The student's legal history

THE STUDENT'S LEGAL HISTOBY

FOURTH EDITION

THE STUDENT'S

LEGAL HISTORY

BY

R. STOREY DEANS

h

OF GRAY'S INN, BABKISTEB-AT-LAW, LL..B., ,

/

Sometime Holder of Inns of Court Studentship; Arden Scholar of Gray's Inn,

FOURTH EDITION

LONDON

STEVENS & SONS, LIMITED

119 & 120 CHANCERY LANE

3Law {publishers

1921

PREFACE 10 FOURTH EDITION

MY thanks are due to my friend Mr. de Freitas
for his assistance in the preparation of this
edition.

R. STOREY DEANS.

3 ELM COURT,
TEMPLE,
1921.

TABLE OF CONTENTS. Vll

TABLE OF CONTENTS.

PAGE

INTRODUCTION 1

CHAPTER I. — BEFORE THE NORMAN CONQUEST ( — 1066)

Treason — The Saxon Land Laws — Socage — Modes of Convey-
ance— Livery — Dower — Curtesy — The King's Peace — Modes
of Trial — Wager of Law — Punishments and Penalties —
Outlawry — Summary 2-10

CHAPTER II.— WILLIAM I. TO HENRY III. (1066—1272).

Tenure of Land — Military Tenure — Socage — Villeinage —
Tenants in Capite — Distress — Dower — The Curtesy of
England — Descent and Succession, and Testamentary Dis-
position — Alienation of Land — Mortmain — Centralized
Justice — Rise of the Three Common Law Courts — Justices
in Eyre : Assizes — Separation of Ecclesiastical and Civil
Jurisdiction — Common Law — The King's Peace — Criminal
Law — Treason — Criminal and Semi-criminal Procedure —
Main Prize — Bail — Punishments : Crimes and Torts — Real
Actions — Writ of Right — Writ of Entry — Assizes — Real and
Personal Property — Leaseholds — Personal Actions — Debet et
Detinet — Covenant : Trespass — Account — Writ — Pleadings
— Modes of Trials : Abolition of Ordeal — Duel — Appeal of
Felony — Duel in Civil Actions — Trial by Jury : Grand
Jury : Inquests — Trial by Jury in Criminal Cases — Jury in
Civil Cases — Functions of the Jury — Summary 11-36

CHAPTER III.— EDWARD I. TO RICHARD III. (1272—1485).

General — Real Property : Statute de Donis : Estates Tail —
Fines and Recoveries — Quia Emptores : Alienation of Land
—Mortmain— Writ of Waste— The Law of Real Property
settled — Copyholds — Procedure — Prescriptions in Real
Actions — Other Reforms — Statute of Westminster II. — Land
Liable for Debts : Elegit — Actions on the Case — The Law of
Simple Contract — The Law Merchant: Statutes Merchant
— Imprisonment for Debt — Sedition — Pleadings — Indict-

Vlll TABLE OF CONTENTS.

PAGE

ments in Writing — Certainty of Criminal Pleading — Com-
missioners of Assize — The Court of Chancery — Writ of
Subpoena — Uses — Procedure in Chancery : Petition : Bill —
Discovery : Interrogatories — Injunction to restrain Action
at Common Law — Justices of the Peace : 1 Edw. III. c. 16 :
4 Edw. III. c. 2 : 34 Edw. III. c. 1 — Conservators, now
called Justices of the Peace — Appeal from Justices to the
King's Bench: 1 Edw. IV. c. 2: Quarter Sessionsr— The
King's Peace: Extention of the Theory — Summary 37-61

CHAPTER IV.— HENRY VII. TO ELIZABETH (1485—1603).

General — The Statute of Uses — Summary of the Statute —
Tyrell's Case — Trusts — The Statute of Uses and Conveyancing
— The Law of Wills of Land— Statutes of Bankruptcy, 34 &
35 Hen. VIII. c. 4, and 13 Eliz. c. 7— Statutes to prevent
Fraud— The Star Chamber— 3 Hen. VIII. c. 1— Criminal
Jurisdiction — The Privy Council as a Court — Civil Juris-
diction of the Star Chamber — Its Decline — Treason — The
Court of Wards and Liveries — High Commission Court —
Exchequer Chamber — Appeals from King's Bench — Appeals
from Exchequer — Trials at Nisi Prius — The Action of
Assumpsit — The Action of Ejectment — The Action of Trover
and Conversion — Summary 62-80

CHAPTER V.— JAMES I. TO JAMES II. (1603—1688).

General — The Law of Real Property — Abolition of Knight-
service Tenure — Wills of Land — Charters of Conveyance —
Leases — Personal Property : Statute of Distributions — The
Law of Patents — The Common Law — The Action of Eject-
ment— The Statute of Frauds — The Law Merchant —
Criminal Law — Treason — Seditious Libel — Seditious Words
— Writ of Habeas Corpus and the Habeas Corpus Act, 1679
— The Court of Chancery — Juries — The Jurisdiction of the
House of Lords — Summary 81-102

CHAPTER VI. — WILLIAM AND MARY TO THE END OP LORD
ELDON'S CHANCELLORSHIP (1688 — 1827).
General— Real Property — Wills of Copyholds— The Law of
Copyright — The Law Merchant — International Law — The
Law of Gaming and Wagering — The Law of Bankruptcy —
Common Law Procedure — Equity : Development — Criminal
Law — Habeas Corpus : Further Legislation— Treason : Pro-
cedure— Riots : The Riot Act — Development of the Law of
Libel — Justices of the Peace and Quarter Sessions —
Summary 103-125

TABLE OF CONTENTS. IX

PAGE

CHAPTER VII. — GEORGE IV. TO PRESENT DAY (1827 — 1921)

General — Real Property — Feoffment with Livery — Wills —
Married Women's Separate Property — Equity — Joint Stock
Companies and Limited Liability — The Law Merchant —
Bankruptcy — Criminal Law — Criminal Appeals — Treason :
Treason Felony Act — Libel — Evidence — Procedure
in the Common Law Courts — Procedure since the
Judicature Act, 1873 — Trial by Jury in Civil Cases —
Women in the Law Courts — Fusion of Law and Equity —
County Courts — The Court of Probate— The Divorce Court —
The Courts of Bankruptcy — Fusion of the Courts — The
Court of Appeal — The House of Lords — The Privy Council
— Summary 126-162

CHAPTER VIII. — COURTS OF JUSTICE.

Anglo-Saxon Period — After Norman Conquest — The Court
of Exchequer — The Court of Common Pleas — The Court of
King's Bench — Fictions by which the Common Law Courts
extended their Jurisdiction — The Court of Exchequer and
the Writ of Quo Minus— The Bill of Middlesex— The Writ
of Latitat — The Court of Exchequer Chamber — The Court
of Chancery — Masters in Chancery — The Central Criminal
Court — Court of Criminal Appeal — Inferior Courts : Court
of Piepoudre : The Court Baron : Hundred Court : County
Court — Ecclesiastical Courts: Archdeacon's Court: Pre-
rogative Courts : Court of Arches : Court of Peculiars :
Courts of Delegates : Commission of Review — Admiralty
Courts .165-189

CHAPTER IX. — THE HISTORY or LAND TENURE IN ENGLAND..
Before the Conquest — After the Conquest — Knight-service
— Castleward — Cornage — Grand and Petit Serjeanty —
Wardship — Marriage — Aids — Reliefs— Socage Tenure .... 190-196

CHAPTER X.— THE KING'S PEACE 197-200

APPENDIX.— SUMMARIES 201-207

INDEX . . 209-218

THE HISTORY

OF

LAW. LEGAL PKOCEDURE, AND THE
LAW COURTS IN ENGLAND.

INTRODUCTION.

IN considering the Legal History of England, it will be
convenient to deal with the subject in seven periods, out-
lining as concisely, and at the same time as correctly, as
possible the leading features of each era. The division
will be as follows: —

1. Before the Norman Conquest ( — 1066).

2. William I. to Henry III. (1066—1272).

3. Edward I. to Richard III. (1272—1485).

4. Henry VII. to Elizabeth (1485—1603).

5. James I. to James II. (1603—1688).

6. William III. and Mary to George IV. (1688—1827).

7. George IV. to the present day (1827—1921).

This will form the first part of the book.

I shall next treat with more particularity the history
of certain branches of the subject which seem to be of
special importance, and this will form the second part
of the volume.

S.L.H. 1

CHAPTER I.

