cur. Reg. 7. The giving of security, however, was a
condition to obtaining a recognition.
2 1 Rotuli, 377. " Summoneantur plcgii prtedictorum recognitorum, " in an
assise of the last presentation. Glanvill is silent on the subject. It appears to
have been regarded necessary to take pledges at every new stage of the proceedinos,
to prevent a miscarriage of the proceedings.

THE ISSUE TERM. 259
by the sheriff to appear upon the day named in the writ,
before the king or his justiciars, to hear the answer of the
recognition. He was now allowed two essoins, except in an
assise of novel disseisin ; in which no essoin was permitted.
On the third day set, at the latest, whether the tenant were
present or not, the demandant, if the finding was in his favour,
brought his writ into court and called for the answer of the
jurors ("assisam petit"). The presiding judge then asked the
tenant if he could show any cause why the assise should not
proceed; At this point, supposing the tenant to object to
hearing the return, he improves his opportunity to set up
matter in avoidance of the plaintiff's case. He of course is
unable to plead a traverse : the question of fact raised by the
writ has already been found ; and the finding is now to be
against him if the assise proceeds. He had not in fact, how
ever, traversed the plaintiff's case, or otherwise pleaded ; and
hence he is now allowed to make his defence, if he has one,
The recognition in ordinary cases, in the time of Glanvill,
consisted of twelve persons ; and their answer was required to
be unanimous. If, upon the return-day, some asserted their
ignorance as to the fact in issue, they were set aside and their
place supplied by others, until twelve were found who did
know of the fact, and agreed upon it. In like manner, if the
recognitors disagreed, others were to be added to their numbers
until twelve persons were obtained, if possible, agreeing with
the one side or the other.1 Prior to Glanvill's time, the number
of recognitors varied greatly, as has been stated, but what
the rule as to unanimity may have been does not appear.
It would seem, however, judging from the analogy of com
purgation and witnesses, that if there was not at least a sub
stantial agreement in the truth of the allegation of the party
who had sought the recognition, his case must have failed.
The reason why there were no pleadings before the election
of the assise may be conjectured. If the demandant were
1 Glanvill, lib. 2, c. 17. S 2

26a HISTORY OF PROCEDURE.
then to count, and the tenant to plead, it would result that the
tenant would always have it in his power to escape the assise,
even though he should merely plead a traverse of the matter
submitted by the writ and alleged in the count ; for according
to the rules of pleading which had prevailed from the earliest
times, and still prevailed, the party making the last good
pleading was entitled to bring the proof. Hence a traverse of
the demandant's case would have ended the assise, unless the
tenant now agreed to submit the issue to that mode of trial.
He would have the right to require the court to declare the
medial judgment, giving him a trial by any mode allowed
him by law in an action under the ancient procedure.
Any plea on the part of the tenant upon which an issue
could be joined differing from the question which had been
submitted to the j urors had the effect of putting an end to the
recognition. Among the pleas available for this purpose
Glanvill says that the tenant in an assise of the last presentation
might admit that the demandant's antecessor made, indeed, the
last presentation as the real lord and the eldest heir, but that
he afterwards transferred the fee, to which the advowson was
appendant, to the tenant or to his antccessores (predecessors)
by a good title. Thus the assise, says Glanvill, was terminated,
and a contest made possible upon the new matter. Either of
the parties might thereupon have another recognition upon
the question of fact now brought in issue. In like manner
either of the litigating parties might admit that the other or
one of his antecessores made the last presentation not as of fee,
but as of ward, and might lawfully demand a recognition upon
this point.1
Glanvill says that in an assise of mort d'ancestor, though
the tenant should concede the seisin of the demandant at the
time alleged, the assise may still be terminated for many
causes. If, for example, it should be alleged by the tenant
that the demandant was seised after the death of his father, dr
' Glanvill, lib. 13, e 20, §§ 3, 4,

THE ISSUE TERM. 261
of any one of his ancestors, and while the demandant was in
such seisin that he had done some act to debar himself of the
right to have an assise, ,as if he had sold, given, quit-claimed,
or otherwise lawfully disposed of the land in question to the
tenant ; then the assise should end.1
What follows is interesting as showing that an assise in
which seisin only was in question might terminate in a trial of
the right of property. Should such a defence as one of those
just mentioned be set up in bar of the assise, Glanvill tells us
that recourse might be had to the duel, or to any other usual
mode of proof consistent with the practice of the court when
the right to any property is in question. The same is true, he
says, in case it should be alleged by the tenant that the
demandant had, on a former occasion, impleaded him, when
a fine was made between them in the King's Court, or that the
land belonged to the tenant by the decision of the duel or by
a judgment. Villenage also, if pleaded and proved in court,
took away the assise. A plea of bastardy had the same effect.
The king's charter also, in which the land in question had
been specifically named or confirmed to the tenant, terminated
the assise ; a fact serving to explain the provision of Magna
Charta against the right of the king to disseise his subjects
without process of law.2
Again, if it were conceded that the ancestor upon whose
seisin the demandant founded his claim had a certain limited
kind of seisin, such as one derived from the tenant himself by
reason of a pledge or loan or something of that sort, the
assise terminated, and some other proceeding followed suited
to the nature of the new matter.3 Consanguinity also took
away the assise ; as where the demandant and tenant were
sprung from the same stock from which the inheritance had
descended, the seisin of which was in question, and such fact
had been pleaded and proved in court. So of a case which
showed that the demandant's title had been derived through
1 Glanvill, lib. 13, en. 2 Ibid. See ante, pp. 155, 156. 3 Glanvill, supra.

262" HISTORY OF PROCEDURE.
a gift by the eldest son to a younger son, who had died with
out leaving an heir of his body ; since the same person could
not be both heir and lord of an estate. The same was true
on proof that the demandant was formerly in arms against
the king.1
The Rotuli Curiae Regis contain many examples of plead
ings of this kind. The following may be presented: Pagan2
of L. brought a writ3 of novel disseisin against William M. of
his frank tenement in B., and William M. comes and says that
the king gave to him all the lands and all the rights of earl
Richard de S., with the son and heir of earl Richard, and
Avhen he came and received the homage of the free tenants
of fee of that honour, no one appeared for that fee (claimed by
the plaintiff) and he, William, caused the said Pagan to be
summoned upon that fee once and again and a third time to
come and do to him what he ought to do, and he came not
nor sent anyone for himself, and by consideration of his
(defendant's) court that fee was distrained for want of chattels
thereon. (Replication, apparently after some interval, in
which the action is shifted to meet the plea, the recognition
terminating :) And the son of Pagan, put in place of his
father, comes and says that when he knew that that fee was
taken in the hand of the said William M., he (the son of
Pagan) went to him and sought the fee by replevin and could
not have it, and he says that he ought not to hold that fee
of the said William but of Ralph de la K., and vouches him
to warranty, and still seeks the fee by replevin. (Judgment)
let him have it by replevin. And day is given them on the
day of St.  in fifteen days, at Westminster, to have then
his warranty.
The cases in the Rotuli, however, usually begin with a
statement of the appearance of the assise, come to give a
verdict, as in the following : The assise4 comes to report
' Glanvill, lib, 13, c. n. ' 1 Rotuli, 62, anno n 94,
3 "Tulit brevem " was used, it soenis, in a literal sense at this time.
4 1 Rotuli, 74, 75, anno 1 194.

THE ISSUE TERM. 263
("recognoscere") if Geoffrey, son of Peter,1 disseised unjustly
and without a judgment the abbot of W. of his frank tene
ment in W. after the first coronation of the king. Geoffrey
says that the assise ought not to be had thereon, because
when the king gave the land of earl William de M. the said
Geoffrey2 had that land in his own hand, and he gave it to
him, and he made his charter to him to that effect, which he
offered, that what he has pertains thereto, and that he had
seisin of that land by writ of the chancellor, then justiciar,
directed to O., son of William, then sheriff of Essex, who
gave him seisin thereof. The abbot says that Geoffrey had
seisin in the land of the said earl William at the feast of
St. Peter ad Vincula, and that the said Geoffrey afterwards
disseised them (the abbot and earl William ?), and of this he
puts himself upon an assise. The assise is deferred until
the octaves of St. Hilary, at Westminster, and then let the
parties come to hear their judgment, and let the assise not
come. The following pleadings in an assise de ultima praesenta-
tione are of the same year (1194): The assise3 comes to
report what patron in time of peace presented the last parson
to the church of T., which is vacant, as is said, the advowson
of which John de T. claims against the abbess and nuns of
St. Edward. The abbess comes and says that the assise
ought not to be had thereof, because the writ says that legal
and free men of the vili of T. only should be recognitors in
this assise, and the men are not of the vicinage, as they all
are men of the said John who demands the assise. It was con
sidered that the assise thereof terminate, and that John have
a writ which speaks of men of the vicinage of T.,4 and cause
an assise to come at the feast of St. Hilary, in fifteen days,
* Was this the justiciar, Geoffrey FitzPetef ?
2 There is, apparently, an error in the MS. here, which says " ipsi," and the
real meaning is not certain. 3 I Rotuli, 65.
4 This refers to the writ of enrolment of the names of the recognitors, not to
the original writ, which was goodi

264 HISfORY OF PROCEDURE.
at Westminster. The abbess puts in her place Gilbert, son
of W,, to gain or lose, if she were not able to be present.
Another case of the last presentation, in which the recog
nitors are allowed to answer, anno 1198: The assise1 comes
to report what patron in time of peace presented the last
parson, who is dead, to the church of B., which is vacant, as is
said, the presentation of which Philip de B. claims against the
prior of L. The jurors say that Walter, son of P., made the
last presentation to that church, in the time of king Stephen,
and that he created the first and last parson. It was con
sidered that Philip have his presentation, and that the prior
seek his (writ of) right if he wished.
An example of the pleadings in an assise of mort d'an-
cestor may be seen in the following case of the same year :
The assise2 comes to report if William, father of J., was
seised in his demesne as of fee of two carucates of land, with
pertinents, in T., on the day of his death, and if he died after
the first coronation of king Henry, father of our lord the king,
and if the said J. is his nearest heir ; which land Thomas, son
of W. de M., holds. And the said Thomas comes and says
that the assise ought not to be had thereof, because the said
J. and his brother primogenitus impleaded the said Thomas of
the said land by a writ of right ; so that by that plea the said
piece of land remained to them, and afterwards they took for
the said land two marks of silver and one " chazurum," and
this he offers to prove against him as (required) by the con
sideration of the court, but he offered no proof. And J. comes
and defends that he had no brother primogenitus lawfully
born, and that he never in any court quit-claimed that land,
nor received two marks or any money for it, and this he offers
to prove by his certain freeman. And Thomas said nothing
against that defence or offered anything, nor produced a
secta that the said J. had a brother primogenitus, nor any
court in which there was a plea between them, nor (said)
1 I Rotuli, 141. s lb. 139.

THE ISSUE TERM. 265
when any fine was made between them. It was considered
that J. have his seisin thereof.
In the following case of the same kind, anno 1198, the
tenant disposes of the assise as to himself by a voucher to
warranty : The assise 1 comes to report if William, father of
Richard, was seised in his demesne as of fee of three acres of
land, with pertinents, in Milton on the day of his death, and if
he died after (the king's) coronation ; which land Gilbert, son
of A., holds. Gilbert comes and vouches to warranty thereof
William, son of R. de C, by his charter which he has and
keeps of his gift and warranty. Day is given them at Green
wich on the morrow of St. Leonard. The same day is given
(to the assise) to report.
A double voucher to warranty may be seen in an assise of
novel disseisin by Ralph C. against William, son of A.2 The
assise having come to make answer, William comes and says
that he holds that tenement of Richard T. for a term, and
vouches him thereof to warranty, who comes and warrants (it)
to him, and says that the assise ought not to be had thereof
because the said Ralph is a villein, and that the abbot of
St. Albans recovered him in the County Court as his villein,
and he vouches the county thereof. The county comes and
testifies this. Judgment that Robert (a mistake for Ralph)
take nothing because he is a villein, and that he be in mercy
for a false claim.
Both of these cases go to show that the mere fact of a
voucher to warranty did not put an end to the assise. The
vouchee is put into the place of the party. vouching, and the
assise stands equally ready to report against him ; who may
defend against the answer of the recognitors in the same
manner as if he were the tenant.
Voucher to warranty, or invoking the defence of a legal
•" auctor" in reply to an action for the recovery of property in
specie was probably a primitive proceeding of Germanic law.
1 1 Rotuli, 195. " lb. 153, 154.

266 HISTORY OF PROCEDURE.
It is certainly general to the Germanic codes which succeed
the Lex Salica. Its application in the earliest times, before
land had become the subject of property among the Teutonic
peoples, however, must have been chiefly confined to actions
for the recovery of personalty. In the period of which
we are writing, as well as for centuries before, vouching to
warranty was practised alike in actions for the recovery of
realty and of personalty. The object of the proceeding in
either case, as against the claimant, was to free the defendant
from the consequences of the alleged theft in the case of
•personalty, and of a wrongful occupation in the case of realty.
If the vouching was successful, the defendant was saved a
mulct for wrongdoing. The object as against the vouchee
was, in case the voucher received the property in question
from him by a purchase, to require him to protect the defen
dant in his possession, or, on failure so to do, to compel the
vouchee to make him good with other property, if possible, of
the same value.
Glanvill has set out the procedure in vouching to warranty
of land, in his third book. It was as follows : The presence
of another party, he there says, becomes no less necessary than
that of the tenant, if the tenant declare in court that the pro
perty in dispute is not his own, and that he holds it merely as
a loan, or as hired, or as a pledge, or as committed to him in
custody ; or if he allege that the property is his own, but
that he has a warrantor from whom he received it, whether as
a gift, or sale, or in exchange, or the like. If the tenant took
the latter course, the warrantor was to be summoned (as would
be true also under the former course), and the plea commenced
anew against him. The tenant, however, was to have a reason
able time allowed him to bring the vouchee into court ; and
besides he was allowed three essoins as to himself and as many
as to his warrantor. When the vouchee now appeared, he
might plead in the same manner as the tenant had done ; he
might declare that the property belonged, or had belonged to

THE ISSUE TERM. 267
him, or the contrary. In the latter case, the tenant, who had
falsely asserted that it belonged to him, should thereby lose
the land irretrievably, and be summoned to appear in court
and hear his judgment.
If the vouchee took upon himself the warranty, he became
thereupon a principal party in the suit, and the remainder of
the cause was carried on in his name, and proceeded just as if
he were the original defendant. He might himself vouch
another to warranty or claim the property as his own by
manufacture or rearing, according to its nature. If he declined
to assume the warranty, the property, as has been stated,
was adjudged to the demandant ; and the plea of warranty
now proceeded between the voucher and the vouchee. The
matter might thus come to the decision of the duel if the
tenant were prepared with a lawful witness to make proof,
who was willing to undertake it ; or if the tenant had a charter,
the case could be decided by that. If the tenant now pre
vailed, the vouchee was bound to give him an equivalent to
the property lost, supposing the vouchee possessed the means.
If it happened that the warrantor failed to appear at the
summons of the defendant, the latter had a writ directing the
sheriff to summon him. The warrantor might now essoin
himself until the fourth day, when he was bound to appear
or send an attorney. If he did neither, the tenement was
taken into the king's hand, notwithstanding the hardship (hot
overlooked by Glanvill) to the tenant who was not yet in
default. It was always advisable for the tenant to vouch his
warrantor, for otherwise, if he took it upon himself entirely to
dispute the demandant's claim, whether by the duel or by the
Grand Assise, as he might do without his warrantor, and
failed, he could make no claim against the warrantor.
Sometimes the demandant claimed the land as the fee of
one lord and the tenant as the fee of another. In such a case
both the lords were to be summoned into court, that no

268 HISTORY OF PROCEDURE.
injustice might be done them in their absence. They also had
their three essoins, after which they must appear or send an
attorney ; otherwise, in the absence of the tenant's lord, the
case proceeded without him. The result was that if the tenant
then prevailed, he was now to hold of the king for the default
of his lord until the latter made good his default. If the lord
of the demandant finally absented himself after his essoins
were exhausted, or without essoining himself, it became a
question what should be done. Glanvill, however, says that
if he had essoined himself, the essoiners should be taken into
custody and the demandant himself attached for his contempt
of court, and thus compelled to appear and excuse himself if
he could. If the lords both appeared in court, the tenant's lord took
the place of the tenant in the pleading, in case he assumed
the warranty, or he entrusted his case to the tenant, as he was
disposed. If the lord declined the warranty, the tenant lost
the land, and the lord lost the latter's services. So, too, the
matter might be interpleaded between the tenant and his lord, .
provided the tenant declared that his lord had unjustly failed
of the warranty ; unjustly for this reason (as his complaint
proceeded to state) because he or his ancestors had performed
such and such services to the lord or his ancestors, as lords
of that fee, adding that of this fact he had those who had
heard and seen it, and in particular a competent witness to
prove it, or some other sufficient testimony ready to be adduced
as the court should direct.
A similar proceeding prevailed as to the demandant's lord.
If he assumed the demandant's warranty, he could take up
the cause or leave it to the demandant. If he declined to
warrant the claim of the demandant, the latter was to be
amerced to the king for a false claim.
It should be added that at this time the right of voucher
did not depend upon the existence of any actual warranty in
the modern sense. It arose upon the mere ground of lawfully

THE ISSUE TERM. 269
(i.e. innocently) receiving property from another ; the person
who delivered it to an innocent party being always bound to
protect that party in respect of his possession. This was the
meaning of warranty from the earliest times until long after
the Anglo-Norman period. It was perhaps a survival of the
ancient notion of warranty that always found a warranty
implied in the " dedi " of a feoffment.
The proceeding by which a tenant put himself upon the
king's Grand Assise, to test the right of property by a jury,
instead of by the duel, was accompanied by a writ in which
the sheriff was commanded to prohibit the demandant from
subsequently impleading him in the local court, when the.
cause had been instituted there as by a writ of right.1 The
election of the assise is shown by the following case, as
well as by Glanvill : Roger, son of E.,2 Albric de H., Luke
de L., and William de P. — summoned to elect twelve knights
of the vicinage of T. for making a Grand Assise of one
carucate of land, with pertinents, in T., which H., bishop of
Exeter, claimed against Robert B. and Emma, his wife, as
to which Robert and Emma, his wife, put themselves upon a
Grand Assise, and demanded record to be made thereof
whether the said bishop had the greater right of holding that
land in demesne, or they (to hold) of him — came and elected
the following (here are given the names of twenty knights3).
A day is given them at the advent of the justiciars in those
parts. Emma puts in her place Robert, her husband, thereof
to gain or lose.
What happened in case of the non-ap*pearance of the
tenant by the fourth day, for the election of the Grand Assise,
may be seen by the following case of the year 1198: Geoffrey,4
son of S., and Agnes, his (G.'s) wife, plaintiffs, offer themselves
1 Glanvill, lib. 2, c. 8. See App. No. 56. 2 1 Rotuli, 140 ; Glanvill, lib. 2, c. 1 1.
3 This is explained by Glanvill, who says that it was usual, in the absence of
the tenant from the election, not to confine the number to twelve, but to elect as
many more as would certainly satisfy the absent tenant upon his return to court. —
Lib. 2, c. 12, § 2. 4 I Rotuli, 199.

270 HISTORY OF PROCEDURE.
on the fourth day against Richard B. and Lecia, his wife,
tenants, of a plea of electing twelve knights for making a
Grand Assise of half a virgate of land, with pertinents, in B.,
as to which the said Richard and Lecia, tenants, put them
selves upon the Grand Assise of our lord the king, and
demanded a recognition to be had thereof whether they had
the greater right in that land or the said Geoffrey and Agnes.
Richard afterwards comes and defends all summons for him
self and for his wife, who came not nor essoined herself. Judg
ment, let Richard wage his law with the twelfth hand at
Greenwich, and let Lecia be summoned that she be there to
show why she did not keep the day given her in the advent of
the justiciars in Essex. The same day is given to Geoffrey
and Eustace, son of E., " in banco," and Ralph de O. by his
essoiner, and Robert of L. is attached to be there then to
show why he did not keep his day, and for electing the twelve
knights together with the said three knights.
The following case shows the result of a default of the
demandant at the time for electing the Grand Assise : Emma
de R.1 offers herself on the fourth day (after the day for the
election) against Robert de B. concerning a plea of the Grand
Assise of four carucates of land, with pertinents, in R., and
he came not nor essoined himself, and he was demandant.
Judgment, let her go quit, and Robert be in mercy for his
default. These cases furnish occasion to remark upon a difference
which prevailed in respect of the election of the assise in
possessory actions and in the Magna Assisa. In both cases
the election is, indeed, held at the instance of the demandant ;
but the situation is wholly dissimilar in them. In the posses
sory recognitions it is the demandant who has sought the
assise ; and he is therefore expected to be present, while the
tenant must be formally summoned. In the case of the Grand
Assise, however, it is the tenant, ordinarily, who has sought
' I Rotuli, 334, anna 1 199.

THE ISSUE TERM. 271
the recognition ; and it would seem that he should be ex
pected to be present at the election, and that the demandant
should be summoned. On the contrary, however, as we have
just stated, the demandant calls, not indeed for the assise, but
for the election ; and the tenant must be summoned as in the
other case. The proceeding is this : The tenant (e.g. in a
writ of right) puts himself upon the Grand Assise, and then
sues out process of prohibition against proceedings in the
local court. He is then protected until the demandant appears
in court and prays a writ requiring the election of the assise
by the four knights.1 This writ (like the writ in the possessory
recognitions) requires also the summons of the tenant to be
present at the election.2 Another difference now appears.
The absence of the tenant from the possessory recognitions,
it will be remembered, had not the effect of postponing the
election ; no essoin being allowed. But in the Magna Assisa,
owing probably to the greater significance of the trial, essoins
were allowed the tenant to the number of four by the old
practice, and to the four knights also there might be at least
one essoin. Glanvill, however, tells us that a law had been
passed by which the court was authorised, in its discretion, to
expedite the cause, and permit the election to proceed on the
appearance of the four knights, whether the tenant were
present or not.3 It may be added that the four persons named
at the close of the last case but one appear to be the four
knights. The failure of the demandant to appear at the
election, it may also be noticed, would result in leaving the
tenant in lawful possession, protected as he would be by his
writ of prohibition. Whether the demandant could essoin
himself from the election is not stated. He might essoin
himself from the return-day of the assise ; though the tenant
could not.4
The following is a return of the Grand Assise : The Grand
1 Glanvill, lib. 2, e 10. Sometimes there were six or more instead of four. Ib.
2 Ib. c. 12. 3 Ibid. 4 Ib. e 16.

272 HISTORY OF PROCEDURE.
Assise1 comes to report if Wido de O., tenant, has the greater
right of holding two virgates of land, with pertinents, in (a
cause in) the court of Baldric, son of B., who claims them
against him by a writ of right, or Baldric (holds them) in
demesne. The jurors say that Wido has greater right of
holding that land of him than Baldric in demesne. Judgment
that Wido hold in peace and Baldric be in mercy for a false
claim, and receive the homage of Wido thereof in his court.
The tenant might object to the return of the Grand Assise
as well as to that of a common assise. It was a valid objec
tion, for instance, that the parties were of the same blood and
sprung from the same kindred stock from whence the inherit
ance (supposing the suit to relate to land) itself descended. If
the demandant took this objection, the tenant must have
admitted or denied it. If he admitted it, the right to an assise
was lost. A question then arose for determination within the
court, as Glanvill tells us, which of the parties was the nearer
to the original stock.2
The statement by Glanvill which follows is also interesting
as bearing upon a subject already considered, the burden of
proof. One of the parties having shown to the court upon
legal inquiry that he was the nearer to the original stock, he was
entitled to furnish proof of his title, unless his adversary could
allege some good reason why the party had lost his supposed
right, whether for a time or for ever, or show that his ancestor
had done so ; as by a gift, sale, or exchange of the land.3 The
proof belonged to the party who had made .the last good
allegation. If the adverse party set up any fact sufficient to
repel the presumption of title raised by the evidence of near
ness of kin, the matter might by force of the pleadings be
determined by the duel.4
1 I Rotuli, 329, anno 1199.
2 According to Beaines, Glanvill even calls this a question of law (Beames's
Glanv. p. 51); but that is a mistranslation. The expression is "tunc legitime
inquiretur," which of course only means that the matter shall be lawfully examined.
3 Glanvill, lib. 2, c. 6. 4 Ibid.

THE ISSUE TERM. 273
If the party who had put himself upon the assise denied
all relationship between himself and the demandant, or if he
insisted that they were not sprung from the same stock from
which the inheritance descended, recourse was to be had to
the common kindred of both parties, who were to be called
into court to give testimony upon the point in issue. If the
relatives agreed in affirming that the parties were descended
from the same stock from whence the inheritance came, this
was conclusive ; unless the party against whom they had
decided persisted in his assertion. In that case recourse was
to be had to the vicinage, whose testimony, if on the same
side with that of the neighbours, was decisive. If there was
a disagreement of the relatives, recourse to the vicinage was
necessary ; and the parties were to abide by the verdict
given.1 The inquisition having been made, if the parties were
found to have sprung from the same stock from which the
inheritance came, the assise was at an end, and the question
proceeded as has been stated supra, in speaking of the burden
of proof. If the contrary were found, the demandant who had
taken the objection to the assise lost his suit. If, however,
nothing intervened after the defendant had put himself upon
the king's assise, the question of right was settled as effectually
as it could be settled by the duel.2
Suit could be instituted in the popular courts, and as yet
in the Eyre, after the ancient practice, without a writ ; and
when so instituted, even in a cause embraced within the scope
of the recognitions, pleadings were necessary at the outset.
But now, if the cause were one proper for a recognition, the
tenant had the right to put himself upon an assise of the
neighbourhood, if the demandant did not elect an allowable
mode of trial ; and this, too, without putting himself upon the
Grand Assise. This is a most interesting phase of the proce
dure. Cases of this kind show the adjustment of the new
1 Glanvill, lib. 2, c. 6. 2 Ibid. T

274 HISTORY OF PROCEDURE.
procedure of Henry the Second to the ancient procedure of
the kingdom. The old plaint is retained, and with it the old
plea ; the latter being supplemented with, or changed at the
conclusion by, a demand for a recognition.
The following is an example of this mode of pleading :
Joanna,1 who was wife of Henry de L., complains that
Reginald de B. disseised her of half a virgate of land, with
the pertinents, in L., after the justiciars itinerant were last in
those parts. And Reginald comes and defends that he did
not disseise her thereof, as she says, and of this he puts him
self upon a jury of the neighbourhood. And the said Joanna
in like manner puts herself upon a jury of the neighbourhood.
Day is given them for receiving the assise in the octaves of
St. Hilary, at Westminster.
The significance of the pleadings in this case cannot be
overlooked. The plaint and plea are so suggestive of later
pleading that the evidence of the record itself is necessary to
assure a lawyer of the present day that it is of the time of
Richard the First ; and on the other hand there is good
reason to believe that, apart from the tenant's act of putting
himself upon a recognition, the pleadings were not different
from those of the time of the Conqueror or of his prede
cessors. The teaching of this case, as to the continuation of
the ancient formulae, in connection with the new process,
might probably be enforced by other records of a like nature.
The following example of (it seems) the ancient procedure
in a case of disseisin, in which the new process makes no
appearance, may be referred to : Moses,2 who was prior o
Coventry, and the convent of the said place seek their seisin
of the barony of Coventry, which he (M.) held in the time
of king Henry, father of king Richard, and after the first
coronation of king Richard, and of which they were ejected,
after the first coronation of king Richard, by force and with-
1 I Rotuli, 55, anno 1 194.
" Ib, 3, anno 1 194; Abbreviatio Placitonvm, 5,

THE ISSUE TERM. 275
out judgment, against the canons of Coventry, and whereof the
said prior did homage to our lord the king. And the canons
came and said that they did not hold (any) of the barony
unless* in frankalmoign, and if they held anything of that
barony, that was in the hand of another and not in theirs.
And because they hold nothing unless in frankalmoign, they
demand a trial in the Court Christian, and are not willing to
answer thereof unless in the Court Christian, by the considera
tion of the court. Day is given them on the sabbath next
after the feast of St. Edward, in fifteen days, at Westminster,
to hear their judgment.
The plea to the jurisdiction appears to have been over
ruled, for the Rotuli contain another entry, within six weeks,
of the appearance of an assise to report whether the de
fendants had unjustly and without a judgment disseised the
plaintiff.1 The defendants must therefore have put them
selves upon a jury, after the plea to the jurisdiction was
overruled, as in the preceding case supra, or the pleadings
which we have just quoted must have been had under a writ
of novel disseisin, on the appearance of the assise ; of which
there is no evidence, and against which the presumption from
the record is strong. A writ of novel disseisin, however, may
have been obtained by Moses after the foregoing pleadings ;
but it would be difficult to understand the step.
These records illustrate the pleadings in real property
actions of the last half of the twelfth century. It remains to
present examples of the pleadings in appeals of robbery,
assault and battery, trespass to property, and demands of
debt. In these will be found the originals of such of the
like common actions of modern times as antedate the
Statute of Westminster II. (anno 1285), under which actions
1 1 Rotuli, 66 ; Abbrev. Plac 5. The first pleading in the Abbrev. Plae
closes with a statement that pledges were given by both sides, which, if given
after the pleading as indicated, would imply that the suit was begun without a
writ. The demandant's pledges must have been given before the pleading, if he
sued under the recognition process. T' s

276 HISTORY OF PROCEDURE.
on the case arose ; to wit, the various forms of trespass, and
the actions of debt, detinue, and covenant. It is hardly
necessary to say that actions for unliquidated damages for
the breach of promises to do or not to do acts not relating
to the tenure of land, were as yet unknown to the English
law. The pressing occasion for such actions had not yet
arisen. All obligations solvable iri money, in chattels, or in
services, at this time were real obligations, incurred in return
for a thing received. Breach of contract of sale made no
exception to this rule. The contract was not enforceable
without a delivery of the property or payment of the price
in whole or in part or the giving of earnest. Then the
property passed ; and if it had not been delivered, the pur
chaser sued for the possession, or the vendor for the price if
it had been delivered. The purchaser who had given earnest
might, however, depart from his engagement by abandoning
the earnest ; probably incurring a penalty.1 Breaches of
engagement of fealty, not entered into by reason of tenure,
were treason.
In the Case of Gilbert de Plumpton,2 tried in the King's
Court anno 1184, Glanvill, perhaps on behalf of the king,
appeals (or procures the appeal of) the defendant of carrying
off and marrying a young heiress in the gift of the king, and
of breaking several gates and carrying off a hunter's horn at
the same time ; charging the whole to have been done in
larceny and robbery. The precise form of the appeal is not
given in the record ; but the language preserved is technical
and doubtless gives the substance of the formula. Glanvill,
says the record, was urgent that the defendant should be
condemned to death ; " imponens illi quod ipse puellam
quandum de donatione regis, filiam R. de G, rapuit et sibi
in uxorem retinuit ; et quod per noctem fregit sex portas
patris ipsius puellae, et abstulit ei unum cornu venatorium et
unum capistrum etc., et pnedictam puellam. Adjecit etiam
' Glanvill, lib. 10, e 14. ¦» Placita Ang.-Norm. 233.

THE ISSUE TERM. 277
quod haec omnia in latrocinio et roberia asportavit." But
the said young man "omnia quae ad vim et latrocinia et
roberiam pertinebant, modis omnibus, defendebat, et super
hoc se juri stare obtulit."
The prototype of an action of trespass de bonis aspor-
tatis may be seen a shade nearer in the case of Hubert of
St. Q. v. Stephen of F.,1 'anno 1194. The record states that
Hubert appeals Stephen and others that they came into his
land at B. " cum vi et armis et robberia," and craftily and
against the king's peace carried off his chattels, to wit, turf to
the value of sixty shillings, and took the same into the court of
the said William (one of the defendants) ; and this he offers
to prove by W. N., who was custos of the said land, against the
said William and by R. de St. M. against Robert (another
defendant) who saw him in " in vi ilia."
The sheriff testifies that he could not find Stephen ; but
William comes and defends the felony and robbery and every
thing word for word, and says that the turf which he carried
away he carried away from his own frank tenement and fee,
and not from the fee of Hubert. Hubert replies to the latter
part of the plea that he had dug and made the turf after the
king set out from Germany, freely, in peace, and without any
claim made by William, but that after the king crossed into
Normandy, William had carried it off. The other defendant,
Robert, defends the whole appeal, word for word.
When anyone was charged with the commission of a high
crime, such as plotting sedition or the king's death, and was
accused by the public voice, and not by an appellor, he was
either attached by proper pledges (bail) or imprisoned. Then
the truth was inquired of by many and various inquisitions
and questions before the justiciars, of the men, no doubt, of
the vicinage ; the court taking into consideration the reason
able indications and the suggestions making for and against
the accused.2 This was for the purpose, it seems, of deter-
* Placita Ang.-Norm. 285. 2 Glanvill, lib. 14, c. i.

273 HISTORY OF PROCEDURE.
mining whether there was a sufficient presumption against the
party to justify the court in sending him to the ordeal ; to
which, when there was no appellor, persons sufficiently accused
must go if they disputed the accusation. The result of the
inquiries thus made by the judges, if they appeared to sustain
the accusation, corresponded to the finding of the twelve legal
men or knights under the Assises of Clarendon and North
ampton, if indeed the inquiries were not prosecuted by reason
of the presentation by one of the same bodies of men.
If, however, an appellor ( " a certain accuser " ) appeared
in such a case, he was to be attached by pledges to prosecute,
if he could find pledges ; if not, he was to be taken at his
word, as was also true in all cases of pleas of felony. Indeed,
it was the usual course to trust to the party's promise to
prosecute, lest men should be deterred from making accusa
tion. The accused was then, as in the other case, attached by
pledges or cast into prison.1 The usual essoins having been
cast, the parties appear, and the accuser prefers his charge; as
that he had seen, or by other mode approved in court most
certainly knew, that the accused had plotted or done some
thing towards the king's death or to promote sedition in the
kingdom or army, or to have consented or to have given
counsel or delegated authority towards such object, and that
he was prepared to prove this according to the consideration
of the court. Then if the accused denied everything in court
in legal manner, the issue went to the decision of the duel,
unless the accused was incapacitated by sex, age, or mayhem.2
The following pleadings in common criminal appeals are
from the Rotuli Curiae Regis :
William de R.3 appealed Adam of T. that he threatened
him, and that by him and of his sending were burned the
houses of Richard, his father, and their arms were carried off
* In cases of homicide, pledges were not permitted : Glanvill, lib. 14, c. I, § 4.
2 Ib. §§5-8. See also upon this subject Bracton, 118b, 119, to the same effect.
3 I Rotuli, 29, anno 1194.

THE ISSUE TERM. 279
and the men within the houses slain, to wit, Ralph, the reeve,
and Geoffrey, a deacon, and a certain woman Lenio, and that
those malefactors who did this deed came from his house to
the doing that deed, and to his house returned, and this he
offers to prove against him by the consideration of the court,
by his body, and he found pledge of prosecuting his appeal,
to wit, Richard, his father. Adam comes and defends the
whole, word for word, according as the court considered.
Richard de W.1 appealed Reginald de A. and Roger, his
brother, and Henry de M. and Walter, a clerk, that they
willingly and being in the peace of our lord the king and by
night and by a premeditated attack upon his inn in his land
of (an omission), and wounded him and broke his bones, and
carried off his chattels and two of his men murdered, and
carried off " in saccos" certain rustics slain as his men, and
this he offers to prove against them as a maimed man and a
clerk in orders, but he showed no mayhem.2
Toui,3 son of T., appealed Robert that being in the peace
of the king he wounded him upon the head and robbed him
of a cap of the price of five shillings and sixpence, and offers
to prove (this) against him by his body. Robert comes and
defends all, word for word. Day is given them on the day of
St. Martin .... and meanwhile they have license of concord.
And let there be an inquisition in the county whether the
wounds were reasonably shown in the county, as he says.
In the following case the appellee, a woman, offers to
defend her denial by the duel, if necessary, against one of her
own sex ; who of course would do battle by champion, if the
duel were awarded by the court. Sarra de B.4 appealed
1 1 Rotuli, 60, anno 1 194.
2 The meaning of this may be that, besides wishing to avoid the duel, the
appellor had no witnesses or compurgators, and attempted to make a presumptive
case against the defendant by alleging that he had been wounded ; and this would
have been effectual, had he been able to show the wounds. If he had sought
only to escape the duel, it would have been sufficient for him to claim the privilege
of his order.
3 I Rotuli, 316, anno 1 199. 4 Ib. 77, anno, 1 1941

280 HISTORY OF PROCEDURE.
Constance, who was wife of M., her son, that by her consent,
and at her instance and request, malefactors came to the
house of William, her husband, and wounded her, so that she
was made bloody, and they committed robbery, and she showed
the blood to Reginald and to the archbishop of Rouen, and this
she offers to prove against her as a free woman, as the court
may consider. Constance comes and defends all, word for
word, by herself if she ought, or by others her free men, if the
court so considered.
The Norse formula of notice of suit ' in the case of Mord
v. Flosi, already stated as to the preliminary extrajudicial
proceedings, will close the consideration of the subject of
criminal pleadings. It was as follows : Then Mord took
witness (at the Hill of Laws, before the Thing) and said :
' I take witness to this that I give notice of an assault laid
down by law against Flosi, Thord's son, for that he rushed
at Helgi, Njal's son, and dealt him a brain, or a body, or a
marrow wound, which proved a death wound, and from which
Helgi got his death. I say that in this suit he ought to be
made a guilty man, an outlaw, not to be fed, not to be for
warded, not to be helped or harboured in any need. I say
that all his goods are forfeited, half to me and half to the
men of the quarter, who have a right by law to take his
forfeited goods. I give notice of this suit for manslaughter
in the Quarter Court into which this suit ought by law to
come. I give notice of this lawful notice ; I give notice in
the hearing of all men on the Hill of Laws ; I give notice of
this suit to be pleaded this summer, and of full outlawry
against Flosi, Thord's son ; I give notice of a suit which
Thorgeir, Thorir's son, has handed over to me." The formula
is then repeated with the change of stating the wounds first
and the assault second ; and the case was then properly
before the court. Flosi listened carefully (to detect any flaw),
but said never a word the while.
1 The subsequent pleadings are, for convenience, reserved for chapter ix.

