109 Accession of Henry II.-Season of Peace-Civil Jurisprudence. served to posterity (a); the school, however, has been continued down to the present day (b). LAWS AND INSTITUTIONS OF ENGLAND FROM THE REIGN OF Accession of Henry II.-English regain the Ascendency-Attention turned to Civil Jurisprudence Proceedings by Writ introduced-Appeal in Pleas of Land-Matters of which the Curia Regis held exclusive Jurisdiction-Vast increase of business in the King's Court. Trial by Assize-The Grand Assize-Recognitions-Assize of Novel Disseisin-Proceedings before the Juratores in Assizes-Verdict, on what it was founded-Special Verdicts—Origin of Trial by Jury in Civil Cases. Number of Justices in the King's Court-Hen. II. to Hen. III.—Court of Common Pleas established in the Reign of John-The Court of King's Bench-Pleas of Trespass vi et armis, (int. alia,) determined there-The Court of Exchequer-Fictions and other Contrivances resorted to by each of the Courts for enlarging their respective JurisdictionsJustices in Eyre appointed-Justices of Assize, and Nisi Prius--Parties prohibited from bringing Cases under 40s. to the King's Court. The Chancellor-Great advance in Rank and Dignity. The Clergy-Jurisdiction in matters of Breach of Faith and Trust taken away-Questions as to Marriage-Wills of Personal Estate, &c. left to the Ecclesiastical Courts. Glanville's Treatise on the Laws of England-Bracton's-Fleta-Britton-Mirror of Jus tices, &c.-Sources from which these Treatises were compiled-Doctrines of Roman Law to be found in Glanville's Treatise-Also in Bracton's, without direct reference-Jus Pratorium of the Common Law-Direct Reference to the Institutes, Digest and Code, by Bracton-Other sources of these Treatises-Rolls of Justices in Eyre—Roman Law referred to on Constitutional points-The maxim "Quod Principi placet legis habet vigorem” -Disappearance of Anglo-Saxon Laws-The Common Law of England established. Retrospect of Alterations made in the Judicial System of England-The necessity for some interference to supply the deficiencies of the Common Law, and to correct its rigor in particular cases adverted to-Consideration of the means adopted for this purpose, through the establishment of the Court of Chancery, deferred till the general principles of the Common Law, and its Mode of Procedure have been more fully considered. IN the reign of Henry II., a season of peace supervened upon a long succession of intestine commotions; one source of internal discord, the distinction of races, had become nearly effaced (c). The degraded *English now, as after the Danish Conquest, acquired the ascendency over their oppressors, and Henry and his successors reigned [*111] (a) Savigny, iv. p. 94. (b) See Sir Wm. Blackstone's Inaugural Discourse, Comment. vol. i. p. 19, 20. Doctor of Civil Law is still the honorary distinction conferred by the university on celebrated persons. It is to be remarked, that Oxford has ever been treated as the nursery of high prerogative and high Church doctrines. (c) "By cohabiting together and marry ing, it was hardly possible to distinguish who was an Englishman or who was a Norman, by birth, except those who were registered as villeins," Dial. Ex. i. c. 10. p. 26 b. It is remarkable that the Chroniclers of the times traced the pedigrees of Hen. II. and III. up to Noah and Adam, through the Saxon not the Norman line; see M. Paris, 79, 24. 352, 22. It had been much the practice with the monkish flatterers of the Anglo-Saxon kings, to trace their pedigrees to Adam; v. int. al. Malmsbury, p. 41, who copied from some of these writers. Pleas as to Land-Writs-Matters cognizable in Curia Regis. 111 over an amalgamated population (a). Henry, a prince celebrated for his wisdom, virtue and ability, and his advisers, took advantage of these favorable circumstances to turn their minds to civil jurisprudence; which for various reasons demanded their serious attention, particularly as regarded the business of the king's court. As a consequence of the maxim that all lands were held mediately or immediately of the king, it had become a settled rule that no one should be put to answer in any court whatever, in regard to his freehold, without the king's writ (b). Whether the plea should be decided in the king's court, or before the sheriff, or other person appointed by the king to act as his justice at one of the ordinary tribunals, depended on the nature of the question, and the will of the king (c). If the plea were to be tried in the king's court, the king by his writ commanded the alleged deforciant to appear before the king or his justices at a specified time (d). As