BEFORE THE NORMAN CONQUEST ( —1066),

OF this period very little is certainly known. There is a
plentiful lack of authority, and an immense amount of
•conjecture. There is no book which contains indisputable
internal evidence of genuine contemporary knowledge of
the Saxon laws; and such learning as we possess is con-

•'sf-ructef]/ Irpm- ancient chronicles and from tradition. It
is .not a.lways easy, to distinguish between law of Norman

''origin-' and IA V that had its beginnings before the Conquest.
This is because the Normans and the Saxons, being of
kindred origin, had, doubtless, much the same legal system
at the time when the one people settled in France and the
other in South Britain. They developed on different lines;
because the Normans came in contact with the Feudal
System of Europe, and the Franco-Roman law; while the
Saxons developed their institutions almost entirely from
within. At the same time, it must not be forgotten that
the people were essentially the same, and their institutions
similar in origin. The facts visible, more or less plainly,
through the mists of time are, shortly, these. Our Anglo-
Saxon ancestors had very rude ideas of law and legal
procedure. The Courts of Justice were local, consisting of
the Shire-moot, the Sheriff's Tourn, the Hundred-moot,
and the Tun-moot. Of these the Hundred-moot was the
principal. These Courts had jurisdiction over all kinds of
cases, and were presided over by the reeves of the shire,
hundred, and town respectively, assisted, as to the shire,
by the bishop. The Courts were essentially popular, verdict

BEFORE THE NORMAN CONQUEST ( — 1066). 3

(and probably sentence) being awarded by the popular vote.
As to the law therein administered, it seems to have been
mostly customary, varying-, especially in civil causes, in
different localities.

From the " Dooms," as the laws of the Saxon kings were
called, it can be gathered that the jurisdiction of the Courts
was local — Alfred hanged a judge for trying and sentencing
a man for a crime committed in another jurisdiction — that
there was an appeal to the king on a denial of justice
(./Ethelstane) ; that the sheriff's tourn was held once a
month; that tithes were enforceable at law; that all those
attending the Shire Court were sworn to do justice; that
compurgation and ordeal (see pp. 7 et seq., infra) were the
modes of trial ; that certain land (bocland) was transferable
by written charter; that wills were established; that all
legal transactions were to be done before some sworn men
of the hundred, so that they might be ready to try any sub-
sequent disputes. The last provision is, by some, thought
to be the remote ancestor of the jury system. If necessity
arose, these witnesses were sworn in the Hundred or Shire
Court, and practically decided the dispute on their own
knowledge.

In addition to these matters, there was established (by
Alfred) a system of frankpledge, by which all persons within
the law (i.e. not outlaws) were compelled to band together
as mutual pledges. Every ten men formed a tithing,
mutually responsible to deliver up to justice any of the
number charged with a crime; and ten of these tithings
formed a hundred, under the same kind of responsibility.
If a member of a hundred committed crime, and his
fellow-members could not produce him to take his trial
at the Shire Court, the whole hundred was amerced in
a fine.

Besides the Courts already mentioned, there were others
of a private nature, held by thanes within their own land.
Within such land, the administration of justice was abso-

4 THE STUDENT'S LEGAL HISTORY.

lutely in the hands of the lord ; though, possibly, the Shire
Court had a kind of appellate jurisdiction. It appears,
however, from the laws of ^Ethelstane,1 that there was an
appeal to the king; but whether this right was first estab-
lished by that king, or whether it was merely an assertion
of existing law, is not known.

It is stated, by Blackstone, Reeve, and others, that
Edward the Confessor compiled a code ; but this is doubtful
(Finlason's note to Reeve, vol. i. p. 44, 2nd edition). It is
certain that William the Conqueror, Henry I., and Stephen
promised to adhere to " the Confessor's laws " ; but this may
mean merely the laws which obtained in the Confessor's
time — not any body of law promulgated by him.

Treason. — One piece of legislation to be found amongst
the Dooms of the great Alfred is of considerable historical
value. It is an enactment on the subject of treason, and by
it any one who " plots to take the king's life either himself,
or by harbouring the king's men " (i.e. those outlawed by
the king), is declared liable to forfeit " his life and all that
he has." The word "treason" is of Norman origin, but
the foundation of the present law was thus laid as early as
the reign of Alfred.

The Saxon Land Laws. — We discover, from a study of
such records as still remain to us, that the Saxon system of
land laws was a simple one. Opinions differ as to whether
tenures (see post, p. 11) were known to the Saxons. Coke,
Selden, and others think that they were. The opinions of
Hale, Spelman, and the auctores diverse? scholce are on the
other side. Blackstone adopts a middle opinion, and says
that there were no real tenures, but only holdings very like
tenures, before the Conquest. This much may with certainty
be said, that the land was subject to the trinoda necessitas

1 It is very doubtful whether these are genuine.

BEFORE THE NORMAN CONQUEST ( —1066). 5

(threefold burden) of military service, construction of for-
tresses for the defence of the country, and construction of
bridges. Some land, called bocland (bookland), i.e. land
granted to the grantee by written instrument, called
gewrite, was hereditary; but probably no other kind. It is
submitted that the trinoda necessitous has been confounded
with the services to the lord, which are the keynote of the
feudal system of tenures.

Socage. — Undoubtedly freeholders, or socmen, existed in
Saxon times, but their socage right was one of absolute
ownership of the land, and the Norman kings, as will be
shown hereafter,1 retained only the name of socage, but
altered the substance.

Modes of Conveyance. — It is the general opinion amongst
legal historians,2 that the Saxons used deeds of conveyance
of land; the use of the word " &0oland " certainly indicates
something of the sort; and as veiy few people could write in
those days, in all probability the sealed deed came early into
use. Indentures — i.e. deeds written in duplicate on the same
parchment, and then cut through with a knife, so as to make
two parts, each with an indented edge — were also known,
but the word " indenture " does not seem to have been used.
Sealing deeds with wax is said to have been introduced by
Edward the Confessor from Normandy. At all events, it is
a legal custom existing in the country before the Conquest.

Livery. — But land could be conveyed without charter or
writing, so long as "lawful men" of the hundred were
present as witnesses. From this verbal conveyance, no
doubt, is to be traced " livery of seisin," which was a
symbolical ceremony accompanied by words of gift in the
presence of witnesses. The conveyer (afterwards called the

1 Infra, p. 12.

2 Bee Beeves' Hist, of Eng. Law, vol. i. p. 21 (2nd edition).

6 THE STUDENT'S LEGAL HISTORY.

feoffor) put into the hand of the conveyee (feoffee) a clod
of earth or a twig, and said words to this effect : — " I liver
this to you in the name of seisin of Whiteacre [describing
it] to have and to hold to you and your heirs for ever [or
heirs of the body, or as the case Tnay fee]." The name
livery of seisin is Norman.

Dower. — It is probable that dower was a Saxon institu-
tion. As we know it, it is the right of the wife in her
husband's estates of inheritance after his death; but the
Saxon institution was in the form of an express gift by the
husband to the wife immediately before or after the
marriage. If the husband did not specify any particular
part of his lands as dowrer, the wife took one-third. (See
p. 13 for development of the law of dower.)

Curtesy, or the interest of a widower in his deceased
wife's lands, may have been of Saxon origin also. It is
always called tenens per legem Anglice, or tenancy by the
curtesy of England, and this would seem to indicate for the
custom an English origin.

The King's Peace, a term extensively used by early
criminal lawyers, and even to the present time, comes to us
from the Saxons. The origin of it is to be traced to the
notion that a stranger who broke the peace of a house must
make atonement to the head of that house. We find the
same idea even now current in society; for it is considered
a gross social offence for a guest to insult his host; and an
injury is thrice aggravated if done to you in your own home.
In Saxon times, he who offered violence to another in the
king's house was considered so gross an offender, that his
life was forfeit to the king; and it was only by the royal
grace that he escaped by paying a wite, or fine.

The first extension of the Pax Regis beyond the royal
residence was by a proclamation that the king's peace

BEFORE THE NORMAN CONQUEST ( —1066). 7

should be observed in all the land during the week of
the coronation, and at Christmas, Easter, and Whitsuntide
every year. The next step was, that the king could pro-
claim his peace in any particular locality. Offences
against the king personally, e.g. treason, were always
breaches of his peace.1

Modes of Trial. — The Saxon modes of trial were Corn-
purgation and the Ordeal. Computation was this : any one
sued in a civil action, or accused of crime, could bring
eleven men of the hundred to swear on his behalf that they
believed his account of the case. In matters of contract or
conveyance, as I have indicated (supra, p. 6), witnesses
were necessary to the validity of the transaction, and prob-
ably these, or some of these, formed some of the com-
purgators. In cases of tort or crime, it is probable that the
witnesses of the affair (if any) would be included in the
number of the compurgators called by the complainant or
the defendant; but save to this extent, they seem to have
been very much like witnesses to character.