THE ISSUE TERM. 281
Many other suits were then entered relating to the same
feud and catastrophe ; a whole day being thus occupied. One
of these suits was by Thorgeir Craggeir, next of kin of the
family of Njal, who thus declared : " I take witness to this,
that I give notice of a suit against Glum, Hilldir's son, in
that he took firing and lighted it, and bore it to the house at
Bergthorsknoll, when there were burned inside it, to wit, Njal,
Thorgeir's son, and Bergthora, Skarphedinn's daughter,1 and
all those other men who were burned inside it there and then.
I say that in this suit he ought to be made a guilty man, an
outlaw, not to be fed, not to be forwarded, not to be helped
or harboured in any need. I say that all his goods are
forfeited, half to me and half to the men of the quarter, who
have a right by law to take his forfeited goods ; I give notice
of this suit in the Quarter Court, into which it ought by law
to come. I give notice in the hearing of all men on the Hill
of Laws. I give notice of this suit to be pleaded this
summer, and of full outlawry against Glum, Hilldir's son."
The defence depended entirely upon detecting error in
the pleading of the plaintiff; there being no dispute as to the
facts or the liability of the defendants. But no error was to
be found, and the cases now stood for trial, without answer.
Examples of pleadings in England in actions for debt
may be seen in the following cases, also from the Rotuli
Curiae Regis :
Elias de H.2 demanded forty shillings renter annum in
K. and in B. against J. de A., which he ought to pay him
annually on account of a fine made between the said J. and
Thomas, father of Elias, in the court of king Henry, father
.of our lord the king, for six bovates of land and for a mill in
S., which Agnes de A. holds for her life, and again ought the
said Elias to have the said forty shillings, and he produces a
chirograph which testifies this. And the sheriff testifies by
his writ that the forty shillings' rent was taken into the hand
1 Skarphedinn was a son of Njal. 2 I Rotuli, 90, anno 1 1 94.

282 HISTORY OF PROCEDURE.
of the king on the day of Venus next after the feast of St.
Edmund by default of the said J. against the said Elias, and
J. came within fifteen days and sought the said forty shillings'
rent by replevin. It was considered that J. have by replevin
the forty shillings' rent, and a day is given them on the day
of St. Hilary in fifteen days, and in the meantime they have
license of concord, and J. puts in his place for receiving the
chirograph Hugh de B. or Ralph le F., and Elias puts in his
own place in respect thereof Geoffrey de H. l
Humfrey de W.2 demanded against Roger C. five shillings'
rent and threepence in B. as his right and inheritance, which
Warin, his father, loaned to William C, father of the said
Roger, in the time of king Stephen, for a term which is passed
as he says. Roger comes and defends his right and that
loan, and says that he holds that rent as his inheritance and
his own frank tenement, and offers to defend by Peter de W.
as the court considered as (of a matter) " de longo tempore."
The nuns of H.3 demand against Fulc, son of T., two
marks' rent, to wit, one mark in E. and one mark in S., which
Eustace de B. was wont to pay, which (marks) T., his father,
gave them in frankalmoign and confirmed by his charter,
which they produce. And Fulc comes and says that his
father was seised thereof on the day upon which he was alive
and dead, and he (Fulc) never had4 seisin thereof, and that
his father gave more than sixty shillings, the last third of all
his land (to the plaintiffs), and he demanded judgment of the
court whether he ought to warrant gifts of this kind, and
besides he says that his sister was " familiaris " to his father,
and had his seal at her pleasure, that she was a nun at H.,
and could seal what she would, and he did not defend (i.e.
deny) the charter. They made a concord.
1 It will be observed that, so far as the record goes, the procedure is the same
as that described ante, p. 221, in an action for the recovery of land.
I Rotuli, 410, anno 1 199. 3 lb. 427, anno 1 199.
4 There seems to be a mistake in the MS. or printed text. The latter reads
"ille .... hiiunt."

THE ISSUE TERM. 283
In the following case it will not be difficult to find a'
suggestion, if needed, of detinue, though the meaning of the
plea is not clear : Richard de W. * puts all his land and what
ever he has in pledge to convict Henry de M. that his
(Richard's) brother handed over to him a war-horse on his
march to Jerusalem, which he thus far detains. Henry
defends and says that he gave to his own lord a palfrey for
his march and his lord gave to him a trotting pack-horse.
Pledges of Henry for standing to right (i.e. proving his plea),
Roger E. and Albin. a
Apart from the medial judgment, it often happened that
judgment was rendered at the issue term. Certain criminal
cases in which the accused was at once put upon trial have
already been mentioned.3 There were three other classes of
cases ; first, confession of judgment by either party ; secondly,
judgment against a. plaintiff for default of appearance ; thirdly,
judgment upon issues of law and upon such issues of fact as
the court were competent to decide, when the court were
prepared to decide them at once.
No reference to authority is needed to show that judgment
might be confessed at the first term ; but the records contain
some striking examples, two or three of which, as serving to
bring the procedure into clear outline, may be presented. Of
these the case of Abbot Faritius v. William, the King's
Chamberlain,4 of the time of Henry the First, may be
mentioned. The defendant was tenant of plaintiff by knight service,
and having failed to furnish his man when required, the abbot
brings suit for the land held by him. To this end he brings
forward his witnesses in the usual way, at the issue term (at
least there is nothing to show that this was at the trial term),

1 1 Rotuli, 6, anno 1 194; Abbrev. Plac. 5.
2 If Richard's brother was Henry's lord, the meaning of the plea seems to be
that Henry and Richard's brother simply exchanged horses.
3 Ante, p. 229 ; Laws Hen. I. t. 47. 4 Placita Ang.-Norm. 75.

284 HISTORY OF PROCEDURE.
to show that the land had furnished a knight in the time of
the Conqueror ; and his case was so strong that the defendant
could not deny the allegation ; and the plaintiff had judgment
at once.1 About the year 1158 abbot Walkelin sues Turstin Basset,
alleging that the latter has disseised him of a certain tithe, and
summons him by the king's writ. Upon the reading of the
writ, the plaintiff brings "the testimony of the whole county,"
which the defendant does not venture to deny, and judgment
is given in favour of the plaintiff without further delay.2
In the case of the Abbot of St. Augustine v. Men of Thanet,3
anno 1176, the plaintiff relies upon a former judgment in his
favour as to the point in dispute ; which the defendants are
compelled to admit, and the plaintiff has judgment.
Not far from the year 11 54, Robert de I. sues the abbot of
Battel for trespassing upon land alleged to belong to the
plaintiff and carrying off hay thence. This land had been
laid off to the abbot in a trial that had just occurred with
Gilbert de B. ; and Robert of I. claimed that the boundaries
had been improperly set and that part of his land had been
given to the abbot. The abbot denies the claim and assertion,
bringing to court with him the men who had laid off the
boundaries, "iterato sacramentum praestare parati, se non
quidem amplius, quinimmo ne sacramenti praestiti viderentur
transgressores, minus justo suo ambitu conclusisse." This was,
of course, sufficient to give the abbot the proof at the trial
term ; and the plaintiff thereupon secretly leaves the court and
takes to flight, being adjudged guilty of a false plea.4
An important example of the year 1 147 is furnished by
the case of Bishop Ascelin and the Monks of St. Andrew;5 a
case showing that a bad plea might be treated as confession
of judgment. The latter asserted that certain manors had
1 See also the two following cases, ib. pp. 76, 77. ' Ib. 197. 3 Ib. 224.
4 Ib. 179. The plaintiff's flight is stated in the chronicle of Battel Abbey.
5 Ib. 160.

THE ISSUE TERM. 285
been granted them by William the Conqueror, and by arch
bishop Lanfranc and bishop Gundulf; and they produced
their charters in support of their allegation. Bishop Ascelin
being unable to make any good and valid answer ("nichil
firmum, nichil validum responderet"), judgment is at once
given in favour of the monks.
The second class of cases, in which judgment is given for
the defendant for default of appearance of the plaintiff,
deserves some comment. The judgment was that the
defendant go without day, and that the plaintiff and his
pledges be in mercy for failure to prosecute. As a conse
quence of this judgment the pledges were attached to show
cause at a day stated why they had not their man in court
at the appointed time. This judgment the defendant was
entitled to, as we have seen, upon the fourth day after the day
set for appearance. A single example will serve sufficiently
to enforce the right of the defendant and the consequences
which befell the defaulting plaintiff and his sureties. Henry,
son of W.,1 and Hugh, son of B., and Ralph, his son, offered
themselves on the fourth day against William de C, concern
ing a plea of appeal " de pace domini regis infracta," of' which
the said William appealed them, and he (William) came not
or essoined himself, and a day was given to him (to answer for
the default) before the justiciars at Northampton. Judgment
that Henry, Hugh, and Ralph go quit, and that William be in
mercy, and also his pledges, to wit, Godfrey de B. and Salaedin
deH.
The judgment, however, did not touch the merits of the
demand, and the plaintiff, upon excusing or purging himself
of his default, was permitted to renew his suit. This appears
from the many entries in the Rotuli, some of which have
already been quoted, in which the judgment declares that the
defendant shall go without day, and the plaintiff shall have
such recovery as he ought to have. A single example may be
1 1 Rotuli, 29, anno 1194.

286 HISTORY OF PROCEDURE.
here added. Day1 was given to Alexander A. (plaintiff) and
to William de C. (defendant) concerning a plea of the Grand
Assise of a knight's fee in G. at the feast of St. Michael in
fifteen days, and it was ordered that the assise come then, and
at that day came William, and he waited until the morrow of
the feast of (All) Souls, and Alexander came not nor essoined
himself, and thereupon it was considered that William go
without day, and that Alexander, who is plaintiff, have such
recovery as he ought to have.
In the third class of cases a decision is reached at the issue
term by reason of the pleadings raising a question of law or
some question of fact which properly belonged to the court to
decide. The case of Archbishop of Canterbury v. Abbot of
Battel Abbey,2 temp, king Stephen, turned upon a question of
law, and was decided (without appointment of a trial term)
just as a modern case of the kind would be decided, by a sub
mission of the point of law in the question to the determination
of the court, and not to some test imposed upon the parties.
The defendant had seized upon wreck, in accordance with
the ancient law of wreck as it had prevailed before the modi
fication made by Henry the First. If the modified law still
prevailed, the defendant was liable ; if the old law, he was not.
The defendant contended that with the death of Henry, Henry's
law failed, and the ancient common law prevailed ; and the
court ruled that way.3
At the beginning of the reign of Henry the Second the
abbot of Battel brought an action against Gilbert de Baillol for
the recovery of certain lands, of which he alleged that the
defendant had unlawfully disseised him. The plaintiff sets up
title under charters ; whereupon the defendant, observing that
some of them are without seals, raises an objection, which
1 i Rotuli, 24, anno 1 1 94. 2 Ib. 143.
3 There was indeed a second term in this case, but that was caused by a
judgment by default at the first term, which default was now set aside. The term
was not a trial term. For another case turning upon a point of law decided by
the court, see Abbot of Abingdon v. Anskill, Placita Ang.-Norm. 62.

THE ISSUE TERM. 287
is overruled. No other defence being made, the plaintiff
recovers judgment at the same sitting.1
Afterwards in Abbot of Battel v. Alan de B.2 already
referred to, the plaintiff claims the right of presentation to a
certain church. The defendant sets up title under a charter
purporting to have been executed by a predecessor of the
plaintiff. The plaintiff questions the genuineness of the charter,
and the whole court advise a compromise ; which is agreed to,
and compromise is drawn up at once.3
1 Placita Ang.-Norm. 175. 2 Ib. 245.
3 Comp. also the result of the plea of Ganelon, who is represented in the
Chanson de Roland (latter part of the twelfth century) as appealed of treason by
Charlemagne for the death of Roland. His answer is that Roland had done him
wrong, whereupon he had renounced his fealty to him and given him the diffidalio
(defiance), and hence, as he alleged, his offence could not be treason. "We shall
take counsel of the matter," said the judges. — Chanson de Roland, 348 (Gautier),
The judges were about to accept the plea, but the emperor virtually required them
to overrule it. — Ib. 350.

CHAPTER VIII.
THE MEDIAL JUDGMENT.
THE parties having joined issue, the next step in the pro
ceedings was what may be called the medial or proof judg
ment ;r a step known in survival to living memory. Compur
gation was abolished by act of Parliament in the year 1836;
and the ancient right of trial by battle, after having long
been forgotten, was successfully invoked in the year 1819,2
and abolished in the following year.
This medial judgment was pronounced at the issue term,
and is to be sharply distinguished from the final judgment
pronounced at the trial term after the question at issue had
been decided. The medial judgment merely determined
what should be done upon the issue joined, when it should be
done, and by whom it should be done. If, for example, the
plaintiff had, in conformity with the law applicable to the par
ticular case and to the parties, offered to prove by his witness
and champion the claim set out by him and traversed by the
defendant, the court, through the presiding judge, directed
that security should be given and the duel waged at a subse
quent day named (the trial term), between the plaintiff's
champion and the defendant. If the ordeal were tendered, and
1 The " Beweisurtheil " of the German writers.
2 Ashford v. Thornton, 1 Barn, and Aid. 405.

THE MEDIAL JUDGMENT. 289
the case were proper for that mode of trial, the judge set a day
for the test and directed the party to give security to undergo
the same. If the plaintiff or the defendant, upon a valid plea,
had offered to prove his allegation by charters, the court
required the giving of security for the production of the charters
upon a day named ; the judgment often providing for the pro
duction of charters by both parties. In case proof was offered
properly, either by compurgators or by witnesses, the precise
question in issue was set out by the court, and the person who
was to sustain the burden of proof (the one who had made the
last good allegation) was required, upon giving security, to
appear upon a certain day with his compurgators or with his
witnesses, and sustain the allegation in question. If the king
or his justiciar had ordered a recognition, the writ stated the
question to be answered, and, after security given, required
the recognitors to be summoned to testify of the matter upon
a day named.
Frequent examples of this step in the procedure occur in
the records of the eleventh and twelfth centuries. In a case
already referred to, Bishop Wulfstan v. Abbot Walter,1 the
record states that at a great assembly in Worcester, convened
for the trial of this case, claim was made by the plaintiff to
certain services, and witnesses offered who in the time of
Edward the Confessor had seen and undertaken the said
services on behalf of the bishop. This was denied by the
defendant ; and thereupon by order of the king's justiciar
and the decision of the barons, the case went to judgment,
i.e. to the medial judgment. "And because the abbot said
that he had no witnesses against the bishop, it was adjudged
by the wise men that the bishop should name his witnesses
and produce them upon a day appointed, and by oath
prove his words ; " the abbot to bring such relics (for the
bishop's witnesses to swear upon) as he could. Here will be
distinctly seen the burden of proof, the theme of proof, and
1 Placita Ang. -Norm. 16. U

290 HISTORY OF PROCEDURE.
the time for making the proof. Whether security was required
does not appear. The position of the plaintiff may have
exempted him from giving it.
In the case of Modbert v. Prior and Monks of Bath1 the
plaintiff laid claim to certain land at Bath, to which the
defendants claimed title, deraigning the same and offering
witnesses present in court. This was sufficient to entitle the
defendants to go to the proof; but their claim was violently
opposed in the court, and an uproar followed. Besides, the
plaintiff had come into court with a writ of seisin from the
king's son, which, however, the presiding judge interpreted as
merely intended as an alternative mandate, authorising, in
case of refusal, a trial of the claim. The plaintiff insisted upon
his claim ; and the result at last was that, at the suggestion of
the presiding judge, certain impartial senior men of the court
went apart to consider of the matter. Upon their return it
was announced that the plaintiff must, in support of his claim,
name at least two free and legal witnesses from the defendant 's
convent, or a charter truly executed, and produce the same
upon the eighth day thereafter ; a judgment which the plaintiff
could not perform.
The medial judgment is suggested by a single expression
in the Case of Henry of Essex,2 appealed anno 1 163 of treason.
The record states that the defendant, having denied the charge,
" a short space of time afterwards " went to the duel. So in
the Case of Ailward,3 the defendant having been cast into
prison on a charge of theft, is finally adjudged to undergo the
ordeal. In the Case of Girard of Camvill4 the defendant is
accused of various crimes, and, having made answer, gives
pledges for defending himself by one of his men. These
examples might be indefinitely multiplied from the Rotuli
Curiae Regis and the Abbreviatio Placitorum. Indeed, every
record or statement of the trial (in a literal sense) of an issue
implies the medial judgment.
' Placita Ang.-Norm. 114. 2 Ib. 210. 3 Ib. 260. 4 Ib. 283.

THE MEDIAL JUDGMENT. 291
We have already observed, on more than one occasion, that
the question of the burden of proof was determined by the
state of the pleadings. The proof was to be furnished by the
party who had made the last sufficient allegation, * provided
he offered, with his pleading, proof sufficient for the par
ticular case. The result was often very different from what
would occur at the present time.
A traverse (i.e. a general or specific denial) by the defendant
in modern English pleading does not withdraw the burden of
proof from the plaintiff : he must still prove his case. Under
the ancient system, however, the burden followed the suffi
cient pleading ; and the defendant who had traversed (1) an
appeal, or (2) a presentment on behalf of the public, in the
one case must make his proof (by the duel), and in the
other was bound to exculpate himself, according to the terms
of his defence. In other cases, however, a denial was often
made when the defendant had no proof, for the purpose of
preventing the implication of a confession of judgment or
a fine for disobeying summons. The result was that the
plaintiff was put to the proof of his case.
In the case of what would be termed a plea of confession
and avoidance (the " exception " of the Roman procedure and
its modern successors), there was no substantial difference
between the ancient English and the modern English pro.
cedure ; but the ground upon which the burden of proof has
proceeded in the two cases is different. In the modern
practice the burden of proof in such a case rests upon the
defendant because he has " confessed " the plaintift's declara
tion, but has " avoided " it by setting up some new affirmative
matter, such as accord and satisfaction, which (if true) shows
that the plaintiff's claim ought not to be enforced. In the
ancient practice the burden of proof in such a case rested upon
1 The same was true of the Continental procedure, the inaccurate conceptions
of the earlier German writers having in recent years been fully demonstrated by
Dr. Laband in his learned work Die vermbgensrechtlichen Klagen, pp. 166 et seq.
U 2

292 HISTORY OF PROCEDURE.
the defendant on the same ground that it did in the case of a
traverse, to wit, that the last pleading was a good answer to
what had preceded.
In case of the non-appearance of the defendant, after the
required summonses and permitted essoins, the court directed
the plaintiff, except in cases of high crimes, to appear at
another term and furnish his proof, unless he was then ready
with it.1 His count or appeal being the only allegation before
the court, that allegation, in accordance with the general rule,
must be established. If, however, the defendant appeared, he
was bound to answer and make a sufficient defence, otherwise
he was deemed to have confessed judgment ; thus exempting
the plaintiff from the burden of proving his allegation as he
would have been compelled to do had the defendant stayed
away from court.2
If the proceeding was a criminal one, and the defendant
was prosecuted by presentment on behalf of the public, that
is, of the king, the burden of proof again rested upon the
defendant. The presentment, if properly made, raised a pre
sumption of the guilt of the accused ; and this presumption
must be repelled to save him from conviction. And the same
was true in the case of appeals, when the defendant was taken
in possession of stolen goods, or of the bloody instrument with
which a homicide had been committed. Such facts made a
presumption of guilt ; and the court declared that the defendant
must exculpate himself as best he could. This practice was
in perfect keeping with the general principle above stated : the
defendant denies the accusation, and this requires him to go
to the proof and establish his innocence if he can. Escape of
those against whom there was the positive evidence of being
taken in crime (of high degree), through this rule of the burden
of proof, was prevented by the permission which the law gave
to execute justice upon the criminal on the spot. But this
' See Placita Ang.-Norm. 151-153, anno 1145 ; 182, anno 1156.
2 Laws Hen, I. c. 49, § 3 ; c, 52, § 1 ; and sec examples given infra.

THE MEDIAL JUDGMENT. 293
was not permitted in cases of mere delects unless the wrong
doer resisted arrest.1
The interest attaching to questions of proof will justify an
examination of the materials upon which the general rule
above stated is based. The practice in criminal cases, how
ever, is so clear and well ascertained that it will not be necessary
to examine the cases : it will suffice to make general reference
to the Assises of Clarendon and Northampton, which, so far
as the point under consideration is concerned, represent the
state of the law throughout the eleventh and twelfth centuries.
The closing sentence of the case of Gundulf v. Pichot,2 in the
time of the Conqueror ; the Case of the Fifty Men,3 in the
time of Rufus ; and the Case of Ailward,4 in the time of Henry
the Second, sufficiently show this.
Domesday Book contains a mass of materials bearing upon
the production of proof in civil cases. William de C, for
example, claims that certain land belonged to the manor of C,
and brings witnesses of the best senior men of the county and
hundred. Picot, the defendant, denies the claim and offers
villeins, common people, and bailiffs who were ready to defend
his denial by oath or by ordeal. This would have given the
proof to Picot; but the plaintiff's witnesses objected to being
opposed by the class of persons offered by Picot, unless
required by the king. And the case stands over for his
decision.5 The hundred of G. witness that two men belong to William
of W. ; but a man of the king offers the ordeal that they per
tained to another manor in the time of king Edward. The
record adds that the king takes the men into his hand ; the
meaning of which is, that the case is to be in abeyance until
the ordeal is undergone by the party proposing it.6
Besides cases like the foregoing, the import of which is
clear, there are many others in Domesday which close with
¦ Ail ward's Case, Placita Ang.-Norm. 260. » Ib. 36. 3 Ib. 72,
4 Ib. 260. s Ib. 38. 6 Ib. 42.

294 HISTORY OF PROCEDURE.
a mere offer of proof; the inference being that the offer is
good. To turn to later cases, one William lays claim to the
manor of C. against the abbot and monks of Gloucester. The
latter contest the claim, whereupon a term is set in the King's
Court, and the defendants there prove their title by an eye
and ear witness ; l a perfect illustration of the rule under
consideration. The abbot of Battel lays claim against Alan de B. to the
right of presentation to the church at M. Alan contests
the claim under a charter by which, as he alleges, a prior
abbot of Battel had conveyed the church to him. A term
is accordingly set, and, the plea being good, Alan furnishes
the proof — the charter referred to — and a compromise
follows.2 In one or two cases the sufficient pleading did not, for
special reasons, carry the right to furnish the proof. The offer
of a charter by the plaintiff, the genuineness of which was not
denied by the defendant,3 is one case. It could not be dis
puted, except indeed by another charter. The record of the
King's Court and of the Exchequer, as we shall see hereafter,
was also unimpeachable. And if one of the parties to a cause
should invoke such record to prove a thing said or done, the
other did not, by denying the allegation, acquire the right to
disprove it. Upon a simple traverse of the act or words, the
affirming party was still entitled to call for the record of the
court ; the testimony of those present who were entitled to
speak to the question. However, it seems that the opposite
party could offer objection to the bringing of the record, such
perhaps as illegality of the proceedings for want of summons ;
and upon such an objection, the party offering it would be
1 Placita Ang.-Norm. 135. 2 Ib. 245.
3 The genuineness of the seal might be disputed, and a successful impeachment
in this direction destroyed the efficacy of the charter as evidence. But if the seal
was genuine, there could be no impeachment of the document except by another
charter.

THE MEDIAL JUDGMENT. 295
allowed to establish it if he could. As to the record of most
of the inferior courts (excepting certain proceedings in the
County Court, of which hereafter), this was not conclusive, and
a traverse carried the right to bring the proof. It is probable
again that no one would be permitted, by a traverse, to deny
the offered testimony of the whole community as to the holding
of a court at a certain term. Another class of cases has been
heretofore mentioned in which, against the offer of witnesses
of rank, for example, a bishop, the party's traverse did not
avail him to such an extent as would have been the case had
common men been offered. He was not, however, cut off
from the privilege attached to his pleading : he was only
required to bring proof of great weight ; a very large number
of witnesses or possibly compurgators. If the party were a
stranger in the district, it is probable that he was still entitled
to wage the duel or go to the ordeal, according to the nature
of the case, notwithstanding the rank of the witnesses offered
against him. It is apprehended that in all cases in which the
allegation in question was impeachable, a traverse carried the
right of proof.
The party who had made the last good pleading was
entitled to ask the court for a judgment according to law as
to the mode of trial to be had. It was not within the
arbitrary will or generally even in the discretion of the judges
to order such a trial as they thought fit. In issues of right,
the court was bound in ordinary cases to order the duel,
unless the defendant had put himself upon the Grand Assise ;
when the court was bound to allow that mode of trial. The
duel, it should be remarked, was required upon the tender of
the plaintiff, when the defendant did not require a recognition
by the Magna Assisa. This, however, was not because the
proof belonged to the plaintiff, but because that was the con
stitutional mode of trial. That the proof belonged to the
party who had last pleaded well, even in pleas of right, is
shown by two circumstances ; first, in that the court was

296 .HISTORY OF PROCEDURE.
bound to award the Grand Assise upon the demand of the
tenant and could not be required in the count of the de
mandant to do so (the demandant could require it by an
appropriate replication to the defendant's plea, which fact
itself illustrates the rule as to the proofs) ; and secondly, in
that when the parties came on prepared for the wager of
battle, the tenant was always sworn first, as will be seen in
the following chapter. The duel might also be demanded,
sometimes, in cases of theft,1 in appeals of outlawry,2 and,
at least in the eleventh century, in trials of disseisin,3 and, in
the time of Glanvill, by pledges of debt.4
Indeed, as a rule, in all cases of appeals the court was
bound, if asked, to award the duel ; though it should be
observed that trial by battle was an innovation in England,
and not a few towns had obtained exemption from it. This
was true of London,5 Winchester,6 Lincoln,? St. Edmunds-
bury,8 and perhaps of Oxford, which possessed the same
privileges in general as London.9 An interesting example of
such exemption has been preserved by Jocelyn de Brakelond.
About the year 1198 a free tenant of the cellarer of the
monastery of St. Edmund, named Ketel, who lived without the
gates of the town (St. Edmundsbury), having been accused
of larceny, was overcome in the duel and hung. But the
burghers, says Jocelyn, taunted the men of the convent,
saying that if Ketel had resided within the burgh, he would
not have been required to wage the duel, but might have
acquitted himself by the oaths of his neighbours (i.e. by
compurgation), "sicut libertas est eorum qui manent infra
burgum."10 And this appears to have been the general law
J Laws Wm. I. ii. c. 1 ; iii. c. 12 ; case of Ketel, infra.
2 Wm. I. ii. c. 3. 3 Ante, p. 177, n. 1.
4 Glanvill, lib. 10, c. 5, § 7. See infra as to compurgation in such cases.
s Stubbs, Sei. Ch. 108 (2d ed.), charter of Hen. I.
6 Ib. 266, charter of Rich. I. 7 lb. 267, ib.
8 Jocelyn de Brakel. 74 (Camden Soc).
» Stubbs, Sei. Ch. 167, charter of Hen. II.
10 Jocelyn de Brakel. ut supra.

THE MEDIAL JUDGMENT. 297
as to the lesser crimes in the time of the Conqueror, if not
considerably later."
If in any of the foregoing cases the party who was to
furnish the proof was a woman,2 a maimed man, or a man
above sixty years of age, the duel was not required. In the
case of one who had suffered mayhem (by which was then
meant the breaking of any bone or an injury to the head
either by wounding or abrasion 3) the party, in criminal cases
at all events, was entitled to judgment of the ordeal ; of hot
iron if he were a freeman, of water if he were a rustic.4 The
same was probably true of men over sixty years of age, and
of women. A man accused by a woman of the death of her
husband could also exculpate himself by the ordeal.5
One who was accused of crime within the terms of the
Assise of Clarendon or of Northampton was entitled to
undergo the ordeal, when not caught in the act. This was
also true of accusations of lese-majesty by the public voice, as
we have seen,6 and was probably true also of similar prosecu
tions of inferior crimes ; though by the ancient procedure,
still preserved in some of the towns, compurgation was
allowed in most cases of crime.?
Compurgation was allowed also in delicts, in questions of
warranty,8 in denials of summons,' in exculpation of bail
(pledges) or failing to produce their principal in court in
criminal if not in civil cases,10 to lords upon the escape of
their servants charged with the commission of crime," and
perhaps (for the law was doubtful in the time of Glanvill) in
cases of debt for money loaned,12 but not, it seems, in debt for
* Laws Wm. I. i. c, 51. 2 Comp. Laws Edw. Conf. e 19.
3 Glanvill, lib. 14, c. 1, § 8. 4 Ibid. s Glanvill, lib. 14, c. 3.
6 Ante, pp. 277, 278.
3 Laws Wm. I. i; e 14 ; Hen. I. e 66, § 9, compurgation in appeals of theft,
robbery, and burning; Wm. I. i. c. 15, violation of churches "aut alicujus
cameram." — Ib. e 51. 8 lb, cc. 21, 45.
' I Rotuli, 200. I0 Post, pp. 306, 307. " Laws Wm. I. i. c. 52-
" Glanvill, lib. 10, c. 5, § 7. The practice was evidently in a state of transition
at this time between compurgation and the duel ; the former prevailing in the next
century.

298 HISTORY OF PROCEDURE.
rent and customs due by tenure, between lord and man.'
But compurgation was in transition throughout the twelfth
century. Parties always had the right to require a trial by charters.
Strangers and others who could produce neither charters,
compurgators, nor witnesses could demand the judgment of
God, but whether they could elect between the ordeal and the
duel does not appear.2 In the eleventh century it is probable
that an Englishman could elect the ordeal and a Frenchman
(Norman) the duel. That was the case certainly in appeals
between persons of the two races.3 The practice of invoking
judgment of trial by witnesses was apparently growing infre
quent by the middle of the twelfth century. It is probable
that it could still be demanded as formerly in any case in
which the evidence of the community could establish a fact,
such, for instance, as in a case of sale or rearing,4 or in a
question of freedom, or in public transactions generally ; but
compurgation and recognitions were coming to be preferred.
Trial by recognition was usually settled by the king's writ;
though it might also be demanded upon the pleadings of a
cause in which an issue appropriate for it was joined.
In case of a division of the court as to the judgment to be
pronounced, the majority governed.5 But a denial of the
right of a party to the particular mode of trial to which he
became clearly entitled upon the pleadings, and the adjudica
tion of some other mode, was a case of false judgment; a
wrong of which the ancient records contain not unfrequent
mention. This was the " false judgment " of which the injured
party (who might be the party who was to furnish the proof,
or the opposite party) had the right in the time of Glanvill to
1 When the relation of the parties was not that of lord and man, with fealty
and homage, compurgation was probably allowed. The duel, or the Grand
Assise, as we have seen, was the mode of trial between lord and man in cases of
rent and services.
2 See Wm. I. i. e 15. 3 Laws Wm. I. ii. cc. 1-3.
4 Laws Wm. I. i, cc. 21, 45. 5 Laws Hen. I. c. 5, § 6.

THE MEDIAL JUDGMENT. 299
appeal the court to wager of battle. " Though a court," says
Glanvill, " is not obliged to defend its record by the duel, it is
bound to defend its judgment by the duel."1 In the eleventh
century the judge was to be in the king's mercy in sixty shil
lings, and to lose his liberty, unless he could purge himself by
showing that he had acted ignorantly.2 By the laws of Henry
the First the judge was to pay one hundred and twenty
shillings, and lose his thegnship and all judicial dignity, unless
he could obtain a discharge from liability from the king, or
prove that he had acted in ignorance.3 Between compurga
tion, the duel, and the ordeal, difficult questions must some
times have arisen, and mistakes by unskilled judges not
unfrequently made.
The law and procedure in respect of a complaint of false
judgment in the time of Glanvill are thus laid down : If
anyone should declare against the court for pronouncing a
false judgment, alleging that it was false for this reason, that
when one party had said thus, and the other answered thus,
the court had adjudged falsely of their allegations by deciding
in such words (the formula of the medial judgment), and that
the court had given such false judgment by the mouth of N. ;
and if he were disposed to deny the charge, the other was
prepared to prove it against him, especially by such a com
petent witness, who is prepared to prove it ; thus the matter
went to the decision of the duel.4
Glanvill raises a question whether the court was required
to defend itself by one of its own members, or might do so by
a stranger. The answer given by him was, that the court
should defend itself " maxime " by the person who had ren-
1 Glanvill, lib. 8, e 9, § 5. By the court's record was meant the proof of
anything that had transpired at a previous session. It did not refer to any
written memorial of the proceedings. The record rin this sense) of the King's
Courts was alone indisputable, with some few exceptions. — Glanvill, lib. 8, c. 8 ;
Laws Hen. I. u 31, § 4 ; c. 49, § 4.
2 Wm. I. i. e 39. See also c. 42. 3 Hen. I. e 34, § I.
4 Glanvill, lib. 8, c. 9, § 5.

300 HISTORY OF PROCEDURE.
dered the judgment, that is, commonly by the presiding judge.
If the court were convicted, the lord thereof ("dominus
curiae") should be amerced to the king and should for ever
lose his court ; a statement referring of course to an appeal
of a Manorial Court. Indeed, the whole court were to be
amerced. On the other hand, if the appellor failed, he was
in consequence to lose his principal suit.'
1 Glanvill, lib. 8, c. 9, § 6.

CHAPTER IX.
THE TRIAL TERM.
The next step in the procedure was the appearance of the
parties before the judges at the trial term. The medial
judgment, as we have seen, must have directed a trial in one
of the following modes, to wit, by compurgation, by witnesses,
by charters, by record, by the ordeal, by the duel, or by inqui
sition or recognition. Each of these will now be considered in
order, from the final point of view, the trial.
First, then, of compurgation. This, in its essential feature^
consisted in the bringing forward of a specific number of
persons, by the party adjudged to give the proof to make
oath in his favour; the number varying in ordinary cases
from one to forty-eight, being dependent upon the rank of the
parties, of the compurgators (one thegn, for example, being
equal to six villeins), the value of the property, if property were
involved, and the nature of the suit.1 These persons were to
swear, not to the facts, but to the credibility of the party for
whom they appeared ; though knowledge of the facts was
probably deemed an important consideration in making the
selection.2 1 Brunner, Schwurg. 49; Essays in Ang.-Sax, Law, 186; Schmid, Gesetze,
Glossary, Eideshiilfe, p. 564.
2 Kritische Ueberschau, v. 204.

302 HISTORY OF PROCEDURE.
There appears to have been no class limitation in the
selection of the compurgators : it was only necessary that
those selected should be able to swear to the purity of their
principal's oath. This would naturally require persons who
were best acquainted with him, and would include his rela
tives,1 neighbours,2 and peers.3 The compurgators, in the
first half of the twelfth century and earlier, if not later, were
either " electi " by the party making the proof, or they were
"nominati" by the judge or sheriff ; those " nominati," however,
being subject to challenge for hatred or other good ground,
as, for example, that they were not " legal men."4 In some
cases the number of nominate persons was greater than the
number required, and out of them the principal was permitted
to choose his men ; but sometimes, possibly, in the triple pur
gations, the judge selected the actual compurgators.5 Selec
tion by lot was also in use. Thus, by the Dane law, in the
triple purgation, the selection was made by lot out of forty-
eight.6 It may fairly be assumed that where a serious charge
of crime was brought, and the presumption against the
accused was strong, the selection was taken out of his hands,
partly or possibly wholly, according to the nature of the case. 7
1 "Qui ex parte patris erunt, fracto juramento, qui ex matema cognatione
erunt, plane se sacramento juratores advertant." — Hen. I. c. 64, § 4. See Law of
Northumbrian Priests, c. 51.
2 " Npminentur ei sex homines de eadem geburscipa, in qua ille residens est."
Edw. i. c. 1, § 4. See ^Ethelstan, i. c. 9 ; Hen. I. c. 66, § 6.
3 ' ' Jurabunt, congruo numero consacramentalium, et qualitate parium suorum
retenta." — Hen. I. c. 64, § 2. See Essays in Ang.-Saxon Law, 298.
4 " Et ibi testes nominati et electi sunt habendi, nisi odium vel aliquid com-
petens in nominacione proponatur, cur haberi non possint." — Hen. I. c. 31, § 8.
s "Nominentur ei xiiii. et acquirat ex eis xi." — Hen. I. c. 66, § 6. According
to the same laws, § 9, in cases of theft, burning, robbery, and the like, " oportet,
ut die congruo xxx. consacramentales habeat, quorum nullus in aliquo reculpandus
Sit, . et cum xv. ex eis, quos justicia selegerit, sextusdecimus juret, sicut causa
diclabit." But the "quos" may as well refer to the "xxx." as to the "xv."
which would give the prisoner the selection from the whole number selected by
the judge. This is Schmid's interpretation, without any suggestion of ambiguity. —
Gesetze, 566.
6 Ib. § 10. Election by lot is mentioned again in c. 64, § 1.
7 See upon this subject Schmid, Gesetze, 566.

THE TRIAL TERM. 303.
Whether such a practice prevailed in civil cases in the Norman
period does not appear. Probably it did, in serious cases.
In small matters it seems that the oath taken was the
"sacramentum planum," which is defined to be "non solenne,
quod summarie et de piano praestatur, sine delectu verborum
aut locorum."1 In important causes the oath was "obser-
vatum " or " verborum observantiis," that is, with observance
of a formula. In serious criminal cases triple compurgation
corresponding to the triple ordeal was required, at least of
the common people.2 This appears to have been what was
called the "sacramentum frangens " or "fractum." Between
the extremes of the oath planum and the oath fractum ap
pears to have fallen the oath simplex, supported by a less.
number of consacramentals than the last named, but still.
observatum. These are terms of the Laws of Henry the
First;3 but they probably represent, in substance, the whole
Norman period. The law, however, varied much in details at
all times in different localities.4
Before, however, the compurgators made the oath " obser
vatum," the parties being before the court for the trial in
conformity with the judgment delivered at the issue term, the
presiding judge, according to the practice in Normandy, which
probably prevailed also in England, asked the party who had
given security to furnish the proof, if he was ready to make
his law; "si il est garni et apparellie de feire sa lei."5
Answering in the affirmative, the judge proceeded to declare
the oath-formula to be sworn by him ; which he repeated after
the judge, word for word.
The compurgators' oath (observatum) then follows; the
1 Anc. Laws, Glossary, Oath.
2 Laws Hen. I. c. 64, § 2, as to Wessex ; e 66, § 10, as to Mercia. "Lad"
or " lada " was exculpation either by compurgation or by the ordeal.
3 See, e.g., c. 64. 4 Ibid.
s Cont. de la Vicomte de l'Eau de Rouen, art. 49, quoted by Brunner, Schwurg.
184. To ' ' make one's law " was in the Norman period used also of the ordeal. —
Assise of Clar, cc. 13, 14. Each was a waging of law.