a consequence of the plea commencing with the king's writ; in default of justice being done in the court of original jurisdiction it might be brought by way of ultimate appeal to the king's court (e). The Curia Regis had exclusive jurisdiction in treason, murder, and homicide, arson, and some other crimes (f). Besides these several, to some extent novel, subjects of jurisdiction in the king's court, an advanced state of society had introduced many questions as to civil rights, in the decision of which the meagre written laws of the Anglo-Saxon sovereigns, and of the Conqueror, if they were ever referred to at all, would afford little assistance (g): the king, as the fountain of the law, in conformity with the ancient Anglo-Saxon constitution, must have been applied to in such cases. Besides this, the uncertainty of the decisions of the ordinary tribunals, (where the freeholders decided not only on the fact, but upon the law, unless in cases tried before one of the king's justices (h),) caused many persons to apply to the king for leave to have their pleas determined in the King's Court or before his justices: others made *the like applications from less worthy motives (i). The con[*112] current operation of these circumstances, and the increasing number of questions as to the rights of the crown which were probably cognizable before the king alone or his justices (k), caused a vast increase diversis causis quæ superius expositæ sunt, ad capitalem curiam Domini Regis transferri," Glanville, xii. c. i. (f) Glanville, lib. xiv. tit. "De placitis de criminibus quæ ad coronam regis spectant." (g) It is remarkable that in the several treatises written about this time, which I shall presently have occasion to mention, none of the prior written codes are ever referred to, not even that of William; or if they are, it has escaped my observation. (h) V. inf. p. 113. This (i) Mad. Hist. Ex. vol. i. 96-99, and p. 429; Rymer's Foed. i. p. 12, &c. subject is discussed in a very able article in the Edin. Review, No. Ixix. p. 14, et seq. where the authorities are collected. (k) Mad. Hist. Ex. i. p. 101, 102, note (ƒ). 112 Introduction of Trial by Assize-Origin of Trial by Jury. of business in the King's Court (a), which had most important effects on the whole system of jurisprudence. Inquests in judicial matters, civil and criminal, before a sworn jury of twelve men, selected by the sheriff from the vicinage, pursuant to the king's writ (per juratam patria) appear to have been commonly resorted to after the Conquest. In the reign of Hen. II., the analogous trial by assize was introduced for the decision of certain questions in regard to real estate, in order to get rid of trial by duel (b) which the Normans had introduced for the determination of such questions. This subject is important as connected with the origin of the modern institution of juries (c). The course in the Grand Assize, as it was called, was this-when the tenant or defendant chose to put himself on the assize, a writ was issued to the sheriff commanding him to select four knights of the vicinage, who were to elect twelve other knights also from the vicinage, who should say, on their oaths, which of the litigating parties had the greater right to the property in question (d). This was the mode when the absolute right to the property had to be determined. But when the contest arose as to seisin only, another kind of action or assize was resorted to, called a Recognition. The most important of these actions was the assize of novel disseisin. The disseisins or tortious ousters, which were the subjects of this action, were such only as had taken place since the last circuit of the Justices in Eyre (e). In an assize of this description, the sheriff himself chose twelve freeholders from the neighborhood (f) who were sworn to try the question, but the parties might challenge any of them for reasonable cause (g). The persons so selected in both cases, juratores as they are usually called, having taken a view of the premises, met at the day appointed, before the king's justices, both the parties having been summoned to attend, and then delivered their verdict. The jurors were to found their verdict in the grand assize on what they knew or had learned *by tradition from [*113] their fathers only; and if a knight were selected who knew no thing of the matter, he was excused and another appointed in his place (h). In Recognitions the jury also gave their verdict upon what they themselves knew, or had learned from tradition, for at this time no witnesses were produced in court. The ordinary juries, juratæ patriæ, were allowed greater latitude (i). The jury might give a special verdict finding the facts, leaving it to the justices to determine the law; but they (a) See Mad. Ex. i. p. 103, et seq. (b) Glanville, ii. c. 7. (c) In the Stat. of Marlebridge, c. 14, A. D. 1267, 52 Hen. III., juries are noticed as distinguished from assizes and inquests. Bracton, lib. vii. tr. 7, c. 1, notices one of the questions which was tried by the ordinary jury, per juratam. The subject will be further treated of in the Additional Note 1. (d) Glanville, ii. c. 10, 11. (e) Co. Litt. 153 b; any disturbance to the enjoyment of a man's right was a disseisin, Bract. 