Ordeal was the essentially Saxon method of proving facts,
and it consisted, after the manner of those times, in an
appeal to the supernatural. The person accused first
solemnly swore to his innocence. He then had to undergo
one of three tests, the ordeal by water, the ordeal by fire, or
the " accursed morsel.3' One put to the fire ordeal had
either to grasp with his hand a red-hot iron, or to walk bare-
foot over burning plough-shares. The scarred and blistered
members were bound up by a priest, with some ointment
consecrated for the purpose; and if the scars were healed at
the end of three days the sufferer was innocent. If not, he
was guilty. Of the water ordeal there were also two forms :
hot water, when the accused plunged his arm into boiling
water, and was treated in the same manner as in the ordeal

1 " The King's Peace " is dealt with more fully infra, Chap. X.

8 THE STUDENT'S LEGAL HISTORY.

by fire ; and cold water, when he was tied hand and foot and
thrown into a pond or river. If he floated he was guilty;
if not, he was innocent.

The accursed morsel was a piece of hard, dry bread,
specially consecrated by the priest. The accused first called
on the Deity to make the bread stick in his throat if he
were guilty; and then proceeded to eat the morsel slowly
If he swallowed it freely he was innocent; but should he
choke in any way he was guilty. Numerous instances are
cited by old writers of the efficacy of this mode of trial, and
it is not improbable that a perjured man, extremely super-
stitious, would find the "accursed morsel" very hard to
swallow. The great Earl Godwin is said to have been
choked in this way.

Wager of Law. — Compurgation was never formally
abolished ; and survived, under the name of Wager of Law,
in actions of debt until 1833, when it was abolished by
3 & 4 Will. IY. c. 42.

Punishments and Penalties. — No account of the Saxon
jurisprudence would be even approximately complete with-
out some description of their system of punishments and
penalties for crimes and wrongs. Let us first explain the
phraseology of the time : —

Wer was the pecuniary value set on a man's life, increas-
ing with his rank. It was also the measure of the fines
payable by him for his own offences; for as the life of an
earl was more precious than that of many choerls, so his
offences were the more grave.

Wite is the usual word for a penal fine payable to the
king for a breach of his peace.

Bot is a more general term, expressing compensation of
any kind for a wrong done. By Alfred's Law of Treason
that offence was made botleas (^bootless), i.e. incapable of
being compounded for by a money payment. In a special
sense, hot was used to mean the compensation to be paid to

BEFORE THE NORMAN CONQUEST ( — 1066). 9

the injured party; as distinguished from the wite payable
to the king.

Outlawry. — The early English punished crime by out-
lawry, which was a negative, not a positive, punishment.
The offender was merely declared to be outside the protec-
tion of the laws he had broken; and being " out of the law "
he became a " wolf's head " whom any one could kill. To
outlawry succeeds

The blood-feud. — Here the offender was only left unpro-
tected by the law as against those who had suffered by his
misdeed — not as against the world at large as in outlawry;
and to blood-feud succeeds

The Bot, the Wite, and the Wer. — It is a notable feature
of the Anglo-Saxon law, this assessment of all criminal
wrongs at a price in money. A complicated tariff was
formed — every wound had its price: for a broken arm so
much, for a damaged leg so much; even life had its price,
for the slayer must pay to the relative the iver of the slain
man. The wite was a compensation to the king for having
broken his peace ; and only in rare instances did the majesty
of the law demand punishment instead of compensation.

10 THE STUDENT'S LEGAL HISTORY.

SUMMARY.

1. Property: —

(a) In the law of property there seems to have been

little distinction between land and moveables.
Property in land was allodial, that is, in full ownership.

(b) The inheritance was divided amongst all the

children.

(c) A kind of dower and curtesy were in vogue.

2. Criminal Law : —

(a) The king's peace was established in a limited form.

(b) Distinction between crime and tort was not well

established. A fine must be paid to the king
for breaches of his peace. All injuries to private
persons could be compounded for by paying bot.

3. The Courts of Justice were all local.

4. Procedure:—

(a) Sworn recognitors " presented " criminals for trial.

(b) All issues of fact were tried by compurgation or

ordeal.

CHAPTER II.

WILLIAM I. TO HENRY III. (1066—1272).

FROM this time more records of legal progress are extant;
but during the whole time the country was in an unsettled
condition, and it is difficult, therefore, to be exact.

Tenure of Land. — The first thing to be noted is the
introduction of the theory of tenure of land, and of the

feudal system. By theory of Law in England to this day
all land is holden either directly or indirectly of the Crown.
The theory may be described thus : all lands belongs to the
king; no subject can be the owner of a single acre, but he
can be a tenant (holder) ; the king grants land to his tenants,
who are called tenants in capite, and the tenants in capite
owe him services in return; the sovereign's tenants may
now subinfeudate to other tenants who hold on similar terms
of their immediate lord, but all owe allegiance and homage
to the king as lord paramount. Hereditary tenures were
made the rule, and tenure by knight-service was established.
As to the particular kinds of tenure established by the
Conqueror, they can be divided into two classes, free and
servile. The free tenures were again of two kinds, those
held by the rendering of certain, and those by uncertain
services. Servile tenants also held either by certain or
uncertain services.

12 THE STUDENT'S LEGAL HISTORY.

Military Tenure.— The free but uncertain tenures were

knight-service, grand serjeanty, and petit serjeanty (see
p. 193). Although the services here were uncertain, they were
riot unlimited. For instance, a tenant by knight-service
was bound to serve the lord in war, for forty days a year, if
called upon; he might never be called upon, so that his
service in this respect was uncertain, and it was always
uncertain when he would be called upon. But he was not
compellable to serve more than forty days.

Socage. — Free and certain tenure was generally payment
of a fixed rent in money. The Domesday Book, in the
dog-Latin of the period, calls these tenants socmanni, or
tenants in socage.

Villeinage: 1. Privileged.— Servile but certain tenure

was called privileged villeinage. The tenants were bound
to render services of such a kind as, for instance, ploughing
or manuring the lord's land for so many days in the year.
From this kind of tenure is descended the modern copyhold
(see p. 42).

Servile and uncertain tenure was where the tenant was
bound to do whatever the lord ordered him to do. In the
words of an old writer, "he knew not at night what he
should do in the morning," and was practically a serf. The
tenant in villeinage, whether pure or privileged, was,
during the whole of the period now under consideration,
merely tenant at will of the lord. How he obtained fixity
of tenure will be told in a subsequent page (p. 42).

Tenants in Capite. — The great land-holders held directly
of the Crown, and they in their turn subinfeudated, that
is, granted out the land to their various tenants. The lord
was called mesne-lord, and the whole of his holding,
together with the waste lands, manors, rights of jurisdiction
over his tenants, and of advowson, &c., were comprised in

WILLIAM I. TO HENRY III. (1066—1272). 13

the term manor. The learned Editor of Reeves' History of
English Law expresses a strong opinion that the manorial
system existed before the Conquest; indeed, he goes so far
as to say that the Saxons found it established here as it had
been left by the Romans. This view is founded on the
analogy between the Roman Colonia and the manor as we
know it from Domesday Book; but the opinion is not of
great value, and the analogy is remote.

Distress. — The right of distraining or impounding goods
of a wrongdoer was known to the Saxons, but it is in
Norman times that the right was restricted to that of dis-
training on the goods of a tenant for non-performance of
the services upon which he held his tenements. The Statute
of Marlebridge regulates the law of distress, and it is from
this time that we must date the modern distress for rent.
It should be noticed, however, that the goods distrained
could not be sold, but only detained (see p. 104).

Dower. — The subject of dower in the time of the Saxons
has been dealt with in a previous page (p. 6), and we have
seen how at that stage of the law dower depended on express
gift.

At the time of Glanville (Henry II.), dower still de-
pended upon express gift, and was quite in the power of the
husband, for he could sell or alien his wife's dower in any
way he pleased with her assent. Moreover, she only took
her dos in such lands as the husband had the seisin of at the
time of the marriage, but the wife could not alienate her
dower. If the widow was wrongfully deprived of her dower
she had a real action called writ of right of dower. If she
was kept out of the whole of it she had the writ of dower
unde nihil habet. It is not certain when the wife obtained
the right to dower independently of any endowment by her
husband, but probably about the time of Henry III. the law
on this subject was almost the same as it was in 1843,

14 THE STUDENT'S LEGAL HISTORY.

namely : that a widow lias the right to one-third of her hus-
band's lands of which he was seised during the coverture,
unless he provided for her by giving her a jointure or agreed
part of his freeholds. Magna Charta, c. 7, declares " for
her dower shall be assigned unto her the third part of all
the lands of her husband which were his during the
coverture, except she were endowed of less at the church
door." Until the Statute of Marlebridge the dower was
forfeited if the widow were unchaste, but that Act (52
Hen. III. c. 7) altered the law in this respect.