304 HISTORY OF PROCEDURE.
Anglo-Saxon formula for which, perhaps, was : " By the Lord,
the oath is clean and unperjured which N. has sworn."1 This
may, however, have been the formula used at the finding and
claim of stolen goods, upon the introduction of the procedure
called the anefang. But the compurgatory oath at the trial
term could not have been materially different. The oath as
made in Normandy has been preserved in two forms. Accord
ing to the Grand Coutumier, one form was as follows : " The
oath which G. has sworn he has sworn truly, so help me God
and his saints ; " — "Du serment que Guillaume a iure, sauffre-
ment a iure, ausi m'aist Dieu et ces sains."2 According to
the Somma, " De sacramento quod T. juravit salvum jura-
mentum juravit, si nos 3 Deus adjuvet at hec sancta;"4 a trans
lation merely of the foregoing. According to the Norman
Coutumier de la Vicomte de l'Eau de Rouen, the form used
in that district was : " Si me ait Dex et ces sains et tous autres
que N. a dit voir de ce dont il a fait serement."
The compurgators, who in earlier times appear to have
sworn with joined hands and united voice (a survival of which
custom the Somma as above quoted may suggest), now swore
separately, one by one, each repeating the same formula,
with hand upon the Gospels : " Et doit chascun des tesmoins
estre escari [separated] et oi par soi, sa mein mise sur le
livre." 5 A single mistake in repeating the formula, whether
made by the principal or by any of the compurgators, was
fatal to the party's case.
This form of compurgation was, in Normandy and oc
casionally in England, called lex disraisince. It was a simple
traverse of the plaintiff's case. When the defendant's answer
amounted to what in modern pleading would be called con
fession and avoidance, the proof was in Normandy called
1 I Anc. Laws and Inst. 181 (8vo ed.).
2 Grand Cout. c. 85 (ed. 1523).
3 Brunner well thinks this a mistake for "me." — Schwurg. 185, note.
4 Somma, lib. 2, c. 19, § 4.
5 Cout. de la Vic. dc l'Eau de R. art. 40 ; Brunner, 185,

THE TRIAL TERM. 305
lexprobabilis, a term seldom used in the English chronicles or
charters. Of this there were in Normandy three classes
belonging to the procedure by compurgation, and two to that
by witnesses;1 some of which certainly are to be found in
England. The first of these was sworn by a single person, and was
commonly employed to establish the exemption of a franchise
from some form of taxation. An English example may be
found in the Church at Abingdon v. The King's Collectors,2
atino 1 1 19. The Abingdon church had previously, by decree
of court, been exempted from geld, but the king's tax officers
still levied sums of money from time to time, until at last
complaint was made to the king. It was thereupon ordered,
apparently by the Court of Exchequer, that some one person
of the church should make oath to the exemption ; and this
was to be final. A County Court was accordingly convened by
the sheriff, at which Roger de H., a homager of the monastery,
"affidavit fidem in manu ipsius vicecomitis, vidente toto
comitatu," that one hundred and forty hides of land belonging
to the church ought to be exempt from tax.
Many writs of the kings also exist in which monasteries
are exempted from customs and dues of various kinds, so far
as their men can swear that they have been released from
such burdens.3
The essoin de via curiae was likewise sworn in Normandy
with a single person (the bearer of the essoin) brought by the
principal, or by the principal alone, according to the election
of the opposite party. In case of the essoin de infirmitate
two persons appeared before the court, the bearer of the
essoin and a witness. A like practice prevailed as to proof of
vouching to warranty. In other minor cases the oaths of
three might be required, and in still others the oaths of five.4
This was the practice in Normandy in the thirteenth
1 See Brunner, Schwurg. 186-189. 2 Placita Ang.-Norm. 113.
3 Ib. 88, 106, 126, 149, 203, 204. * Somma, lib. 2, c. 62, §§ 3-6.
X

306 HISTORY OF PROCEDURE.
century. Among the cases in which the oaths of five were
there required was the action for debt.1 The Norman
formula in this action, as given by the Somma, required the
principal (if his defence was payment) to say : " Hoc audiant
omnes, quod ego persolvi huic N. domino meo xxx. denarios,
quos ei debebam, si Deus me adjuvet et sacrosancta." Then
the first of the compurgators said : " De sacramento quod N.
fecit salvum sacramentum fecit, si Deus me adjuvet et sacro
sancta." And the rest followed " simili modo." It is added
that the oath-makers, both in the lex probabilis and in the lex
disraisince, ought to offer themselves and not be summoned
or compelled to come into court.2
Compurgation appears to have been a permitted mode of
trial in criminal cases generally in the first half of the twelfth
century, and earlier; though it seems that instead of the
"sacramentum frangens," or triple compurgation, the ac
cused often preferred the ordeal, and succeeded in having it.3
Thus between the ordeal and the duel, compurgation was
gradually losing or shifting ground. Pledges in criminal
cases, and perhaps in civil cases,4 might acquit themselves
by compurgation upon failing to produce their principals in
accordance with the terms of their engagement. It was de
clared by the laws of William the Conqueror (a custumal of
the twelfth century) that if anyone appealed of larceny or
robbery was released upon pledge to have him before the
court for justice, and afterwards fled, respite should be given to
the pledging party, according to the Mercian law, for a month
and a day to find the fugitive. If found within the time, he
' There is no evidence that any definite regulation as to number prevailed
either in England or in Normandy, in actions of debt, before the thirteenth cen
tury. Probably there was no such regulation. Compurgation in debt was in an
unsettled state in the twelfth century, as will presently be seen. The subject is
referred to here mainly to show the Norman formula. ' ' lb. § 6.
3 Hen. I. c. 64, § 1. The practice is here deprecated as wrongful. " Malorum
autem infestacionibus, et perjurancium conspiracione, depositum est frangens
juramentum, ut magis Dei judicium ab accusatis eligatur." As to the generality of
compurgation in criminal cases, see ib. § 2. 4 Infra.

THE TRIAL TERM. 307
was to be delivered to justice ; but if not, the party who had
entered into the engagement of pledge was to swear with the
twelfth hand (" duodecima manu ") that when he made the
engagement he did not know that the fugitive was a thief (or
robber), that he did not flee by his counsel or aid, and that he
could not produce him for justice.1 What the West-Saxon
and Dane procedure was is not stated ; but probably it was
the same. Differences relating to the penalty imposed upon
the pledge for failing to perform his engagement are alone
specified.2 A lord might also prove his innocence of the
escape of any of his servants (for all of whom he was respon-
- sible) charged with the commission of crime, by compur
gation manu sexta, or by a fine paid to the king.3 The same
was probably allowed also to the headman of a frankpledge,
upon the escape of one for whom the body was responsible.4
Compurgation continued to be employed in criminal cases,
though within unsettled limits, being affected to an extent
which cannot clearly be ascertained, by the encroachment of
the ordeal and the duel, until the year 1 166 ; when the Assise
of Clarendon substituted the ordeal for it as to persons accused
by the presenting jurors or by the public voice. Some of the
boroughs, however, retained by charter the ancient usage, as
we have elsewhere seen.5 Trespasses and assaults were com
monly tried in the manors, if not also in the superior courts,
by compurgation throughout, probably, the eleventh and
twelfth centuries. This was true, at least in the time of
Glanvill, even in cases in which a tenant was accused of
having laid violent hands upon his lord. The tenant was
permitted to purge himself against the accusation of his lord
by three persons (" tertia manu ") or by as many as the court
should award.6
This mode of trial was used also in civil cases throughout
1 Wm. I. i. c. 3. ' Ibid. 3 Ib. c. 52.
4 Comp. _ib. ; Wm. I. iii. c. 14. s Ante, pp. 2, 296.
6 Glanvill, lib. 9, c. I, § 8. See also I Pike, Hist, of Crime, 123.
x z

3o8 HISTORY OF PROCEDURE,
the twelfth century. In what was afterwards the typical
subject of compurgation, the action of debt for money (not due
by reason of the relation of lord and man), the practice as late
as the time of Glanvill had not become settled ; as has already
been stated.1 Glanvill says that it was a question whether in
a proceeding against a surety the defendant could escape lia
bility by denying the engagement by his own oath and the
oaths of as many men as the court should direct, or whether
the trial should be by duel. Some, he says, were of the opinion
that the creditor was entitled to proof from the suretyship by
compurgation, unless the surety, before it was finally proved
in that manner, down to the moment of the compurgation, ten
dered the duel.2 If, however, the creditor were able to produce
a charter, the nature of the proceedings was changed to trial
by charter.3
Trial by witnesses to the fact was very common both in
the pre-Norman and in the Norman periods. Unlike com
purgators who swore to their principal's credibility, witnesses
to the fact swore to matters de visu et auditu. They differed,
however, essentially from the inquisitors and recognitors of
the time, and from modern witnesses. They gave their testi
mony in ordinary cases in accordance with the narrow formula
of the medial judgment ; they were not examined as to the facts ;
and they appeared (in this particular like modern witnesses) at
the instance of the party for whom they testified. The judge
might examine them as to their competency ; but if this were
established — if they were shown to be legal men of the neigh
bourhood — they were entitled to give answer according to the
prescribed formula. They were triers, not witnesses in the
modern sense ; and few of the questions which arise at the
present day upon the testimony of witnesses, such as the
admissibility of evidence, could arise under the procedure of
the Norman (or pre-Norman) period. Both civil and criminal
1 Ante, pp. 297, 298. ' Glanvill, lib. 10, c. 5, § 7.
3 Ib, c. 12,

THE TRIAL TERM.

309

cases were tried in this way. Civil cases may be found in the
records almost without number.1
Criminal causes were defended through trial by wit
nesses less frequently, it seems, than by other modes of trial ;
and before the close of the twelfth century charges of crime
appear commonly, if not always, to have been defended by
compurgation, ordeal, or duel. The procedure in a single
criminal trial (apparently) by witnesses, has been preserved in
the so-called Law's of Edward the Confessor ; which may be
taken to represent the period from the Conquest (and before)
until the middle of the next century. The procedure relates
to a charge by the relatives, male and female (in the propor
tion of two of the former to one of the latter), that their
kinsman had been unjustly slain and laid among robbers,
After the pledging of security by the accusers and by the
accused, and defence alleged that the slain man had been
justly slain, and justly lay among robbers according to law,
as a robber, with a statement concerning the robbery and the
manner of the slaying ; the accused proceeded to name a
chief judge, judges, and legal witnesses of the neighbourhood
("nominet justiciarium et judices et testes de vicinis legales").2
That these " testes" were witnesses in the technical sense, and
not compurgators, is made probable by the accused naming
them, and by what follows. " And if they will warrant him that
justice was justly done of the man for his robbery, the slayer
shall be quit, and those who made the complaint shall pay
the sum pledged." 3
There were several classes of witnesses ; transaction wit
nesses, recordatores, community witnesses, and witnesses whose
rank and station entitled them to special consideration. The
first class were those before whom sales were made, and other
1 See e.g.'Placita Ang.-Norm. 18, 31, 39, 53, 135, 152, 182, 188. The use of
the word " testes " in the records is never decisive. That often meant compurgators,
But those who " saw and heard" were witnesses in the technical sense.
2 Compare, as to choosing a judge, ante, p. 57.
3 Laws Edw. Conf, c, 36. As to what followed conviction, see ib.

310 HISTORY OF PROCEDURE.
business required to be transacted in public done ; the second
were those who bore record of the proceedings in a particular
litigation when a question thereof was raised, the witnesses
not consisting in England' of any constituted body, but ap
pointed upon the particular occasion out of the best men
capable of acting ; while community witnesses, as the term
implies, were general witnesses of the neighbourhood, capable
of giving testimony in all cases, probably even to afforcing
that of the first two classes, but not to taking their places.
When the witnesses were men of the church, or perhaps
laymen of high rank, it was not necessary for them to appear
at court and make oath in the common form. Such persons
frequently, if not usually, sent their testimony to court in the
form of a deposition, prepared in any manner they saw fit,
and not necessarily conforming to the oath-formula of the
court. The deposition was made without oath, but generally
contained the offer to make its statements good, according to
the judgment of the court, as in other cases. The records
abound with examples.1
Apart, however, from the use of depositions, trial by
witnesses, in its application to civil as well as to criminal
causes, appears to have begun to lose ground as early as the
middle of the twelfth century ; its vitality civiliter being
gradually absorbed on the one side by compurgation and on
the other by the recognitions. But the chief use of witnesses,
of whatever class, especially in criminal cases, appears to have
been to enable a plaintiff or an appellor to make a presumptive
case against a defendant or appellee, rather than as a mode of
defence to an action. Indeed, witnesses appear to have been
employed quite as often in the decision of incidental matters as
1 See the depositions of bishop Geoffrey, Placita Ang.-Nonn. 287; of Bernard
of St, David, ib. 150 ; of Theobald, archbishop of Canterbury, ib. 150, 182 ; of
Nicholas of Llandaff, ib. 184, 187 ; and the depositions in the case of Church of
York v. Church of Gloucester, 189-196. In the last of these David of Worcester
offers to undergo the ordeal in support of his testimony. See also the deposition
of the earl of Hereford, ib. 258.

THE TRIAL TERM. 311
in the capacity of final triers of a cause, if not oftener. In the
first and chief of these particulars, if not in the second, the use
of witnesses continued unimpaired.
With compurgation and party-witness the Norse "buakvidr,"
or verdict of neighbours, may be compared. For this purpose
the case of Flosi will be resumed ; who, it will be remembered,
was to be tried by an inquest of neighbours, witnesses to
the slaying. There was, however, no defence to the merits, a
fact not to be lost sight of. Flosi must be saved, if at all,
by superior leadership in the intricacies and formalities of
pleading. Still, all the steps appear which would be required
in a case that was to stand or fall on the merits, save a denial
or other answer to the accusation. It may be added that
pleadings were conducted in such cases under the Norse pro
cedure during what, in the more general Teutonic system, was
the term for trial only. We have, then, in Flosi's case, a
pleading and a trial term together.
The Althing having convened, lots are first cast as to the
order of suits, in which Mord has the fortune to be first. He
now takes witness that he excepts all mistakes in the words of
his pleading, whether the words were too many or wrongly
spoken, and claims the right to amend until he has put his
words into lawful form. Then he takes witness that he calls
upon Flosi to listen to his oath and declaration, and to all the
steps that he may take. Thereupon Mord thus makes oath :
" I take witness to this, that I take an oath on the book, a
lawful oath, and I say it before God, that I will so plead this
suit in the most truthful and most just and most lawful way, so
far as I know ; and that I will bring forward all my proofs in
due form, and utter the mfaithfully so long as I am in this suit."
Then he speaks as follows, recalling all the steps taken : " I
have called Thorodd as my first witness, and Thorbjorn as my
second. I have called them to bear witness that I gave notice
of an assault laid down by law against Flosi, Thord's son, on
that spot where he, Flosi, Thord's son, rushed with an assault

3I2 HISTORY OF PROCEDURE.
laid down by law on Helgi, Njal's son, when Flosi, Thord's
son, wounded Helgi, Njal's son, with a brain or a body or
a marrow wound, which proved a death wound, and from
which Helgi got his death. I said that he ought to be made
in this suit a guilty man, an outlaw, not to be fed, not to be
forwarded, not to be helped or harboured in any need. I said
that all his goods were forfeited, half to me and half to the
men of the quarter who have the right by law to take the
goods which he has forfeited. I gave notice of the suit in the
Quarter Court into which the suit ought by law to come. I
gave notice of that lawful notice ; I gave notice in the hearing
of all men at the Hill of Laws ; I gave notice of this suit to be
pleaded now, this summer, and of full outlawry against Flosi,
Thord's son. I gave notice of a suit which Thorgeir, Thorir's
son, had handed over to me ; and I had all these words in my
notice which I have now used in this declaration of my suit.
I now declare this suit of outlawry in this shape before the
court of the Eastfirthers over the head of John,1 as I uttered
it when I gave notice of it."
This is repeated with the single change of stating the
wounds first. Then Mord calls upon the two persons named
to bear witness of these steps, which they do twice in the same
lengthy formula, speaking with one voice after severally stating
their names. Next, the witnesses to the handing over the suit
to Mord appear and testify in unison to the fact.
Again Mord speaks : " I take witness to this," said he,
" that I bid those nine neighbours whom I summoned when I
laid this suit against Flosi, Thord's son, to take their seats
west on the river bank ; and I call on the defendant to challenge
the inquest. I call on him by a lawful bidding before the
court, so that the judges may hear." And this demand upon
Flosi is repeated by him. Then he takes witness to the fact
that he has taken all necessary steps, repeating them shortly,
and closing thus : " I take witness .... that I shall not be
1 As to this term of fiction, see I Dasent, Burnt Njal, Introd. p. 171, n. ;
2 Ib. p. 245, n.

THE TRIAL TERM. 313
thought to have left the suit though I go away from the court
to look up proofs or on other business."
It is now Flosi's turn to make such objection as he can ;
and he proceeds to challenge successfully four of the nine
neighbours sitting on the inquest ; thinking that he had
thereby quashed the suit. Mord, however, knows the law, and
declares the challenge is of no effect, since an inquest might
consist of five or nine. No other objection being raised at
present, Mord now requires the five to give their verdict ;
which they do in lengthy formalism, after the manner of
Mord's declaration, above given, pronouncing Flosi guilty.
And this finding is also repeated. Mord thereupon takes
witness of the finding, and then calls upon Flosi " to begin his
defence," the time for which, according to modern ideas of
practice, had passed.
Flosi now appears by his counsel, Eyjolf, and pleads
successfully to the jurisdiction of the court;1 which by the
early English procedure, at least in the middle of the
thirteenth century, he could not have done at any stage of
the proceedings without first having pleaded to the merits.2
Eyjolf takes witness to the facts concerning his allegation as
to the jurisdiction, and the witness duly confirms it. Then in
formal language he forbids the judges (not the inquest of
neighbours) to utter in judgment ;3 and the suit in this form
is at an end.
It happened, however, that word had reached the ears of
Mord and his friends that Flosi had paid money to Eyjolf (a
"retainer " fee) for undertaking his defence,. which was contrary

1 There had been some sharp practice in the dark on the part of Flosi, which
made this possible.
2 Bracton, 140 ; 1 Britton, 102 (Nichols).
3 It seems that this did not necessarily prevent the judges from pronouncing
judgment, for Eyjolf still appears before the court, endeavouring to divide the judges,
from which it is to be inferred that they were inclined to decide for Mord notwith*
standing his mistake. Mord, however, quietly hastens away and anticipates Eyjolf
with a suit in the Fifth Court for bribery and contempt, greatly to the latter's
Confusion.

314 HISTORY OF PROCEDURE.
to law : such business was to be an honorarium, a thing which
has been heard of in the history of modern English law.
Mord at once proceeds to take advantage of this fact, and of
the additional fact that a witness brought forward by Eyjolf
was incompetent, and now sets a suit on foot in the Fifth
Court for outlawry against both Flosi and his counsel, Eyjolf.
Mord goes to the Hill of Laws for this purpose, and makes
summons : " I take witness to this," he says, " that I summon
Flosi, Thord's son, for that he gave money for his help here at
the Thing to Eyjolf, Bolverk's son. I say that he ought on
this charge to be made a guilty outlaw, for this sake alone to
be forwarded or to be allowed the right of frithstow ["peace-
place," i.e. sanctuary], if his fine and bail are brought forward
at the execution levied on his house and goods, but else to
become a thorough outlaw. I say all his goods are forfeited,
half to me and half to the men of the quarter who have the
right by law to take the goods after he has been outlawed.
I summon this cause before the Fifth Court, whither the cause
ought to come by law : I summon it to be pleaded now and to
full outlawry. I summon with a lawful summons. I summon
in the hearing of all men at the Hill of Laws." And he
summons Eyjolf in like manner, and then summons each
again for bringing forward the incompetent witness. The
court were already set, and thither the parties now went.
The case, it will be observed, went not as in the other case
before the ancient Quarter Court of the island, but before the
Fifth Court, a new tribunal, established at the suggestion of
Njal, for hearing appeals from and contempts of the Quarter
Courts, and regulated in its procedure by rules suggested by
the same person. The interesting feature about the procedure
of this court is that " vouchers " must follow the oaths of
the parties. The idea is akin to that of the supporters to the
oath of parties in the English and Norman practice ; and it is
probable that Njal was now but introducing a modified part of
the Scandinavian procedure which had not theretofore been in

THE TRIAL TERM. 315
use in Iceland. Compurgation, however, in the general sense of
the Germanic procedure, appears not to have prevailed in
Iceland before the union with Norway in thethirteenth century :
the oath of the vouchers was the nearest approach to it. In a
broad sense this was compurgation ; but it prevailed only in
the Fifth Court.
Mord makes oath before the Fifth Court as follows :
" I take witness," said he, " to this, that I take a Fifth Court
oath. I pray God so to help me in this light and in the next,
as I shall plead this suit as I know to be most truthful and
just and lawful. I believe with all my heart that Flosi is truly
guilty in this suit if I may bring forward my proofs ; and I
have not brought money into this court in this suit, and I will
not bring it. I have not taken money, and I will not take it,
neither for a lawful nor for an unlawful end."
Then two of the men who were Mord's " vouchers " went
before the court and, somewhat after the manner of compur
gators, took witness. " We take witness that we take an oath
on the book, a lawful oath : we pray God so to help us two in
this light and in the next, as we lay it on our honour that we
believe with all our hearts that Mord will so plead this suit as
he knows to be most truthful and most just and most lawful,
and that he hath not brought money into this court in this
suit to help himself and that he will not offer it, and that he
hath not taken money, nor will he take it, either for a lawful
or unlawful end." '
In continuation of the procedure Mord now summoned
nine neighbours, who lived next to the Thingfield, on the
inquest in the suit ; and then Mord took witness and declared
the suits which he had set on foot against Flosi and Eyjolf.
"And Mord used all those words in his declaration that he
had used in his summons." Mord "declared his suits for
outlawry in the same shape before the Fifth Court as he had
uttered them when he summoned the defendants."
1 Njal-Saga, e 143 ; 2 Dasent, 264.

316 HISTORY OF PROCEDURE.
He now takes witness and bids the nine neighbours on the
inquest take their seats west on the river bank, and then with
witness calls upon Flosi and Eyjolf to challenge the inquest.
This they cannot do ; and Mord now requires the nine to
utter their finding, and they thereupon find the defendants
guilty. Then, Mord, as in the previous case, calls upon the
defendants to begin their defence, repeating the steps which
he had taken. The president or " lawman " sums up the case,
and Mord thereupon forbids the defendants from pleading,
and then calls upon the judges to give judgment. This would
naturally be the end of the case, but there were more judges
" in banco " than ought to be there in pronouncing judgment :
Mord makes a slip on this point ; and this case, too, falls to
the ground.1
Of trial by charters, to return to the English-Norman
procedure, little need be said. The effect and interpretation
of documents were ordinarily matter for the judges ; and trial
by charters had in consequence more of the features of trials
of the present day than any other form of litigation except
that by inquisition and recognition. The event was not, as it
was in trial by wager of law and by party-witness, largely and
often wholly in the hands of the party who had delivered the
last good pleading. Nor was it necessarily left to some
external test, incapable in fact of discovering to -the court the
truth. But as in the case of trial by inquisition, the truth was,
if possible, sought by a rational and satisfactory mode of
inquiry ; as by a comparison of the seal in question with
other seals of the same party, admitted to be genuine.2
1 With the procedure in these cases, the chapters in the Gragas, Thingskapa-
thattr (Dejudiciis ordinandi!), vol. i. pp. 13 ct seq. (Schlegel) deserve to be com
pared. The Norse procedure is there minutely described, in all its phases, in
sixty-two chapters. It would be wholly aside from the purposes of this book to
enter into further details. It is enough, for the present purpose, to show its outlines
as depicted in the sagas : these will serve the purposes of comparison with the
English and Norman procedure. Further reference to the Gragas and sagas will
be made later on.
2 Glanvill, lib. 10, c. 12, § 4.

THE TRIAL TERM. 317
Whatever a defendant pleaded in answer to the plaintiff's
claim of title or right by charter, or whatever the plaintiff
may have replied to a defence of right or title by charter, the
charter must be produced at the trial and become the main
subject of contest. The defendant or plaintiff must allege
either that the charter did not cover the subject-matter of the
suit, or if it did, that it had been annulled, suspended, or
defeated by some other competent charter, document, or act,
or that the charter itself was incomplete or a forgery. Which
ever of these positions was taken, the charter in question, with
the counter-charter, if such were set up, must be produced,
and the trial thus became a trial by charter.
It seems, too, that in such cases, when at least a charter
brought into court at the first term was to be impeached, the
contest did not necessarily require a second term, but could
often be decided on the issue-day. The case of Abbot Walter
v. Gilbert de Baillol,1 already referred to several times, shows
this, and also illustrates to some extent what has just been
stated in the preceding paragraph. The only means of
defence was that of impeaching the plaintiff's charters ; but
the objection made to these, based on the want of seals,
was not attended by any claim on the part of the defendant of
a right to establish their invalidity by the ordeal or by the
duel, or in any other way than by decision of the judges then
and there. In like manner when in Abbot of Battel v. Alan
de Bellofago2 the defendant set up title by a charter covering
the subject of the dispute, and the plaintiff raised a question
as to the genuineness of the document, thfere was no intima
tion that the question ought to be decided otherwise than by
the court upon inspection and comparison ; nor was there any
adjournment of the case for decision at another day. The
defendant produces his charter at the first term, the plaintiff
disputes its genuineness, and the court, after examination of
the instrument, diligently made, so far rule in favour of its
1 Placita Ang. -Norm, 175. 2 Ib. 245.

318 HISTORY OF PROCEDURE.
validity as to suggest a compromise; all being done at the
same sitting.1
When, however, there was no means of determining of the
genuineness of the seal (for if that was genuine, the charter at
the time when it was executed was valid) by inspection or
comparison, then the party offering the impeached document
might have recourse to the duel to establish the seal by any
proper witness (champion), especially by one whose name had
been inserted by authority in the charter in question.2 This
would of course require another term ; and the mode of pro
ceeding would be the same as that of the duel in a writ of right
or other case.
Trial by record was the mode of establishing or disproving
a fact alleged to have transpired in court upon some stated
occasion. As to the incidental features of the procedure in
such cases, the English sources give no specific information.
But it seems reasonable to suppose that the demand of a
party for record of a fact could be objected to in various ways;
as by a denial of the existence of any legal court at the time
and place asserted by the other party with a sufficient offer of
proof, or by an affirmation by the objecting party, in a proper
case, that he had never been legally summoned to the former
trial. Such a practice prevailed on the Continent.3 By this
practice abroad the declaration of the record could at once be
had if enough court-witnesses (called " recordatores " on the
Continent)4 were present ; otherwise a day was to be set for
the purpose.5 According to the Somma, the party who de
manded the record was required to name persons by whom
the same was to be declared.6 And, unlike the case of an
inquisition, the men to be selected were (on the Continent) to
be men of rank, " homines magnae famae," " quos vite meritum
1 See also Glanvill, lib. 10, t. 12, §§ 3, 4. 2 Ibid.
3 See a case referred to by Brunner, Schwurg. 193.
4 There appears to have been no constituted body of recordatores in England
as there was on the Continent.
3 Brunner, 193. 6 Ibid.

THE TRIAL TERM. 319
et providencie honestas fecerit fide dignos."1 An oath was
taken by these persons before making their declaration that
they would record the truth, neither adding nor omitting any
thing.2 This or a similar oath might be taken as well before
the king privately as in open court.3 In the former case the
persons were simply required to speak the truth when they
came into court.
The distinction prevailed throughout the Norman period
which prevails at the present day, between proceedings of the
superior and those of the inferior courts. The former alone,
with some exceptions made by special law, had record of their
proceedings ; the meaning of which was then as now that
what was properly reported to have transpired therein was
indisputable. But the term " record," as may be inferred from
what has just been said, did not at this time mean or imply
an enrolment : it was used in the literal sense of the original
word " recordari," to recall to remembrance ; and the oral
recording had the same effect as the inspection of the written
record at the present day.4 The proceedings of the inferior
courts, testified in the same manner, could be impeached.
The County Court was an inferior tribunal for this purpose
in most particulars ; but for some purposes not only the
County but the Manorial Courts had record as fully as the
King's Court. Thus, says Glanvill, if the duel has been
waged in any inferior court, and the suit is afterwards trans
ferred into the King's Court, then, as to the claim of the
demandant, the defence of the tenant, and the words in which
the duel was adjudged and waged, the former court shall have
its record (i.e. its proceedings therein, duly reported, shall be
* Brunner, 193. 2 Ib. 194 ; Somma, part 2, c. 50, § 4.
3 Brunner, 194. As to the number of witnesses required on the Continent,
see ib.
4 Enrolment of judicial proceedings, privately made by the interested parties,
was not unknown either in the Norman or pre-Norman period. It was, it seems,
a regular official practice from the early years of the reign of Henry the Second ;
but in the Rolls it was done in brief memoranda merely, seldom at length.
See Appendix, No. 56.

320 HISTORY OF PROCEDURE.
conclusive) even in the King's Court. The same was true of
a change of champion in the local court. If, after the suit
had been transferred into the King's Court, a different cham
pion should be produced than the one who had waged the
duel, and a dispute arose upon this point, the " record " of the
inferior court should " by a law of the realm " be conclusive
upon the subject. Glanvill further says with respect to the
record of an inferior court, that anyone might declare that he
had said more than was contained in the record ; and the fact
that he did so say in the court, he might prove, as in earlier
times,1 against the whole court by the oaths of two or more
lawful men, according to the varying custom of the courts.
No court, he said, was bound to prove or defend its record by
the duel, though it was otherwise of its (medial) judgment,2 the
reason of which distinction is clear. The proceedings had in
court were not the acts of the judges, nor was the record the
act of all, in ordinary cases, while the judgment as to the
bringing of the proofs was their act.
The most of the following cases from the Rotuli Curiae
Regis3 will serve to illustrate the bringing of the record of a
cause from an inferior to a superior .court, for the purpose of
transferring the cause to the latter court : It was commanded
the sheriff to cause the record to come of the plaint between
Richard de L. and Robert le M. of a plea of land in T. by
certain knights who brought that record before the justiciars
in Eyre from the court of the archbishop of York on Easter.
And Robert M. then came and offered himself (for trial) ; and
the said knights then came not nor essoined themselves, and
Hugh B. and one of the justiciars in Eyre then came and
said that that record came before them, and that it pertained
' Laws of Wm. I. i. c. 24.
2 Glanvill, lib. 8, e 9. That the record of the King's Courts was .conclusive
in earlier times after the Conquest, while that of the others was not, see Laws
Wm.,1. i. c. 24; Laws Hen. I. u. 31, § 4; c. 49, § 4. Before the Conquest, it is
probable that the same was entirely true of the record of the County Court.
3 I Rotuli, 376, 377, anno 1199.

THE TRIAL TERM. 321
to nothing, (now material). Judgment that Robert go without
day. In the year 1194 the bishop of Chichester and Robert de
V.1 declared the record of a plea of land in T., of which there
was a plea between them in the King's Court, to wit, that
Robert gave the church of the Trinity to the bishop of
Chichester for ever (to be held) freely and in peace, and five
acres of land, together with the said vili of T., in frankal
moign, so that whatever was found by oath of twelve knights
of the vicinage as pertaining to the church should remain to
it. Day was given for taking the chirograph in the octaves of
St. Hilary at Westminster.
Herbert de H.2 essoined himself on the third day, during
the day of a pleading de malo veniendi against Alice de F.
of a plea of his judgment and record concerning a recog
nition summoned between himself and the said Alice of the
advowson of the church of D. . . . Record by Simeon de
Pateshull that the assise said that they never saw any parson
presented to the church of D., but seven parsons held it iu
person from father to son down to the last parson who lately
died ; and they say that that church was founded in the fee
which Alice holds of the said Herbert in the vili of D., and
that he has nothing in demesne around that church. It was
considered that Alice hold in peace and that the bishop receive
the parson presented by her.
Hugh de V.3 complains that Amanda of S. has wrongfully
taken possession of sixty acres in the marsh of B., on account
of a duel waged between them in the court* of the archbishop
of York, and he demands that view be had whether the duel
related to that land. It was considered that the sheriff cause
such view to be had of that land by the same knights by
whom the first view was had whether the duel (related to it),
and cause record of that view to come by four knights to
1 1 Rotuli, 12. " lb. 37, anno 11 94.
3 Ib. 44, same year.

322 HISTORY OF PROCEDURE.
Westminster in the octaves of St. Hilary. Hugh de V. puts
in his place Hugh de M.
Cecilia de F. r owes the king two marks for having record of
the complaint as it was tried in the King's Court between her
and Geoffrey R., who recovered .... for a villein, and that she
might have the complaint in the King's Court at Westminster,
which is between them in the County Court. Cecilia has a
writ for summoning that complaint to Westminster on the day
of St. Hilary in fifteen days.
The next mode of trial to be noticed was the ordeal,
commonly called judicium Dei, sometimes simply judicium.
It was, like the duel, the final test, from which there was
no appeal. It was a solemn invocation to Heaven to de
cide the matter in dispute ; and the result of the test was
regarded by the credulous masses as effected by the direct
interposition of the Almighty. But it was only when the
party had no charters, and could furnish neither witnesses
nor compurgators, that he resorted to the ordeal ;2 except
in cases provided for by special legislation, as by the Assises
of Clarendon and Northampton. It was applicable to women
equally with men ;3 and it was the legal mode of exculpa
tion of a man accused by a woman of the murder of her
husband.4 The ordeal was more extensively employed in the pro
cedure of the early Norman period than in the later. It was
the typical mode of trial among the English, contrasting
English procedure with the procedure of their Norman con
querors. With them it was, until the Conquest, the only
judicium Dei, so far as existing monuments bear witness. It
was used frequently in civil as well as in criminal cases before
and for a considerable time after the Conquest. Even Nor
mans, who affected to despise the peculiar institutions of the
English, sometimes resorted to the ordeal In the time of
1 I Rotuli, 92, anno 1194. 2 See e.g. Laws Hen. I. c. 65, §§ 2, 5.
3 Laws Edw. Conf. c. 19. 4 Glanvill, lib. 14, c. 3, § 4.

THE TRIAL TERM.

323

the Conqueror his Norman bishop Remigius purged himself
of a charge of treason by the ordeal of fire, sustained by one
of the household of the accused.1
Of the use of the ordeal in civil cases during the latter
part of the eleventh century, Domesday bears ample evidence.
It is offered in three cases of lands of earl Ralph;2 in two
cases of lands of earl Alan ;3 in a case relating to lands at
Greston ;4 in a case of lands of William of Warenne ;5 in the
case of a freeman ;6 and in other cases.
The ordeal may possibly have continued to be a legal
mode of trial for civil cases in the twelfth century so far as
anything directly to the contrary appears ; but the encroach
ment of the duel, of compurgation, and of the inquisition
was constantly narrowing its application to such cases, until
probably long before the end of that century, probably, indeed,
before the middle of it, it had become practically obsolete in
civil litigation. Its use appears at the same time to have
become somewhat narrowed in criminal procedure. In the
latter half of the twelfth century, and probably earlier, the
duel had come to be the recognised mode of trial in appeals of
treason,? if not in appeals of crime generally ; though in the
case of presentments, where compurgation had probably been
the common mode of trial, the Assises of Clarendon and
Northampton had provided for trial by ordeal.8
This mode of trial finally received a fatal blow from the
well-known decree of the Lateran Council of the year 12 15, at
which it was ordered that the ordeal should be discontinued
throughout Christendom. The effect of this decree, however,
was not an immediate abrogation of ordeals in England. The
ancient procedure continues to be mentioned as prevailing for
some time after the year 1215. The article of Magna Charta
of John, " nullus ballivus ponat de cetero aliquem ad legem
1 Placita Ang.-Norm. 30. 2 Ib. 40, 41. 3 Ib. 41, 42.
4 Ib. 41. 5 lb. 42. 6 Ib. 43.
^ Glanvill, lib. 14, c. 1, § 5. 8 See also Glanvill, lib. 14, c. 1, § 2.
Y 2

324 HISTORY OF PROCEDURE.
simplici loquela sua, sine testibus fidelibus ad hoc inductis " is
carried into the charter of Henry the Third, anno 1224; where,
however, the term " lex manifesta " has in the English trans
lation been misunderstood as " wager of law," instead of the
ordeal.1 It should be observed that the ordeal had answered the
place of trial by a petit jury in modern times ; being trial upon
a traverse of the accusation of the public voice, or of the
finding of the jury of presentment or grand jury of the assises
of Clarendon and Northampton. By these statutes, and by
the ancient law of England as well, accused persons, against
whom a presumption of guilt had been raised by a presentment
or by an accusation of the public voice, had the constitutional
right of a further trial ; a traverse of the presumption. But
when at length the ordeal came to be considered as abolished
(there was no authoritative legislation in England abolishing
it, so far as is known), the judges were in straits to know what
should be done with the prisoner. He had had the consti
tutional right to be tried by the ordeal ; and could he now be
compelled to submit to some other mode of trial ? If he could
not be directly compelled, as clearly he ought not to be, in
the absence of authoritative legislation, must he on refusal be
pronounced guilty, as would have been the result of his refusal
of the ordeal ?
The answer to these questions explains the introduction of
the proceeding known as peine forte ct dure,2 which probably
dates from the thirteenth century. The practice was occa
sionally observed, it seems, before the Lateran Council of
1215, of traversing the presentment by another jury in the
general manner of modern times.3 This was probably done
at the request of the prisoner, perhaps under the king's writ.
1 1 Stat, at Large, 9 Hen. III. c. 28.
The history of this measure of coercion was first adequately portrayed by the
late Sir Francis Palgrave in his great work on the Rise and Progress of the
English Commonwealth. See vol. i. pp. 268-270 ; vol. ii. pp. 189-191.
3 See I Stubbs, Const. Hist. 619.

THE TRIAL TERM. 325
He clearly could not have been compelled, except by arbitrary
power, to submit himself to a traverse jury : there was no law
requiring it. The same mode of trial now suggested itself to
the judges, after the disuse of the ordeal ; but how should trial
by jury be enforced, when the prisoner had a right of election ?
The answer was, he must be put to privation and suffering, if
recusant, until willing to put himself upon the verdict of a
trial jury.
There were four forms of ordeal, to wit, by cold water, by
hot water, by hot iron, and by the morsel, or " corsnaed."
The first two were in the time of Glanvill for the lower and
partly unfree classes, the " rustics " ; the third was for the lay
freeman ;x while the last, as we have seen, was for the clergy.
The accused, however, appears to have had an election at
one time between the modes by fire and by water.2 Whether
this was true in the twelfth century is doubtful.
Each was undergone after the most solemn religious
ceremonial. In the case of the cold-water ordeal, a fast of
three days' duration was first submitted to in the presence of
a priest; then the accused was brought into the church, where
mass was chanted, followed by the communion. Before
communion, however, the accused was adjured by the Father,
Son, and Holy Ghost, by the Christian religion which he pro
fessed, by the only-begotten Son, by the Holy Trinity, by
the Holy Gospels, and by the holy relics, not to partake of
the communion if he was guilty. Prayers, reading of the
Scriptures, intercessions and benedictions follow. Communion
having been partaken, adjuratio aqua is made by the priest ;
in which the water is asked to cast forth the accused if guilty,
and to receive him into its depths if innocent. After these
ceremonies the accused is stripped, kisses the book and the
cross, is sprinkled with holy water, and then cast into the
depths. If he sank, he was adjudged not guilty ; if he swam,
he was pronounced guilty.
1 Glanvill, lib. 14, c. I. 2 Schmid, Gesetze, Anhang, 13.