162 a. 27. (f) Legales homines, Glan. xiii. c. 1. 3. 7. (g) Ibid. c. 7. This was following up Hen. I.'s proposed regulation, v. sup. p. 106. (h) Glan. ii. c. 17; et v. Hist. Croyl. Gale, p. 455, 6. The principle was afterwards carried out to this extent, that witnesses to a deed were put upon the jury, together with the twelve, see stat. of York, 12 Edw. II. c. 2, Fortescue, De Laud. c. 32. See the Additional Note 1 to this chapter. (i) The ancient principle that juries should decide of their own knowledge, which was the foundation of the Common Law doctrine as to Venue, was relaxed in the time of Edw. III. See the Additional Note 1. Proceedings in Assize-Court of Common Pleas-King's Bench. 113 might (subject to the peril of an attaint as regards the jury in an assize (a)) give a general verdict upon the law and the facts, like the judges of the county court (b). The legislature, by many acts of parliament, particularly 13 Edward I. c. 25, and the courts of law by liberal constructions in furtherance of justice, improved the remedy by assize, and for the sake of the owners of property, extended it to every trespass or injury done to real property, if the owner in bringing his assize chose to admit himself to have been disseised (c). The trial per juratam patriæ, and by assize, each of which was a modification of the ancient AngloSaxon trial by the body of the county, and of the hundred, will readily be recognized as the basis of our present trial by jury in civil cases. The number of the justices of the King's Court varied considerably from the reign of Hen. II. to that of Hen. III. In 1179, Hen. II. appointed three chief justices, all of whom were bishops, and four coadjutors to each (d). The next year the office of chief justiciary was conferred on the celebrated Henry de Glanville alone, he was a layman (e). In the reign of John, we find Hubert, Archbishop of Canterbury, two bishops, two archdeacons, and five laymen, justices in the Curia Regis (f). In this reign a very important alteration took place. By one of the articles of the Magna Charta of John it was declared that common pleas should no longer follow the king. From this time (g) chief and other justices were appointed expressly to hear *and determine pleas of land, and injuries merely civil, which were known [*114] as common pleas, and that branch of the King's Court was fixed at Westminster (h). This is the origin of the Court of Common Pleas (i). The court still held before the king, from which the Court of Common Pleas was separated, or the Court of King's Bench as it was afterwards designated, continued to be the superior court of law for all criminal matters, and the judges were the supreme conservators of the peace, and coroners of the land. This court, as the king's peculiar common law court, also had the superintendence of all civil corporation in the kingdom (k). It also held pleas of trespasses accompanied by violence (vi et armis) (1), replevin, quare impedit (m), and debt in cases relating to its own officers; and it held cognizance of all personal action, where the defendant was already under the custody of the court. The con 32. (a) Bracton, 288 b; Fortesc. De Laud. c. (b) Litt. § 366. 368; Co. Litt. 228 a. (c) Lord Mansfield, 1 Burr. 110; Cruise, i. p. 66; it was extended to afford a remedy for the breach of a condition, Lib. Assis. 38 Edw. III., C. P. Cooper, Append. 543; Litt. §383. Assizes, as well as most other real actions, gradually gave place to the action of ejectment; they have been abolished. (d) Diceto, ap. Dec. Scrip. p. 606; Benedict. Abb. 317. The bishops, however, resigned their offices of judges at the instance of the pope, Lingard, ii. 410. At this time all the advocates appear to have been ecclesiastics, Malmesbury; Lord Lytt. iii. 201. (e) Lord Lytt. iii. 152. 