The Curtesy of England. — Tenancy by the curtesy

appears to have been established law in the time of
Bracton (Hen. III.), for he gives a summary of the law
practically as it exists at the present time. He says, " if
any one has married a wife who had an estate of inherit-
ance, and they had children born of the marriage, and the
wife predeceases the husband, the inheritance shall remain
tc the husband for life, whether any or all of the children
are surviving or are dead."

Descent and Succession, and Testamentary Disposition.—

To this period also belongs the origin of our present rules of
descent, our law of testamentary disposition of personalty,
and our rules of succession to personalty ab intestato.

Realty. — It is doubtful whether, before the Conquest,
wills of land were legal. William I. declared all lands to
be held jure hereditario, by hereditary right ; and it seems to
have been held upon this, that the tenant could not defeat
the right of his heirs by alienation either inter vivos or by
will. But the rules of descent, and particularly the rule
of primogeniture, were of gradual introduction. It seems to
have been common, before the reign of Henry II., for land
to be divided equally amongst children, but in that reign
it became settled law that the inheritance of feudal lands

WILLIAM I. TO HENRY III. (1066—1272). 15

should go in all cases to the eldest son, though, as it appears
from the arguments put forward in support of John's claim
to the Crown, the doctrine of representation (i.e. that the
son of an elder son should succeed to the place of such elder
son on the latter's decease) was not settled law. Glanville,
writing in temp. Henry II., gives it as a doubtful point.
There are numerous instances, more or less well authenti-
cated, to show that before the time of Henry II. it was
customary for the eldest son to take the principal fee of his
deceased father, the next son taking the next best fee, and
so on ; and it was by an argument based on this view of the
law that William II. succeeded to the English Crown, while
his elder brother Robert took the dukedom of Normandy.
The rule of the succession of all children to socage lands
continued to the time of John, when it gave way in favour
of the law of primogeniture.

Succession to Personalty. — By the Charter of Liberties
(sect. 7) issued by Henry I. at his coronation (1100), it was
enacted that testamentary disposition of personalty was not
to be interfered with, showing that this was only a statutory
confirmation of the common law. The same charter also
declared that the personalty of an intestate should be
divided amongst " his wife, or children, or kin, or lawful
men." We find a similar provision in Magna Charta (cap.
26) as to the property of intestates. These rules are sub-
stantially the same as those of the present day, save so far
as they were altered by the Statutes of Distribution (see
pp. 86 et seq.) and by the Intestates Estates Act, 1890.

Alienation of Land. — It may also be noted that in the
period under consideration it was a moot point whether or no
a fee could be alienated inter vivos. The authorities seem
to establish this point : A father could not alienate his land.
According to some, he might alienate all his purchased
land, but not a fee which he had inherited. According to

16 THE STUDENT'S LEGAL HISTORY.

others, lie must not alienate even all his purchased land, so
as to leave his eldest son without any. Others, again, said
that the father could alienate a reasonable part of his
inherited land. Magna Charta (cap. 39 of the edition of
1217) prohibits alienation of land by a freeman, " but so
that of the residue of the land he may sufficiently render to
the lord the service due to him which appertaineth to the
fee."

Mortmain. — Magna Charta also contains the germ of the
law of mortmain * in the following passage : " It shall not
be lawful ... to give lands to any religious house. . . .
Nor shall it be lawful to any religious house to take the
lands of any and to lease the same to him. ... If from
henceforth any so give his lands . . . the gift shall be
utterly void, and the land shall accrue to the lord of the
fee." (Cap. 43.)

Centralized Justice. — William the Conqueror centralized
the administration of justice. The English local Courts
were left standing, nominally without curtailment of their
former powers. But the king gave to his Curia, or Council,
original civil and criminal jurisdiction over all matters, and
suitors frequently preferred to come to the Curia because it
was a body unbiased by local influence and prejudices : and
it had, moreover, what the Hundred and County Courts fre-
quently had not — the power to enforce a judgment against a
powerful wrongdoer. (See also Chapter VIII.)

Rise of the Three Common Law Courts: Henry II.—
Before the end of this period, the three Common Law
Courts had been fully formed; and the members of the
justiciary separated definitely from the main body of the
Council. By Magna Charta, the Court of Common Pleas

1 See also for law of Mortmain, infra, p. 40.

WILLIAM I. TO HENRY III. (1066—1272). 17

ceased to follow the King's Court, and became stationary at
Westminster. (See Chap. VIII.)

Justices in Eyre : Assizes. — Another most important legal
change, leading more, perhaps, than any other thing to»
uniformity of law throughout the kingdom, was the institu-
tion of a system of itinerant justices. (Justices in Eyrv,
from Itinera.) These travelling judges were first sent on
circuit by William I. They were appointed from time to
time by royal commission, and any person could be sent by
the king; but as a rule, in order, it is supposed, to give
greater authority, and that their decisions should command
more respect, justices of the Curia Regis were sent. The
Eyre, or journey, of each of the judges generally lasted for
seven years ! At first, the criminal jurisdiction of the local
Courts (Sheriff's Tourn) was left untouched, save that when
a Justice in Eyre was within the county, he and not the
sheriff presided as judge. The circuits were, in the begin-
ning, irregular. By the Assize of Clarendon (Henry II.,
1166), the law relating to the itinerant justices was some-
what regulated. Inquests were to be held by twelve lawful
men of each hundred and four of each township into
robberies, murders, thefts, and other crimes; and the
criminals to be presented to the Justices in Eyre and the
sheriff for trial. The Assize of Northampton, ten years
-later, directs the itinerant justices to hold assizes of mart
d' ancestor and novel disseisin (actions to try title to land),
to exact the king's dues from half a knight's fee and under,
and to make inquiry concerning escheats, churches, and
lands in the gift of the king. From this it appears that the
Justices in Eyre had the same jurisdiction as the three
Common Law Courts, except that their Exchequer jurisdic-
tion was limited to half a knight's fee.

Magna Charta (1216) still further altered and improved
the law. By cap. 23, sheriffs, constables, coroners, and all
bailiffs of the king were forbidden to hold pleas of the

S.L.H. 2

18 THE STUDENT'S LEGAL HISTORY.

Crown. In this manner Criminal jurisdiction was reserved
almost exclusively in the hands of the justices. Moreover,
circuits were fixed and made regular, for it was provided by
sects. 18 and 19 that two justices should be sent to each
county four times yearly, and should there hold assizes of
novel disseisin, darrein presentment, and mort d'ancestor.
While in the county on this business, they would, and did,
try all criminals presented to them by the various present-
ment juries of the hundreds.

There is other legislation of this period relating to this
subject : e.g. the Statute of Marlborough (1267) declares
death by misadventure not cognizable by the justices, thus
marking off their jurisdiction from that of the coroner.

Separation of Ecclesiastical and Civil Jurisdiction.—

Immediately after the Conquest, the ecclesiastical and civil
jurisdictions became separate. The County Courts ceased to
decide matters of ecclesiastical law, the jurisdiction being
vested in the archdeacon and the bishop of the diocese. The
Ecclesiastical Courts took cognizance of suits affecting the
validity of marriages, legitimacy, payment of church dues,
wills (Henry II.), heresy and schism, validity of holy orders
and the like, suits between clerks, and in the time of
Henry II. usurped exclusive jurisdiction over all cases,
whether civil or criminal, in which one of the parties was a
clerk. The Constitutions of Clarendon (1164) regulated the
jurisdiction of these Courts. Disputes as to advowsons and
presentations were not to be decided there, nor disputes be-
tween clergy and laity as to the tenure of land, nor pleas of
debt. The appeal to Rome was taken away; but this clause
was entirely disregarded, and the appeal to the Pope con-
tinued down to Henry VIII. To this separation of the
ecclesiastical and civil jurisdictions is due the fact that our
law relating to wills of personalty, to divorce, and to validity
of marriages, is, in the main, canon law, though it has been
modified recently by statute. (See pp. 154 et alia.} One

WILLIAM I. TO HENRY III. (1066—1272). 19

thing in this connection is notable. The clergy wished to
introduce into England the canon law of legitimation per
subsequens rmatriinoniurm\ but at a Great Council held in
the reign of Henry III. the barons refused to alter the
common law, which did not allow any child to be legitimate
unless born in lawful wedlock. The spiritual Courts, having
jurisdiction to pronounce upon the validity of testaments of
personalty (there were no wills of realty), soon acquired the
right to decide in cases of intestacy, and thus arose the
power of granting letters of administration. Magna Charta,
sect. 27, gives the personalty of intestates to the next-of-kin,
under the supervision of the Church. In the reign of
Henry III. they also established the right of pronouncing
upon questions of legacies.