326 HISTORY OF PROCEDURE.
Similar religious ceremonies were performed in the other
forms of ordeal. If the accuser elected for the accused the
trial by hot water, the water was placed in a vessel and
heated to the highest degree. Then, if the party were accused
of an inferior crime, he plunged his arm into the water as far
as the wrist, and brought forth a stone suspended by a cord ;
if he were accused of a great crime, the stone was suspended
deeper, so as to require him to plunge his arm into the
water as far as his elbow. The hand of the accused was then
bandaged, and at the end of three days the bandage was
removed. If it now appeared that the wound had healed, the
accused was deemed innocent ; but if it had festered, he was
held guilty.
If trial by hot iron was elected, a piece of iron weighing
either one or three pounds, according to the nature of the
crime charged, was heated under the direction of men
standing by, whose duty it was to see that a proper heat was
obtained and kept until the time for the test had nearly arrived.
During the final ceremonies the fire was left, and the iron
allowed to remain in the embers. It was then raised, and,
with an invocation to the Deity, given into the naked hand of
the accused, who carried it the distance of nine feet, when it
was dropped, and the hand bandaged as in the case of the
hot- water ordeal, to abide the same test.1
The ordeal of the morsel, accompanied by similar cere
monials, was undergone by the accused undertaking to
swallow a piece of barley bread, or a piece of cheese, of the
weight of an ounce ; in which, if he succeeded without serious
difficulty, he was deemed innocent, but if he choked and grew
black in the face, he was adjudged guilty.2
The duel became a feature of judicial procedure in
England, if the absence of mention of it previously is con-
1 Beames, Glanvill, pp. 351, 352.
" See Schmid, Gesetze, Anhang, 17, for the ceremonials in all of these forms
of the ordeal.

THE TRIAL .TERM. 337
elusive, only upon the advent of the Normans. This mode
of trial, however, was as common in Normandy before the
Conquest as was the ordeal in England ; and as early as the
taking of the Great Survey, about twenty years after the
overthrow of the English at Senlac, the duel appears to have
become almost as common in England as the ordeal. So
early probably as the year 1077, the record of the case of
Bishop Wulfstan v. Abbot Walter1 informs us that the men
of the Church of St. Mary and of the bishop were ready to
prove by oath and by battle the case of the plaintiff ; and this, it
should be noticed, is at the instance of an Englishman, which
tends somewhat to show that the Norman innovation was
already coming into favour in the land of the Anglo-Saxons.
From the time of Domesday Book forward the duel begins
to encroach upon the domain of the ordeal, until at length it
succeeds in crowding it out of civil procedure altogether. And
while this was going on, the duel was also forcing its way
between the ordeal and compurgation, drawing from each, and
becoming established in criminal procedure, as we have seen.
All traversed appeals2 either were, or in the election of the
appellant made known in the formula of his appeal, might be
followed by the duel, whether in criminal or in civil cases.
When no election was made by the appellant, the court might,
it seems, upon demand of the appellee, order wager of battle.
The duel might also be ordered in other cases than appeals,
upon the state of the pleadings. This was true whenever a
question of right turned upon the disputed allegations of the
parties ; and it was also true when the genuineness of a seal
was in question and the court had no adequate means of
deciding. Many examples of the use of the duel in England during
the Norman period might be presented ; 3 but there is no
1 Placita Ang.-Norm. 16.
2 We have already seen in what cases appeals were usual. Ante, pp. 295-297.
3 Placita Ang.-Norm. 41, 42, 62, 69, 141, 142, 182, 210, 305,

328 HISTORY OF PROCEDURE.
complete record before the thirteenth century of the procedure.
Bracton sets out the whole proceeding in several cases ; and
there is no reason to suppose that there had been any material
change since the twelfth century.
The proceedings in the case of an approver (probator) —
one who had turned State's evidence against an accomplice in
crime, and appealed him thereof — may safely be quoted from
Bracton. That appeals of this kind prevailed as early as the
year 1167, the Rolls of the Pipe afford direct evidence; and
the use of technical language indicates that they were even
then nothing new. The roll for the fourteenth year of Henry
the Second contains the following entry: "Reimundus de
Baldac debet xx. marcas pro appellatione Walteri probatoris
de falsonaria." '
The record given by Bracton (the whole of which, including
the first-term pleadings, should be read together) is to the
following effect : The king, he says, has the power to remit
the punishment of crime to those who will discover their
accomplices and agree to free the country of them ; or he may
grant the right to his justiciars to remit the punishment. In
the latter case he issues a writ to them of this tenor : Know
that we give you power to grant life and limb to such an one
who has become an approver before us, and acknowledged a
robbery (or some other felony), upon the condition, that he
wage the duel and secure the conviction of five (or such
another number), etc.
The sheriff then attaches the bodies of the parties to be
appealed, and the king thereupon issues his writ commanding
the sheriff without delay to take "A., whom B. (who confesses
that he is a robber), in our court, before our justices, appeals
of complicity in robbery, and bring him speedily before the
said justices at such a place to answer the said B. of complicity
in robbery, whereof B. appeals him."2
1 Placita Ang.-Norm. 269.
2 If the trial was to be per patriam, the writ required the sheriff to bring a
secta of the vicinage for making an inquisition. — Bracton, 152 b.

THE TRIAL TERM. 329
The parties having been brought into court, the appeal is
made in the following form : "A., of N., acknowledging himself
to be a robber, appeals B. of complicity in theft and robbery,
that they together stole such a thing at such a place, and so
that the said B. had for his part so much, and this he offers to
prove against him by his body, as the court may direct."
It was necessary, Bracton adds, for the approver to express
a thing certain, and all the circumstances without variation or
change of words, and that he should recognise the party
appealed when brought into court before him.
The defendant's plea follows in the same language as that
used in the time of Henry the Second. It was as follows :
"And B. comes and defends the complicity and robbery and
every felony, and whatever is imputed to him from word to
word, and according as it is imputed to him from word to
word." Pledges are then given, by the appellor for the prosecution
and by the defendant for defence. If the latter, however, can
not give security, he is sent to jail again. A day is named for
the trial of arms ; which having arrived, the parties appear in
court armed, and the defendant, coming forward first, takes
the following oath : " Hear this, you man whom I hold by the
hand, who call you yourself A. by your baptismal name, that
I am not a robber, nor your accomplice in robbery, nor did I
with you steal such a thing, in such a place, nor did we do any
such thing, as such robbery, nor did I have for my part so
much ; so help me God."
Then the appellor swore in words of affirmation as follows :
" Hear this, you man whom I hold by the hand, who call
yourself B. by your baptismal name, that you are perjured, and
you are so perjured because you are a robber, and were
accomplice with me in theft, because in such a place we
together stole such a thing, of which you had for your part so
much ; so help me God,"1
1 Bracton, 152, 153. For the rest of the record, Bracton refers back to
p. 142 b, which is given in the text supra.

330 HISTORY OF PROCEDURE.
The oaths having thus been taken, the defendant is im
mediately sent out with two knights or other legal men,
according to his rank, and is by them conducted to the field
in which the contest is to take place ; whither the appellor is in
the same manner conducted. Each is so guarded that no one
after the oaths can speak with them before the duel is begun ;
but when they reach the field they must swear again before
the justices in the following formula : " Hear this, ye justices,
that I have not eaten or drunk, nor has anyone done anything
by or for me, whereby the law of God might be abased or the
law of the devil exalted ; so help me God."
Then proclamation was made by the king's officer, and
silence commanded in these words : " The king and his justices
command that no one be so bold, whatever he may hear or
see, as to move or cry aloud, and if anyone disobey, let him be
taken and imprisoned for a year and a day, according to the
king's pleasure."
They now proceed to the combat on foot, with staffs,
and if the appellor is conquered, or if the defendant1 can
defend himself through the whole day, until the stars appear,
then the defendant might go quit of the appeal ; and with him
all others appealed of complicity in the same crime. If, how
ever, the defendant is conquered, the appellor must then wage
the duel as before with the others, if any, similarly accused.
If the appellor were overcome, the party appealed, with the
others probably who had not waged battle, was dismissed on
giving pledges, unless the judges thought there was ground
for detaining him in prison. If he could not give pledges, he
was to abjure the kingdom or be sent to jail for life.2
1 The old text has "appellans"; but this is clearly a mistake for "appellatus."
2 Compare the trial for treason of Ganelon, Chanson de Roland, cc. 295-318,
for a vivid account of the duel, in the language, it seems, of the latter part of the
twelfth century. The story is of the treason to Roland and Oliver in Spain,
of which Ganelon is represented as appealed by the Emperor Charlemagne.
See also, as to the procedure of the duel in detail, 1 Assises de Jerusalem,
pp. 172, 173 (Beugnot). Both parties fought by champion on horseback, on the
Continent. — Ib.

THE TRIAL TERM. 33'
The great feature of procedure in the Norman period was
the inquisition ; the practice concerning which has been con
sidered in the chapter on the issue term. Something similar
to this may have prevailed before the Conquest and after
wards, possibly, in the Danelag, in the Norse " buakvidr "
and the " tolftarkvidr," the verdict of neighbours and the
verdict of twelve, of which mention has already been made.
But each of these differed essentially from the inquisition ;
and neither has left any trace of its existence in England,
unless the passage heretofore quoted from the Laws of the
Confessor be thought to suggest the Norse inquest.1
The buakvidr has been noticed in the case of Mord v.
Flosi. It was an inquest of either five or nine neighbours,
summoned by the plaintiff, of those who lived nearest the
place where the act in question w'as committed. In cases of
manslaughter they proceeded to view the body of the slain ;
and as the act of slaying in such cases must have been
publicly avowed (otherwise it was murder), they became
witnesses to the fact in a proper sense.
This was the most common form of trial in Iceland. The
references to it in the Gragas and in the sagas are frequent ;2
and its general resemblance to the inquisition by recognitors
is noticeable. Still it differed from that mode of trial in several
essential particulars, (i) It appears not to have been applic
able to the trial of so wide a class of actions as was the in
quisition ; it was for the trial of questions of fact only, upon
the testimony of neighbours nearest the affair in question.3
1 Ante, p. 309. 2 Vigfusson, Cleasby, Diet. Kvidr.
3 The Latin version of the Gragas says : " De qua vis re effectum [verdict]
proferre vicini evocati non obligantur. De causis peregre, vel extra medium
oceani orientem versus, enatis, quamvis hie actis instituatur, discernere non
tenentur. Quid juris hae in civitate valeat, vicinis evocatis definire non licitum
est. ... Si porro novem evocati sint vicini ubi quinque tantum adhiberentur, vel
quinque, ubi novum adesse deberent ; vel si causa? per dodecadis veridicos (sc.
prsetorianum effatum [priest verdict of twelve men, tolftarkvidr] ) dirimendEe vicini
admoventur, evocati judicium adeuntes testes antestentur, qui probent eos hoc suo
effato proferendo obstare velle, quod vel novera pro quinque vel vice versa provocati,
vel causa? per dodecadis veridicos dirimendae admoti sint." — I Gragas, 168.

332 HISTORY OF PROCEDURE.
(2) It was summoned by the plaintiff, and not by an officer of
the law. (3) Its chief use was in criminal cases. (4) The
number sitting upon the inquest was fixed to five or nine,
(S) The verdict of the bua need not have been unanimous :
a majority was sufficient.1
The tolftarkvidr or verdict of twelve, called also the go-
thakvidr or priest verdict, is said to have been applicable only
to certain (unnamed) cases "defined in the law;"2 but the
references to it in the Gragas and sagas are numerous. The
inquest, according to the Gragas, was summoned by the godi
(priest), he himself being one of the number unless rendered
incompetent by some special circumstance, such as con
sanguinity to one of the parties litigant.3 The function of the
inquest appears to have been to hear evidence, like that of the
modern English jury ; and hence it seems not to have been
necessary to summon them from the nearest neighbourhood.
The majority, in the time of the Gragas, governed ; but when
the inquest was equally divided, the side upon which the
godi voted prevailed.4
The decision of a case under this mode of trial was there
fore virtually in the hands of the godi ;5 of which fact an
illustration is afforded by the case of Hallvard, as stated in
the saga of Viga-Glum. One autumn, says the saga, Halli
missed some ten or twelve wethers out of the hill pastures,
and they could not be found, so when Bard (Halli's son) and
his father met, Halli asked his son what he thought had
become of the wethers. Bard replied : " I don't wonder if
sheep disappear when a thief lives next door to you, ever
since Hallvard came into the district." "Yes," says Halli,
" I should like you to set on foot a suit against him, and
1 1 Gragas, 53. " Si de effato ferendo in unum non consenserint, consentien-
tium numerosiorum effatum valeat."
2 Vigf. Cleasby, Diet. Kvidr. 3 Head, Viga-Glum Saga, p. 118,
4 "Si ce effato proferendo inter eos non con venerit, eorum piKvaleat sententia
qui plurcs simul in unum conspirant; si vero dissentientes numero pares sint, ferant
effatum c voluntate prretoris."— 1 Gragas, 57, s Head, p. 118.

THE TRIAL TERM. 333
summon him for theft. I don't think, if I make this charge
against him, Glum [the priest of the district] will go the length
of clearing him by the oath of twelve men." " No," answered
Bard, " it will be a difficult matter for him to get the oath of
twelve men out of Glum and Vigfuss [Glum's son, Hallvard
being his foster-father] and their people."
This would be sufficient to indicate the main difference
between the buakvidr and the tolftarkvidr ; but the saga pro
ceeds : Then Bard set his suit on foot, and when Vigfuss
knew it he told his father that he should not like proceedings
for theft to be commenced against his foster-father. Glum's
answer was: "You know he is not to be trusted, and it will
not be a popular thing to swear him guiltless." Vigfuss said :
" Then I would rather that we had to deal with a matter of
greater consequence." Glum replied : " It seems to me better
to pay something on his account, and let him change his
residence and come hither, than to risk my credit for a man
of his character."
When men came up to the Thing the case was brought
in court, and Glum had to swear one way or the other with
his twelve men. Vigfuss became aware of the fact that his
father intended to find Hallvard guilty, so he went to the
court and said that he would take care that Glum should pay
dearly for it if his foster-father was declared guilty. It
ended in Glum quashing the suit by swearing that Hallvard
was innocent.1
1 Head, Viga-Glum Saga, pp. 66, 67. The sequel further shows the power of
the godi, and is told not without wit. In the course of a winter or two, says the
saga, it happened that Halli lost a pig, which was so fat that it could hardly get
on its legs. Bard came in one day and asked if the pig had been killed, and
Halli said it had disappeared. Bard replied : "He is gone, no doubt, to look for
the sheep which were stolen last autumn." "I suppose," said Halli, "they
are both gone the same way. Will you summon Hallvard?" " Well, " replied
Bard, "so it shall be, for I do not think Glum will this time swear Hallvard
free ; Vigfuss was the cause of the previous acquittal, and he is not now in
the country. " Bard took up the case, and proceeded to serve the summons ;
but when he met Hallvard he made short work of the suit by cutting off the
man's head.

334 HISTORY OF PROCEDURE.
Whatever resemblance may be discovered between the
Norse modes of trial and the modern English jury, it is per
fectly clear that neither the tolftarkvidr, nor the buakvidr, nor
any of the minor modes of trial of the same nature (of which
there appear to have been two or three),1 bore fruit in the
modern jury.2 That institution was purely Norman-English,
having come by direct lineage from the inquisition procedure
introduced from Normandy by William the Conqueror. The
development of the writ of novel disseisin, heretofore examined,
has shown the history of the procedure by inquisition and
recognition in England from the time of the Conquest until
the end of the reign of Henry the Second, when the jury as it
prevailed until the separation of witness and juror, or rather
until the juror ceased to be a witness, was fully established.
No other institution was at work contesting with the inquisi
tion the establishment of the jury. The recognition, when it
first presents an appearance in England, is what it was to the
end, a body of impartial men, summoned by an officer of the
law, to speak the truth concerning the matter in dispute, of
which body the officer was never a member. That body in
the end was the modern jury.
The essential features of the modern jury were in fact
nearly consummated in the recognitions. Compurgators were
party-jurors (using the term juror in a broad sense), who
merely attested the credibility of their principal. They were
selected by the party himself, either out of the whole com
munity or out of a portion named by the judge, or they were
chosen by lot. Their competency as law-worthy men of the
community was the only matter of fact they could be required
to establish. Party-witnesses were jurors whose oath or
verdict, when properly given upon the question before them,
decided directly the question of fact in issue ; but, as in the
• See Vigf. Cleasby, Diet. Kvidr.
2 It may be added that the coroner's inquest, to which the Icelandic inquests
bear some resemblance, is totally unconnected with them in origin.

THE TRIAL TERM. 335
case of compurgators, these were party-jurors, that is, men
selected by the party upon whom devolved the proof required
by the medial judgment. They were not men selected
impartially to speak the truth.
The simple inquisition stands between this mode of trial
by witnesses and that species of the inquisition known as a
recognition ; not in strict chronological order, for all three
existed side by side throughout the Norman period ; though it
may be observed that trial by party-witness was older than trial
by simple inquisition, and that the latter was perhaps older
than trial by recognition. But the simple inquisition was a
stage between the other two without being connected with
party-witness. The " inquisitio per testes," as this mode of
trial was sometimes called, was an inquiry into the truth of a
disputed allegation, not an attempt to find a certain number
of men who would swear in a particular way.1 The inquiry
was accordingly instituted by an impartial person, as by the
presiding officer of the court.2
But there was no jury here : there was no defined body of
triers between the court and the parties. There were more or
less witnesses only, whose function commonly was to find
some incidental fact.
The recognition consisted usually of a fixed number of
men ; a body of jurors from the outset standing between the
parties and the judges, and sworn to report the truth to the
court. The sheriff sought out the required number of men,
making diligent inquiry concerning those who were sufficiently
acquainted with the facts by personal knowledge or by reliable
report ("de visu et auditu," in the language of the time).
This jury could inform itself by making inquiry; that is,
witnesses could testify before them upon their request, and
help them to a conclusion, or bring them to a division. The
body, probably either as a whole or individually, could take
any means to ascertain the truth, whether it were to confirm
1 See Brunner, Schwurg. 85. 2 Ib. 84.

336 HISTORY OF PROCEDURE.
or to overturn their own belief as to the facts, before making
their report to the court. They reported upon what they had
seen and heard. Glanvill says that with respect to the know
ledge required of the recognitors, they should be acquainted
with the merits of the cause, either from what they have per
sonally seen and heard, or from the declarations of their
fathers (as in the case of champions), and from other sources
equally entitled to credit as if falling within their own imme
diate knowledge.1 An example from an ecclesiastical cause
at the beginning of the reign of Henry the First (the Case of
Matilda2) has already been referred to, where persons standing
in the same situation as recognitors in temporal causes pro
ceed to inform themselves before giving answer to the court
by making personal inquiry of people cognisant of the facts.
A similar example in a lay court may be found in the case
of Monks of St. Stephen v. The King's Tenants.3 It seems
also probable that the practice which is known to have pre
vailed in the thirteenth century of examining the recognitors
themselves as to their knowledge of the facts. (the judges
propounding the questions) prevailed also in the twelfth cen
tury ; the same motive existing then as afterwards, a desire to
ascertain whether the finding was based on reliable grounds.
The difference between this and the jury of the present
day is but as a step ; though in fact several steps, differing
from what might perhaps be expected, were taken before the
modern jury was reached. All that was necessary was that the
idea should become established that the jurors should be men
wholly unacquainted with the facts (it came to be thought in
consistent that a man should at the same time be juror and
witness) ; when of course they would need to be informed by
the testimony of persons who did know the facts. This point
finally reached brought to an end the ancient practice of the
examination of the jurors by the court, except as to their
1 Glanvill, lib. 2, e 17, § 4. 2 Placita Ang.-Norm. 79 ; ante, p. 63.
3 Ib. 119, 120.

THE TRIAL TERM. 337
competency. But the modern practice of bringing witnesses
before the jury has another and different origin from the
act of the recognitors in informing themselves, although it
amounted in the end to much the same thing. That subject
belongs to the later history of the jury.'
Forms of the community-jurata, so often mentioned in the
law-books of the thirteenth century, had clearly been in use in
England ever since the Conquest ; such for instance as the simple
judicial inquisition ordered for the trial of a cause by the king's
writ.2 But the more interesting form of the jurata, in respect
of judicial procedure, was its use in the midst of a cause,
generally in an assise, by which the court, through orders
emanating from itself and without the king's writ, informed
itself upon questions incidentally raised in the course of the
particular trial.3 The proceeding made known by Bracton
and others, by which the recognitors of the assise — an assise
of novel disseisin, for instance — were converted into a jurata
("assisa vertitur in juratam"),4 was indeed unknown to the
Norman period. That proceeding marks a distinct step in
advance of the reforms of the reign of Henry the Second. It
was a simplification of the machinery of the superior courts.
It was also a step towards introducing a jury unacquainted
with the facts and hence to be informed entirely by testimony
brought before them ; for as the recognitors had been sum
moned for a special purpose, such, for instance, as the deter
mination of seisin at a previous time, they must some
times, if not often, have been unacquainted with the facts

1 See Forsyth, Hist. Jury, 150, where the subject is considered at length;
Brunner, Schwurg. 436.
2 See, for example, Ruaculus de A. v. Abbey of Abingdon, Placita Ang.-Norm.
73 ; Glanvill, lib. 9, c, 13, § 3 ; lib. 7, c. 9, § 7. And see also the language
of the submission to arbitration of the differences between Henry II. of England
and Louis of France in Roger de Hovenden, anno HTJ; also the treaty between
Philip and Henry, ib. anno 1 180. Further, Placita Ang. -Norm. 121, 139, 203,
261. 3 Leading Cas. on Torts, 346; I Reeves, Hist. Eng. Law, 352-354 (Finl.).
4 Bracton, 216 b. Z

338 HISTORY OF PROCEDURE.
necessary to the determination of questions which they had
not been summoned to answer, such, for instance, as the
villenage or minority of one of the parties.
Whether the community-jurata was employed in the
twelfth century in the course of a recognition or of the Magna
Assisa cannot be certainly determined. The question could
be readily answered were it not for the continued use of the
Anglo-Saxon community-witness and similar party-proof.1
This procedure so nearly resembled the jurata that unless the
facts are particularly given, it becomes difficult, if not im
possible, to determine to which class the transaction belonged.
The essential difference between the two is sufficiently clear.
The Anglo-Saxon proceeding was strictly party-proof ; while
the jurata was an inquisition, being summoned and conducted
by the judge or sheriff, or by some other disinterested person.2
If the mode of conducting a particular proceeding of the kind
were always stated, there would be no difficulty in determining
of the existence in the Norman period of the jurata as an
incidental agency of litigation.
There are, however, strong a priori grounds for believing
that the jurata of the community was then in such use. It
had been in use in Normandy before the Conquest (as a
simple inquisition, "inquisitio ex jure")3 and it was in use in
England in the thirteenth century. It is not likely that it was
introduced into England after the loss of Normandy by John,
anno 1 204 ; and we have seen the use of the term in England,
apparently in a technical sense, so early as the year 1172.4
Glanvill's language is not decisive ; but the natural inter-
¦ An example of party-proof to stay an assise temp, king John will be found in
Abbreviatio Placitorum, p. 81, col. 2. " Et N. . . . dicit quod assisa non debet
inde fieri quia ipse M. villanus est et inde producit sufficientem sectam, se A. R.
patronum suum et R. filius R. et tres fratres suos cognatos ipsius M. qui se fatentur
esse villanos ipsius N. "
2 On the Continent the jurata was called an "inquisitio ex jure," an inquisition
of right, probably because it was had without the king's writ, whenever in the course
of a trial it became necessary or proper.
3 Brunner, Schwurg. 84, 381, 382. * Ante, p. 125.

THE TRIAL TERM,

339

pretation of it makes it point to the use of the jurata. In a
writ of right the tenant might put himself upon the Grand Assise
to avoid the duel. But to the rendering of any verdict by the
assise the demandant was permitted to object that the parties
were sprung from the same stock from whence the inheritance
in question came. If this were admitted by the tenant,
the assise was terminated, " because it shall then be lawfully
inquired [" quia tunc legitime inquiretur "] which of the parties
is the nearer to the original stock, and as such the heir more
justly entitled." l If, however, the tenant denied the alleged
relationship, then recourse was to be had to the kindred of
the parties, who for this purpose were now to be summoned
into court, that the question of relationship might be inquired
of ("inquiratur") through them. If the relations disagreed,
or if their unanimous answer was stoutly denied, the case
was to stand upon the verdict of the vicinage (" veredicto
vicineti "). Inquiry now being made (" facta autem inqui
sitione"), the result was to stand according to the answer.2
The use, by a lawyer, of such technical terms would, in con
nection with the considerations already presented, be nearly
if not quite conclusive ; but in another place, where the sub
ject treated of is the analogous one of proof as to villenage,
Glanvill's language as to the latter question shows that
party-proof (community-witness) was used. A writ having
been obtained by a party claiming his freedom against one
who was holding him to villenage, Glanvill says that the
question of freedom should be determined in this manner :
the party who claims his liberty shall produce a number of
his nearest relatives ; and if their freedom is recognised and
proved in court, the plaintiff shall be declared free.3 This,
however, is followed by the statement that if the free con
dition of the secta were denied, then recourse was to be had
to the vicinage, whose verdict (" veredictum ") should decide
the question, and if the defendant should bring forward 'persons
1 Glanvill, lib. 2, c 6, § 3. 2 Ib. §§ 4, 5. 3 Ib. lib. 5, u. 4, § I.
Z 2

34o HISTORY OF PROCEDURE.
to prove that the plaintiff's secta were his (the defendant's)
villeins-born, and they were sprung from the same stock as
the plaintiff, then, says Glanvill, if both were found ("re-
cognoscantur ") to be of common kindred, " let it be inquired
by the vicinage (' disquiretur per visinetum') which of them
are the nearest to him," with judgment accordingly.1 And
in the corresponding passage in the Regiam Majestatem,
so far as that fact is entitled to consideration, this passage
concerning the inquiry by the vicinage reads : " It shall be tried
by an assise." 2 On the whole the conclusion fairly is that
by the side of the tenacious Anglo-Saxon proceeding by
party- witness of the community, the Norman impartial jurata
of the community was in use, though certainly not in the
fixed and familiar form of Bracton.3 It may be added that
the secta of a party was probably subjected to examination
by the judges as to the facts in question.
1 Glanvill, lib. 5, c. 4, § 2. 2 Regiam Majestatem, lib. 2, c. II.
3 This is also the view of Reeves, I Hist. Eng. Law, 352-354. See Leading
Cas. on Torts, 346 ; Forsyth, Hist. Jury, 143 ; Brunner, Schwurg. 381 et seq.
and 416^ seq.

CHAPTER X.
THE FINAL JUDGMENT. ' '"""*
JUDGMENT in favour of the defendant in a civil case declared
that the party go without day and the plaintiff be in mercy
pro f also clamore. In criminal appeals in the time of Bracton,
as we have seen in the last chapter, the defendant, though
successful, was required to find pledges, unless there was
ground for detaining him ; otherwise he was to abjure the
kingdom or be sent to jail. A somewhat similar law had been
made anno 1176 by the Assise of Northampton as to persons
who had acquitted themselves on being sent to the water
ordeal under the oath of the jurors of presentment. The
judgment by this law required the parties to find pledges,
permitting them to remain in the country; unless they had
been accused of murder or some other enormous felony, when
they were sentenced to depart the country, with their chattels,
within forty days, and abjure the kingdom.
The nature of judgment in favour of a plaintiff varied
according to the nature of the action. During the anarchy of
Stephen and Matilda, and during the first years of the reign
of Henry the Second, as we have elsewhere seen, the posses
sions and interests of the church were taken into the protection
of the Ecclesiastical Court; and the records of the time disclose
the practice of that court in the matter of final judgments in

342 HISTORY OF PROCEDURE.
favour of the church. Aside from the peculiar pains and
penalties of the Spiritual Court, there was no material dif
ference, as has been shown, between the procedure of that
court and the procedure of the lay courts ; and there is no
reason to suppose the existence of any difference in matters of
final judgment. Church causes relating to property about
the middle of the twelfth century will show the general
practice of the time, in substance, as well as the special
practice of the Spiritual Court.
In the case of a recovery of lands, the judgment of the
court, pronounced by the archdeacon or other presiding officer,
was that investiture or seisin be given the plaintiff.' Thus in
the case of Abbot Gilbert (of Gloucester) v. Earl Gilbert,2
anno 1 145, an action for the recovery of two churches unjustly
seized by the defendant, the record tells us that the cause having
come on for trial in open synod, after the defendant had often
been summoned but to no purpose, and the plaintiff had made
out his case by charters and by the testimony of the synod ;
"we adjudged investiture of the said churches to the abbot
and church of Gloucester, and by the keys of the said churches
we inducted him into possession thereof by judgment of the
whole of our synod."
There is a similar case of the year 1156, between the
successor (abbot Hamlin) of the same plaintiff and William,
earl of Gloucester.3 In a record of this case, an action in the
Ecclesiastical Court to recover the church of St. Gundley,
Theobald, archbishop of Canterbury, says that because the
defendant wholly refused to appear before him at the peremp
tory day (" ad diem peremptorium, ante nostram praesentiam")

1 Taking property into the king's hand must not be confounded with final
process. That was done under mesne process. See ante, p. 221. The king held
the property under the process of praecipe quod reddat, on failure of the tenant to
answer the third summons, for fifteen days, subject to a right to replevy ; after
which time, if the tenant had not replevied, the land was adjudged to the demandant,
subject to a writ of right by the tenant  Glanvill, lib. i, c. 7.
2 Placita Ang. -Norm. 150. 3 lb. 182, 183.

THE FINAL JUDGMENT. 343
and to answer Hamlin and the monks of Gloucester of the
church of which he had unjustly disseised them, they restored,
in canonical manner, by canonical judgment, to the abbot
and his monks the church in question. And he adds, as
if it were feared that the defendant would not respect the
judgment, a direction for the exercise of the spiritual
authority of the church over him if he should presume to
harass the abbot and monks in their possession. He was to
be coerced to justice by ecclesiastical vengeance enjoined
throughout the dioceses. A similar cause and judgment
follow against a certain clerk named Picot, whom the earl of
Gloucester had inducted into the church.1 It was ordered
that if Picot refused to give up the key, the person addressed
in the record (Nicholas, bishop of Llandaff) should make a
new key, open the church, and give to the abbot investiture
of the church, houses, and pertinents, without delay. And if
Picot were refractory and molested the abbot, he was to be
subjected to ecclesiastical discipline.
In the case of a recovery of lands from a person of high
station in the church, the practice in the first instance pro
bably was to direct him to give seisin to the demandant, or
upon failure so to do to appear in court upon a day named
and show cause therefor. There is a case of the year 1194
which supports this suggestion, and shows what followed upon
non-appearance. It was commanded the abbot of B., according
to the Rotuli Curiae Regis,2 that he deliver the advowson of
the church of E., of which he was incumbent, to Richard de
T,, on account of a claim which Richard had successfully
made to the said church, in the King's Court ; and unless he
should do so, he should be before the justiciars at West
minster on the feast of St. Michael in fifteen days to show
why he had not done it. And the said Richard (the record
proceeds to state) came and offered himself, and waited until
the fourth day ; and the abbot came not nor essoined himself
".Placita Ang.-Norm. 184, 185. 2 1 Rotuli, 4.

344 HISTORY OF PROCEDURE,
and summons was proved. Judgment that the abbot be
put by gage and pledge to be at Westminster in the octaves
of St. Martin to show why he had not come on the day set
for him in court, and (to answer) concerning a capital plea ;
that is, the full wite or mulct.
In the event of the success of the demandant in a writ
of right as to land, whether in the duel or in the Grand
Assise, the final judgment required the sheriff to disseise the
tenant, without delay, of the land in question, with all the
fruits and produce found upon it, and give the same to the
demandant.1 In case there was any doubt as to the boun
daries of the fee in question, the king's special writ issued,
directing, if we may judge generally from a single case, a
survey by twelve legal men of the vicinage who knew the
bounds of the tenement and were sworn to speak the truth
thereof.2 In like manner if the suit was for default in performing
services due by reason of tenure, the judgment was for the
recovery of the land, unless the plaintiff had called for com
pensation only. He had the right, it seems, to sue for the
land upon default of service, and was not compelled to demand
performance or compensation. The several cases of suits by
abbot Faritius3 (anno iioi) in respect of knights' fees will
serve as an illustration. In one of these cases he sues William,
the king's chamberlain, for neglecting or refusing to furnish a
knight on the occasion of the threatened conflict between
Henry the First and his brother Robert, in the first year of
Henry's reign. The defendant was compelled to admit the
abbot's claim ; and though, as the record states, it seemed that
by the law of the land William justly deserved to be outlawed,
still by the intercession of the good men present the plaintiff
gave the land to William upon the agreement that he should
1 Glanvill, lib. 2, e 3, § II.
2 Placita Ang.-Norm. 175, early in the reign of Henry IL
3 Ib. 75-78.

THE FINAL JUDGMENT. 345
become the man of the abbot, and pay him ten pounds by
way of penalty, etc.
Judgment in favour of the demandant in an assise of mort
d'ancestor, or of the last presentation, or of novel disseisin was
that seisin should be given him ; and a writ for this purpose
was issued commanding the sheriff to cause him to have it
without delay.1 In the case of the assise of mort d'ancestor,
the demandant was entitled, together with the seisin, to the
possession of all the chattels found in the fee at the time of
delivering the seisin.2 In the assise of novel disseisin, the
tenant, if he failed, was amerced for the disseisin, and the
demandant was entitled to have judgment for what in modern
times would be included within the term "mesne profits."
A special writ was obtainable for this purpose, requiring de
livery of the " chattels and fruits," if the sheriff did not attend
to the matter on giving seisin to the demandant. Glanvill,
while not quite clear as to what the " chattels and fruits " thus
to be delivered were, says that in no other recognition did the
judgment usually speak of chattels or fruits, from which it is
to be inferred that something different is meant from what
he had said about judgment in the assise of mort d'ancestor,
above mentioned. It is clear that the demandant was entitled
to damages besides seisin. Many cases in the Rotuli of judg
ment in novel disseisin show this. " Judgment that William
have seisin and Nigel be in mercy. Damage four shillings,
fine half a mark."3 "Judgment that Robert have seisin and
Walter be in mercy for the disseisin. Damage for the disseisin
half a mark."4 "Damage half a mark."5 "Damage one
mark."6 "Damage two shillings." ? "Fine half a mark,
damage twenty shillings."8 " Damage five shillings, fine half
a mark."9 " Damage done thereto thirty pence, fine half a

1 Glanvill, lib. 13, passim. The other recognitions were mostly for incidental
purposes. 2 Ib. c. 9.
3 I Rotuli, 177. 4 Ibid. s lb. 329. ° Ib. 330.
1 Ib. 350. 8 Ib. 374. ° Ib. 391.

346 HISTORY OF PROCEDURE.
mark."1 "Damage one mark, fine one mark."2 "Damage
done thereto one mark, fine two marks."3 "Damage twenty
shillings, fine half a mark."4 " Damage done thereto six
shillings, fine half a mark." 5 "Damage done thereto ten
shillings, fine upon Aristotle forty shillings, upon Ralph half
a mark."6 " Damage nine marks seven shillings and five
pence, and William to be amerced."7 These fines were the
amercements for the disseisin ; and they were inflicted as well
when the tenant succeeded as when he failed, if the disseisin
were violent.8
In the case of judgments upon simple money demands, the
defendant, if he did not make present payment, was probably
required to find sureties for the amount, when he lacked
sufficient property, subject to levy, to pay the sum adjudged
due. In the case of The King v. Thomas a. Becket,9 the
defendant was persuaded to put himself upon the king's
mercy, and was thereupon adjudged to pay five hundred
pounds, for which he found sureties. Failure to do this when
required probably entailed outlawry or loss of freedom,
according to circumstances, in the case of a layman, unless
the defendant were so fortunate as to secure the king's
discharge. If the defendant were prosecuted and found guilty of the
commission of a considerable crime below the grade of treason
or felony, such as theft of valuable property, the judgment,
besides requiring restitution or compensation, or security there
for, commonly ordered the defendant to suffer mutilation, as
in Ailward's Case,10 or if the offence was petty, merely im
prisonment or a simple amercement. But in prosecutions of
treason or felony, the prisoner, if found guilty, was adjudged
in the king's mercy of life and limb ;" and added to this were
1 I Rotuli, 396. 2 Ib. 422. 3 Ibid. 4 Ib. 424. s lb. 430.
6 Ib. 434. 7 Ib. 446. 8 Glanvill, lib. 13, e 38, § 2.
» Placita Ang.-Norm. 211. ,0 Ib. 260.
" Glanvill, lib. 14, c. 1, § 1. See the cases of Roger de Breteuil, ib. II, and
of earl Waltheof, ib. 12, temp. Wm. I.

THE FINAL JUDGMENT. .347
confiscation of goods and the perpetual disherison of his heirs.1
By the continental law, at least within the bounds of modern
France, and by the Assises of Jerusalem, the pledges of the
defendant were subject to the same punishment as that ad
judged upon the principal ; though not, it seems, in the same
odious form sometimes inflicted upon the latter.2 It is doubtful
if such consequences followed upon conviction in England.
In great negotiations it was common for each of the parties
to pledge obsides to go " in captione " of the other party upon
his default in the performance of his part of the engagement.
Thus, in an engagement, anno 1103, between Henry the First
and Robert, count of Flanders, for supplying the king with a
thousand soldiers, twelve obsides of the count " ponent se in
captione, in turri London, vel in alio loco, ubi rex eos libere
possit retinere ad proficuum suum," in case of their principal's
default.3 But this is all that the known records justify us in
asserting of the law in this particular as to pledges.
The judgment pronounced upon a person who had entered
into pledge to produce for justice a person accused of theft
or robbery, and had failed to perform his engagement, was,
according to the Mercian law, as follows : He should restore
the stolen chattels and pay twenty shillings (to the prosecutor
as infra) for the head of the fugitive, and four pence to the
keeper of the stocks, and a halfpenny " pro fossoris " (" pur la
besche "), and to the king besides, forty shillings. According
to the West-Saxon law, the oledge should give one hundred
shillings for the head to him who prosecuted the claim, and to
the king four pounds. By the Dane law* he forfeited eight
pounds, of which seven went to the king, and the eighth for
the head, to the prosecutor. But if within a year and a day
he should find the accused and bring him to justice, the pound

1 Glanvill, lib. 14, c. I, § 6.
2 See Chanson de Roland, line 3958 (Gautier) ; Huon de Bordeaux, 44
(Guessard) ; I Assises de Jerusalem, c. 104, p. 175 (Beugnot).
3 Rymer, Fcedera, 2, 3.