208. Glanville, with two bishops, had been a Justice in Eyre in the same year. (f) Dug. Chron. series. Hubert had been Chief Justiciary in the time of Richard, Diceto, 678, 40. (g) If this was not a confirmation of an older practice, see p. 114, n. (h). (h) Black. Com. iii. 39; 4 Inst. 99; App. to 1 Ch. Rep. p. 6. Some high authorities have supposed that the Court of Common Pleas was separated from the King's Court some time before. Notes to Hale's Hist. by Runn. p. 172, &c., and 8 Co. Rep. 145 b. (i) The judges of this court, as well as of the King's Bench, were appointed by patent and commission, not by writ, Crompton on Courts, 69 a. (k) Black. Comm. iii. 42. (1) V. infra, as to the meaning of these terms. (m) Crompt. 67 b; 4 Inst. 71. 114 Court of Exchequer-Justices in Eyre-their Circuits, &c. venience of having this court to resort to in such cases, sanctioned the extension of its jurisdiction to persons not actually in the custody of the marshal of the court, but assumed so to be by the use of a legal fiction: other contrivances were afterwards resorted to by the Court of King's Bench to draw suits within its jurisdiction (a). This court was the court of appeal from all other courts of record (b), excepting the Court of Exchequer (c). The Court of Exchequer continued to be a separate court (d). By the constitution of this court it was excluded from hearing Common Pleas (e); but it also gained cognizance of them by a legal fiction, the plaintiff being permitted to allege that he was a debtor to the crown, and the aid of the court was invoked to enable him to recover from the defendant what would enable him to pay his debt to the crown (f). Henry III., by charter A. D. 1244, granted that the Chief Justice and the Chancellor (g) should be elected by common consent, and that *there should be two justices in the Court of King's Bench and [*115] two barons in the Exchequer, and that these also should be elected by common consent (h). Another important improvement in regard to the administration of justice in the provinces was established in the reign of Hen. II. So early, indeed, as the reign of Hen. I., Itinerant Justices, or Justices in Eyre, were occasionally appointed by the king, after the example of the Conqueror, to go from county to county, to hold pleas, civil, and criminal (i). From the time of Hen. II. this institution became permanent. Peace being restored, says the author of the Dialogue of the Exchequer, Henry, that he might again bring about former times, choosing prudent and discreet men, divided the kingdom into six parts, that chosen Justices called Itinerant Justices, might survey them and restore to them the rights which they had been deprived of, appointing a proper number in each county (k);-they were also to punish the guilty by fines and otherwise (). These justices went from county to county, and held (a) Wynne's Eunomus, Dial. iii.; Crabbe, Hist. C. L. There are numerous instances of trespass in K. B. from Edw. IV. downwards. See Brooke, Conscience, 16, &c. (b) "Qui omnium aliorum corrigere tenentur injurias et errores," Bract. iii. c. 10. (c) Hen. III. sometimes personally sat in this court, see Vin. Abr. vii. p. 551. (d) Bracton, iii. c. 7, 105 b; Black. Com. ubi sup.; 4 Inst. 70; Ib. 103-5. 113, &c. (e) Mem. in Scacc. Y. B. p. 12; 1 Rep. C. L. Comm. 79; but there is an instance of the executors of a bishop paying a fine of 10. for liberty to sue in this court, Y. B. p. 25. (ƒ) From a very early period, every kind of contrivance was resorted to by the Courts of King's Bench and Common Pleas, and the Court of Exchequer, to enlarge the jurisdiction of their respective courts, and to draw business there. Lord Hale, Harg. L. Tr. i. 367. This was continued down to the reign of Charles II., North's Life of Guilford, i. p. 189, indeed afterwards. The key to all this was, that the judges then received profit from fees. By the stats. 2 W. IV. c. 39, and 1 and 2 Vict. c. 110, these fictions and contrivances were put an end to. One form of process namely, writ of summons-was estab lished for all the courts. (g) The Bishop of Chester, Chancellor to Hen. III., refused to give up the seals, unless by the common consent of the realm, M. Par. 363. 400. (h) Mat. Par. 564, 50. "quemadmodum omnium negotia sint tractaturi, sic etiam in eorum electione concurret assensus singu lorum," et v. ib. 649. 778, &c. In the time of Edw. I. A. D. 1289, there was a chief jus tice and four other justices of the King's Bench, Chron. T. Wykes, ap. Fell, p. 119; they were all fined and displaced for misconduct. Ib. (i) Hardy, Introd. to close Rolls, p. xxiv. note; et v. sup. p. 101. (k) They were also fiscal officers, Thorn. 2066, 50; see Lingard, ii. 404. (1) Dial. Ex. ii. c. 2. p. 38, 39; et v. Mad. Hist. Ex. i. p. 122; Bracton, 105 b. A regu |