The Common Law is post-Norman. By the Common Law
is meant the law administered by the King's Courts as
distinguished from the various local customs administered
by the older Saxon tribunals. It had its origin in the King's
justices. What practically happened was this — a man who
had a grievance applied to the Chancery, which was the
official department of the Curia, for a writ to be directed to
his adversary. If such a writ was granted the parties came
before the justices, and the justices then decided whether or
not they would grant relief. In such decision they really
consulted their own notions of justice, or perhaps it would
be better to say, equity, with a reference to the whole Curia
when in doubt. In fact, the history of writs is the history
of the Common Law, for the writ precedes the judgment,
and the judgment is the law. As in every other business,
custom was formed by practice : so that it is true to say,
" The custom of the King's Court is the custom of England
and becomes the Common Law." l To assist the determina-
tion of questions, the justices who knew the canon law and
the law of Rome frequently applied its principles, where

1 Pollock and Maitland, vol. i. p. 163.

20 THE STUDENT'S LEGAL HISTORY.

such principles were not adverse to any assize or proclama-
tion of the King- and Council, or to any practice of the Court.
Common Law is, in fact, judge-made. Some forms of writ
soon became of general use, and were granted as of course
(writs de cursu); and we find that in Henry III. (1258) it
was resolved or enacted that the clerks in Chancery should
only issue these writs de cursu, that is, that they should stop
inventing new writs, which meant extending the law. The
consequence was a crying evil, and the enactment of the
statute In Consimili Casu a few years later.1 The reader
should, however, bear in mind the fact that every new writ
practically meant an addition to the Common Law of
England ; and when we find, as in the Statute of Gloucester,
that a writ of waste is to be granted against limited owners,
it is only expressing in another way the fact that devasta-
tion of land by such owners was made a wrong as against
remaindermen.2 But from Edward I. the Common Law
became less flexible.

The King's Peace. — The Saxon theory of the King's
Peace was allowed to remain by the Conqueror, and was
extended by him. Either at his coronation, or shortly after,
the whole country was put under the Pax Regis. The
consequences were very great and far-reaching, for it became
an offence against the Crown for anyone to commit an act
of violence within the realm. When such an act was com-
mitted the king was entitled to prosecute the offender, who
could not in that case claim the combat, because he could
not offer to fight the king his adversary. The term Pleas of
the Crown was applied to these cases, and we find in Magna
Charta a clause prohibiting sheriffs, bailiffs, and other
inferior officers holding pleas of the Crown. It must not
be thought that all criminal jurisdiction was taken away
from these persons, because there were some crimes not

1 Infra, p. 45. 2 Infra, p. 43.

WILLIAM I. TO HENRY III. (1066—1272). 21

breaches of the peace; and in any case the person injured
had his remedy by " appeal," 1 in which the object was the
recovery of bot.

Criminal Law. — The criminal law in Norman times was
simple, and very much the same as now, except that there
was a strong inclination to impose the capital penalty for
offences now regarded as slight. The law of murder, and
other kinds of homicide, of rape, assault, robbery and theft,
were practically the same as the law of England to-day.

Treason. — There were very stringent laws known as
" Forest Laws," imposing heavy penalties for killing the
king's deer; and the law of treason was, by the subtle inter-
pretation of Norman lawyers, and the introduction of the
civil idea of Icese-majeste, altered very much from the
simple law of Alfred. Norman lawyers began with the idea
of the feudal tie between the lord and his vassal, and, as the
king was the overlord of everyone in the country, they
were inclined to treat all offences personally distasteful to
royalty as treason. One of them held, about the time of
Henry II., that it was treason to kill the king's deer. It
was also held treason to have illicit connections with the
king's wife, or the wife of his eldest son; and, speaking
generally, during the period under consideration, the law of
treason varied very much according to the prejudices of the
reigning sovereign and the sturdiness or flexibility of the
judge who tried the case. Treason was then a very
uncertain offence, and it remained so for a considerable
period. (See p. 48.)

Criminal and Semi-criminal Procedure. — As in the Saxon
period, the detection of crime and the arrest of the offender
was left a good deal in private hands. Anyone who

1 See p. 31.

22 THE STUDENT'S LEGAL HISTORY.

captured a person accused of crime took him to the sheriff or
hundred reeve, and the latter imprisoned him until the time
of the next sheriff's tourn or the next visit of the justices.
But it might happen that the sheriff would refuse to bring
up the prisoner to be tried at the next tourn, or it might
happen that between the visits of the king's justices a long
interval will elapse. It was contrary to the principles of
law maintained by our ancestors, and eloquently, though
tersely, expressed in the Great Charter, for justice to be
delayed. There were, it appears, four kinds of writs
invented to protect the liberty of the subject by securing
that in no case should he remain long in prison without
being brought to trial. These writs were all invented dur-
ing the period of the Norman and early Plantagenet kings.
They were the writ de odio et atia, issued out of the king's
bench to the sheriff, commanding him to hold an inquiry
whether a prisoner in custody on charge of murder was com-
mitted upon reasonable suspicion or only for malice (propter
odium et atiam), and if he found the latter, to admit him to
bail. By the Great Charter (cap. 36), it is provided that
the writ of inquest of life or limb shall be given gratis and
not denied, a provision generally supposed to refer to the
writ de odio.

Main Prize. — There was also a writ of main prize sent in
like manner to the sheriff, directing him to take pledges for
the prisoners; there was* a difference between main prize
and bail in that the former was always in a fixed sum, while
the latter was not always so. Again, in the case of main
prize, " he that is delivered is out of custody, but he that is
bailed is in supposition of law still in custody." 1 The two
other writs of this kind were de homine replegiando, which
was a writ addressed to the sheriff commanding him to
" re-pledge," or take bail, for a prisoner in his custody, and

1 Hale, P. C. H. p. 125.

WILLIAM I. TO HENRY III. (1066—1272). 23

also the high prerogative writ of habeas corpus cum causa
(commonly called habeas corpus).

The effect of the last-mentioned writ was somewhat
different from that of the other three. They were directed
to the sheriff commanding him to accept bail or pledges.
The habeas corpus was directed to the jailer, and ordered
him to bring up the body of the prisoner, with the cause
of his detention, to the Court of King's Bench, so that the
judges might determine whether the imprisonment was
lawful or no, and if it was lawful whether the prisoner
ought or ought not to be allowed bail. No instance of a
writ of habeas corpus is to be found until Edward I., but,
as it is evident that the writ was then not a novel one, it
is not unreasonable to suppose that the common opinion
which traces the safeguard of liberty back to Magna Charta
is the correct one. Tradition is of ten 'unreliable, especially
in the study of legal history; but this one may claim the
support of Coke, Mackintosh, and, indeed, of almost every
respectable historian who has written on the subject.1

Bail. — But although in theory of law no free man could
be long imprisoned without trial, in fact it was far other-
wise. Bail was an indefinite term, and we have it on the
authority of Glanville's De Corona that the sheriff had a
discretion in regard to bailing accused persons, and there
seems to have been no check upon him to prevent him
demanding unreasonable or excessive bail.

Punishments: Crimes and Torts.— In the early days of
the Norman kings the wer, the wite, and the bot,2 ran side
by side with punishments of death and mutilation; but
from our earliest judicial records we find that iver had been
altogether abolished, and that wrongs were looked on from
two points of view : (1) the public wrong, or breach of the

1 For a fuller account of the Law of Habeas Corpus, see infra, pp. 90 et
seq., 114 et seq.

2 Supra, p. 8.

24 THE STUDENT'S LEGAL HISTORY.

king's peace; and (2) the private wrong, or loss to the in-
dividual. As early as Glanville it was settled law that no
compensation could be made by a homicide to the relatives
of the slain. And from this time the distinction between
crime and tort began. A crime was a breach of the king's
peace, a disturbance of the order of good government, pro-
secuted by the Crown, and in the name of the Crown,
though at the instance of a private accuser; hence criminal
cases were called Pleas of the Crown. A tort was a wrong
committed against an individual; the same act might be a
crime, but not necessarily so; if it were, it must be tried
separately, and any penalty imposed for the crime was quite
distinct from the compensation payable to the individual
sufferer. It is from Henry III. that we must trace the
final separation of tort from crime, for in that reign was
invented the writ of trespass, which issued either for an
invasion of another's property or a violation of his right
of personal security. Thus, to walk on your neighbour's
land was trespass. To assault and batter him was trespass.
To seize his goods wrongfully was, trespass. And in the
writ of trespass it was always stated that the defendant had
acted vi et armis — by force and arms. Thus the old idea of
a breach of the peace was still kept up, but although the
plaintiff alleged force and arms, he was not obliged to prove
that any force had been actually used.