348 HISTORY OF PROCEDURE.
should be restored to the pledging party, and justice done
upon the criminal.1
Outlawry was usually a last resort. It was seldom pro
claimed except as punishment for contumacy ; that is, for
unyielding disobedience of the requirements of the law when
once set in motion, or of the commands of the king or of the
courts.2 This might be by refusal to obey summons, as in
the Case of Earl Ralph,3 in the time of the Conqueror, and in
the Case of Roger de Belesme,4 in the time of Henry the
First, or it might be by refusal to obey the medial or the final
judgment of court. But such a consequence could not follow
a refusal to obey the medial judgment of a tribunal, it seems,
except when that judgment required the party to purge him
self of an accusation of crime, or perhaps of a delict, and he
had fled. Failure, or even refusal, to make the proof in a
civil cause relating to property or to services was followed only
by amercement, and judgment against the pledges, if pledge.
had been given. This was so, because, when the defaulting
party was the plaintiff, no damage was done, and when he
was the defendant, the means of satisfying the demand of the
opposite party was at hand in the property in question, or in
the person of the pledges. When this was not the case,
refusal to perform the judgment of court requiring the de
fendant to give security probably subjected him, if a layman,
to outlawry and its consequences.
The contumacy of an alleged criminal, or of a recusant
defendant, if not already known to the king, was reported to
him, on judgment of court, for the final sentence of the law.
And now, unless the influence of others or the king's own
1 Wm. I. i. c. 3.
2 Laws Hen. I. c. 53, § 1 ; c. 66, §§ I, 2. See, however, c. 52, § 1. And
see Assise North, c. 13.
3 Placita Ang.-Norm. 11.
4 Ib. 83. See also Laws Wm. I. c. 52 ; Edw. Conf. cc. 6, 18, 37, 38. It
seems by inference that in the eleventh century outlawry had extended to children
born after the offence. The law expressly exempts those born before, and is
silent as to those born after.

THE FINAL JUDGMENT. 349
disposition towards him availed, the hopeful outlaw, who
had preferred the uncertainty of concealment and flight to
the doubtful event of the ordeal or the duel, or to the certainty
of imprisonment, was turned over to the tender mercies of
that disproportionate part of the population who, strangers
to pity, knew no shrinking at the sight of blood.1
1 It was declared of one who had broken the peace of the church : "Si infra
xxx. et unum diem, per amicos suos seu per justiciam regis reperire non poterit,
ore suo utlagabit eum rex. Et si postea repertus fuerit et teneri possit, vivus regi
reddatur, vel caput ipsius si se defenderit ; lupinum enim caput geret a die
utlagacionis sue, quod ab Anglis uuluesheued [wolfshead] nominatur. Et hec
sentencia communis est de omnibus utlagis." — Laws Edw. Conf. c. 6.
Contumacy towards the Ecclesiastical Court was punished by excommunication ;
to which, if need were, the arm of the secular power was added. See Charter of
William the Conqueror, Appendix, No. 1. See, however, the modification made
by the Constitutions of Clarendon, c. 10, ante, p. 37,

APPENDIX.

APPENDIX.

CART.E ET PLACITA.

All of the following records, except the first three and the last one,
are of litigations in Normandy, from the time of William the Conqueror
- until the reign of Henry the Second, inclusive. With the exception
of Nos. 1-3, they have never before been printed in full, most of
them not at all. No. 1 is the famous charter of the Conqueror con
cerning jurisdiction of spiritual causes ; No. 2 is the record of an
important cause at Antioch in the twelfth century ; and No. 3 is
the record of a temporal cause before a clerical court in the time of
Henry the Second.

No. 1.] CARTA WILLELMI.1
W. gracia Dei rex Anglorum R. Bainardo et G. de Magnavilla,
et P. de Valoines, ceterisque meis fidelibus de Essex et de Hertford-
schire et de Middlesex, salutem. Sciatis vos omnes, et ceteri mei
fideles qui in Anglia manent, quod episcopales leges, que non bene,
nee secundum sanctorum canonum precepta, usque ad mea tempora
in regno Anglorum fuerunt, communi concilio et consilio archi-
episcoporum et episcoporum et abbatum, et omnium principum
regni mei, emendandas judicavi. Propterea mando, et regia
1 1 Anc. Laws, 495 (8vo ed.). 2 A

354 APPENDIX.
auctoritate precipio, ut nullus episcopus vel archidiaconus de legibus
episcopalibus amplius in hundret placita teneant, nee causam que ad
regimen animarum pertinet ad judicium secularium hominum addu-
cant ; sed quicunque, secundum episcopales leges, de quacumque
causa vel culpa interpellatus fuerit, ad locum quem ad hoc episcopus
elegerit vel nominaverit veniat, ibique de causa vel culpa sua respon
deat, et non secundum hundret, sed secundum canones et episcopales
leges, rectum Deo et episcopo suo faciat. Si vero aliquis per superbiam
elatus ad justiciam episcopalem venire contempserit vel noluerit,
vocetur semel, secundo, et tercio ; quod si nee sic ad emendacionem
venerit, excommunicetur ; et si opus fuerit ad hoc vindicandum,
fortitudo et justicia regis vel vicecomitis adhibeatur. IUe autem qui
vocatus ad justiciam episcopi venire noluerit, pro unaquaque
vocacione legem episcopalem emendabit. Hoc eciam defendo et
mea auctoritate interdico, ne ullus vicecomes aut prepositus seu
minister regis, nee aliquis laicus homo, de legibus que ad episcopum
pertinent se intromittat, nee aliquis laicus homo alium hominem sine
justicia episcopi ad judicium adducat. Judicium vero in nullo loco
portetur, nisi in episcopali sede, aut in illo loco quem ad hoc
episcopus constituent.

No. 2.J
Privilegium Raimundi, principis Antiochiae, de justicio in ipsius
curia facto, de injuria quam conventus ecclesiae Sancti Pauli diutis-
sime canonicis Sancti Sepulcri super injusta cujusdam gardini
possessione intulerat. [Anno 1140.]*
In nomine sanctae et individuse Trinitatis, Patris et Filii et
Spiritus Sancti, amen. Antiqua patrum tradit auctoritas ut, quotiens
digne rei Celebris institutio sequitatis meretur efficaciam, manifestis
profecto memorialis paginae apicibus eo attentius praemuniri debeat,
quo et circumspectius oblivionis calcare insolentiam, et totius
incursum calumniae perpetuo intendit praecanere. Praesentibus igitur
et eorum posteris necessario innotescimus quoniam ego Raimundus,*
praeclaris siquidem Pictavorum ortus natalibus, cum ex supemo
muuere Antiocheni regni solium obtinuissem, ad sacrosancta Hieru-
1 2 Assises de Jerusalem, Beugnot, 501.
2 Raymond, youngest son of William VII., count of Poitiers, became in the
year 1 136 prince of Antioch.

CART^E ET PLACITA. 355
salem loca, tertio mei, principatus anno, Domino prosperante
adoraturus, ascendi. Ubi vero inter caetera humanae reparationis
gaudia singulari potius gloriosissimi Sepulcri visitatione delectatus, a
domno Willelmo, ejusdem sanctae civitatis reverentissimo patriarcha,
sed et a domno Petro venerabili Dominici Sepulcri priore, necnon
ab omni ipsius loci sancto conventu, super quibusdam injuriis diu
penes Antiochiam excellentissimae. Dei et hominis Christi Jhesu
sepultura? irrogatis, devotum et humilem clamoris effectum suscepi,
pari etiam omnium prece crebrius in Domino exoratus, ut memorato
ineffabilis mysterii loco celeberrimo sua plenarie jura, quorum
eatenus injusta privatione graviter multatus fuerat, ob mea? animae
remedium misericorditer restituerem. Verum ego, cum tantorum
piae petitioni intercessorum nee possem neo deberem adversari,
quippe qui justam cujuslibet oppressi vocem, nedum communem
tantae reverentiae clamorem ex debito clementer admittere exiget.
Usque adeo eorum vota diligentius sum prosecutus, ut quicquid de
justicia Dominici Sepulcri in mea manu consistebat, totum liben-
tissime ex tunc in sternum Christo Domino, et ejus, ad perhennem
suae resurrectionis memoriam, servientibus gratis redderem. Sed et
de aliis omnibus quotquot ad suum jus pertinent, quae scilicet in
alienos possidentium usus cesserant, me eis devotissime, in mess curiae
audientia, justitiam executurum promisseram. Ea propter, ipso meae a
Hierosolymis regressionis anno, praedictus Dominici Sepulcri prior,
et Vulgrinus praepositus, assumptis secum aliquot suis fratribus,
prima die mensis Februarii Antiochiam venientes, non multo post de
mei promissi executione me vivaciter requirendo convenerunt, ut et
nominatim de quadam injuria, quam conventus ecclesiae Sancti Pauli
super injusta cujusdam gardini et aliquantae terrae possessione ipsis
diutissime intulerat (neque enim usque ad illud temporis, cum
saepius suam calumniam praetendissent, justitiam quandoque assequi
potuerant) ; de ilia, inquam, tarn obstinata injuria aequitatis audi-
entiam eis accomodarem. Ad hoc itaque exequendum dominum
Robertum, ccenobii Sancti Pauli abbatem, et universum conventum
diligenti opera studui praemoneri. Quorum omnium una vox et
eadem fuit sententia : hujus videlicet rei discussionem nullatenus
ad secularis curiae examen, sed ad solum domni patriarchae Antio-
cheni et ipsius ecclesiae spectare arbitrium. De jure enim ecclesi-
astico tota ilia possessio processerat, praesertim cum earn dominus
sanctae memoriae Bernardus patriarcha olim pro commutatione domus
Stephani, thesaurarii ecclesiae Sancti Pauli, dedisset: data etiam
2 a 2

356 APPENDIX.
autentica sui privilegii sanctione, quod apud se habebant, cum domini
augustae recordationis Boamundi junioris convenientia confirmasset.
Ceterum cum illud privilegium me exigente in medium fuisset pro-
latum, et in conspectu circumstantis curiae ad finem usque aperte et
distincte retractatum, tanta nimiorum universis coauditoribus ejus
patuit digna confutatio, ut quibusdam aliis quibus seipsum impugna-
bat praetermissis, nee unius testis, sicut rerum bene gestarum Veritas
exigit, quantulacumque assertione fulciretur. Sic tandem voce privi
legii omnino cassata, ex communi consequenter curiae intuitu dimnitum
est, quoniam quando quidem ccenobii sancti Pauli monachis nulla
prorsus ad habendam ecclesiae audientiam ratio suppetebat, sine
omni subterfugio tam ipsi quam et Sancti Sepulcri canonici alterutras
suae causae allegationes in publicum meae curiae conferre debebant,
ibique eorum controversias et recto judicio dirimi et dictante justitia
terminari opporteret. Quia vero prsefatos canonicos diutius nollem
detinere, proxima quippe Paschae solemnitate imminente, certum xv.
diebus terminum utrique parti praefigere statui, in quo monachi
constanter mihi resistentes, nullum alium placitandi terminum se
quo quomodo suscepturos affirmabant, nisi quem communis curia ex
deliberatione justitiae illis designando proferret. Cum ergo eorum
voci benigne assensissem, unanimi totius curiae consideratione
quadragenarii muneri elongatio est utrisque accommodata. Cujus
spatii finalis terminus iii. kalendas Aprilis, septima quoque feria
quae tunc temporis vigiliam Dominicae diei Ramis Palmarum
praecessit, accurrisse dinoscitur. Sane in die constituta, et monachis
ecclesiae Sancti Pauli et Sancti Sepulcri canonicis, in loco extra
Antiochiam qui ad Pontem Ferri dicitur (ibi enim eo tempore in
castris commorabar), mei coram praesentia ad suae causae negocium
venientibus, mihi quippe commodius est visum, propter plenioris
consilii habendam sufficientiam, usque dum Antiochiam intrassem
illud opus debere differri, unde et usque in diem tertiam terminum
consultius prolongavi. In ea iterum die monachis et canonicis in
Antiocheno palatio coram me in suae causae disceptationem intends,
eandem itidem causam usque in Sabbatum Paschalis hebdomadae
protelavi : non enim in tam arto temporis spacio sufficiens morum
optimatum consilium convocare potueram. Cum vivo post Domini
Pascha dies praefixi termini advenisset, omnemque curiae ordinem
mecum ad earn audientiam congregassem, prima diei hora canonici
Sancti Sepulcri ad suum negocium convenerunt, monachis quippe
ecclesia: Sancti Pauli nequaquam vel tunc, vel postea per totara

CARTyE ET PLACITA. 357
diem conspectui nostro apparentibus. Comperta itaque eorum
mora, quid me deinceps super eo negocio agere deceret, barones
astantes affectuose consului, qui nimirum, communicato consilio,
responderunt ut, quoniam ecclesia Beati Pauli sub meae defensionis
ope consistebat, viva meorum nunciorum voce monachos ad
constitutam causae audientiam ex gratia debere invitare, meis quoque
nunciis id insuper ex mei parte monachis intimandum praecipere.
Quoniam nisi saltern ad ipsius diei nonam placitaturi venirent,
tantumdem eis abesse sufficeret, quantum ei prolata judicii sententia
eos omnino confutasset. Nee mora, assumptis de medio caeterorum
baronum Guiterio de Moro et Ricardo de Belmont, abbatem et
monachos, sicut mihi suggestum fuerat, diligenter appellavi, qui
omnes, nulla legalis exonii I excusatione praetenta, se nee coram me
venturos, nee meae curiae judicium subituros, una voce responderunt.
Verum ego, tam pertinaci eorum responso accepto, ne quid forte
quasi minus justo per praecipitationem fieret, canonicos usque in
diem tertiam equanimiter expectare exoravi. Qui et ipsi satis
pacifice concesserunt. Porro, die tertia expectata, soli canonici
justitiam exigentes presto affuerunt; quorum profecto justae petitioni
benigne assentiens, totum differendae justitiae pondus, maxime ex
ipsius rei conferendis circumstantiis, meae curiae imposui. Unanimi
igitur et communi omnium baronum consultatione est approbatum,
quoniam canonici, qui nunquam diem vel causam subterfugerant,
plenaria sui juris possessione justo judicio debebant investiri. Hoc
tamen modo designato, ut ipsi investituram tam monachis ecclesiae
Sancti Pauli, quam etiam cuilibet calumnianti, quicquid mea curia
adjudicaret, exequerentur.2 Eo itaque modo et conditione, praefatos
Dominici Sepulcri canonicos memorato gardino et reliqua terra
adjacenti, suo scilicet jure, xvii. kalendas Maii, libere et quiete
investivi. Qua statim investitione recepta, dominus prior et caeteri
canonici sese ecclesiae Beati Pauli justitiam executuros gratis
obtulerunt. Sed nee unus affuit qui eos in aliquo impeteret. Item,
nolumus quasi neglectum sub silentio praeteriri, quoniam saepe dicti
canonici Graecos testes, moribus et seno maturos, in medium
produxerunt, qui omnes, non vulgari conjecturae opinione, sed certa
visus attestatione, se illam de qua loquimur Sancti Sepulcri justitiam
1 Essoin.
2 The judgment was subject to a writ of right by the monks of St. Paul.
Comp. Glanvill, lib. I, c. 16 ; and see as to novel disseisin, 1 Assises de Jerusalem,
103 (Beugnot) ; Brunner, Schwurg. 346, 347.

358 APPENDIX.
juxta curiae decretum comprobaturos asserebant. Cum vero eorum
testimonia non nisi suo loco esset necessarium audiri, praesertim
parte altera absente, producti tamen testes suo fortassis celeri obitu
justitiam gloriosi Sepulcri posse deprimi formidantes, quod ore vivaci
et corde memori erant confirmaturi, totum ad plenum litteris
annotatum reliquerunt, ut in posterum, si necessitas forte exigent,
pro viva voce scripti non desit auctoritas. Testium quoque nomina
sunt haec : Gregorius, ecclesiae Sanctae Mariae cantor ; Thomas,
subcantor j Michael, filius Molkini ; Abraham, filius Sucar. Omnibus
tandem, non sine onerosa differendi prolixitate, Deo auctore, ad
perfectum deductis, ego Raimundus, Dei nutu princeps Antiochenus,
sed et domina Constantia principissa, mea uxor illustrissima,
legitimum facta? investitionis donum sanctissimo Domini Sepulcro,
pari assensu et donatione in aeternum quiete possidendum, damus
et concedimus; principali quoque hujus privilegii nostrique sigilli
confirmatione decoratum perpetua stabilitate praemunimus. Factum
est autem hoc privilegium anno Incarnati Dei Verbi MCXL°, mense
Aprili, indictione IIP, quarto quoque anno principatus domini
Raimundi, Antiocheni principis invictissimi. Testes subscripti:
[Here follow the names of twenty-nine persons, of various ranks,
from archbishop down to notary.] Datum Antiochiae, xiii. kalendas
Maii, per manus Odonis cancellarii.

No. 3.J
GODFREY DE LUCI v. ODO, ABBOT OF BATTEL.
Anno 1176.1
[An action before an Ecclesiastical Council concerning the right
to the church at Wi ; the plaintiff claiming under a gift of the king,
the defendant denying the validity of the same. The abbey of Battel
having become vacant in the year 1 17 1, by the death of abbot Walter,
Richard de Luci, the chief justiciar, obtains it from the king for his
son Godfrey, the plaintiff; the king's presentation being received by
Richard, archbishop elect of Canterbury, and Godfrey instituted by
him. The defendant Odo succeeds to the abbacy in the year 1 1 75,
and refuses to acknowledge the validity of Godfrey's claim to the
church.] Tunc temporis accedit quendam Hugonem.a Romana? ecclesia?
1 Chron. de Bello, 170 (Ang. Christ. Soc). ° Commonly called Hugezun.

CARTyE ET PLACITA. 359
diaconum cardinalem a latere domini papa? Alexandri missum, lega
tions gratia venire in Angliam, qui convocatis archiepiscopis, episcopis,
abbatibus, et totius regni clero concilium generali apud Westmonas-
terium concitavit, tum de negotiis pro quibus venerat tractaturus, tum
de statu Anglicana? ecclesiae, et causis ecclesiasticis cognaturus.
Abbate de Bello, generali edicto inter caeteros ad- concilium vocato,
scripsit ei praedictus legatus auctoritate apostolica, speciale sibi
dirigens mandatum,1 ut omni excusatione remota in praesentia sua
appareret, Godefrido de Luci, super ecclesia de Wi responsurus, et
juri pariturus. Abbas suscepto hoc mandato, plurimum turbatus
est animo, sciens dominum regem praedictam ecclesiam, de Wi
praefato Godefrido de Luci, vacante ecclesia de Bello, absque omne
exceptione dedisse et confirmasse, ipsum quoque Godefridum ad
praesentationem domini regis a Ricardo Cantuariensi electo fuisse
susceptum, et auctoritate, qua electus potuit, in ecclesia institutum,
carta nihilominus sibi a praefato electo super ipsius institutione
praestita, quam idem electus postmodum ab apostolica sede rediens,
et a papa Alexandro consecratus, jam archiepiscopus, jam primas,
jam apostolicae sedis legatus, omni qua fungebatur auctoritate confirm-
averat. [The abbot, in perplexity and fear of offending the king, the
archbishop, and Richard de Luci, still resolves to defend his cause,
and, not being himself a lawyer, seeks the assistance of various persons,
requesting them to undertake his defence, but in vain. They all fear
the king and the archbishop. The chronicle proceeds :]
Celebratis in crastino divinis officiis, simpliciter cum suis ad locum
decisioni causae praefixum processit, parte adversa ex opposito veniente
cum advocatorum multitudine. Procurator et advocatus principalis
in causa partis adversae erat quidam magister Ivo Cornubiensis, qui
procedens in medium, litterasque patentis Godefridi de Luci tunc in
transmarinis scolas frequentantis in publicum proferens, commissam
sibi manifestavit causae, procurationem, et Godefridi ratihabitionem.=
Erat autem tunc ibi, utpote ad concilium vocati, cleri conventus
maximus, non tamen praesidente legato, sed quibusdam suorum quibus
causa? commiserat decisionem. Praefatus ergo magister Ivo sic exorsus
ait. "Satis vobis domini judices ex patenti testimonio litterarum
domini mei Godefridi de Luci credimus constare, ipsum utpote in
1 The double summons is worthy of notice.
2 That is, Godfrey put Ivo in his place "lucrandum vel perdendum." See
ante, p. 245.

360 APPENDIX.
remotis extra hoc regnum partibus scholarum studia frequentantem
huic causae suae interesse non posse, mihique causam eandem pro-
curandam commisisse. Cujus ego advocatione suscepta, non minorem
mihi quam si dominus meus praesens adesset postulo dari audientiam,
sed tanto diligentiorem, quanto causam quam fovendam suscepi
constat esse justiorem. Cum jam huic vitae finem feeisset vir
venerabilis Walterus abbas de Bello, domini mei Godefridi patfuus,
totius monasterii dispositis in regiae sullimitatis devenit potestatem,
adeo ut in domini regis fuerit arbitrio, monasterii ipsius regimen cui
vellet committere cum tamen in voluntate non habuerit aliquem in eo
nisi canonice electum substitui. Nondum penes se deliberaverat
majestas regia, cui monastorialis praelationis conferret honorem, cum
presbiterum quendam Willelmum personam ecclesiae de Wi contigit
huic vitae renuntiare. Dominus rex ratione, qua potuit de totius
monasterii corpore pro voluntate disponere, praedictam ecclesiam de
Wi in fundo monasterii sitam domino meo Godefrido de Luci pietatis
et caritatis concessit intuitu, et carta sua quam ad manum habemus,
confirmavit, ut rex, ut fundi dominus, ut monasterii illius, praeter
caetera regni monasteria, specialis patronus. Nee quidem incongruum
fuit domino regi de membris disponere, cui totum corpus erat in
potestate." Et haec dicens, cartam domini regis super donatione et
confirmatione in medium protulit. Et adiciens : "Facta," inquit, "jure
patronatus hujusmodi donatione, vir venerabilis dominus Ricardus
tunc Cantuariensis electus, dominum meum Godefridum, auctoritate
qua potuit, ad praesentationem domini regis suscipiens personam
absque omni exceptione instituit, datis sibi in testimonii munimentum
institutionis suae litteris, sigillo quod tunc habere videbatur opposite,
licet nondum in plena potestate videretur constitutus." Proferensque
in publicum litteras, " En," inquit, " ipsius electi testimonium. Sedem
apostolicam postmodum adiens, ibique a domino papa solenniter
consecratus, ac inde cum plena potestate archiepiscopi, primatis et
legati denuo rediens, quod electus minus antea facere poterat, jam
confirmatus plena auctoritate instituendo et confirmando roboravit."
Et haec dicendo, cartam archiepiscopi ipso etiam archiepiscopo prae-
sente in omnium oculis ostendit, ita subinferens. " Cum igitur," inquit,
" hujus ecclesiae de Wi non qualemcunque portionem sed eccle
siam totam cum omni juris sui integritate dominus meus Godefridus
tam excellenti auctoritate obtinuerit, dominus abbas et monachi de
Bello ipsius ecclesia? medietatem contra regiam episcopalemque

CART.E ET PLACITA. 361
dignitatem detinent occupatam. Ergo secundum plenam domini regis
donationem et domini archiepiscopi plenam institutionem, plenam
petimus possessionem, ad majorem parati probationem, si forte jam
edita videatur minus sufliciens ; abbati et monachis, plena possessione
suscepta, si quid quaestionis adversum nos habuerint responsuri, et
secundum juris ordinem satisfacturi."
Stupefactus ad haec abbas plurimum, stabat expers humani
consilii, confisus tamen de divino. Responsurus ad proposita, cum
eos quos credebat amicos, ut ad consilium suum venirent benique
rogaret, omnes se modo quo praedictum est excusaverunt, adeo ut
nee unus omnium qui aderant praeter suos qui secum illo venerant
consilium sibi vel auxilium praestiturus procederet. Nemo enim
omnium timore domini regis et archiepiscopi et Ricardi de Luci
secum stare praesumpsit, cognito quod eos causa contingeret.
Aderat illic inter caeteros magister Walerannus Baiocensus archi
diaconus, postmodum Roffensis episcopus,1 qui tunc temporis
Cantuariensi archiepiscopo adhaerens, illic collateralis magistri
Gerardi Puella?" residebat. Hie abbatem intuens in angustiis
positum, et divino et creditur instinctu pietate motus, conversus ad
magistrum Gerardum : " Magister," inquit, " Gerarde, sic omnes
abbatem de Bello desolatum relinquemus? Dei odium incurrat,
qui ei in hae necessitate deerit." Surgensque et magistrum Gerar
dum arnica violentia manu injecta post se trahens, " Eamus," inquit,
"et abbatis assisten.tes consilio, ei in causa sua subveniamus." Veni-
entibus ex insperato ambobus ad abbatis consilium, abbas jam erat
animaequior, et de causa sua securior. Non diu protracto, sed
maturato expeditoque consilio, redeunt pariter ad judicum conses-
sum, ubi magister Gerardus, agente magistro Waleranno, immo Deo
disponente, procedens in spiritu fortitudinis, non regem veritus, non
archiepiscopum dominum suum, non principes non quoslibet eorum
fautores, libera voce ccepit in hunc modum pro abbate allegare.
"Sicut ea," inquit, "quae canonice sunt inchoate, ut perfectionem
obtineant sunt promovenda, sic quae contra juris ordinem perperam
sunt attemptata, in irritum sunt revocanda, aut in statum meliorem
transformanda. Allegatum est a parte adversa, quod monasterio
Belli pastore orbato, totius monasterii dispositio in manus domini
regis devenerit, vacantem interim ecclesiam de Wi in fundo mon-
1 1182-1184. He was at this time also domestic chaplain to Richard, arch
bishop of Canterbury. 2 " Vir eruditissimus et litteratissimus. "

362 APPENDIX.
asterii sitam dominus rex domino Godefrido de Luci contulerit,
quodque eum regia auctoritate praesentatum dominus noster Cantua-
riensis primum electus, postmodum archiepiscopus, ad eandem
ecclesiam susceperit, et in personam instituerit. Ad haec imprimis
salva pace domini regis respondemus, quod in rebus ecclesiasticis
nihil juris obtinet potestas secularis.1 Licet ad tempus, in rebus
monasterii pastore orbati, visa fuerit majestas regia pro potestate sibi
juris aliquid vendicasse, nihil tamen ad detrimentum monasterii
abbatisve futuri de jure potuit vel debuit immutare, alienare, seu
aliquatenus disponere, sed abbati futuro, resignanda omnia in sua
integritate, conservare.
" Domini igitur regis super ecclesia de Wi in fundo monasterii sita
nulla debuit esse donatio, quia vacantis ccenobii non tam patronus
quam custos, nullam in eo proprii juris obtinuit possessionem, nee de
jure alieno facere debuit donationem. Cum ergo, palam sit quod sit
irrita donatio, consequens omnino est ut etiam irrita debeat esse
praesentatio, quia qui non potuit dare, nee debuit prassentare. Prae-
sentatus domino Cantuariensi electo per cum dicitur fuisse admissus,
sed licet ratione praecedentium minus canonica fuerit institutio, et
ideo irrita, alia tamen consideratione nulla fuit, nee esse potuit,
quoniam electione archiepiscopi per summum pontificem nondum
confirmata, electus admittendi vel instituendi non habuit potestatem.
Consecratus a domino papa archiepiscopus, et a sede apostolica in
plenitudine potestatis reversus, quod minus antea fecerat dicitur
solennius fecisse, et episcopali auctoritate confirmasse, sed nulla esse
debuit vel potuit ipsius confirmatio, cum in ipsius consecratione sint
omnia a summo pontifice cassata, quae ante consecrationem ejus
electionis tempore ab ipso fuerant instituta. Cum igitur electionis
tempore facta fuerit praesentatio et praesentati institutio, dum omnia
in consecratione revocantur in irritum, constat etiam quod quicquid
circa praesens negotium est attemptatum sub universitate concluditur,
unde et in irritum proculdubio revocatur. Quia enim respectu
apostolica? auctoritatis modica aut nulla esse dinoscitur potestas
episcopalis, qua? ab excellentiori dissolvantur, per inferioris ordinis
gradum nequivit accipere firmitatem. Totius itaque rei serie dili-
gentius considerata, dum omnia in juris ecclesiastici praejudicium
perpetrata videntur, firmitatis suae non immerito robur amittunt,
quoniam in ecclesiasticae soliditatis radice non subsistunt. Plena?
" The editor of Battle Abbey Chronicle (Camden Soc ed. p. 177) has remarked
that it was a foreigner who made this bold statement.

CART^E ET PLACITA. 363
institutionis postulat pars adversa beneficium cum potius beneficio
portionis privari meruerit, quod in praefata ecclesia de Wi nullo
rationis titulo dinoscitur possidere. Spoliatum est jure suo vacans
monasterium, nee tenentur injuste spoliati, in jure suo respondere
nisi primum restituti, unde et dominus abbas de Bello pro mon-
asterio suo agens juris sui petit restitutionem, postmodum paratus ad
exhibendam justitiae plenitudinem." ' Cum in hunc modum magister
Gerardus in omnium audientia perorasset, et allegationem suam
legum ac decretorum quae hie inserere longum erat auctoritatibus
comprobasset, jamque pro allegatione partium ferenda esset sententia,
delegati judices haud dubium quin adversa? parti respectu potestatis
deferentes, sententiam sub dissimulatione reliquerunt, et partibus ut
componerent praeceperant.2

No. 4.] LETTRE SANS DATE.3
Venerabilibus patribus ac dominis Thome Cantuariensi et Hen
rico Eboracensi archiepiscopis eorumque suffragantibus et ceteris
omnibus sancte ecclesie prelatis per Angliam constitutis Hugo
Rothomagensis ecclesie humilis presbiter, salutem et graciam.
Sciant tam presentes quam futuri quod venerabiles fratres nostros
Philippus Baiocensis et Jocelinus Salesberiensis,4 episcopi, in nostra
presentia et episcoporum et personarum plurium qui affuerunt de
' With this agrees Peter of Blois, ante, p. 222.
" The advice of the judges was accepted, and the terms of the compromise
follow in the chronicle.
3 1 Cart, de la Basse-Normandie, p. 50. From MS. Cart. Eccl. Baiocensis,
No. 46. The Cart, de la Basse-Norm, is a collection of ancient records made in
1825 by M. Lechaudc d'Anisy. It consists of three MS. volumes, and lies in the
Public Record Office, London. The originals are indicated. The full title of the
cartulary is as follows : — " Cartulaire de la Basse-Normandie ou copie des chartres
@ autres actes, concemant les biens @ privileges conce'des en Angleterre a diverses
maisons religieuses. Accompagnee des sceaux et contre-sceaux Anglo-Normands
qui etaient encore appendus a ces memes actes. Par Le'chaude d'Anisy, Membre
de plusieurs Societes Savantes et Correspondnt. de la Commission des Archives
d'Angleterre. Caen. M. dece xxv." (The charters have never before been
printed. )
4 Jocelin de Bohun, archdeacon of Winchester, was consecrated bishop of
Salisbury in 1142 (Annal. Margan.). He resigned his bishopric in 1184, and
assumed the Cistercian habit; and he died 18th Nov. in that year (xiiii Kal.
Decemb. Obituar. Cantuar.). Le Neve's Fasti, 1854, vol. ii. p. 595.

364 APPENDIX.
controversia que erat inter eos pro quibusdam absportatis de
thesauro Salisberiensis ecclesie concordasse tali conditione quod
prefatus Philippus Baiocensis episcopus per manum Nigelli monachi
de Cadumo et per Albertum portarium de Harecuria in presentia
nostra, Rothomago reddidit eodem Jocelino Salesberiensi episcopo
bracium unum aureis laminis coopertum et lapidibus pretiosis
adornatum. Et insuper dedit ei x. marcas argenti. Et sic, querela
que erat inter cos omnino remansit. Huic autem compositioni inter
fuerunt de personis Salesberiensis ecclesie Henricus cantor, Rogerus
et Henricus archidiaconi et magister Robertus de Cicestro qui vice
totius capituli sui concessionem istam concesserunt et approbave-
runt ; ex parte autem Philippi Baiocensis episcopi affuerunt magister
Humfridus Herbertus cantor Baiocensis, Willelmus thesaurarius,
Willelmus de Leone, Robertus subdecanus, Sylvester succentor,
Johannes Lexoviensis archidiaconus, Ricardus thesaurarius, Willelmus
prior de Sancta Barbara, Guillebertus prior de Ardena, Nicholaus
prior de Plausiciaco. Actum est hoc Remis presentibus pluribus
episcopis, archidiaconis et mnltis aliis canonicis et clericis.

No. 5.]

ASSISES DE L'AN 1176.'

Ricardus Dei gratia Vintoniensis episcopus, Simon de Tournebu,
Robertus Marmion et Willelmus de Glanvilla, universis sancta?
matris ecclesie, salutem. Noverit universitas vestra quod cum apud
Cadomum essemus in assisia, Robertus presbiter de Surrehein,
coram nobis recognovit in ipsa assisia quod Villelmus decanus
Baiocensis donaverat ei etc., duas partes ecclesie de Surrehein etc. etc.
La meme declaration fut faite par Philippe de Than. Hec autem
assisa fuit anno ab incarnatione Domini M°- C° L°- XXVI0- mense
Januarii. Et in ea fuerunt Henricus Baiocensis, Arnulfus Lex
oviensis et Ricardus Constansiensis, episcopi, Stephanus abbas Sancti
Severi, Ricardus de Humeto, Iordanus Taisson, Fulcho Paganellus,
Willelmus de Ferrariis, Willelmus de Solers, Rogerius de Arry, Hamo
Pincerna, Ranulfus de Grandivalle, Jordanus de Landa, Symon de
Tenehebraia, Robertus de Agnellis, etc., et multi alii.
1 1 Cart, de la Basse-Norm. p. 50. Cart. Eccl. Baiocensis, No. 47.

CART.E ET PLACITA. 365
No. 6.] PLAIDS ROYAUX VERS L'ANNEE 1076."
Quia memoria hominum sicut homines cito pertransit, quedam
facta eorum que cum memoria fugiunt necesse est scribendo retineri.
Unde nos huic ecclesie providentes quod volumus successores nostros
nescire, carte huic deerevimus inserere. Contigit itaque cuidam
festivitate Sancti Leonardi comitem Rogerium interesse et cum eo
nonullos utriusque ordinis non mediocris fame quos ipse invitaverat
ad sui honorem et huic ecclesie exaltationem. Ex quibus Sagiensis
pontifex Robertus, ea die nostro et comitis hortatu missam cantavit.
Cujus etiam misse offerturam sibi per cupiditatem retinere temptavit.
Quod nos videntes et velut monstrum exhorrentes, a quodam ejus
clerico, cui earn reservandam commiserat, vi et non sine contumelia
offerturam illam recepimus. Iratus propter hoc episcopus ecclesiam
et nos excommunicare se dixit. Quo facto, prius clamorem quam
fecit comes Rogerus, de Sagiensi episcopo ad Johannem Rothomag-
ensem archiepiscopum die constituta exinde placitaturi devenimus
Rothomagum. Ibi in palatio et in presentia regis et regine Anglorum,
comes Rogerus conquestus est super Sagiensi episcopo quod ecclesiam
Sancti Leonardi sine causa excommunicare presumpsisset. At contra
episcopus nos inculpabat, quod manum quam sanam et integram habu-
isset habendo offerturas per totum episcopatum suum, nos ei accidis-
semus auferendo ab eo nostram offerturam. Ad hec rex et regina scitati
sunt a comite Rogero de statu ipsius ecclesie. Comes vero et nos qui
aderamus dilucide enarravimus quomodo Guillelmo deBelissimo supra-
dictam ecclesiam ob peccatorum suorum veniam edificasset et quomodo
earn ex precepto beate memorie pape Leonis liberam et solutam feeisset
et quod a die dedicationis ejusdem archiepiscopus sive episcopus
nullam in ea consuetudinem habuisset, nee earn ullo modo excom
municare potuisset. Affuerunt etiam antiquissimi homines qui hec
viderant et audierant, parati probare secundum judicium regis quod
nos edisseramus. His auditis rex et regina jusserunt Johannem
archiepiscopum et Rogerum de Bello-Monte et plures alios barones
ut secundum quod audierunt facerent inde judicium. Et illi abito
consilio, judicaverunt ecclesiam que tanta auctoritate et tot tanto-
cunque procerum confirmatione liberata esset et tam longo tempore
in liberalitate perseverasset, debere deinceps in perpetuum sic per-
manere. Episcopum injuriam fecisse non solum comiti Rogerio,
1 I Cart, de la Basse-Norm. p. 80. Archives d' Alencon, No. 3.

366 APPENDIX.
verum etiam regi de quo ipse ecclesiam tenebat. Dixit etiam
Johannes archiepiscopus quasdam ecclesias in diocesi sua esse in
quibus ipse nullam omnino consuetudinem haberet. Hoc pacto
Sagiensis episcopus Robertus emendavit rectum faeiendo regi et
comiti Rogerio injuriam quam eis fecerat predictam ecclesiam inva-
dendo ; diffinitum est etiam ibi ut si archiepiscopus sive episcopus
earn amplius inquietare presumeret, apostolica et regia auctoritate
a consortio fidelium usque ad satisfactionem alienus existeret.
Hoc viderunt Guillelmus rex et Mathildis regina, Johannes Rothoma-
gensis archiepiscopus, Robertus Sagiensis episcopus, comes Rogerius,
Robertus de Belissimo, Rogerius de Bello-Monte, Warinus Curvisus,
Guillelmus et Hascuinus, canonici, Amellandus et multi alii.
No. 7.] PLAID ET TRANSACTION EN PRESENCE DE
HENRY Icr EN 1126 et 1127.1
Debats judiciaire au sujet d'un differend porte en la Cour du
Roi, par les religieux de Marmoutier contre Jean eVeque de Siez
pour l'investiture de quelques e'glises situdes dans le territoire de
Belesme, qui n'est remarquable que par le nombre de tdmoins presens
a cet acte. II se termine ainsi : Actum in presentia domini Henrici
regis Anglorum apud Sanctam Gaubergem prope Rothomagum et ab
episcopo ipso Sagiensi domno Johanne concessum. Presentibus istis
Gaufrido Rothomagensi archiepiscopo Eudo et Bernardo episcopis,
Gaufrido regis cancellario, Galeranno archidiacono, Roberto de
Sigillo, de laicis, Roberto de Haia, Grimaldo medico, Roberto de
Dangu, Roberto de Chandos, Rogero fratre ejus, Hugone de
Braitello, etc. De nostris (Douze temoins). De clericis (Sept te'moins).
De famulis (Quatre temoins) et pluribus aliis.
Quant a la transaction qui eut lieu entre les parties au sujet du
proces ci-dessus, elle n'offre d'autre particularity qu'une note histo-
rique jointe h. la signature du roi Henry, qui est elle-meme renfermee
dans un orbe ou un cercle dentelee. Cette transaction se termine
ainsi : Data Sagii anno ab incarnatione Domini M°. C°. xxvii
indictione vi. regnante Ludovico rege Francorum, duce autem Nor-
mannorum Henrico rege Anglorum, presidente Rothomagensis
ecclesie Gaufrido archiepiscopo.
Signum Henrici Quando dedit filiam suam Gaufrido
Regis comiti Andegavensi Juniori.
Angloru.
1 l Cart, de la Basse-Norm. p. 84. Arch, d' Alencon, Nos. 8, 9.