Real Actions.— The period from William I. to Henry III.
is the period when the "real actions" were established.
Real actions were those in which the plaintiff claimed the
res, and not merely damages for dispossession; and they
were five in number, namely : Writ of right, writ of entry,
assize of mnort d9 ancestor 9 assize of novel disseisin, and
assize of darrein presentment.

Writ Of Right.— The history of the writ of right, both as
to its origin and and as to its exact use, is wrapped in

WILLIAM I. TO HENRY III. (1066—1272). 25

obscurity. It was, it appears, a writ issued out of the Curia
Regis at a very early period, and is supposed to date from
the reign of the Conqueror. It was of fairly long standing
at the time of Magna Charta, by c. 34 of which it is enacted :
" The writ called * praecipe ' shall not issue concerning any
freeman's free tenement whereby he shall lose his own
court." The writ of right was called " prsecipe " because
it was addressed to the sheriff in these terms : " Eex vice-
comiti salutem. Prcecipe A. (the defendant) quod sine
dilatione," &c. By " his own Court " is meant the Court of
the feudal lord. The lords were very jealous of the King's
Writs, which deprived them of their power over their
tenants. After 1216, tenants-in-chief only sued out the
writ in the Common Pleas. Sub-tenants could only sue
there either when the lord did not hold a court, or when he
gave permission to his tenant to sue in the King's Court — a
permission which was very often taken for granted by the
judges of the Common Pleas. The writ of right was issued
to try title to freeholds — not merely possessory title, — and
trial thereon took place by duel or by sworn recognitors. It
had an infinite number of variations to meet different cases.

Writ of Entry. — The writ of entry was similar to the
writ of right, except that it was only a claim of possession,
and this also was introduced before the time of Glanville
(Henry II:). How long before is not known, but the writ
is probably even older than the writ of right.

Assizes. — Besides the writ of entry, there were three
other real actions, called assizes, to try the right of posses-
sion of freeholds. The assize of mort d' ancestor seems to
have originated in 1176 by the assize o3C Northampton,
cap. 4 : "Si dominus feodi negat haeredibus defuncti saisi-
nam ejusdem defuncti quam exigunt, justitise doniini regis
faciant inde fieri recognitionem per duodecim legales
homines, qualem saisinam defunctus inde habuit die qua

26 THE STUDENT'S LEGAL HISTORY.

fuit vivus et mortuus . . ." * The assize of novel disseisin
(recent dispossession) is also mentioned in the assize of
Northampton (cap. 5), but in terms such as to indicate that
novel disseisin was then a known remedy, and not a new
one. The assize of darrein presentment is not mentioned
earlier than Magna Charta, but from the way it is spoken of
there it is justifiable to infer that it was in existence before
that time. It was a mode of determining the right of pre-
sentation to a living, and the inquiry was as to who made
the last presentment. Magna Charta (cap. 18) orders the
justices itinerant to hold assizes of novel disseisin, mort
d'ancestor, and darrein presentment four times a year in
each county. It will be observed that the assize takes the
form of an inquest by " twelve lawful men."

Real and Personal Property. — It will be seen from this
account that the only cases in which a real action would lie
were those in which freeholders had been deprived of their
land. Hence the term " real " property came to be applied
to that kind of property which could be recovered by real
action, i.e. to freehold interests only. It is because no real
action would lie by a leaseholder to recover possession of his
leasehold that leaseholds were regarded not as realty, but
personalty. There can be little doubt that if long leases had
been in vogue at that period of legal history, as they are now,
real actions would have been given for their recovery; but
the earliest " term " was usually only for a year or two, and
it was not worth while to give a man such a great remedy
for so small a thing. Our present distinction, then, between
realty and personalty may be said to date from the Conquest.

Leaseholds. — But although the freeholder was the only
person who had a right in rem in the land, the leaseholder,

1 Translation : "If the lord of the fee deny the seisin to the heir of
the deceased, let the king's justices make recognition by twelve lawful men
what seisin the deceased had on the day of his death."

WILLIAM I. TO HENRY III. (1066—1272). 27

who held for a definite term of years, came in course of time
to have his possession protected. At first, if he were turned
out of possession, his only remedy was in an action for
damages. But Bracton l records a change, evidently made
in his own time, by which the lessee was allowed to have a
writ out of the King's Court to recover the land itself. The
action was in form personal, and not real, being for forcible
ejectment-, but the judges could order the wrongdoer to give
up the land, and so the effect was the same as a real action.
And the leaseholder had the advantage of a much quicker
procedure, less expensive, and not so tedious. At this stage
of the law a lease could be, and commonly was, by word of
mouth, even though it might be for a long term.

Personal Actions. — Besides real actions there were per-
sonal actions and mixed actions, and in the time of Bracton
the division of actions into real, mixed, and personal was
fully established. Personal actions were, as far as can be
gathered from a study of the text, debt, detinue, trespass
m et armis, accompt, and covenant.

Debet et Detinet. — In Glanville's time (Henry II.) debt
and detinue were one and the same action, in the name of
de-bet et detinet. The writ ran in this manner : " That the
sheriff should summon A. B. to answer to X. Y. in the sum
of 100 marks (or, for the two oxen), which the said A. B.
ought to give him, and unlawfully detains. " This action
would lie not only where A. B. owed X. Y. a debt, as, for
instance, for the price of goods sold, but also where A. B.
was in possession of chattels belonging to X. Y., and refused
to give them up, as, for instance, where A. B. had borrowed
a horse from X. Y., and wrongfully refused to return it.
In the time of Bracton the two actions were separated. Debt
would lie in respect of a certain or liquidated amount in

1 Bk. iv. c. 36, folio 220.

28 THE STUDENT'S LEGAL HISTORY.

money, and was therefore an action of contract. Detinue
was brought only when the defendant wrongfully detained
the chattel belonging to the plaintiff, and refused to give it
up after lawful demand made. The action is therefore
primarily one arising out of delict, but it is easy to see how
the minds of the early lawyers confused the causes of action.
They did not see the difference between the man who had
refused to pay a debt due and a man who refused to give up
a horse that did not belong to him. They regarded the
debtor, in fact, as though he had been a man with another
person's money in his pocket, and refusing to give up that
money to its proper owner. The difference between actions
arising ex contractu and actions ex delicto was therefore not
strongly marked in the early law of England, and the recog-
nition of the difference by a separation of debt from detinue
marks a distinct stage of progress in English legal history,
and this distinction, as we have said, had been recognized as
early as the time of Bracton, if not before.

Covenant : Trespass.— The action of covenant would lie to
enforce any promise or obligation under seal, and in this
case a defendant was not permitted to "wage his law,"
while the action of trespass, or trespass m et armis, as it
was called, was the proper remedy for a multitude of wrongs
— such as trespass to land (trespass quare clausum fregit =
trespass by breaking the close (enclosure) ), the wrongful
taking of goods, assault, battery, false imprisonment. All
these were called trespass.

Account. — The writ of Accompt was issued in actions
against agents to make them account for the goods or money
received by them on the principal's behalf in the course of
the agency. The Statute of Marlebridge gave the principal
whose bailiff refused to account a summary remedy against
the bailiff's person; but the judges, construing the statute
strictly, refused to extend this process of committal to other
agents not bailiffs. . The procedure in the writ of Accompt

WILLIAM I. TO HENRY III. (1066—1272). 29

was peculiar to itself. The accounts were not investigated
by the judge, but by auditors or compulsory arbitrators
appointed by the Court — such auditors not necessarily being
officials of the Court. It is probable that from this proce-
dure the Chancellor in late times borrowed the idea of
referring all matters of account, and questions involving
long and minute inquiry, to his clerks and secretaries, the
old Masters in Chancery; and, to come to times still more
recent, the official referees of the High Court of Justice
have very much the same functions as the auditores formerly
appointed under the writ of Accompt.