CART.E ET PLACITA. 367

No. 8.] BREF DE HENRY II. (Sans date.)'
Henricus, etc., constabulario et ballivis suis de Cesarisburgo,
salutem. Precipio vobis quod sine dilatione plenum rectum teneatis
priori et canonicis Sancte Marie de Voto juxta Cesarisburgum de
terra que fuit Preisie apud Cesarisburgum et de domo quam ipsa eis
dedit quas Willelmus Pichardus et uxor Richeris, eis difforciant, nisi
sit feodum Lorice vel burgagium quod valeat plusquam c. solidos
per annum. Et nisi feceritis, justicia mea Normannie faciat. Teste
Hugone Bardulf dapifero apud Bonam Viilam.

No. 9.] BREF DE HENRY II. (Sans date.)2
Henricus, etc. Notum sit vobis quod in tempore meo et Algaro
Constanciensis episcopo fuit juramento comprobatum per meum
preceptum in assisia mea apud Valonias quod. . . . filius Nigelli et
omnes successores sui, ab Algaro Constancinsi et ab aliis predeces-
soribus suis Constanciensi episcopis tenuerant quicquid in ecclesiis
de cesarisburgo et de Torlavilla et in omnibus possessionibus ad
illas ecclesias pertinentes habuerant. Hec vero juraverunt Ricardus
de Wanvilla, Willelmus monachus, Willelmus de Sancto Germano,
Willelmus de Briquevilla, Ricardus de Martinwast, Robertus de
Valoniis. Quare ego concedo quod hoc secundum illorum juramen
tum ratum sit et in perpetuo teneatur. Testes vero hujus conces-
sionis sunt Ricardus cancellarius, Willelmus de Vernon, Engelranus
de Bohon, Alexander de Bohon, Jordanus Taisson, etc., apud Sanctum
Laudum.No. 10.] LETTRE DE HENRY II.3
Henricus, etc. Precipio vobis quod custodiatis et manuteneatis
et protegatis omnes res et possessiones canonicorum Constanciensium
et eommuniam ecclesie Constansiensis. Ita quod non permittatis eis
injuriam unquam fieri vel contumeliam ; sed faciatis eis habere con-
1 I Cart, de la Basse-Norm. p. 104. Arch, de St. Lo, No. 10.
2 Ib. p. 129. Cartulaire ou Livre Blanc de l'Eveche de Coutances, fol. 350,
No. 14.
3 Ib. Livre Blanc de l'Eve'che de Cout, fol. 351, No. 15,

368 APPENDIX.
suetudines et rectitudines suas quas habere debent et habere solebant
et preeipue nundinas in dicto comite quas pater meus dedis eis et
concessit cum omnibus pertinentus suis et reetitudinibus sicut eis
dedit in bona pace, et integre habere faciatis, non permittentes illis
¦inde in ullo foro forisfieri. Et si quis super hoc injuriam eis aut
molestiam intulerit, sine dilatione idcirco eis faciatis emendari.
Teste Johanne1 decano Saresbery apud Valonias.
No. i i.J CHARTE CONFIRMATIVE. (Sans date.)2
Henricus rex Anglie, dux Normannie et Aquitanie et comes
Andegavensis, archiepiscopis, episcopis, abbatibus, comitibus, baron-
ibus, justiciis, vicecomitibus, ministris, et omnibus fidelibus suis
totius Anglie et Normannie, salutem. Sciatis me concessisse et con-
fiamasse Deo et Sancto Stephano de Cadomo et monachis ibidem
Deo servientibus pro salute anime mee, patris, ac matris, uxoris,
filiorum ac parentum meorum et antecessorum quicquid rex Willelmus
proavus meus vel rex Henricus avus meus ecclesie predicte dederunt
et concesserunt sicut carte illorum testantur, etc. . . .
3 Concedo etiam sicut concessit prefatus Odo, ut ex ipsis crimi-
nalibus peccatis quandocunque in prefatis ecclesiis domibus, terris,
audiri contigerit ab archidiacono Baiocensi ; abbas vel prior predicte
cenobii non ipse super quo crimine auditum fuerit moneatur et
ibidem ab utroque disposito termino congruo ac prefixo die con-
veniant monachi et archidiaconus et in ipsa panochia in qua crimen
auditum fuerit predictis presentibus inquiratur inquisitio discutiatur
et discussio si inde judicium portandum prodierit vel cognitio peccati
patuerit Baiocensis ecclesie ut decet requiratur vel causa examina-
tionis vel gratia consequende reconciliationis, etc. . . .
4 Homines de Siccavilla recepti in societate monasterii Sancti
Stephani dederunt eidem sancto duas partes decimarum suarum.
Hujus autem ville ecclesiam, quam Sanctus Stephanus antiquiter in
magna pace tenerat Hebertus quidam clericus ei modis quibus-
cumque poterit auferre querens abbatem et monachos inde diu
fortiter vexari. Quorum vexatione Henricus rex finem imponere
1 John of Oxford was dean of Sarum in 1165 : he was made bishop of Norwich
in 1 1 75.
" 1 Cart, de la Basse-Norm. p. 154. Arch, de Calvados, No. 9.
3 r. 163- A P. 174.

CARTyE ET PLACITA. 369
decernens utrisque ante se in castello Cadomi diem constiterit
placitandi. Die igitur quo constituto abbas et monachi cum
omnibus qui eis necessaria erant ipsi regi et justicie suum placitum
obtulerunt; Heberto autem ibi in audientia regis et totius justicie
necnon et baronum defieiente de prefata ecclesia ipsius regis et
justicie judicio Sanctus Stephanus saisitus remansit, nemini deinceps
amplius inde responsurus, Rogerius filius Petri de Fontaneto in
presentia totius justicie reddidit Sancto Stephano terram illam et
omnes decimas quas ipse sanctus a Godefrido avo illius et a patre
suo habuerat, easque eidem sancto deinceps firmiter imperpetuum
tenendas concessit. Hubertus filius Serlo dedit Sancto Stephano
capitalem domum suam et aliam juxta illam que erat duarum
stationum in Calheola ea conditione habita quod uxor sua Gisla et
heredes ejus haberent easdem domos a monachis pro x. solidis
per annum. Et preter hoc dedit terram illam que erat inter
predictas domos et murum usque ad quarrariam. Concedo con-
cordiam abbatis et Ricardi filii Eddite factam apud Londonem.
Concedo concordiam factam inter monachos Sancti Stephani et
ministros regis de terra de Brideport et de Bridetona.1
Hec omnia prescripta precedente ecclesie Sancti Stephani et
monachis ibidem Deo servientibus concedo et confirmo habenda et
tenenda in perpetuam elemosinam libere quiete sicut carte regis
Willelmi et regis Henrici avi mei eis confirmant et testantur. Et
quecunque hie prescripta sunt que rationabiliter adquisiverunt et que
eis rationabiliter data sunt temporibus antecessorum meorum et meo.
Testibus Rothroco Ebroicensi episcopo justiciario Normannie,
Philippo Baiocensi episcopo, Arnulfo Lexoviensi episcopo, Thome
cancellario, Gaufrido Ridello, Gaufrido capellano, Willelmo filio
Johanne, Godart de Vaus, Jordano Taixun, Ricardo de Haia apud
Cadomum.

No. 12.] BREF DE HENRY II. (Sans date.)2
Henricus, etc. Precipio quod monachi Sancti Stephani de
Cadomo teneant bene et in pace et quiete quietancias suas et
1 Comp. Placita Ang.-Norm. 120.
2 I Cart, de la Basse-Norm. p. 177. Arch, de Calvados, No. n.
2 B

370 APPENDIX.
domos et redditus de Rothomago et de Abracense et de Diva scuti
carta Roberti de Novoburgo testatur quod disraciocinaverunt eas in
curia mea coram eo et baronibus meis agud Cadomum, teneant
easd'em quietancias et domos et alias res sicut carta Ebroicensis
episcopi testatur quod disraciocinant in curia mea. Et ulli eis nihil
faciat injuriam aliquam et contumeliam. Testibus Philippo Baiocensi
episcopo pro Rogero de Warenne. Apud Cadomum,

No. 13.]
ACTE CHIROGRAPHE PORTANT LES MOTS " LITIS
DIVISIO" EN 1171.1
Sciant omnes, etc., quod anno ab incarnatione Domini M0, C°
LXXP Willelmus de Abovilla concedente Henrico filio primogenito
suo pro Deo et salute anime sue et antecessorum suorum dedit in
perpetuam elemosinam cenobio Sancti Stephani Cadomi et monachis
ibidem Deo servientibus quicquid juris habebat in presehtatione et
elemosine ecclesie de Bretteville orgoillose et capelle de Putot et illam
donationem super altare beati Stephani posuit ; et fide corporaliter2
prestita super sanctum evangelium juravit se nunquam ulterius super
hae donatione facturum aliquam calumpniam abbati et monachis
Cadomi sed ubique et contra omnes homines idem Willelmus absque
suaexpensa mittenda illam in proposse suogarantizabitet pro donatione
predicta dedit Willelmus abbas et monachi predicto Willelmo xxx.
libras Andegavensas. Hec autem facta sunt coram domino rege
Henrico, presentibus episcopis Arnulfo Luxoviensi, Frogerio Sagiensi,
Goscelino Saresberiensi, et presentibus justiciis regis Willelmo de
Sancto Johanne et Willelmo de Corceio presente etiam Thoma
archidiacono Baiocensi qui in loco domini Henrici Baiocensis episcopi
interfuit et proprio sigillo supradicta confirmavit. Testibus etiam
Herberto precentore, Galerano archidiacono, et Rogerio de Arrie et
Johanne archidiacono Sagiensi, et Johanne archidiacono Luxoviensi
et aliis Willelmo de Glainvilla Willelmo de Humeto, Ricardo filio
comitis, Willelmo Crasso, Ranulfo de Grandval, Roberto de Vein
et Willelmo fratre suo et Roberto de Aniscio.
1 I Cart, de la Basse-Norm. p. 179. Arch, de Calvados, No. 15.
2 Comp. ante, pp. 115, 121, 122.

CART/E ET PLACITA. 371
No. 14.] LETTRE OU BREF. (Sans date.)-
Rotrodus Dei gratia Rothomagensis archiepiscopus karissimo
amico Willelmo de Corceio salutem, graciam et benedictionem.
Eaque a domino nostro rege concessa sunt et carta sua confirmata a
ministris suis debent inviolabiliter observari unde plurimum miramus
quod carissimos filios nostros a domino rege plurimum dilectos
abbatem et monachos Sancti Stephani de Cadomo patimini trahi in
causam a Willelmo de Abovilla super ecclesia eorum de Brettevilla
orguillosa cujus advocationis et presentationis jus a domino nostro
rege eis est concessum et carta sua confirmatum et pluribus aliis
cartis unde nobis consulimus et ex parte domini regis et nostra per-
cipiendo mandamus quatinus eos in libera et quieta possessione
dimittatis nee patiamini trahi in placitum sive in quamlibet causam
usque adventum domini regis. Valete.
No. 15.]
CHARTE CONFIRMATIVE DE RICHARD I. (Circa 1189.)=
Ricardus rex, etc. Sciatis nos concessisse et hae presenti carta
nostra confirmasse ecclesie Sancti Stephani de Cadomo et monachis
ibidem Deo servientibus, etc  3 Concedimus preterea concor-
diam factam coram Henrico rege patre nostro inter abbatem Cado-
mensem et Ricardum filium Johannis apud Burum de ecclesia de
Condeto scilicet quod idem Ricardus dimisit Sancto Stephano omnem
ealumniam quam facibeat contra abbatem de predieta ecclesia et
quicquid juris in ea se habere dicebat, eidem sancto in elemosinam
dedit et concessit ea conditione quod monachi reciperent fratrem
ipsius Ricardum majorem ad religionis habitum. Confirmamus, etc.
 Concedimus etiam concordiam factam inter abbatem Cadomi
et Gislebertum Botin et filios ejus qui dimiser,unt calamniam quam
faciebant contra Sanctum Stephanum de Vinea de Wiborel et earn
abjuraverunt receptis ab abbate xxx. solid. Concedimus, etc 
"Concedimus et confirmamus Sancto Stephano emptiones et recupera-
tiones quas fecit abbas Willelmus in tempore Henrici regis patris nostri
1 Placed before 1 189 in the volume. 1 Cart, de la Basse-Norm. p. 180.
" De ma collection " (i.e. L&haudfS's), No. 16. See preceding case.
2 1 Cart, de la Basse-Norm. p. 182. Arch, de Calvados, No. 20.
3 P. 184. 4 P. 188. 2 B 2

372 APPENDIX.
necnon et commutationes et concordias  * Recuperavit idem
super Johannem filium Warini unam in quarreria quam idem Johannes
injuste occupaverat  Fecit idem abbas quod Ranulfus Ben-
dengel forisjuravit ealumniam quam mittebat in cultura Fameleia.
 Recuperavit idem super Hasculf de Solenmis et uxorem
ejus unam salinam datis eis centum solidis Andegavensibus et super
Gaufridum de Castello ecclesiam Sancti Nicholai de bosco Balduini,
dato ei uno palefrido. Recuperavit idem unum pratum apud Agvillam
super Willelmum Germanum et terram Eschelini super comitem
Glocestrie. Et super Julianam de Vacceio terram super montem de
Berolis et apud Bogium rhasuras super Johannem Sailulta et apud
Brachevillam unum villenagium super Gaufridum comitem de
Mandevilla datis ei decem libris. Recuperavit, etc  a Recu
peravit idem super Robertum de Vein in curia Henrici regis patris
nostri apud Cadomum, hereditagium quod idem Robertus clamabat
in tenendo manerio de Vein de Sancto Leone. Et super Robertum
de Brienc ecclesiam Sancti Audoeni de Vilers de qua monachos
violenter dissaisierat ; set judicio baronum qui erant ad scaccarium 3
apud Cadomum adjudicata est ecclesia predieta Sancto Stephano et
restituta  4Recognitum etiam fuit in plena assisia apud
Abrincas quod homines abbatis Cadomi de manerio de Vein quiet-
anciam suam habent de omnibus rebus venditis, emptis, in Abrincis
excepto die mercati  Recognitum etiam fuit coram Rothrod
Ebroicensi episcopo dapifero Normannie quod Willelmus filius
Gerpwart et Rogerus filius Henrici et Robertus filius Gislemi debent
reddere consuetudines de domibus quas habent in burgo Sancti
Stephani. Et domos Hugonis Fabri esse consuetudinarias excepta
una. Et domos Radulfi Vituli nisi carta regis Willelmi testaretur
unam esse quietam. Et domos servientium de Vilers esse consue
tudinarias nisi quod unusquisque habet unam quietam. Et domos
pratarii excepta una. Et domos faciendum Sotulares (vel subtalares s)
monachorum esse consuetudinarias preter unam. Et est judicatum
nullam quietarum domorum habere nisi unam familiam et unam
fenestram. Et donationem quam fecit, etc  6Hec autem
omnia prescripta predicte ecclesie Sancti Stephani et monachis
ibidem Deo servientibus concedimus et confirmamus, etc, . .
1 ?• 189. = P. I92>
3 The use of the Norman Exchequer for the trial of common pleas [temp.
Hen. II.) will be noticed.
4 P- '93- s Sic. s P. i94.

CARTyE ET PLACITA, 373
. . . Testibus Waltero Rothomagensi archiepiscopo, W. Eliensi
episcopo, cancellario nostro, Henrico Baiocensi, Radulfo Lexovensi,
Willelmo Constanciensi, Johanne Ebroicensi, episcopis, Willelmo de
Humeto constabulario, Willelmo filio Radulfi senescallo Normannie.
Datum per manum Johannis de Alen^ne Lexoviensis archidiaconi,
vicecancellarii nostri, apud Rothomagum xx. die Martii regni nostri
anno prime

No. 16,]
ACCORD FAIT PAR L'EVEQUE DE WORCESTRE EN 1174.'
R. Dei gratia Wigornensis episcopus universis sancti matris
ecclesie filiis, salutem. Omnium cognitioni notum esse volumus
quod controversia per Walterum clericum de Haseltona adversus
monachos Sancti Ebrulfi mota super ecclesiam de Rawella et nobis
a domino papa Alexandra delegata quam idem Walterus in sub-
jectione ecclesie sue de Hallinghis sibi petebat, hanc finem coram
nobis sortita est. Ecclesia de Rawella, ecclesie de Hallinghis vigilia
Pasche unam libram incensi persolveret infersolveret* in perpetuum.
Ita quod ecclesia de Hallinghis ab ecclesia de Rawella nichil amplius
poterit exigere ; et monachi predicti Waltero clerico in recompen-
sationem laboris et expensis sex solidos de redditu suo de Rawella
per manum procuratoris sui quamdiu Walterius vixerit duobus terminis
in Pascha videlicet et in festo Sancti Michaelis annuatim persolverent.
Abbas autem et conventus Sancti Ebrulfi litteris suis nobis transmissis,
se ratum habituros insinuaverunt quicquid Ricardus monachus eorum
in Anglia generalis procurator existens in presentia nostra judicio vel
compositione3 susciperet. Hanc conventionem se servaturos con-
firmaverunt hine inde, Ricardus scilicet monachus in verbo veritatis
et Walterius clericus fide data in manu nostra. Facta est autem hec
conventio anno ab incarnatione Domini M0, C0' LXIIII0-. His testibus
Adam abbate Evesham, Roberto priore de Kenilleworda, Symone
archidiacono Wigornensi magistro Moyse, magistro Waltero, magistro
Silvestro, Gilberto capellano, Samsone clerico.
1 1 Cart, de la Basse-Norm. p. 243. Arch. d'Alencon, No. 48.
2 Sic. 3 Compo&tione in the transcript.

374 APPENDIX.
No. 17.]
ACTE CHIROGRAPHE ENTRE L'ABBE DE MONTEBOURG
ET CELUI DE ST. SAUVEUR LE VICOMTE EN 1147.1
Notum sit omnibus presentibus et futuris quod queremonia que
inter abbatiam Sancti Salvatoris et abbatiam Sancte Marie Montisburgi.
.... erat de ecclesia Sancti Petri de Fontaneto juxta vada, terminata
atque diffinita est anno ab incarnatione Domini M°- C°- quadra-
gesimo VII0- hoc modo. In presentia venerandi Algari Dei gratia
Constantiensis episcopi et Gisleberti archidiaconi et Radulfi archi-
diaconi eonstitutum atque sancitum est concessu Ricardi de WalviUa
et Leonis fratris ejus, ut compositio quedam ex supradicta ecclesia
Sancti Petri cum omnibus decimis et elemosinis eidem pertinentibus
sit talis inter duas abbatias. Scilicet ut domnus abbas Sancte Marie
Montisburgi omnisque conventus ejusdem loci amodo perpetualiter et
pacifice medietatem totius predicte ecclesie et medietatem cymiterii
omniumque decimarum et terre elemosine et decime pomerii Leonis
possideant. Alteram vero medietatem ipsius ecclesie, cymiterii,
omnium decimarum terre, elemosine decime pomerii Leonis similiter
domnus abbas Sancti Salvatoris et conventus ejusdem loci perpetu
aliter et pacifice possideant. Hujus conventionis extitit auctor ex
parte abbatie Sancte Marie Montisburgi domnus abbas Galterus, cum
priore suo Ricardo de Gaurey et Guarino sub-priore, Roberto cellario,
Roberto de Jugarvilla, Hervio monachis. Ex parte abbatie Sancti
Salvatoris fuit auctor domnus abbas Hugo cum priore suo Gaufrido,
Petro sub-priore, Roberto de Flotemanvilla, Roberto de Alna, Roberto
de Landa. Testes laici sunt hii Ricardus de WalviUa, Leo frater ejus
domini hujus elemosine Jordanus de Barneville, Ricardus de Haga,
Petrus sacerdos de Sancto Salvatore, Radulfus frater ejus, Pasturellus
et multi alii.

No. 18.] LETTRE DE HENRY II. (Sans date.)2
Henricus rex Anglie dux Normannie et Aquitanie et comes
Andegavensis, Ricardo de Reviers, salutem : Precipio tibi firmiter
quod in pace et juste et libere facias monachos de Monteburgo
habere decimam de Haya Danneville et omnia alia que carta patris
' 2 Cart, de la Basse-Norm. p. 178. Arch, de St. Lo, No. 96.
3 Ib, p. 180. Ib. No. 99.

CART.E ET PLACITA. 375
tui eis confirmavit et nominatim medietatem ecclesie de Neahou
sicut carta Ricardi primi de Redvers eis illam confirmavit et sicut
Saplo monachus eorum illam habuit et tenuit de patre tuo et de te
ipso. Quod nisi feceris Willelmus de Vernone vel ministri sui
faciant et in ea justicia mea faciat facere et non remaneat pro
passagio meo. Teste Manessies Biset dapifero apud Barbefluctum
in transfretatione regis.

No. 19.] CHARTE DE HENRY II. (Sans date.)1
Henricus, etc. Precipio vobis quod custodiatis et manuteneatis
et protegatis abbatiam Montisburgi et abbatem et monachos ejusdem
loci et terras et homines et omnes res et possessiones eorum sicut res
meas et quod nullam eis injuriam vel contumeliam aut quietiam
faciatis, nee ab aliquo fieri permittatis. Si quis autem eis in aliqua
forisfacere presumpserit plenariam sine dilatione eis justiciam fieri
faciatis quia ipsa abbatia et omnia que ad earn pertinent sunt in
manu mea et protectione. Prohibeo etiam ne ipsa abbatia vel abbas
aut monachi de ullo dominio tenemento suo ponantur in placito nisi
per preceptum meum quamdiu in Anglia moram fuero, etc, Apud
Valonias.

No. 2 o.J
CHARTE DU DUC GUILLAUME EN 1061.2

In nomine Sancte et Individue Trinitatis, Patris et Filii et
Spiritus Sancti, amen. Ego Guillelmus gratia Dei totius Normannie
dux, rogatus multimodis ab abbate Ranulfo monasterii beati arck
angeli Michaelis quod est in monte qui tumba antiquitus nnncupatur.
Concedo eidem loco molendinum ville, que Veim vocatur perpetuo
possidendum quod etiam pie memorie genitor meus Rotbertus
eidem, beato archangelo dederat. Sed Suppo ipsius loci abbas,
Ranulfo monetario, monachis contradicentibus illud injuste vendi-
derat. Postea vero quam Ranulfus abbas ipsum locum regendum
suscepit, molendinum suscepit. Et justo examine in curia mea
1 2 Cart, de la Basse-Norm. p. 181. Arch, de St. Lo, No. 103.
* Ib, p. 236. Ib. No. 21.

376 APPENDIX.
definitum est, molendinum debere Sancto Michaeli suisque monachis
manere in perpetuum. Concedo igitur ut, ipsum molendinum, quod
etiam molendinum comitis dicitur perpetuo sit juris Sancti Michaelis
ad victum suorum monachorum, nee habeat potestatem quisquam
meorum successorum seu ejusdem loci abbatum vel monachorum hoc
a me meisque sancitum immutare qualibet occasione vel quantalibet
pretii numerositate. Ut autem hec mea donatio inconcussa per-
maneat signum vivifice crucis manu propria subtus imprimere
curavi. Signum gloriosissimi ducis Guillelmi ej< ; Sig. Mathildis
comitisse *J< ; Sig. Maurilii archiepiscopi Rothomagensis »J< ; Sig.
Johannis presulis Abrincensis >$< ; S. Hugonis presulis Luxovi-
censis +fc ; S. Rotberti Bertranni sj< ; S. Stigandi dapiferi «J< ; S.
Radulfi cubiculari ^ ; S. Richardi vicecomitis »J«. Haec carta
facta est apud Rothomagum anno Dominice incarnationis millesimo
sexagesimo primo indictione xiii.a
No. 21.]
ROLE CONTENANT UN JUGEMENT DU DUC [ET ROI]
GUILLAUME. (Sans date).1
In nomine Sancte et Individue Trinitatis Patris et Filii et Spiritus
Sancti, amen. Antecessorum sollers providentia approbabili more
instituit super quasque possessiones ecclesiarum cartarum adhiberi
testimonia, quibus viriliter opprimatur quotiens emerserit calumpnia-
torum pervicax insolentia. Ea ego intentione commodum duximus
noticie posterorum tradere, qualiter devenerit in dominio monachorum
Sancti Michaelis molendinum de quo Johannes filius Richardi conatus
est eidem sancto archangelo calumpniam struere et qualiter eadem
columpnatio oppressa sit justo judicio optimatum patrie breviter
annectare. Igitur gloriose recordationis Rotbertus dux Normannorum qui
abbatiam Montis Sancti Michaelis amplis fimdorum redditibus
nobilissime dilatavit prefatum molendinum quod in proprio jure
tenebat, aliaque quam plurima eidem loco solemn largitione con-
donavit, et ne quisquam sequentium auderet adimere quicquam ex iis
juri Sancti Michaelis cum terribili anathemathe cyrographum fieri
imperavit, digestumque manu sua roboravit. Qui postquam in reditu
Jerusolimitano apud Niceam hominem exiens eterne vite ut credimus
1 2 Cart, de la Basse-Norm. p. 237, Arch, de St. Lo, No. 22.

CART^E ET PLACITA. 377
sullimatus est solio. Suppo abbas ipsius loci contra jus suasque
idem molendinum dedit Ranulfo monetario monachis id contradi-
centibus unanimi consilio. Postmodum autem jam domini Ranulfi
abbatis temporibus idem molendinum Gualeranus filius Ranulfi
optinuit ceteris sue parentele multipliciter deficientibus, a quo pre-
fatus domnus abbas Ranulfus non minimo pretio illud redemit
pluribus adhibitis testibus etiam gloriosissimo seniore nostro Wille-
helmo tunc quidem Normannorum principe id annuente scriptoque
confirmante coram suis fidelibus ut liquet ipsius verbis insequentibus
que ex alia membranule annexa sunt propriis caracteribus.1
Hine jam post quindecim plus minusve annorum intersticia
prefato serenissimo rege Guillelmo indepto de nobiliter gubernante
Anglici regni fastigia, supradictus Johannes ad calumpniandum idem
molendinum inspirate prosiliit sui consimilium animatus insania et
quasi precepto ejusdem incliti regis ipso penitus ignorante saisivit
illud non premissa juste probationis audientia ; sepefato vero domno
Ranulfo abbate haud enerviter obsistente et tale prejudicium Sancto
Michaeli ac sibi illatum esse ; regi suggerente, tandem in regali curia
locus datus est disceptandi utrinque numerositate optimatum patrie
assidente, ex quibus dominus Gausfridus Constantiarum presul est
delegatus regali autoritate discussor et judex hujus disceptationis,
pariterque, Ranulfus vicecomes, Niellus (vel Nigellus) filius Nielli,
Rotbertus de Vezpunt aliique quam plures judices ample opinionis,
qui diligenter et ad unguem2 disquirentes originem contentionis ;
legali judicio diffinierunt idem molendinum debere Sancto Michaeli
suisque monachis manere in perpetuitate omnis successionis. Hanc
diffinitionem victoriosissimus rex Guillelmus approbans et confirmans
regali suffragio jussit hec mandari scripture testimonio, idque ad
perenne monimentum per verba sequentia roboravit affixo signo
proprio. Ego Guillelmus gracia Dei rex Anglorum ac princeps
Normannorum per hoc t^ signum Sancte Crucis confirmo decretum
meorum optimatum supra scriptorum ut molendinum comitis quod
abbas Ranulfus, me favente, a Gualeranno redemit perpetuo sit juris
Sancti Michaelis ad victum suorum monachorum, nee habeat
potestatem quicquam meorum successorum seu ejusdem montis
abbatum, vel monachorum, hoc a me meisque sanecitum immutare
qualibet occasione aut quantalibet numerositate pretiorum.
Signum victoriosissimi regis Guillelmi >Js. Sig. nobilissime
Mathildis regine >J< etc.
1 See No. 20. * Sie,

378 APPENDIX.
No. 22.]
JUGEMENT RENDU AUX ASSISES DE CAEN EN 1157.1
Anno M0'C°'L°Vir- in assisia apud Cadomum cum Robertus
abbas de Monte Sancti Michaelis conquereretur de Jordano de Sacche-
villa quod quasdam consuetudines et exactiones per vim eapiebat in
hominibus de Eventoth et volebat manutenere eos et quasi tueri
contra abbatem, eo quod antecessores ejus dederant Sancto Michaeli
predietam villam de Eventhoth. Diffinitum est in plenaria curia
regis, ut pote in assisia ubi erant barones quatuor comitatum, Bajo-
cassini, Constantini, Oximini, Abrincatini, quod ex quo aliquis in
Normannia dat aliquam elemosynam alicui abbatie, nihil omnino ibi
poterit retinere vel clamare preter orationes, nisi specialem habeat
cartam de hoc quod vult retinere ducis Normannie, in cujus manu
sunt omnes elemosyne ex quo donaverant abbatiis, vel locis religiosis.
Hoc judicium approbaverunt et confirmaverunt Robertus de Novo
burgo dapifer et justitia totius Normannie, Philippus episcopus
Bajocensis, Arnulfus Lexoviensis, Ricardus Constanciensis, Willelmus
Tallevat comes Pontivi, Ingergerius de Boura,2 Philippus filius
Erneisi, Guillelmus, Johannes, Godardus de Walz, Achard Potin
et alii.
No. 23.]
CHARTE DE RICHARD EVEQ. DE COUTANCES EN 1158.3
Omnibus sancte matris ecclesie catholicis tam presentibus quam
futuris Ricardus Dei gracia Constanciensis in Domino salutem. Que
coram rectoribus sancte ecclesie finem capiunt ne iterum in contro-
versiam veniant equum est scripto et sigilli munimine diligenter
confirmare. Ea propter universitati vestre notum fieri volumus quod
Willelmus sacerdos de Ivetot causam quam adversus venerabilem
abbatem Robertum et monachos Sancti Michaelis de monte super
decima de Perella in Gerneroio ingressus fuerat coram nobis refutavit
et prefato abbati decimam illam cum omnibus ejus pertinentiis in
terra et Melagio quietam adclamavit, ipse et frater ejus Alanus et
filius suus Ricardus et super sanctum evangelium unusquisque
1 2 Cart, de la Basse-Norm. p. 279. " De ma collection " i.e. (Lechaud^'s),
No. 61. Engelgerus de Bohone ? See post, p. 396.
3 2 Cart, de la Basse-Norm. p. 281. Arch, de St. Lo, No. 64,

CART.E ET PLACITA. 379
eorum juravit quod nichil in ea deinceps clamarent et si quis super
hae emergerent impetitores abbatiam prefatam et monachos inde pro
posse suo juvarent. Receperunt etiam proinde ex dono et gratia
abbatis et monachorum xiii. libras Andegavensium et alteri fratrum
religionis suscepture concessum eo retento ut secum deferat quod tunc
dinoscetur habere. Facta est hec compositio coram nobis et assis-
tentibus his fratribus nostris et amicis Ansgoto abbate de Lucerna et
ejusdem loci priore ; O. cantore nostro ; Philippo, Willelmo, Johanne
archidiaconis nostris Alveredo, Willelmo, Roberto de Sancto Laudo,
Roberto de Milli, canonicis, Ausgoto decano, Roberto capellano, et
aliis multis. Anno ab incarnatione Domini M°C°LVIII quarto idus
Junii, in ecclesia Sancte Marie Constanciensis ante altare apostolorum
beatri Petri et Pauli. Hoc autem ut inconcussum maneat auctoritate
nostra et sigilli nostri munimine confirmamus et ne quis contrarire
cotietur anathematis censura prohibemus.

No. 24,]
ACCORD FAIT EN PRESENCE DE HENRY II. AU
SUJET DE PONTORSON EN 1160.*
Universis matris ecclesie filiis Hugo Dei gratia Rothomagensis
archiepiscopus, salutem, gratiam et benedictionem. Noverint cuncti
presentes apices vel lecturi, vel audituri controversiam inter ecclesiam
Abrincensem et monasterium Sancti Michaelis de monte super
ecclesiis Pontis Ursonis exortam in presentia regis Anglorum
secundi Henrici, nostraque et episcoporum Philippi Baiocensis,
Rotrodi Ebroicensis, Herberti Abrincensis, Hugonis Dunelmensis,
Thome cancellarii, Ricardi constabularii aliorumque plurimorum pro-
cerum Rothomagi hoc modo esse sopitam; quod donum primi et
secundi Henrici regum Anglorum de predictis ecclesiis predicto
monasterio factum de cetero ratum haberetur et inconcussum atque
presbitero de Boce-Alano in cujus parrochia predictum castrum ut
ferebat edificatum erat pro tota querela sua decidenda et com-
pescenda optio daretur vel tunc xx. libr. Andegavensium finaliter
accipiendarum vel tunc etiam x. et annuatim dum adjuveret x.
solidorum predicte monete habendorum. Testes autem supradicte
trancactionis sive concordie sunt dominus noster Henricus rex
Anglorum, Philippus Baiocensis, Rotrodus Ebroicensis, Herebertus
1 2 Cart, de la Basse- Norm. p. 287. Arch, de St. Lo, No, 73.

380 APPENDIX.
Abrincensis, Hugo Dunelmensis, episcopis, Thomas cancellarius
regis, Richardus de Humetis, Guillelmus filius Hamonis, et alii
multi qui huic negotio interfuerunt. Quod sigilli nostri munimine
confirmamus ne aliqua occasione vel fraude iterum in controversia
veniant quae finem legitimum sit sortita. Actum Rothomagi anno
ab incamatione Domini M°C°LX°.

No. 25.]
ACCORD ENTRE L'ABBAYE ET WALTER BLUNDEL.
(Sans date.)1
Hec est conventio facta super querela que vertebatur inter
abbatem et monachos Sancti Michaelis et Walterum Blundel super
terram de la Herdeland quam prenominatus abbas et monachi
concesserunt, terram de la Prestelanda et Pilemore cum bosco qui
circumcingitur duobus rivulis scilicet de Grindecumbe et de
Mieucumbe prefato Walterio et heredibus suis annuatim solvendos
v. solidos et vi. denarios concesserunt et predicto Waltero habere
sex porcos in majori bosco sive* pannagio et non plures; et si
ballivus illius manerii vel monachi habuerint porcos, commune3
habebunt in bosco Walterii. Preterea sepedictus Walterius habebit
contra ad natalem sex quadrigatas de mortuo bosco ad focum et
totidem ad clausum ejus et meremmium ad canucas per visum et
manum ballivi illius manerii. Hanc conventionem affidavit predictus
Walterus tenendam et juravit super altare Sancti Michaelis apud
Ottritoniam ipse et Yvo ejus heres quod ab hae conventione de
cetero non resilirent.
No. 26.] BREF DE HENRY II. (Sans date, extrait.)4
Henricus rex, etc., Willelmo et Radulfo Bigot, salutem. Precipio
quod Nicholaus prior de Plaisiez teneat in pace et juste et quiete
elemosinam de Malestrea quam Alveredus Bigot dedit ei, et nullus ei
inde super hoc injuriam faciat et nisi feceritis, justicia mea fecerit.
Teste Philippo episcopo Baiocensi, apud Argentonium.
1 2 Cart, de la Basse-Norm. p. 228. Arch, de St. Lo, No. 75.
• Sine ? written indistinctly. 3 sic.
4 3 Cart, de la Basse-Norm. p. 24, Arch, de Calvados, Cart. vol. i. ch. 568.

CART.E ET PLACITA. 381
No. 27.] BREF DE HENRY II. (Sans date.)'
Henricus Dei gratia rex, etc. Sciatis, abbatiam Sancti Salvatoris
fecisse compositionem et pacem cum Thome de Grovilla de con-
troversia que erat inter abbatiam et ipsum, tali modo quod abbatia
fratrem Petmm ejusdem Thome recepit vicarium in ecclesia sua de
Direte (hodie Flamanville) quamdiu viveret et Thoma vero dedit
terram apud Grovillam. Quare volo et firmiter precipio ut hec com-
positio me concedente facta, firma sit et stabilis ne abbatia post
mortem Petri ejusdem ecclesie presentationem perdat, nee Thomas
terram sibi assignatam amittat. Testibus Gaufrido episcopo Eliensi,
Henrico episcopo Baiocensi. Apud Cadomum.
No. 28.]
ACCORD FAIT PAR GUILLAUME EVEQUE DE
COUTANCES EN ii2o.=
Universis, etc. Willelmus Dei gratia Constanciensis episcopus
salutem. Noverit universitas vestra quod cum inter monachos
Sancti Salvatoris ex una parte et Ricardum de Sancto Helerio et
Ricardum Wace ex alia super prediis Sancti Helerii questio aliquan-
diu ventillata fuisset in hunc modum pacis in nostra presentia
convenerunt predicti presbiteri prefatis monachis de prediis illis x.
boisellos frumenti annuatim exolverent. Et hoc juraverunt firmiter
observandum. Actum anno Domini M°C0' XX0, apud Sanctum
Laudum.

No. 29.]
ACCORD FAIT ENTRE L'ABBE DE SA VIGNY ET LES
ENFANS DE ROBERT DE MOSCON. (Extrait.)3
Noverint universi quod contentio inter monachos Savinienses et
filios Roberti de Moscon, scilicet Johannem, Radulfum et Guillel-
mum de Moscon, post multas altercationes in presentia domini
• 3 Cart, de la Basse-Norm. p. 35. Arch, de St. Lo, No. 4.
2 Ib. p. 56. Ib. No. 51.
3 Ib. p. 78. Arch, de Mortain, No. 35.

382

APPENDIX.

Radulfi Filgeriensis et domini Alani de Dinanno et Radulfi de
Albinncio in hunc modum terminata fuit. Filii vero Roberti de
Moscon in perpetuam elemosinam concesserunt monachis Savignien-
sibus quicquid juris habebant in Brolio de Moscon in masura de Vaux
et in terra de Verneia et in haillis Costardi et in prato Igerii Tuelon
et in omnibus aliis rebus, etc. Et ob hanc demissionem et conces-
sionem sepissime nominatis fratribus xx." libras Andegavensium
et unum equum monachi dederunt et etiam concesserunt eis ut
habitum religionis cum voluerunt eis dabunt. Et ut hoc niemoriter
inposterum conservetur tam fideli roboratum testimonio presens
scriptum dominus Radulfus Filgeriis et dominus Alanus de Dinanno
et Radulfus de Albinneio suorum astipulatione sigillorum munierunt.

No. 30.] CHARTE DU ROI HENRY II. (Sans date.)1
Henricus, etc., omnibus justiciis et baronibus Normannie et
Passeis, salutem. Sciatis me recepisce et retinuisse in protectione et
manu mea propria abbatiam de Savigneio cum hominibus et posses-
sionibus et omnibus pertinentiis suis; me etiam Deo fideliter
promississe et vovisse quod eandem abbatiam et omnia sua ubi-
cunque in mea potestate sint defendam, et in pace et quiete et libere
custodiam. Mando itaque vobis et firmiter precipio quatinus ipsam
abbatiam et monachos et homines et omnes res ad earn pertinentes
sicut res meas dominias ab omni molestia et inquietudine et injuria
tueamini et defendatis. Precipio et prohibeo ne aliquo modo patia-
mini predicte abbatie monachos vel homines suos in placitum vel
querelam nuti de re aliqua unde fuerint saisiti die illo quo in
Angliam transfretavi. Quod si aliquis super hoc meum preceptum
inquietare vel quolibet modo molestare presumpserit, tunc vobis
mando et sicut me, et mandatum meum diligis precipio ut tam prope
et tam plenarie de eo justiciam faciatis sicut in me aut res mei domanii
ipsam contumeliam faceret. Teste Guillelmo filio Hamonis. Apud
Barbefluctum. 1 3 Cart, de la Basse-Norm. p. 80. Cart, de M. de Gerville, No. 37.

CART<E ET PLACITA. 383
No. 31.] CHARTE DU ROI HENRY II. (Sans date.)'
Henricus, etc. Sciatis, abbatem et monachos de Savigneio
disrationavisse in curia mea apud Domnifrontem, me presente,
terram et decimam de quibus inter eos et Robertum filium Radulfi
erat dissensio. Ideoque mando et firmiter precipio quod habeant
illam et teneant in bene et in pace quiete sicut ilia in curia mea dis-
rationaverit. Testibus Willelmo filio Hamonis, et Petro de Sancto
Ilario.

No. 32.]
CHARTE DE CONSTANCE DUCHESSE DE BRETAGNE.
(Sans date.)2
Omnibus, etc. Constancia ducissa Britannie et comitissa
Richemondie, salutem. Sciatis quod filii Gaufridi Gifart, videlicet
Gaufridus Bufelin et Willelmus et Emma soror eorum, omnem
calumpniam quam adversus monachos Savigneii faciebant super vi.
quarteriis frumenti annui redditus quos eisdem monachis Willelmus
filius Pagani in terra de Vernea vendiderat, penitus dimiserunt.
Ipsampue venditionern ita libere et quiete concesserunt quod nichil
in ea decetero reclamabitur. Hujus rei testes sunt. Andreas de
Vitreio, Brientius de Coisn., Eudo de Bellomonte, Guido Brito,
Petrus Brito, Rotbertus Brito, Gaufridus de Gasto, Petrus de Sancto
Melan., Petrus Herant, et alii plures. Quod ut firmum et inviolabile
possit haberi presenti scripto et sigilli nostri munimine roboravi.

No. 33.]
CHARTE CONFIRMATIVE DU ROI HENRY II. (Sans date.)3
Henricus rex, etc. Sciatis me ad petitionem conventus Savigneii
et abbatis ejusdem loci et Gaufridi de Monfort salvo jure Con
stanciensis ecclesie, concessisse et presenti carta mea confirmasse
conventionem que facta est inter ipsum abbatem et monachos
1 3 Cart, de la Basse-Norm. p. 81. Arch, de Mortain, No. 38
2 Ib. p. 84. Ib. No. 42.
3 Ib. p. 89. Ib. (?),'role particulier, No. 51.

384 APPENDIX.
Savigneii et predictum Gaufridum de ecclesiis de Ketevilla et de
Gcevilla de quibus controversia erat inter eos coram justiciis meis.
Scilicet quod abbas et conventus presentationem ecclesie de Gcevilla
in perpetuum possidebunt Gaufridus vero et heredes sui presentationem
ecclesie de Ketevilla in perpetuum habebunt. In utraque parrochia
predictarum ecclesiarum percipient ipsi monachi unam medietatem
omnium decimarum frugum scilicet leguminum, lini, cannabi,
animalium, fructuum, et lanarum. In parte si quidem predicti
Gaufridi et heredum suorum cedet altera medietas salvis tamen in
decima de Gcevilla xxli quartariis ordei, etc. Quare volo et firmiter
precipio quod prescripta compositis stabilis et rata permaneat sicut
inter prenominatos abbatem et monachos et Gaufridum facta est,
et firmiter et inconcusse teneatur, sicut carte illorum testatur.
Testibus Hunfrido de Bohun conestabulario Hugone de Creissy,
Roberto de Stuttevilla, Gilberto Pipard.

No. 34.]
CONFIRMATION DE L'ACCORD FAIT CI-DESSUS PAR
GEOFFROI DE MONFORT. (Sans date.)1
Ego Gaufridus de Monteforti presentibus et futuris notum fieri
volo quam controversia que fuit inter me et monachos Savignienses
super ecclesiis de Ketevilla et Gcevilla consilio bonorum et sapientium
virorum apud Redon in presentia domini Philippi Redonnensis
episcopi tali compositione concordata est. (Vide ut supra.2) Ego
quoque et mei milites Robertus filius Hugonis 'Willelmus de Gebreseio,
Willelmus prepositus, Rualendus de Monte Orfin, Botterel de Bosco-
Iagu predietam compositionem nos fideliter servaturos et a nostris
firmiter servari facturos in manu Petri Redonensis archidiaconi fide
corporali3 firmaverunt. Uxor etiam mea Gervasia et nostri liberi
Radulfus, Willelmus, Rolandus, Eudo, Matildis et Amicia huic con-
cordie benignum prebuerunt assensum et consensum. Ut autem
concordia ista firma in perpetuum maneat et inconcussa presenti
carta mea earn muniri et sigillo meo roborari feci. Hujus composi-
tionis testes fuerunt Robertus filius Hugonis, Johannes filius ejus,
1 3 Cart, de la Basse-Norm. p. 89. Arch, de Mortain (?), role particulier, No. 52.
2 No. 33. 3 Comp. ante, p. 115.

CART.E ET PLACITA. 385
Gaufridus Boterel, Rualendus de Monte Orfin, Johannes filius Helie
de Albineio, Robertus presbyter de Sacio, Willelmus de Vera cum
aliis pluribus. *

No. 35.]
ACCORD ENTRE L'ABBESSE DE CAEN ET L'ABBE, DE
THEOKESBERY.2

Universis ecclesie Dei filiis Fromundus abbas Theokesbery totius-
que conventus ejusdem loci salutem, Noverit universitas vestra
controversiam que inter nos et ecclesiam Sancte Trinitatis de Cadomo
versabatur super ecclesiam de Aveling. amicabili pactione hoc modo
finitam esse; videlicet, quod sancti moniales predicti monasterii
Sancte Trinitatis nomine transactions xx. marcas argenti ecclesie
nostre dederunt ut a lite omnino discederemus. Quare nos propter
pacis caritatisque concordiam ad comparandos legitimos redditus, has
predictas xx. marcas in capitulo nostro suscepimus et quicquid
juris in ecclesia de Aveling. vel in pertinentiis suis habuimus
ecclesie Sancte Trinitatis de Cadomo remisimus atque modis omnibus
quietum clamavimus. Huic autem transactioni ex mandato domini
Rogerii3 Wigornensis episcopi interfuerunt Radulfus prior Wigor-
nensis qui tunc temporis in negociorum ecclesiasticorum executione
vicem gerebat episcopi et Matheus archidiaconus Glocestrie quod
ex sigillorum dependentorum testimonio comprobatur. Testibus
Baldrico decano de Sapton., Rogero de Wich., Rainald de Aveling.,
Salomo presbitero, Willelmo capellano Theokesbery, magistro Silvestro
Ricardo et Thoma de Bisleg., Ricardo de Hanton, Hugone de Telt-
bery, Waltero de Stanley, Philippo de Grenhamstud., Willelmo et
Abraham clericis, Willelmo de Felsted, Harduino de Bisleg., Henrico
de Hanton., Ricardo monacho, Willelmo de Nortun, Warino de
Salesbery.

1 Nos. 53, 54, 55 are subsequent confirmations of this agreement, dated 1212,
1223, 1224.
2 3 Cart, de la Basse-Norm. p. 257, Arch, de Calvados, No. 86.
3 Roger, son of Robert, earl of Gloucester, 11 64-1 1 79. 2 C

386 APPENDIX.
No. 36.]
LETTRE D'AMAURY COMTE D'EVREUX. (Sans date.)1
Amalricus comes Ebroicensis, vicecomiti suo de Waravilla et
omnibus baronibus suis et prepositis eorum de honore de Batvent,
salutem. Precipio vobis ut terram et homines Sancti Martini et
abbatis et monachum de Troarno immunes sint ab omni querela et
omnia que habent in honore de Bavent quieta sint, quia sic volo et
concedo pro mea et antecessorum meorum salute. Valete.

No. 37.] LETTRE DE HENRY II. (Sans date.)2
Henricus rex, etc., justiciis, vicecomitibus et omnibus ministris suis
de Reiesmo, salutem. Sciatis quod ecclesia de Briwetonia et canonici
ibidem Deo servientibus et omnis eorum res et possessiones sunt in
mea manu et custodia et protectione. Et ideo volo et firmiter
precipio quo predicti canonici habeant et teneant omnes tenuras et
possessiones et libertates et liberas consuetudines suas et nominatim
ecclesiam de Lion cum decimis et omnibus aliis ad earn pertinentibus
bene et in pace, juste libere et quiete et honorifice. Et si quis super
hoc aliquam eis fecerit injuriam, plenariam eis sine dilatione faciatis
justiciam ; et nisi feceritis justicia mea Normannie faciat. Teste
Ricardo de Lucy apud Pictaviam.

No. 38.] LETTRE DE HENRY II. (Sans date.)3
Henricus rex, etc., archiepiscopo Rothomagensi, episcopis, archi-
diaconis, decanis, comitibus, baronibus, justiciis, vicecomitibus, et om
nibus ballivis et fidelibus suis Normannie salutem. Sciatis quod prior
Sancte Marie deBriweton et canonici regulares in eadem ecclesia Sancte
Marie Deo servientes et omnes res et possessiones sue sunt in manu
et custodia et protectione mea. Et ideo precipio quod priorem
ilium et canonicos et omnes res et possessiones suas et quecunque
ad eos spectant in Normannia custodiatis et in manu teneatis et
protegatis sicut mea propria. Ita quod nullam molestiam vel injuriam
aut gravamen eis de aliquo faciatis, nee fieri permittatis. Et si quis
¦ 3 Cart, de la Basse-Norm. p. 332. Cart, de Tioarn, fol. 82, No. 21.
2 lb. p. 344. Ib. fol. 22, No. 33. 3 lb. p. 345. Ib. fol. 23, No. 34.

CART.E ET PLACITA. 387
eis in aliquo forisfacere presumpserit plenariam eis inde sine dilatione
justiciam fieri faciatis. Et de nullo tenemento suo quod habent in
Normannia ponantur in placitum nisi coram me. Teste Willelmo
clerico de Cafiia,1 apud Merlebergam.
No. 39.J ACCORD FAIT PAR HENRY II. (Sans date.)2
Henricus rex, etc., archiepiscopo (ut supra, No. 38). Sciatis
controversiam que versabatur inter abbatiam Troarni et comitem
Johannem hoc modo terminatum fuit : scilicet, quod abbas Gisle-
bertus et conventus abbatie Troarni clamaverunt quieta3 comiti
Johanni et heredibus suis totum manerium de Remberthomme et
decimam foreste Gufferni de Vinaz. Et comes Johannes concessit
predicte abbatie decimam thelonei de Montegomerici et tenementum
filiorum Roise apud Troarnum, et insuper omnia tenementa que
continentur in cartis ipsius abbatie quas habet de comite Rogero
antecessore comitis Johannis in bosco et piano, in pratis et pascuis,
in aquis et molendinis et in omnibus aliis rebus. Et idem comes
posuit prefatam abbatiam in manu mea et custodia et protectione
liberam et quietam ab omni servicio et ab omni exactione immunem
ab ipso et heredibus suis. Et ideo volo et firmiter precipio quod
hec compositio stabilis inter eos maneat et inconcusse teneatur sicut
superius determinata est et in presentia mea facta. Testibus R.
archiepiscopo Rothom., R. archiepiscopo Eboracensi, Henrico
episcopo Baiocensi, A. episcopo Lexoviensi, R. episcopo Constan-
ciensi, R. episcopo Abrincensi, H. abbate Fiscanni, R. abbate de
Monteburgo, R. abbate Valacie, V. abbate Sancti Georgi de Baucher-
villa, Ricardo de Humel. constabulario, Willelmo de Curci dapifero,
Fulcon. Paenello, Willelmo filio Hamon., Ricardo de Canvilla, Seihero
de Quincy. Apud Valoniam.
No. 40.] WRIT OF HENRY II. AS TO AN ASSISE/
Henricus rex Angliae et dux Normannorum, et Aquitania?, et
comes Andegavorum, Willelmo Patricii, salutem. Precipio tibi quod
1 Camera?
2 3 Cart, de la Basse-Norm. p. 345. Cart, de Troarn, fol. 7, No. 35. 3 Sic.
4 Cart, de Baieux, or Liber Niger de Baieux, fol. 4, No. 10. The following
writs and charters from this cartulary are of the time of Philip d'Harcourt, bishop
2 C 2

388 APPENDIX.
sis ad primam assisam qua? erit citra Lexovium, et habeas ibi quarantes
tuos qui quarantizent tibi feoda ilia que tenes de feodo episcopi,
Bajocensis, de quibus conqueritur, scilicet de feodo Walchelin de
Corcella de Renigore, et de Walchel Maminot de Noers, et Helionis
conestabuli, de Gisetot, et Radulphi de Rovencestra de Mondrevilla,
et Rogeri Malfilastre de Monte Secreto, et de Frenesia. Et nisi
feceris, precipio quod justitia mea faciat ei habere considerationem
meae curia? secundum quod audierit warantes tuos, quod idem episcopus
habere debet in praedictis feodis, et pacem hie faciat hominibus de
feodis illis, et terre predicte de auxiliis, et omnibus querelis, ita quod
tu nichil de ilia capias donee diffinitum sit, quid episcopus in illis
feodis habere debet, et faciat ei habere considerationem in cujus
manu feoda ilia remanere debent. Interim et sine dilatione reddas
plenarie omnia catalla [?] quae de his feodis cepisti. quando fui
Bajocas ad assisiam meam. Teste Thoma1 episcopo Lexoviensi,
apud Baiocas.
No. 41.]
CHARTER OF HENRY II. CONFIRMING A FINE AND
CONCORD.2
Henricus Dei gratia rex Anglia? et dux Normannie et Aquitanie
et comes Andegavorum archiepiscopis, episcopis, abbatibus, comi-
tibus, baronibus, justiciariis, vicecomitibus, et omnibus ministris et
fidelibus suis, salutem. Sciatis me presente Henrico Bajocensi
episcopo et favente ad petitionem Roberti de Isingni, concessisse
et praesente mea carta confirmasse finem et concordiam quae facta
est coram me inter . capitulum ecclesiae Bajocensis, et praefatum
Robertum de Isingni, scilicet quod idem Robertus dimisit capitulo
Bajocensi omnino quietum mesagium sacerdotis cum virgulto in quo
mansit Mabo presbiter, et cum terra arabili que est in capite virgulti,
et omne jus quod quoquo modo dicebat se habere in ecclesia de
Isingny, universum quoque jus percipiendi decimas de toto illius
ecclesie territorio : si quod pertinebat ad eum sive de grangia capituli,
sive de terris ipsius Roberti aut alienis, sive decime consistant in
of Bayeux, A.r. 1144-1166, who had been chancellor to King Stephen. Many
being of the time also of Henry II., the dates of such are thus fixed between the
years 1 1 54 and 1 1 66 ; while the rest are of course of the ten years preceding.
The MS. itself is of the thirteenth century. Extracts from a few of these records
have been printed, but none have ever before been printed in full.
' Qurere. = Cart, de Baieux, fol. 4, No. 11.

CARTtE ET PLACITA. 389
duabus garbis, sive in tertia. Terrarum vero facta divisione super
quibus vertebatur contentio, juxta formam pacis habet capitulum
terram que est versus forestam. Et contra istam habet Robertus
culturam quae est sub gardeno Ade, et culturam que est de feodo
Croste. Item habet capitulum totum pratum de Felger. Et
Robertus habet totam landam versus Goleth. Item habet capitulum
Milonem de Gonessa et Arnulfum Besuch et Hogam. Et Robertus
habet contra haec : Pilosum et Herveum de Goleth. Item prefatus
Robertus dimisit ipsi capitulo dimidium acre terre quam tenet
Chipheth. Et Willelmus nepos ejus et dimidiam acram quam tenet
filia Riculfi. Et tres virgatas quas tenet Rogerius Tanchere. Et
dimidiam acram quam tenet filius Gocie, et Grosvassat, et mansuram
Bersech de Aumanvill. Hanc autem concordiam juraverunt in per
petuum observaturos Robertus et Simon et Rogerus Suhart fratres
ipsius Roberti super sancta evangelia publice in processione ecclesie
Bajocensis. Et capitulum dedit eidem Roberto xxvi. marcas
Andegavenses, et fratribus illius Ix. solidos Andegavenses pro bono
pacis,1 et ut jus quod capitulum habebat in praedictis, et praefati
diutius perturbaverant, sibi quietum dimitterent, et inconcussam, et
ipsi quicquid juris in eis se habere dicebant sicque super majus
altare ecclesie Bajocensis posuerunt ei omnino renunciantes. Quare
volo et firmiter precipio, quod prescripta concordia, sicut coram me
facta fuit, firmiter et inconcusse teneatur. Testibus M. abbate de
Curzay, P. abbate de Cadomo, magistro Waltero de Constantiis,
magistro I. Cicestrensi archidiacono, magistro Petro Blesensi,
Willelmo filio Radulfi, Sch. Normasi, Folqueto Painel, Ricardo de
Aufay, Roberto de Bricurt, Hamon Pincerna, apud Burum.
No. 42.] CHARTER OF HENRY II. AS TO AN ASSISE.2
Henricus dux Normannise et comes Andegavorum H. Dei gratia
Rothomagensi archiepiscopo, et omnibus episcopis comitibus et
baronibus suis de Normannia, salutem. Quoniam ecclesia Bajocensis
post mortem Odonis episcopi per subsequentium episcoporum
impotentiam, tum per eorumdem negligentiam, et perditiones et
donationes et commutationes ab ipsis factas fere ad nichilum
redacta erat, ne funditus ecclesia predieta destrueretur, proinde
' Sic. 2 Cart, de Baieux, fol. 5, No. 14.

390 APPENDIX.
Henricus rex avus meus instituit ut juramento antiquorum hominum
qui rem norunt, reeognoscerentur tenedura jamdicte ecclesie sicut
fuerant in tempore predicti Odonis tam in dominicis quam in feodis
militum, vavassorum et rusticorum, ipsius equidem tempore hec
omnia jurata sunt et recognita et sepedicte ecclesie precepto ejus
resignata et munimine carte sue quocunque modo a possessione
ecclesie alienata essent, reddita sunt et confirmata. Subinde
Gaufridus comes Audegavensis pater meus commonitione et
precepto apostolicorum virorum Lucii et Eugenii qui omnium
episcoporum Bajocensium ab Odone usque ad Philippum succe-
dentium donationes et venditiones et commutationes et omnes
alienationes quas de predicte ecclesie beneficiis facerant, irritas esse
preceperunt. Item dominica et feoda et omnes Bajocensis ecclesie
teneduras sicut fuerant in tempore Henrici regis jurata juramento
fecit recognosci, et sicut Bajocensis ecclesia in tempore Odonis
episcopi tenuerat, ea ex integro eidem ecclesie resignavit et cartha
sua confirmavit. Vestigiis igitur antecessorum nostrorum avi scilicet
et patris inherere concupiscentes et patrum nostrorum apostolicorum
Lucii et Eugenii commonitioni et precepto obtemperare volentes :
mandamus et precipimus ut dominica et feoda et possessiones
libertates et consuetudines Bajocensis ecclesie et omnes tenedure
quas habuit in tempore Odonis episcopi, sicut unquam ea melius et
liberius in tempore ejus habuit juramento legitimorum et antiquorum
hominum qui rem norunt, recognoscantur, sicut fuerunt jurata et
recognita in tempore avi mei et patris. Ea itaque omnia sepe-
memorate ecclesie reddimus concedimus et confirmamus. Teste
Garino filio Girardi, Willelmo filio Hamonis, Manessero Biset.
Apud Falesiam.
No. 43.]
WRIT OF THE DUKE OF NORMANDY, PROVIDING
FOR A RECOGNITION IN A CASE OF DISPUTE AS
TO LANDS OF THE CHURCH AT BAYEUX.'
Dux Normannie et comes Andegavorum omnibus baronibus suis
justitiis baillivis et omnibus fidelibus suis hominibus, salutem. Volo
et precipio quod Philippus Bajocensis episcopus teneat omnes terras
suas tam in dominicis quam in feodis et omnes teneduras suas ita
1 Cart, de Baieux, fol. 5, No. 16.

CART.E ET PLACITA. 391
plenarie et honorifice sicut Odo episcopus unquam melius et liberius
tenuit. Et quia, sicut bene novimus res Bajocensis ecclesie per
negligentiam aut impotentiam antecessorum morum male disperse
sunt et a pluribus occupate : volo et precipio quod, si de aliqua
tenedura orta fuerit contentio inter episcopum et aliquem de suis
hominibus : per juramentum legitimorum vicinie in qua hoc fuerit,
sit recognitum quis saisitus inerat tempore Odonis episcopi, vel ipse
episcopus vel ille cum quo erit contentio, et quod inde recognitum
fuerit, firmiter teneatur, nisi ille qui tenet potuerit ostendere quod
tenedura ilia in manus suas postea venerit jure hereditario aut tali
donatione que juste debeat stare, et hoc in curia episcopi vel in mea.
Volo etiam et precipio et prohibeo ne aliquis pro facienda justitia
nee pro alio intrent in terram episcopi Bajocensis nisi illi servientes
qui ab antiquo ad hoc constituti sunt, et qui hoc faciebant tempore
Henrici regis, nee isti et hoc faciant nisi sicut justum fuerit. Teste
comite Mellenti [?]. Apud Rothom.
No. 44.]
WRIT OF THE DUKE OF NORMANDY, REQUIRING A
RECOGNITION.'
Dux Normannie et comes Andegavorum Reginaldo de Sancto
Vallerico, Roberto de Novo Burgo, et omnibus justiciariis suis de
Normannia, salutem. Volo et concedo quod ecclesia beate Marie
Baiocensis et Philippus episcopus, et successores ejus habeant et
teneant leugatam de Cambremario ita bene et integre et honorifice
sicut Odo episcopus earn tenuit cum omnibus consuetudinibus quas
in ea tenuit in tempore Willelmi regis senioris, et sicut Ricardus
filius Samsonis earn melius habuit in tempore Henrici regis. Propterea
mando vobis et precipio quod faciatis recognosci per sacramentum
proborum hominum de vicinio terminos leugate et consuetudines et
forisfacturas et verendam.2 Et faciatis haec omnia habere et tenere
in pace Philippo episcopo sicut predicti antecessors ejus ea melius
habuerant in temporibus predictorum regum. Si quis vero ei inde
resistere voluerit precipio vobis quod firmam justiciam inde faciatis.
Testibus Hugone archiepiscopo Rothomagensi Ricardo cancellario,
Reginaldo de Sancto Wallerico, Roberto de Novo Burgo. Apud
Rothomagum. (Szepost, Nos. 51-53.)
' Cart, de Baieux, fol. 5, No. 17. 'A warren.

392 APPENDIX.
No. 45.]
CONFIRMATION OF THE DUKE OF NORMANDY OF
THE RETURN OF A RECOGNITION.'
Dux Normanniae et comes Andegavorum Raginaldus de Sancto
Walerico, Willelmo de Vernone, Roberto de Novoburgo, et omnibus
et proceribus suis Normanniae, salutem. Sciatis quod ego concedo et
confirmo ecclesie Sancte Marie Bajocensis et Philippo episcopo, et
omnibus successoribus ejus omnes terras et consuetudines quas Odo
episcopus habuit in episcopatu Bajocensi, et nominatim terram de
Carchenneio2 et terram de Wolleia,3 sicut recognitum fuit et juratum,
in choro Bajocensis ecclesie quod predictus Odo eas habuerat in
dominio. Astantibus ibidem per preceptum nostrum ad hoc audi-
endum Roberto de Curceio dapifero nostro, Ricardo de Haia et
aliis quampluribus. Testibus Hugone Rothomagensi archiepiscopo
Ricardo cancellario nostro, Raginaldo de Sancto Walerico, Roberto
de Novoburgo, apud Rothomagum.

No. 46.]
ANOTHER WRIT BY THE SAME, REQUIRING A
RECOGNITION.4
Dux Normannorum et comes Andegavensium Thomae de Bohun,
Salutem. Mando tibi et precipio quod dimittas episcopo Bajocensi
in pace feudum militis quod Robertus Marin de ipso tenebat Witenill.
Et feudum suum quod Willelmus de Bohun de ipso apud Monimartin
tenere debet, quod hucusque injuste occupasti. Quod nisi feceris,
precipio quod justitia mea R. de Haia secundum assisiam meam
recognosci faciat predictum feodum episcopi quomodo antecessores
sui tenuerunt tempore regis Henrici, et sicut recognitum fuerit ita
episcopum in pace tenere faciat. Quia ego non paterer quod de
jure suo injuste perderet tibi etiam Ricarde la Haia precipio quod
per totam bailiam tuam secundum assisiam meam recognosci facias
feudum episcopi Bajocensis et ipsum in pace tenere sicut recog
nitum fuerit secundum assisiam meam. Test. Pagan . . . Apud
Cenomanum. 1 Cart, de Baieux, fol. 6, No. 19. 2 Carcagni. 3 Vouilly.
4 Cart, de Baieux, fol. 7, No. 24.

CART.E ET PLACITA. 393
No. 47-]
WRIT OF THE DUKE OF NORMANDY AND EARL OF
ANJOU REQUIRING A RECOGNITION.1
Dux Normannorum et comes Andegavorum G. de Sableio et
R. de Curceio justiciis suis. Mando vobis quod sine mora recog
nosci faciatis secundum assisiam meam de feodo Guilelmi Bersic et
de servitio ejusdem, quis inde saisitus erat tempore regis Henrici et
si recognitum fuerit quod episcopus Baiocensis inde saisitus esset
vivente rege Henrico, ei habere et tenere in pace faciatis. Preterea
vobis mando quod recognosci faciatis secundum assisiam meam de
terra Crasmesnil et de Rochencort quis inde saisitus erat tempore
regis Henrici et si recognitum fuerit quod Guaquelinus de Corceliis
inde saisitus esset eo tempore, ei in pace tenere faciatis. Et pro-
hibete Roberto filio Erneis ne aliquid ei forifaciat necque sui homines.
Et si Robertus filius Erneis sive sui homines aliquid inde ceperint
postquam precepi in Epiphania Domini quod terra esset in pace
donee juraretur, cujus deberet esse reddi faciatis. Teste T. P. de
Clarvall, apud Cenomanum.

No. 48.]
WRIT OF HENRY II. REQUIRING A RECOGNITION.2
Henricus rex Angliae et dux Normannorum et Aquitanorum et
comes Andegavorum Willelmo filio Johannis, salutem. Praecipio
tibi quod facias recognosci per antiquos homines Cadomi quot et
quarum domorum in Cadomo episcopi Baiocensis solebant habere
censum et redditus tempore Henrici regis avi mei, et que servitia et
quales consuetudines inde tunc habebant, et sicut fuerat recognitum,
ita in pace et juste et integre eas facias habere Philippo episcopo
Bajocensi et plenum rectum ei faciat de terra ubi grangiae . . . . 3
episccpi esse solebant, secundum assisiam meam, et plenum ei facias
rectum de terra arabili que est juxta aquam secundum assisam
meam, et plenum rectum ei facias de decimis . . . . 3 et lane
feciorum de Cadomo secundum assisam meam. Et nisi fecerit,
Robertus de Novoburgo faciat. Teste Toma cancellario apud
Lemoviam.
1 Cart, de Baieux, fol. 7, No. 25. 2 Ib. fol. 8, No. 27. 3 Indistinct.

394 APPENDIX.
No. 49.]
CONFIRMATION BY HENRY II. OF THE RETURN OF
A RECOGNITION.'
Henricus rex Angliae et dux Normannorum et Aquilanise et
comes Andegavorum R. de Novoburgo et omnibus ballivis suis
Normanniae, salutem. Precipio quod faciatis Philippum episcopum
Baiocensem tenere banlewan suam de Cambremario, et omnes con
suetudines suas ita bene et in pace et libere et juste et plenarie,
sicut recognitum fuit coram nobis et coram Roberto de Curceio,
ex precepto patris mei per sacramentum legalium hominum, et sicut
carte regis Henrici avi mei et comitis Gaufridi patris mei et nostra,
in quorum praesentia hoc factum est, testantur, et sicut postea per
litteras meas precepi. Et si quis ejus consuetudines in aliquo
diminuere voluerit, firmam ei justitiam sine dilatione faciatis. Teste
G, de Lond. apud Wudestocam.

No. 50.]
CONFIRMATION BY HENRY II. OF A CONCORD.2
Henricus rex Angliae et dux Normannorum et Aquitania? et
comes Andegavorum, archiepiscopo et episcopis et justiciariis et
baronibus et ministris suis totius Normanniae, salutem. Sciatis quod
ego concedo et carta mea presenti confirmo compositionem illam que
facta fuerit coram me inter Philippum Bajocensem episcopum et
Philippum de Columbariis de morte Beatricis neptis predicti epis
copi quam Robertus nepos Philippi de Columbariis interfecerat.
Hanc videlicet quod Philippus de Columbariis predictum Robertum
abjuravit, et pacem firmam episcopo Bajocensi et Willelmo Britoni
et toti cognationi eorum juravit. Praeterea ecclesiam de Colum
bariis cum duabus garbis et tercia et aliis pertinentiis ejus cuidam
prebende Baiocensis ecclesie pro anima Beatricis predicte et pro
restauratione dapni quam eidem prebende fecerat, in perpetuam
eleemosinam dedit et concessit. . . . 3 Quare volo et firmiter precipio
quod hec compositio firmiter et discusse teneatur. Testibus Thoma
cancellario, Rogerio archidiacono, Richardo de Husneto Constan-
tiense. Apud Leones.
* Cart, de Baieux, fol. 8, No. 32. ' Ib. No. 33. 3 Indistinct.

CART^E ET PLACITA.

395

No. 51.]
CHARTER OF THE DUKE OF NORMANDY AS TO A
RECOGNITION'
Dux Normannorum et comes Andegavorum Hugoni Dei gratia
Rothomagensi archiepiscopo et omnibus episcopis Normannie et
omnibus baronibus, salutem. Christianorum principum est sua
ecclesiis jura inconcussa illibataque conservare. Et si aliquatenus
fuerunt improborum hominum vexatione turbata vel imminuta, ad
pristinum sue rectitudinis statum quantocius revocare. Eapropter
quod Baiocensis ecclesia post tempora Odonis episcopi multa de jure
suo perdiderat per subsequentium episcoporum incuriam qui minus
in conservando vigiles extiterunt, nos predicte ecclesie in oppres-
sionibus suis compatientes, juramento antiquorum et legitimorum
hominum qui rem noverant, fecimus recognosci jura, possessiones,
consuetudines, libertates supradicte ecclesie quascumque habuerat in
tempore Odonis episcopi. Vestigiis regis Henrici inherentes, qui
hoc idem juramento antiquorum hominum fecerat recognosci post
mortem Ricardi episcopi filii Samsonis, cujus factum bone memorie
Lucius et Eugenius papae approbantes, donationes, venditiones, com-
mutationes ab omnibus episcopis factas post Odonern episcopum
usque ad Philippum cassaverunt, et irritas esse preceperunt, nos
igitur predictorum patrum nostrorum Lucii pape et Eugenii litteris
commoniti et precibus Philippi Baiocensis episcopi compulsi jura
mentum quod rex Henricus fieri fecerat ratum esse volentes : jura
mento eorumdem qui tempore regis Henrici juraverunt, et aliorum
recognosci fecimus jura, possessiones, consuetudines, libertates quas
ecclesia Baiocensis tempore Odonis episcopi habuerat et habere
debebat. Recognita est igitur inter cetera leugata de Cambremerio
apud Falesiam coram Roberto de Novoburgo et coram Roberto de
Curceio justiciariis meis, juramento antiquorum et legitimorum
hominum qui subscripti sunt. Juramento itaque hominum de terra
Roberti de Monteforte, scilicet Ricardi de Warlammont et Ricardi de
Altaribus, et de terra abbatis de Sancto Petro supra Divam, Ricardi
filii Milonis, Rogeri filii Odonis, Hugo Taissun. . . ,2 Recognita
est leugata et consuetudines et emende et termini quibus leuga con-
tinetur. Juraverunt itaque predicti homines quod episcopus Baio
censis habet et habere debet et quod Ricardus episcopus filius
Samsonis habuerat in tempore regis Henrici de hominibus omnibus
1 Cart, de Baieux, fol. IO, No. 39. In connection with the following three
records, see No. 44, ante. 2 Et al.

396 APPENDIX.
infra terminos manentibus statum theloneum de omni emptione et
venditione infra terminos facta ex consuetudine, nee non et telonii
non redditi et sanguinis ibidem facti constitutam emendam. Jura
verunt etiam quod licebat preposito episcopi per omnes tenas infra
terminos leugate justitiam suam libere exercere. Termini autem
leugate hii sunt : incipit autem a petra de Houtemaine et distenditur
usque in Algot fluvium.' . . . Caeterorum maneriorum occupa-
tiones jurate sunt Bajocis coram Ricardo de Haia et Roberto de
Novo Burgo et Roberto de Curceio et coram Engelgero de Bohone a
nobis ad hoc faciendum transmissis, congregatis ad hoc jurandum de
singulis maneriis plurimis antiquis et legitimis hominibus quorum
juramento ita omnino recognitum est sicut continebatur in scripto
quod factum fuerat secundum juramentum quod rex Henricus antea
fieri preceperat. . . . Omnia itaque hec et cetera quecumque de
jure Bajocensis ecclesie ablata sunt precipimus ad jus ecclesie
predicte et in potestate episcoporum de cetero firmiter inconcusse
permanere. Testibus Ricardo cancellario, Roberto de Novo Burgo,
Roberto de Curceio, comite Ebroicense, Amauricio de Maistenone,
Gaufrido de Cleis, Gufero de Brueria.
No. 52.]
RETURN OF THE FOREGOING RECOGNITION.
The following is the return of Robert de Curceio (semble), one of
the parties who took the recognition : 2
Duci Normannorum et comiti Andegavensium karissimo domino
suo Robertus de Curceio et Robertus de Novoburgo, salutem. Notum
facimus vobis, quod sicut precepistis ; leugatem de Cambremerio
fecimus recognosci per juramentum antiquorum et legitimorum
hominum in confinio manentium, sicut melius fuerat tempore regis
Willelmi prioris. Et sicut postea melius fuerat tempore regis Henrici
et episcopi Baiocensis Ricardi filii Sansonis. Et ut cercius res ad
notitiam veniret plures quam in ceteris rebus soleamus juratores et
de terris diversorum baronum apud Falesiam in ecclesia beati
Gervasii in presentia mea convenire et jurare fecimus. Juramento
igitur eorum qui se hoc vidisse et audisse et novisse testabantur,
quorum etiam quidam servientes ejustem leugata? tempore regis
Henrici exercuerunt ; recognitum fuit predietam leugatam subscriptis
1 Here follow the boundaries. See pp. 397, 398,
2 Cart, dc Baieux, fol. 11, No. 43.

CART.E ET PLACITA. 397
terminis extendi et contineri, et omnes infra terminos manentes
episcopo Baiocensi tempore regis Hehrici ex consuetudine reddidisse
de omni emptione et venditione infra terminos facta teloneum statu-
tum, et telonei non redditi emendam. Similiter et sanguinis ibidem
facti emendam. Licebat etiam preposito episcopi per omnes terras
infra terminos justitiam suam libere facere. Termini autem infra
quos leuga continetur, isti sunt. Incipit enim a petra de Howe-
mainne, et extenditur usque in Allegot fluvium, et deinde sicut
Alegot descendit donee cadat in Viam fluvium. Abhine vero sicut
Via flumen discurrit ; usque dum Oreta aqua' in earn labitur.
Subinde Oreta leugatum claudit sicut descendit a vado Sancti
Germani de Livet.2 Et inde distentur 3 leuga per domum Ricardi
Garet usque ad Cutam" de Manerba, abhine autem per medium
Grattepanche pretenditur ad petram de Howmainne unde incipit.
Juratores autem isti fuerunt. De terra abbatis de Sancto Petro-
supra-Divam, Ricardus filius Milonis, Rogerus filius Odonis, Hugo
Taissun  ; de terra Rogeri de Gowiz, Robertus de Howmainne ;
de terra Roberti Marmium que est de feodo comitis de Mellent,
Gocelinus Warin; de terra Roberti de Monteforti, Ricardus de
Warlaimont, et Ricardus de Altaribus;s de terra Simonis de
Bosvilla,6 Gauterus Britto, Robertus filius Milonis, Willelmus de
Brueria, Radulfus de Luto, Ricardus Parvus ; de terra Rogeri de
Grattepanche, Ricardus Durum Scutum? cognomento, Hugo filius
Ricardi ; de terra Gauteri de Pinu, Ricardus Verroil ; de terra
Hugonis de Crevecor, Ricardus de Fraisneto.8 Retulerunt etiam
isti coram nobis nominatas ibidem quas viderant justitias et emendas.
Testibus Willelmo de Montpichun, Radulfo de Corlibove, Aitardo
Ponti, Willelmo de Olvilla, Willelmo B., Gilleberto de Bigart.
No. 53.]
SAME CONTINUED.
Return (semble) of Robert of Newburg.9
Duci Normannorum et comiti Andegavensium Robertus de
Novoburgo et Robertus de Curceio, salutem. Nos fecimus jurari
secundum preceptum vestrum leugatam de Cambremerio apud
1 The little river Dorette. 2 ? 3 Distenditur. 4 La Cutte.
s Des Authieux. 6 Benvilliers? 7 Durecu. 8 Fresne-en-auge.
9 Cart, de Baieux, fol. 11 b, No. 44.