Writ. — The procedure in both real and personal actions in
the King's Courts was by writ (except in the cases tried by
assize). The word "writ" is of English origin, but the thing
is Norman, and, seems to have been introduced immediately
after the Conquest on the establishment of the Curia Regis
as a central court of law. In the Saxon days of local courts,
the plaintiff simply made a verbal complaint to the sheriff or
hundred reeve, or other local judge; but when cases were
taken up to the Central Court to be tried, the matter was
very different. The king's justices were obliged to secure
the attendance of the defendant by the help of the sheriff
of the county where he lived ; and as in travelling from the
Court to the sheriff, which might be the whole length of
England, a verbal message might easily have miscarried or
been misinterpreted, there was issued by the chancellor
(who then acted as a kind of secretary to the Curia), a docu-
ment containing a brief statement of the case set up by the
plaintiff, together with a command in the name of the king
to summon the defendant to appear and answer the com-
plaint made against him.1 This document was officially
called breve (from Latin = short), but it soon received the
Saxon name of writ (writing), a name bestowed by the

1 See p. 146.

30 THE STUDENT'S LEGAL HISTORY.

English to distinguish it from the verbal complaints still in
use in the local courts.1

Pleadings. — If we are to judge from Bracton, whose
treatise indeed seems the only reliable source of information,
in his time actions were tried in a roughly scientific way.
The plaintiff came into court and by himself or his attorney,
or advocate, stated his cause of action. To this the defendant
replied — either taking objection on a point of law, or deny-
ing some or all the facts alleged. The plaintiff again
answered, and the defendant again replied, and so on, until
they had arrived at an exitus or issue,2 an expression used to
indicate the fact that the parties had definitely arrived at
the point of difference between them — it was no longer a
vague indefinite quarrel, but a dispute on a particular point.
In Brae ton's time the judges were very careful to separate
issues of fact from issues of law, the former being triable by
wager of law, or duel, or jury, and the latter by the judge
alone. Moreover, in order that the issues might not be con-
fused, a man was only allowed one, either of fact or of law.
He could not say : " I deny the plaintiff's facts, but I say
that, even if he is right in fact, he is wrong in law." He
had either to say : " the plaintiff is wrong in law," or " the
plaintiff is wrong in fact." He could not do both. These
verbal altercations between the parties preliminary to the
trial afterwards developed into a system of written pleadings.

Modes of Trial: Abolition of Ordeal.— William I. left
standing the old Saxon modes of trial by ordeal and coin-
purgation, though before the end of the period under
consideration compurgation was beginning to fall into
desuetude, and the ordeal was abolished in 1218, after being
condemned by the Lateran Council in 1215.

1 In the old Norman-French reports, "writ" is translated " brief."
a Literally meaning "way out."

WILLIAM I. TO HENRY III. (1066—1272). 31

Duel. — The Conqueror introduced from Normandy the
Wager of Battle, or trial by duel, of which a spirited
picture is given by Sir Walter Scott in his novels of Ivanhoe
and The Fair Maid of Perth.

The Charter of William ran thus : " It is decreed that if a
Frenchman appeals an Englishman of perjury, or murder,
theft, homicide (manslaughter), or rape, the Englishman
may defend himself as he shall elect, either by ordeal or the
duel. But if the Englishman is infirm he may provide a sub-
stitute. The one who is vanquished shall pay sixty shillings
to the king. If an Englishman appeals a Frenchman, and
is unwilling to submit to the ordeal or the duel, the French-
man must clear himself by oath " (compurgation?).

Appeal of Felony. — In cases of murder and manslaughter,
any blood relation of the slain man could " appeal " against
the slayer. The latter then threw down his glove and
claimed the combat, and unless the accuser took up the
challenge the accused went free. But if, as usually hap-
pened, the challenge was accepted, a speedy day was
appointed for the trial of arms, and on that day, in lists
presided over by the sheriff, or the itinerant justices, the
combat took place with all due solemnity. The charge was
read over, and the accuser (appellant) swore to his belief in
it on gospels, while the accused in his turn avouched his
innocence in the same manner. Then, armed in manner
suited to their rank, the duellists began the encounter; the
hour fixed for the commencement of proceedings was gener-
ally sunrise. If the accused could disable his adversary, or
make him cry " craven," or prolong the fight until the stars
appeared in the evening, he was declared guiltless of the
charge, and the accuser was fined and declared infamous.
But if the accused lost, he was, if still alive, hanged.

Wager of battle could not be claimed if the accuser was
a woman, a priest, an infant, or an old man of over sixty.

By Magna Charta (s. 54), a woman could not bring

32 THE STUDENT'S LEGAL HISTORY.

" appeal of felony," except for the death of her husband.
The reason for this curious law is not known. In these
cases the ordeal, or compurgation, or (after the reign of
John) the jury, was the mode resorted to. " Appeal of
felony " continued side by side with trial by jury until the
Tudor period. It then fell more and more into desuetude,
until in Stuart times it was practically lost sight of. In
1817 the wager of battle was claimed by a man named
Thornton, accused of murder, and as the accuser declined
the challenge, Thornton had to be acquitted. Two years later
the appeal of felony was abolished (59 Geo. III. c. 6).

The wager of battle did not obtain in other criminal cases,
except in " affairs of honour ' ' ; and these were under
the control of the king, the constable, and the earl
marshal.

Duel in Civil Actions. — There is no charter extant actually
establishing the duel in civil cases; but it is known from
the Conquest this was a mode of trying issues of fact in
actions commenced in the King's Court. There was a
difference between this and the case of crime, however,
because in civil cases champions, or vrocheins amys (next
friends), of the parties fought — a necessary precaution, for
if either party to a civil action was slain, the suit was at an
end. Before the end of Henry III.'s reign the wager of
battle in civil actions had almost died out, giving way to
trial by jury; but it was not formally abolished, and only
fell into disuse because the writ of right itself ceased to be
used. There is a case on record as late as Elizabeth. It
may be remarked that, in England, amongst the native
English, it never found favour; and many boroughs obtained,
as a special favour from the Crown, exemption from wager
of battle within their jurisdiction.

Trial by Jury : Grand Jury : Inquests. — As we have seen
(pp. 3 et seq.), the Saxons had established the system of

WILLIAM I. TO HENRY III. (1066—1272). 33

frankpledge, i.e. of presentment of criminals for trial by
sworn men of the hundred, and in that way the grand jury
probably originated. But it is to the Normans that we owe
trial by jury as we know it to-day. In compiling the
Domesday Book, William I. introduced into England the
sworn inquest^ or inquiry by the oath of a certain number
of men. A specimen of the Domesday inquest, given in
Stubbs' Select Charters (p. 86), shows that the sheriff and
certain selected men from each district had to hold a sworn
inquiry into the local customs, tenures, and so on, and to
take a kind of census. Sworn inquests (surviving to this day
in the coroner's inquest) were utilized by all the Norman
kings for fiscal and administrative purposes; e.g. by the
assize of arms certain lawful men were to swear to all who
possessed a certain amount of property (1181), and in 1188
it was enacted that four or six lawful men of each parish
were to be sworn to assess the proper amount payable by
each individual to the Saladin tithe. There was also the
assize inquest, per duodecim le gales homines (p. 26).

Trial by Jury in Criminal Cases : Peine Fort et Dure.—

When the Lateran Council, in 1215, abolished the ordeal,
there was no way left to try issues of fact, except wager
of battle and of law. But wager of battle did not apply
to pleas of the Crown, because the sovereign could not be
challenged to fight. From this date trial by jury begins.
But there is no way of compelling a man to be tried " by
the country." He must consent to be so tried. But the
jury at that time seems to have been composed of witnesses
and other persons of the district who might be supposed to
know something about the matter. If a man refused to be
tried by his neighbours the practice seems to have differed.
According to Prof. Maitland, he was in the earliest times,
after 1215, tried by a second jury, something like the jury
of presentment; but in later years he was asked to plead,
and if he refused to do so he suffered peine fort et dure, that
S.L.H. 3

34 THE STUDENT'S LEGAL HISTORY.

is, a weight was put upon his body, and if he continued con-
tumacious he was pressed to death. In the time of Bracton,
when a prisoner put himself upon the country after he had
been presented by the hundred- jury, a jury of twelve, which
may be called an inquest- jury, was impanelled to try the
question of guilt or innocence. They were sworn to tell all
they knew, bringing in a verdict. At that time, also, the
jurors, or some of them, were witnesses, and brought in a
verdict of their own knowledge, and not on evidence adduced
before them as they do now. They might be cross-examined
by the judge as to their reasons for their verdict; and if
these reasons were unsatisfactory, the verdict might be
disregarded, and a new jury impanelled.

Whether these jurors were the same as those who pre-
sented the prisoner for trial is doubtful. Mr. Maitland
thinks they were the same; Sir Fitzjames Stephen thinks
otherwise. Instances have been found in the thirteenth
century where a second jury has been impanelled after the
first jury (of presentment) has found a verdict of guilty.
This practice grew insensibly into the modern one of
impanelling a second jury (petty jury) in every case. But
it was not until a long time after, that the petty jury lost
their character of witnesses and became judges who decided
on evidence given in open court.