398 APPENDIX.
Falesiam quam juraverunt decem et octo homines magne etatis.
Ricardus de Altaribus de feodo Manerbe, de feodo abbatis de Sancto
Petro-supra-Divam  Rogerus filius Odonis, Hugo Taissun,
Ricardus filius Milonis ; de terra Simonis de Bosvilla, Gauterus
Brito, Radulfus de Luto, Ricardus Parvus, Robertus filius Milonis,
Willelmus de Brueria ; de feodo Rogeri de Grattepanche, Ricardus
Durum Scutum, Hugo Planius, de feodo Rogeri de Gowiz, Robertus
Howtemainne, Gosselinus Varin; de feodo Hugonis de Crevecor,
Ricardus de Fraisneto ; de feodo Gauteri de Pinu, Ricardus Veroil ;
de feodo Roberti de Monteforti, Ricardus de Warlemont; de
feodo Roberti Marmium, Gosselinus Varin. Qui post juramen
tum suum confessi sunt quod viderunt earn habere Ricardo filio
Samsonis Bajocensi episcopo in tempore Henrici regis in justitiam de
teloneo et sanguine per omnes terras qui sunt infra terminos leuge.
Termini autem leuge hii sunt : a lapide de Houtemainna usque ad
Allegot fluvium, et inde eo usque idem fluvius cadit in Viam fluvium.
Et inde usque ad pontem de Corbun, et ab hoc ponte quidquid
Oreta fluvius ambit, usque ad eum locum in quo rivulus de domo
Ricardi de Alneto cadit in eamdem Oretam. Inde ad domum
Ricardi Garet, et inde ad Cutam Pinoldi, et inde ad petram de
Howmainna, aqua incipit. Juraverunt etiam warandam infra istos
terminos esse intra epi. tm.1

No. 54.]
RETURN OF A RECOGNITION, REPORTED TO THE
DUKE OF NORMANDY.2
Duci Normanniae et comiti Andegavorum G. comes Mellent
uti karo domino. Sciatis quod precepto vestro fecimus recognosci
per sacramentum legitimorum vicinorum quid et qualiter episcopus
Lexoviensis et episcopus Bajocensis tenebant tenuras suas in Espivilla
tempore regis Henrici, et recognitum esse quod unusquisque habet
dimidiam villam in feodo, et ecclesia tota et atrium est in feodo
episcopi Baiocensis, et ejus esse ecclesiam predietam dare et sacer-
dotem ponere sicut illam de qua ipse est episcopus et sacerdos, et
qui de dono ejus ecclesiam habebit, plenariam decimam de utroque
feodo habere debet. Et idem sacerdos nullam obedientiam episcopo
' Episcopatum? 2 Cart, de Baieux, fol. 25, No. 88.

CART^E ET PLACITA.

399

Lexoviensi facere debet. Tamen crisma de ipso accipiet sine num-
morum datione, ad sinodum suam ibit precepta tantum auditurus
non aliquid redditurus, vel de aliquo placito responsurus. Et in
eadem villa homines Baiocensis episcopi soli Baiocensi episcopo
respondebunt de placitis episeopalibus. Homines vero Lexoviae
quamvis ibi sint parochiani episcopi Baiocensis tamen de placitis
episeopalibus respondebunt : soli Lexovienses denarium Pentecostes
reddent homines Baiocensis episcopi apud Lexoviam. Sola prece
non emenda coacta.

No. 55.] A SIMILAR RECORD.'

Dei gratia duci Normanniae et comiti Andegavensi. R. de Sancto
Walerico uti karo domino, salutem. Sciatis quod precepto vestro
fecimus recognosci per sacramentum legitimorum vicinorum quid et
quomodo et qualiter et episcopus Lexoviensis et episcopus Baiocensis
tenebant tenuras suas in Esprevall. Et in episcopali et in terrena
potestate tempore regis Henrici et recognitum est quod unusquisque
illorum habet dimidietatem villae illius in feodo, et quod ecclesia tota
etatriumest infeodo episcopi Baiocensis, et est ejus predietam ecclesiam
dare, et sacerdotem in ea ponere, sicut illam de qua ipse est et epis
copus et terrenus advocatus, et sacerdos qui de dono ejus ecclesiam
illam habebit, plenariam decimam de utriusque feodo habere debet. Et
idem sacerdos nullam obedientiam episcopo Lexoviensi facere debet.
Scilicet tamen chrisma de ipso accipiet sine datione nummorum, et
ad sinodum suam ibit, precepta tamen auditurus vel2 de aliquo placito
responsurus. Sicut sacerdos Lexoviensis episcopi de Nunant accipit
chrisma de episcopo Bajocensi et ad sinodum suam vadit, nichil
tamen dabit vel de aliquo placito episcopo Baiocensi respondebit.
Et in eadem villa homines Baiocensis episcopi soli Baiocensi episcopo
respondebunt de placitis episeopalibus. Homines vero Lexoviensis
episcopi quamvis sint ibi parochiani episcopi Bajocensis, tamen de
placitis episeopalibus respondebunt soli episcopo Lexoviensi. Dena
rium Penticostes reddent homines Baiocensis episcopi apud Lexoviam.
Sola prece non emenda coacta.
' Cart, de Baieux, fol. 25, No. 89. ' Nee ?

400 APPENDIX.
No. 56.]
DE TERMINO SANCTI HILLARII ANNO VII.0 REGNI
REGIS HENRICI PRIS. ["patris.", Regularly, "domini
regis " should follow].'
Huntingdonscira ss. Philippus monachus habeat breve ad
vicecomitem quod prohibeat Reginaldo monacho ne teneat placitum
de terra unde idem Philippus questus est in curia domini regis
quod Reginaldus monachus non vult recipere homagium suum.
SS. Philippus monachus essoniavit se primo [die] de infirmitate
veniendi versus Reginaldum monachum de placito et de homagio
ejusdem terre et de quodam vidia terre de Torp per Willelmum filium
Nicholai de Grafham in xv. dies post festum apostolorum Philippi
et Jacobi pleg~ essoh fides.
1 Coram Rege Roll, Michaelmas, 9 John, No. 33 (Ai. 40), membrane 8.
The record, now printed for the first time, which follows this title, is found in the
Rolls of the King's Court, precisely as here given (except that it is written with
contractions), without explanation. It shows that the practice of enrolment, as
seen in the Rotuli Curias Regis and in the Placitorum Abbreviatio, or rather in
the original rolls from which those books are printed, was in use long before the
printed rolls began, and at least as early as 7 Hen. II. We are safe in inferring
that enrolment of placita was one of the reforms instituted upon the accession of
Henry the Second, in accordance with the promise of the peace of Wallingford.
Nor is this all. The record itself exhibits the King's Court, as early as the year
1160, issuing an "injunction" to a suitor in a Manorial Court from proceeding
with a cause begun therein ; a perfect example of the equitable power of the King's
Court. See ante, pp. 192, 196. The record affords still another suggestion. The
proceeding corresponds, so far as it goes, with the process of the Magna Assisa.
The demandant sues for the land in question in the local court, and the record
shows the tenant, as would be done after putting himself upon the Magna Assisa,
obtaining a writ to prevent further proceedings there ; the case being now drawn
into the King's Court. If this suggestion should prove well founded, the record
would go to confirm the intimation of the text, ante, p. 1 75, n. , that the Magna Assisa
was also one of the reforms effected by virtue of the terms of the peace of Walling
ford. The record, however, is equally capable of the explanation that the tenant
had merely obtained, for a price, a change of forum of the litigation.
The roll above quoted by the scribe of 9 John is followed by others of later
date ;. and it would not be strange if a thorough examination of the unpublished
rolls should reveal still earlier transcripts than the one above given, and aid in
the answer of important questions. Enrolment in the Exchequer, it may be
added, was another thing; relating to fiscal matters. That was perfect as early as
31 Hen. I. Ante, pp. 94, 123.

INDEX.

2 D

INDEX.

Accusation ; to be in writing in clerical
causes on the Continent, 57, 11. 7 ;
by public voice, 58, 99-101, 277, 297,
3°7, 323-
Accusator ; in ecclesiastical causes,
57, 5§-
Actions ; forms of not derived from
writ, 147, 148, 196, 197, 247, 248 ;
possessory and petitory, 172-175.
Adam's Case ; trial of vice-chancellor
for treason, 43.
Adscriptitii ; seizure of their goods for
debts of their lords, 119.
Adultery ; jurisdiction as to, 50.
Agenda of 1 194 ; 138-141.
Ailward's Case ; 214-216, 290.
Alan de Neville ; 146.
Albigenses ; trial of, 61-63.
Algarum Maris ; 80.
Amercements ; examples of, 240-243 ;
for false clamor, 341.
Angles ; nearness to Danes, 9.
Anglo-Saxon Procedure ; continuation
of in Norman period, 1-3, et passim.
Antecessor; meaning of, 177, n. 2.
Antejuramentum ; 248-250.
Apparitor ; 80, n. 3.
Appeals ; in clerical causes, 69, 70 ;
accusation of crime or delict, 276,

296, 297 ; other cases, 297, 327-
33°-
Appearance ; failure of after summons,
219, 223, 237-240, 348', 349.
Approver ; proceedings in appeals by,
328-33°-
Archdeacon; holds the bishop's court,
57-
Argument of Causes ; when possible,
57, "¦ 5-
Assise ; see Inquisition, Recognition.
Assise of Clarendon ; 2, 99-101, 297,
323-
Assise of Northampton ; 2, 88, 297, 323.
Attorney ; giving suit over to, 224,
227, 245.
Aula Regis ; successor of, 3, 76, 79, 199.
Auxilium ; 124.

Barones errantes ; 137.
Baronies ; treatment in Exchequer of
holders of, 120, 121 ; see Franchises.
Barons ; name in Exchequer, 112.
Battle ; see Duel.
Becket, Thomas a ; connection with
Constitutions of Clarendon, 34-39.
Bench, The ; 89, 90.
Blanch-ferm ; 106.

404

INDEX.

Boroughs ; certain ones retain ancient
usage of compurgation, 2, 296, 307 ;
five Danish, 12.
Bribery ; Norse action for, 313, n.,
3'4-
Broc, Philip de ; 38, 39.
Buakvidr; 18, n., 311-316, 331, 332.
Burden of Proof ; follows last good
pleading, 60-63, 272, 289, 291, 292-
295.
Burghmot ; corresponds to County
Court, 141.

Capitula Placitorum Coronas ; 138-141.
Case, Action on the ; 198.
Castellatio trium Scannorum ; 80.
Chamberlain ; in Exchequer, 107.
Champions ; 252-254.
Chancellor ; his position in the kingdom,
87, 90; in Exchequer, 107, 108.
Chancery ; no court of in the Norman
period, 19 ; equity in the general
courts, 19, 20, 53, 129, 193-195 ; in
the.clerical courts, 42, 71, 72; early
jurisdiction of the Chancery, 72, n. I.
Chanson de Roland ; 330, n., 347, n.
Charters ; trial by, in Ecclesiastical
Courts, 60, 66-68 ; in lay courts,
298, 316-318; matter for the judges,
316 ; contesting, 317, 318.
Chaucer ; opinion of summoners, 225.
Chester ; held by the Danes, 12.
Common Pleas ; court of, 85 ; in
Exchequer, 86, 91, 125-131.
Community- Witness ; 120, 295, 298,
3°9, 3i°-
Competency ; of compurgators, 301,
302 ; of witnesses, 308.
Compurgation; effect of Assises of
Clarendon and Northampton, 2 ; in
Iceland, 17, 314, 315 ; in clerical
courts, 57, 59 ; in what cases allowed
in lay courts, 297, 298, 306-308 ;
nature of trial by, 301-308 ; number
of compurgators, 301, 305, 306 ;
what they swore to, 301 ; selection
of, 3°2, 3°3 ; kmds 0f oatn used)
3°3, 3°4 5 how sworn, 304, 305 ; lex
disraisime, 304 ; lex probabilis, 305 ;
compurgation shifts ground in twelfth

century, 306-308 ; in cases of debt,
308 ; in actions against sureties, 308.
Conditional Mandate ; 153, n. 2, 155,
n. 2.
Constable ; position in Exchequer, 109.
Constitutions of Clarendon ; 34-37.
Contracts ; breach of not to be re
dressed in Ecclesiastical Court, 37.
Contumacy ; punished by outlawry in
secular courts, 348 ; in Ecclesiastical
Courts, 349, n.
Conventiones ; 122.
Coroners ; origin of, 131, 139, 140 ;
coroner's inquest not of Norse origin,
334, n.
Corsnaad ; ordeal for the clergy, 59, 65.
Costs ; Synod of Winchester as to, 37.
Council, King's ; see King's Court,
Witenagemot.
County Court ; before and after the
Conquest, 131 ; sheriffs in, 131 ;
dignity of, 132 ; used by the king,
T32, 133 ; membership, 133; repre
sentation in, 133, 134, 137 ; sessions,
how often, 135 ; jurisdiction, 135,
136; Eyre, 136-141; record of, 319,
320.
Courts ; chapter vii. p. 19 ; no Court of
Chancery, 19 ; the king in equity,
19 ; Witenagemot, 20 ; Ecclesiastical
Court, 25 ; King's Court, 75 ; Eyre,
92 ; Exchequer, 103 ; County Court,
131 ; Burghmot, 141 ; Hundred or
Wapentake, 141 ; Manorial Court,
143 ; Forest Court, 144.
Crimen falsi ; 8i.
Criminal Actions; how begun, 248-
254 ; pleadings in, 277-281 ; burden
of proof, 292, 293 ; judgment in, 346,
347-
Crowland, Chronicle of; 154, 11.

Damages ; in case of disseisin, 345, 346.
Danegeld ; 118.
Danelag ; chapter ii. p. 8.
Danes ; in England, 10-14.
Danish-Norse Procedure ; chapter ii.
p. 8, passim; Norse, 224-228, 311-
316.
Debt ; writs of, 160-165 ; history of

INDEX.

405

modern writ, 165 ; pleading in, 281,
282 ; compurgation in, 308 ; judg
ment in, 346, 347.
Decennaries ; 142.
Defamation ; jurisdiction as to, 51.
Depositions ; in clerical causes, 65, 66 ;
in lay causes, 310.
Derby ; earlier name, 1 1, n.
Detinue ; pleading in, 283.
Diligence ; as an answer by the sheriff
in Exchequer, 115.
Diocesan Councils ; 28.
Disseisin ; see Novel Disseisin.
Distraint ; distinguishes actions of con
tract and actions of tort, 201 ; in
Normandy, 201, n. ; substantive dis
traint, 202 ; auxiliary distraint, 201,
202 ; modern private distraint not
archaic, 202, 203 ; leave of court,
203 ; Continental law as to, 203-205 ;
distraint before the Conquest, 205 ;
temp. Hen. I. 206, 207 ; origin of
modern private distraint suggested,
207, n. ; temp. Glanvill, 208, 209 ;
preliminaries to, 209-211 ; necessity
of observing formalities, 211, 212;
proceedings for the recovery of
movables, 212; hue and cry, 212;
" harou," 212, n. ; search of premises,
213; putting the hand upon goods,
213, 214; "ligare," 214; replevin
of distraint, 219-222.
Divorce ; Norse procedure as to, 226.
Domesday Book ; 129, 293.
Dower '; difference between English
and Norman procedure as to, 5 ; how
causes tried before the Conquest, 5, n. ;
jurisdiction as to, 82, 84 ; count for,
255, 256 ; pleadings, 256, 257.
Dowry; Mord's demand of return of,
224, 225.
Duel ; gains ground temp. Hen. I. 2 ;
hire of champions, 4 ; general use on
Continent, 6 ; Opposition of clergy
to, 68, 69, n. ; proceedings in trial
by, 252, 256, 328-330 ; in what cases
allowed, 295, 296, 327 ; exemption of
certain boroughs from, 296; intro
duced from Normandy, 327 ; en
croaches upon ordeal, 327 ; proceed
ings in appeal by approver, 328, 330,

Ecclesiastical Court; main object of,
25 ; confusion as to court, 25-27 ;
peculiar punishments of, 26, n. ; ir
regular jurisdiction, 27, 28 ; Diocesan
Councils, 28 ; how courts held, 29 ;
jurisdiction of spiritual causes, 29 ;
presence of king and laity, 29, 30 ;
clergy in temporal courts, 30, 31 ;
Conqueror's charter as to jurisdiction,
30, 31 ; extension of jurisdiction,
32 ; exercise of jurisdiction specially
examined, 33-55 ; Constitutions of
Clarendon, 34-37 ; as a court of
equity, 42 ; mixed jurisdiction, 53-
55 ; procedure in Ecclesiastical
Courts, 55-69 ; petitory and possessory
actions, 55, n. ; Vacarius at Oxford,
55, 5^; "ordo judiciarius," 56;
summons, 56; archdeacon holds court,
57 ; judges chosen, 57 j modes of
trial, 63-69 ; appeals, 69, 70 ;
punishments, 70, 71 ; relation to lay
courts, 71-75 ; practice as to final
judgments, 341-344.
Englishry; 81, 241-243.
Enrolment ; early use of, 319, n., App.
No. 56.
Entry, Writ of ; history, 165, 166.
Equity ; in the general courts, 19, 20 ;
in ecclesiastical court, 42, 71, 72 ; in
King's Court, 53, 195 ; in Exchequer,
129, 193, 194'
Errantes Justitiss ; 136.
Escheat ; of an honour, 102, n. 2 ; ac
counting for in Exchequer, 1 18; in
Eyre, 138, 140.
Essarts ; 118, 146.
Essoins ; of sheriff in Exchequer, 117,
118 ; hearing of, 230; examples, 231,
240 ; number allowed, 237 ; how
ended, 237, 238 ; in King's Court,
238-240 ; in recognitions, 239, 240 ;
proof of, 305, 306.
Evidence ; burden of proof, 60-63, 272,
289, 291, 293-29J) ; production of,
288-300 ; competency of compurga
tors, 301, 302 ; of witnesses, 308.
Exchequer; common pleas heard in, 85,
86, 91, 125-131 ; in counties, 98 ;
work of Roger of Salisbury, 103 ;
predecessor of Exchequer, 103-105 ;

406

INDEX.

early monetary system, 104-106 ;
meaning of Exchequer, 106 ; Ex
chequer table, 106; tallies, 107; mem
bership, 107-112; peculiarity of
procedure, 113; mode of same, 113,
114; how differs from procedure of
King's Court, 115, 116 ; evasion of
taxes, 116, 117; essoins of sheriff,
117, 118; levy on property for debt
to the Crown, 1 19, 120 ; treatment
of great men, debtors, 120-122 ;
relation of Exchequer to other courts,
122-126 ; interrupted in Stephen's
reign, 128 ; equity in, 129.
Eyre ; early iters, 92, 93 ; regular sys
tem in 31 Hen. I. 94 ; renewed by
Hen. II. after anarchy of Stephen, 94;
fiscal and judicial Eyres, 94-96 ; fre
quent changes of judges, 95, 96 ;
inquisition process, 97, 98 ; business
of Eyre, 98, 138-141 ; an Exchequer,
98 ; relation to Folkmot, 102 ; at
tendance, 103 ; distinguished from
ancient Shiremot, 136-141 ; discon
tinued in Stephen's reign, 136.

False Judgment ; meaning of, 298 ;
procedure in cases of, 299 ; how
defended, 299, 300.
Ferm ; accounting for in Exchequer,
118.
Fiction ; jurisdiction of King's Court
aided by, 85 ; so later of Exchequer,
85, 86.
Final Judgment ; chapter x. p. 341 .
Fines and Concords ; redress of breach
of, 82.
Five Danish Burghs ; 12.
Folkmot ; see County Court, Hundred
Court, Manorial Court.
Fore-oath ; 248-250.
Forest Court ; by whom held, 144 ;
jurisdiction, 144, 145 ; a kind of Ex
chequer, 145 ; procedure in, 145 ;
complaint as to, 145, 146 ; office of
forester in de Neville family, 146.
Forms of Action ; growth of, 147, 148,
196, 247.
Formula? ; rhythmic language, 246, 247 ;
examples of, 249-256,

Forum ; "actor forum rei sequi debet,"
219, n.
Franchises ; opened to the sheriffs and j us-
ticiars, 101,200; exemption from geld,
305 ; see Baronies, Manorial Court.
Frankpledge ; 142, 143.
Fugitives ; history of writ as to, 168,
169.

Ganelon, Case of ; 287, n., 330, n.
Geld ; see Exchequer, Franchises.
Godi ; power of in the tolftarkvidr, 332,
333-
"Good Summoners"; 224, 225, n.
Grand Assise ; unanimity in, 5 ; origin
of in England suggested, 175, "• 2,
App. No. 56, n. ; when granted, 1 78 ;
proceedings under, 269, 273, 295.
GrandJury ; under Assise of Clarendon,
99, 100, 278, 323 ; presentment by,
292, 293 ; returns of, 293.
Great Council ; see King's Court, Wite
nagemot.
Hallvard's Case ; 332, 333.
Harou ; 212, u.
Henry of Essex's Case ; 290.
Henry the Second ; fear of the pope,
43, 44 ; his reforms as to clerical
jurisdiction summarised, 52.
Homage ; jurisdiction of, 82.
Homicide ; Norse procedure as to, 226-
228 ; pledges not received, 278, n.
Hord ; succeeded by what, 106.
Hostages; 347.
Hot Iron Ordeal ; 326.
Hubert de Burgh ; the last of the
ancient justiciars, 90, u.
Hue and Cry ; 212.
Hundred Court ; how often held, 141 ;
attendance, 141, 142 ; jurisdiction,
142 ; judges in, 142 ; frankpledge,
142 ; Sheriffs Tourn, 142.
Huon de Bordeaux ; 347, u.
Husting ; 14, 141.
Icelandic Procedure ; chapter ii. passim,
224-22S, - 311-316; compurgation
under, 17, 315,

INDEX.

407

Illicit Intercourse; jurisdiction as to, 50,
Inferior Courts ; record of, 319, 320.
Ingulfs Chronicle of Crowland ; 154, n.
Injunction; writs in the nature of, 129.
Inquest; Norse, 18, 31 1-316; coroner's,
334, n.
Inquisition ; in the popular courts, 3 ;
not in use in England before the
Conquest, 3 ; in the Ecclesiastical
Courts, 60 ; distinguished from recog
nition, 175, 11. 4, 335 ; comparison
with Norse inquests, 331-334.
Intestate Property; jurisdiction as to, 52.
Iron, Hot ; ordeal of, 326.
Issue Term ; chapter vii. p. 229.
Itinerant Justiciars ; 92-103; see Eyre.

Jews ; 139, 140,
Judgment ; at the issue term, 283-287 ;
confession of, 283, 284 ; by default,
285, 286 ; on questions submitted to
the judges, 286, 287; false judgment,
299, 300 ; dividing the Norse court,
313, n.; final judgment, chapter x.
P- 341-
Judices et Juratores ; 134.
Jurata ; earliest mention of, 125 ;
whether in general use temp. Hen. II.
337-34° ; nature of, 337 ; difficulty
as to, 338.
Jurisdiction ; Conqueror's charter as to,
30-33, 72, n. 4, App. No. 1 ; see the
various courts.
Jury ; foreshadowed, 64, 11. ; Norse in
quests, 331-334 ; origin of jury, 334-
337-
Justice, Sale of; 155, 156, 187-190,
198, n.
Justices in Eyre ; 137.
Justiciar ; position in the kingdom, 87 ;
loses rank, 87, 90 ; position in Ex
chequer, 107.

King ; a judge in equity, 19.
King's Council ; the Great Council, 19-
25, 90 ; smaller council of latter part
of twelfth century, 87-91.
King's Court ; what it succeeded, 3 ;
procedure of contrasted with that of

popular courts, 3 ; a disturbing in
fluence, 75 ; how jurisdiction ex
tended, 75-86 ; not a committee of
the Great Council, 75, 76 ; use of
writs of pracipe, 77, 78 ; criminal
jurisdiction to?//. Glanvill, 81 ; juris
diction of scuffles, blows, and wounds,
81, 82, 84, 85 ; civil jurisdiction, 82 ;
membership, 86 ; special court of five
members created, 87, 88 ; revisory
authority over, 88, 89 ; division of
the kingdom into four circuits, 89 ;
Bench, 89, 90 ; smaller body a com
mittee, 89, 90 ; King's Council, 89-
91 ; smaller body attended the king,
92 ; inconvenience thereof, 92 ; Eyre,
92-103; jurisdiction completed, 101.
King's Hand; taking property into, 221.

Law of the Land ; 155, n. 3.
Laws of Edward Confessor ; 1 6.
Laws of Henry I. ; 15.
Leet ; 144, n. 2.
Liber Wintonius ; 129.
Ligare ; 214-216.
Lincoln ; exemption from duel, 296.
London ; exemption from duel, 296.
Longchamp ; becomes both chancellor
and justiciar, 87, 90; increased im-
portanceofchancellorunder, 87, n., 90.
Lord and Man ; mode of trial between,
250, 251, 298, 11.
Lucrandum vel perdendum ; 224, 227,
245.

Magna Assisa ; unanimity in, 5 ; origin
in England suggested, 175, n. 2,
App. No. 56, n. ; when granted, 178 ;
proceedings under, 269-273, 295.
Magnum' Concilium ; see King's Court,
Witenagemot.
Mandate, Conditional; 153, n. 2, 155,
n. 2.
Manorial Court ; rank of Hundred, 143 ;
sometimes independent of Shiremot,
143 ; from what derived, 144 ; crimi
nal jurisdiction, 144; great franchises,
144 ; see Franchises.
Manors ; 144.

408

INDEX.

Marriage ; jurisdiction of questions re
lating to, 50.
Marshal ; position in Exchequer, 109,
no, 121.
Matilda's Case ; 63, 64.
Mayhem ; making proof as maimed
man, 250, n. 3, 252, 297.
Medial judgment ; in ecclesiastical
causes, 59 ; chapter viii. p. 288.
Minuti Homines ; 134.
Miskenning ; 57, 246.
Money; in eleventh and twelfth cen
turies, 104, 105 ; clipping, 105 ;
testing, 106 ; blanch-ferm, 106.
Mord ; demands return of dowry, 224.
Mord v. Flosi; 227, 228, 311-315.
Movables ; search for, 212, 214 ; actions
for recovery of, 213, 214.
Murdrum; 81, 118, 240-243.

Ne injuste vexes ; history of writ, 166-168
Neville, Alan de ; 146.
Nisi feceris Clause ; 79, 83, 84.
Njal ; 224, 225, 314.
Norman Records ; value of as evidence
concerning procedure in England, 4-6.
Norse Procedure ; chapter ii. p. 8,
passim, 224-228, 311-316.
Northweorthig ; name changed to
Deoraby, n, n.
Novel Disseisin ; history of writ, 169-
183 ; change of procedure in use of,
172-174; principle of action, 175,
176; applicable to movables, 179;
damages for, 345, 346.

Oath ; formulae of, 249, 250 ; kinds of,
303, 304 ; how sworn, 304.
Oblata in Rem ; 122.
Oblata in Spem ; 122.
Oblata spontanea ; 122.
Obsides ; 347.
Ordeal ; decline of, *, 322, 323 ; use of
in ecclesiastical causes, 59, 60, 65 ;
in lay causes, 297 ; nature of trial
by, 322 ; loss of ground, 322, 323 ;
Assises of Clarendon and Northamp
ton as to, 323 ; discontinuance of,
323, 324 ; effect of this, 323 ; peine

forte et dure, 324 ; forms of ordeal,
325 ; ceremonials, 325, 326.
Ordo judiciarius ; 56, 57.
Outlawry ; a last resort, 348 ; punish
ment for contumacy, 348 ; extended
to after-born children temp. Edw.
Conf. 348, n. 4 ; not to prior-born,
348, n. 4 ; how effected, 348, 349 ;
wolfs head, 349, n.
Oxford; perhaps exempted from duel,
296; Vacarius at, 55, 56, 173, 174.
Oxford, Provisions of ; 197, 198.

Party- Witness ; see Witnesses.
Peine forte et dure ; origin of, 324, 325.
Perlustrantes Judices ; 137.
Petitory and possessory Actions ; adop
tion of, 172-175.
Pipe Roll; 94, 107.
Placita; meaning of, 122, 128, n.
Placita Coronae ; 240-246.
Pleading ; in Ecclesiastical Courts, 60-
63 ; in lay courts, 246-287 ; examples,
254-285 ; under recognitions, 257-
259 ; in real property causes, 254-
275 ; in appeals of robbery, 276 ; in
trespass de bonis, 277; in high
crimes, 277-281 ; Norse criminal
formulae, 280, 281 ; in debt, 281,
282 ; in detinue, 283 ; difference
between ancient and modern plead
ing, 291, 292.
Pleas of Crown ; 240-246.
Pledges ; requirement of in litigation,
229, 230, 258, 288, 329, 341 ; judg
ment against, 347, 348.
Possessory and Petitory Actions ; adop
tion of, 172-175.
Praecipe Writs ; use made of, 77, 78, 83.
Prerogative, Royal ; as to writs, 197 ;
limited by Provisions of Oxford, 197,
198.
Presentments, Criminal ; 99, 100, 278,
292, 293, 323.
Prima facie case ; how made, 248-251.
Probator ; proceedings in appeal by,
328-330.
Prohibition ; writ of, 53.
Promiscuous Intercourse ; jurisdiction
as to, 50.

INDEX.

409

Proof; burden of, 60-63, 272, 289, 291,
293~295 ; production of, 2S8-300.
Protection ; writs of, 192-194.
Provisions of Oxford ; 197, 198.
Public voice ; accusation by, 58, 99-
101, 277, 297, 307, 323.
Punishment; in clerical courts, 70, 71.
Purgation ; of men in orders, 64, 65 ;
see Compurgation, Corsnsed, Ordeal.
Purprestures ; 82, 118.

Exchequer, 103, 105, 106 ; connec
tion with King's Court, 159, 11.; writ
by, 161.
Roll of Pipe ; 94, 107.
Roman Law ; study of at Oxford, 56 ;
forbidden, 56, n. 2.
Rotulus exactorius ; 118.
Royal Prerogative ; as to writs, 197 ;
limitation of, 197, 198.

Rape ; jurisdiction as to, 50, 80, 81.
Real Property; pleading in causes of,
254_275 j nnal judgment in favour of
plaintiff, 341-346.
Recognition ; known to popular courts,
3 ; not used in England before Con
quest, 3 ; unanimity, 5 ; in Ecclesi
astical Courts, 60 ; history of writs
of, 170-191 ; distinguished from in
quisition, 175, n. 4; procedure in
trial by, 178, 229, 230; applicable
to cases' of movables, 1 79 ; question
of priority of use in Normandy, 186 ;
variance in fees paid for, 187-190;
regulation of form of, 191 ; effect of
pleadings, 230, 257-260 ; essoins in,
239, 240 ; number of men in, 258,
259 ; ordinary pleas in, 260-262 ;
examples of pleadings, 262-265 >
compared with Norse inquest, 331—
334 ; original of modem jury, 334-
337; nature of, 335; recognitors
might inquire as to facts, 335, 336.
Record ; trial by in Ecclesiastical
Court, 66; meaning of term, 299, u.,
319 ; trial by in lay courts, 318-322 ;
inferior courts, 319 ; examples of
trial by, 320-322.
Reforms of Hen. II. ; 52.
Reliefs ; jurisdiction of, 82.
Replevin; stress laid upon right of, 219;
replevin from the king's hand, 221,
342, n. ; canon law as to, 221, 222,
362.
Representation ; in the County Court,
133, 134, J37 ; m the Hundred, 141,
142.
Robbery ; pleading in appeals of, 276.
Roger of Salisbury ; reorganises the

S acramentum ; frangens or fractum,
303 ; observatum, 303 ; planum,
303 ; simplex, 303.
St. Edmundsbury ; exempted from duel,
296.
Sale of Justice ; 155, 156, 187-190,
198, n.
Scutage; 118.
Seal; impeachment of, 294, n., 317,
318.
Search; stolen goods, 212, 213.
Secta ; in twelfth century, 256, 257
339, 340.
Security ; requirement of in litigation,
229, 230, 288, 289.
Seisin; trial of by duel, 177,11. 1,296.
Services ; writ for enforcement of, 160-
163 ; loss of land by failure to per
form, 344.
Sheriff's Tourn ; 142.
Sheriffs ; as fiscal officers, 94-96 ; re
moval of, 96, 97 ; loss of judicial
function, 99, 100, 131, 137, 11., 140;
accounting in Exchequer, 110-112;
essoins of, 117, 118; holding Eyre,
136, '37-
Shiremot ; see County Court.
Stephen, King ; summoned before
Ecclesiastical Court, 33, n. 3 ; oath
of office, 33, a. 7 ; 34, n. 2 ; exten
sion of ecclesiastical jurisdiction in
reign of, 34.
Stolen Goods ; search for, 212-214 >
proceedings in actions for, 213, 214.
Streoneshalch ; name changed to
Whitby, n, n,
Summons ; in Ecclesiastical Court, 56 ;
in Exchequer, 114, 116, 118, 119,
149; ancient mode, 147,217; new
mode, 148, 217, 218; form of sum-

4io

INDEX.

mons, 149, 1 50 ; history of writs of,
169-191 ; general summons, 217 ;
what time allowed for appearance,
218 ; in cases of divided tenure, 218,
219 ; failure to appear, 219 ; attorney
to receive, 222 ; proof of, 223 ;
"good summoners," 223, n. 4;
formalism as to, 224 ; Norse sum
mons, 224-226 ; in Norse divorce
cases, 226 ; in Norse homicide cases,
226-228.
Sureties ; requirement of in litigation,
229, 230, 258, 288, 329, 341 ; pro
ceedings against, 308 ; judgment
against, 347, 348.
Synod ; of Winchester as to costs, 37 ;
synods resembling Witenagemots,
44, 11., 61.

Tallies, Exchequer; 107, no, 114.
Taxation ; see Exchequer, Franchises.
Tenmannetale ; 142.
Terminus ; 238, n.
Teutonic Procedure ; vitality of, II, n.
Theft ; hue and cry, 212 ; search, 212,
213.
Thegn-men's Court ; successor of, 3,
76, 79, 199.
Thieves ; hanging of forty-four, 2 4.
Thing ; Norse Court, 13.
Tolftarkvidr ; 18, 332-334.
Townships ; 144.
Treasurer ; 107-122, passim.
Treasury ; 103-105, 127.
Trespass ; actions for, 49 ; jurisdiction
of> I35, :36, 151 ; writs for redress
of, 159, 160; pleadings in, 277.
Trial Term ; chapter ix. p. 301.
Trithing ; 14.
Tunscipesmot ; 144, n. 4.

Unanimity ; in recognitions and Grand
Assise, 5, 259.
Unna ; suit for dowry, 224, 225 ; for
divorce, 225.
Usher; position in Exchequer, 112,113.
Usury; jurisdiction as to, 51, 139.

Vacarius ; teaches at Oxford, 55, 56,
173; composes nine books on actions,
55,56, 173; teaching stopped, 56,174.
Vice-chancellor ; not a judicial officer,.
43, n-
Viga-Glum Saga ; 332, 333.
Villenage ; 136.
Voucher to Warranty ; proceedings in,
265-269.

Wager of Battle ; see Duel.
Wager of Law ; see Compurgation.
Wallingford ; honour of opened to
sheriffs, 101 ; peace of, 174, 175, n.,
App. No. 56, n.
Waltheof s Case ; 23.
Wapentake ; 141-143.
Warranty ; voucher to, 265-269 ; arose-
without express words, 268, 269.
Water Ordeal ; 325.
West-Saxons ; 9.
Whitby; original name, II, n.
Wills ; jurisdiction as to, 51 ; intro
duced by church, 51 ; whether ambu
latory, 51, n. 3.
Winchester ; exempted from duel, 296.
Winchester, Synod of ; as to costs, 37.
Witenagemot ; in Norman period, 3,
20 ; in Anglo-Saxon period, 20 ; other
names for, 20 ; confusion as to, 20,
21 ; jurisdiction of, 21-25 > not a
court of appeal, 22 ; synods re
sembling, 443, n.
Witnesses ; in ecclesiastical causes, 57,
58, 60 ; de visu et audit u, 251 ; when
not required, 25 1 ; champion-witness,
252, 253; trial by, 29S, 308-311;
loses ground, 310 ; what sworn to,
308 ; examination of, 308 ; trial by in
criminal cases, 295, 309 ; classes of,
309, 310 ; witnesses of rank privileged,
310; chief use of, 310, 311.
Wolf's Head ; 196, 349, n.
Women ; appeals by, 252, 297.
Writ Process ; chapter iv. p. 147 ; de
velopment of, 147 ; did not originate
modern forms of action, 147, 196,
247 ; use made of, 151 ; writs of com
mission, 151,152; to defendants, 152,
153 ; in nature of execution with-

INDEX.

411

out judgment, 153-156; want of form
in early writs, 156 ; history of writs
of right, 157-168 ; writ of trespass,
159, 160; writ as to services, 160-
163 ; writ of debt on loan, 160-165 >
writ of entry, 165, 166 ; writ ne
injuste vexes, 166-168 ; writ as to
fugitives, 168, 169 ; writs for recog
nitions, 169-186 ; writ of novel dis
seisin, 171-186; Magna Assisa, 175,
n. 2 (see Magna Assisa) ; fees for
having writs, 187-189 ; conclusions

as to growth of writ process, 191 ;
writs of protection, 192-194 ; writs
in nature of injunction, 194-196 ;
conclusions as to use of writs, 196-
200 ; royal prerogative as to, 197,
198 ; Provisions of Oxford, 198 ;
Statute of Westminster II. 198 ; writs
not necessary in Folkmots and Eyre,
273-275.

York ; held by the Danes, 12.

THE END.

CHARLES DICKENS AND EVANS, CRYSTAL PALACE PRESS.

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