Jury in Civil Cases. — The sworn inquest, if it was not the
direct ancestor of the petty jury in pleas of the Crown, is, at
all events, the origin of the jury in civil causes.1 The assize
of mort d'ancestor and the other real assizes, raising the
question of right to possession of land, were decided as to
fact by twelve sworn recognitors, and the itinerant justice
only decided points of law connected with the case. A writ
of right might also be tried out by recognitors (jurymen)
instead of by duel.

i

1 Digby, Hist, of B. P., p. 95.

WILLIAM I. TO HENRY III. (1066—1272). 35

Functions of the Jury. — But it cannot be too strongly
borne in mind that though these juries decided the facts,
they did so of their own knowledge, and not according to
evidence adduced before them by witnesses. Sir James
Fitzjames Stephen says that trial by jury in civil cases, as
we know it, was firmly established by the middle of the
fifteenth century,1 but how long before that is doubtful.

SUMMARY: William I. — Henry III. (inclusive).

1. Real Property:

(a) The distinction between realty and personalty is

made, founded on the difference between the
remedies for dispossession.

(b) Tenure takes the place of ownership, and the theory

of tenure becomes the basis of the land laws.

(c) Military tenures introduced.

(d) Dower and curtesy made absolute legal rights of

wife and husband respectively.

(e) The law of primogeniture gradually introduced,

and the rules of descent.

(f) Alienation checked by Magna Charta.

2. Personal Property receives little attention.

(a) Testaments of personalty freely allowed.

(b) Intestates' effects to go to wife and relatives.

(c) Intestates' effects to be administered by the

ordinary, and ecclesiastical courts pronounce on
the validity of testaments and legacies.

3. Criminal Law: The King's Peace is declared to extend

over the whole realm.

1 Stephen's Hist. Crim. Law, vol. i.

36 THE STUDENT'S LEGAL HISTORY.

4. The Courts of Justice :

(a) Curia Regis established, to some extent super-

seding and supervising ancient local courts.

(b) The three Courts of Common Law are established

separately, and the Common Pleas fixed at West-
minster. The other Courts follow the king.

(c) Justices in Eyre appointed.

5. Procedure:

(a) Real action begins.

(b) Personal actions are few, only four of the kind

cognizable in the King's Courts, viz. trespass,
debt, covenant, and detinue.

(c) Writs in the King's Courts took the place of verbal

complaints.

(d) Trial by duel introduced from Normandy.

(e) Sworn inquest also introduced in civil matters,

leading up to trial by jury; but as yet the
jurors are witnesses, and not, in the proper
sense, judges.

(f) Habeas corpus (perhaps) introduced.

6. The law is nationalized, and the common law of

England obtains instead of most of the local
customary laws, though the latter were not all
superseded.

CHAPTER III.

EDWARD I. TO RICHARD III. (1272—1485).

General. — Speaking of the reign of Edward I., Reeves, in
his History of the English Law, remarks : " We now enter
upon a period when the law made a very great and sudden
advancement. It is generally agreed that this is, in no
small degree, to be ascribed to the wisdom and activity of
the prince on the throne, who, through his long reign, and,
indeed, within the first thirteen years of it, laboured more
than any of his predecessors to improve our judicial polity
in all its parts. So successful were his endeavours, and so
permanent have been their effects, that Edward I. has
obtained with posterity the distinguished title of the
English Justinian."

And, indeed, Edward I. fully deserved the eulogium of
Chief Justice Herle, who pronounced him " the wisest king
who ever was." 1

The reign is marked in the history of the constitution.
It is even more memorable in the history of law, as the
enumeration of the statutes will show. Quia Emptores, the
first and second Statutes of Westminster, De Donis Con-
ditionalibus , the Statute of Acton Burnel, De M ercatoribus ,
and the Statute of Mortmain do not exhaust the list of
important legal enactments of this reign.

After Edward I. there was little legislation of interest
or value to the lawyer until after the Wars of the Roses.
The legal history of the rest of the period we are now con-

1 Year Book, 5 Edw. III. 14.

38 THE STUDENT'S LEGAL HISTORY.

sidering consists for the most part of the development and
interpretation of the law as it was left by the English
Justinian. There is only one other piece of legal history
of the first importance, and that is the evolution of the
Court of Chancery, under Edward III.

Real Property: Statute De Donis: Estates tail.— Two
important alterations were made in the law of real property.

The first was, by the first chapter of the Statute of West-
minster II., generally called the Statute De Donis Condi-
tionalibus (Edw. I.), which created estates tail. It was a
common form of gift of real estate " to the feoffee and the
heirs of his body," by which limitation the donor sought to
keep the land in the family of the donee, and if the donee
had no family, for the land to revert to the donor. But the
lawyers interpreted these words to mean that if the donee
had an heir of the body born alive the estate became his in
fee simple; in other words, the gift was a conditional fee
simple. The Statute De Donis reversed the interpretation
of the lawyers, declaring that in future " the will of the
donor, according to the form manifestly expressed in the
charter of gift, shall be observed," so that the donee should
not be able to prevent the land going to his issue so long as
there were any who could take under the charter; and on
failure of such issue, the land should revert to the donor or
his heir. Henceforth a limitation to "A. and his heirs of
his body " gives an estate tail, absolutely alienable by the
tenant.

Fines and Recoveries. — There was a method of convey-
ance known in very early times as a fine, which was a
fictitious action used either to convey land or to strengthen
the title of the holder by having his title recorded on the
rolls of a court of justice. Recoveries were also fictitious
actions used for alienation or for the alteration of titles and
estates. A fine had the effect of a judgment by default on

EDWARD I. TO EICHARD III. (1272—1485). 39

a compromise, and it bound only the parties to the suit and
their heirs and all who claimed through them; it did not
bind any other person. A recovery, on the other hand, was
a judgment in a real action, and, therefore, bound the land;
nor could it be disputed by anyone whomsoever. Feigned
recoveries were very much in use by the clergy to evade the
mortmain laws, as is evidenced by the statute 13 Edw. I.
c. 32, which was passed to prohibit the practice by " religious
men." How far, or when first, recoveries and fines were
used to evade the Statute De Donis is not precisely known,1
but we know that in Taltarum's Case, recorded in the Year
Book, 12 Edward IV., a tenant in tail converted his estate
into a fee simple by this means. The process was this : A
friendly plaintiff pretended that he had a better title to the
land than the original donor in tail; he accordingly brought
action by writ of right against the tenant in tail ; the latter
pleaded that the land had been given to him in tail by X.,
a person who had nothing at all to do with it, who had
warranted his title. X. was made a party to the suit by a
process called " vouching to warranty," and it became his
duty to defend the action; but he was then " imparled " by
the friendly plaintiff, that is, they went out of Court
together and the " vouchee " did not return. The case was
called on for trial, and as the vouchee did not return, judg-
ment was given against him in this fashion, that the
(friendly) plaintiff recover the land in fee simple, and that
the tenant in tail recover against X. (supposed original
donor of the estate tail) other land of equal value.

The whole proceeding was a series of transparent fictions,
but it was allowed by the judges, it is said, at the instance
of the king himself. The effect of the judgment against
the tenant in tail was to bar his issue from claiming the
land under the gift, and the special virtue of the " vouchee "

1 In the reigns of Henry IV. and Henry V. some doubt began to be
entertained whether a recovery suffered by a tenant in tail was not good
against the issue : Beeves' Hist. Eng. Law, ii. 578.

40 THE STUDENT'S LEGAL HISTORY.

seems to have been to destroy any claim by the real donor
of the estate. It is to be noted that Taltarum's Case was
not a recovery, nor was it an action brought to contest the
validity of recoveries in general, but it established by
implication the right of a tenant in tail to suffer judgment
to go against him in one of these suits. Thus we see, that
in the period under consideration, estates tail were created,
and after remaining in full force for 200 years were allowed
by the courts of law to be evaded.

Quia Emptores : Alienation of Land. — The second statute
of cardinal importance is 18 Edw. I. c. 1, commonly called
the Statute Quia Emptores,1 so called because the statute
begins with those two words. It has been elsewhere stated
(p. 12) how a freeholder holding of the king or of any other
lord might subinfeudate, i.e. enfeoff another freehold
tenant to hold the land of him, and thus in turn to become
a lord. It has also been shown (p. 15) how the right of
alienation was doubtful, and what restrictions were placed
upon it by Magna Charta. The statute now under con-
sideration was simple but far-reaching. It enacted, (1) " It
shall be lawful to every freeman to sell at his pleasure his
own lands or tenements, or any part thereof," provided (2)
that " the feoffee (purchaser) shall hold that land or tene-
ment of the same chief lord, and by the same service and
customs, as his feoffor held before." The effect of the first
part of the Act is obvious; the effect of the second part is
this: — A. is the tenant by knight service of X. A. sells
to B. B. becomes the tenant of X., on the same terms that
A. held by. Before Quia Emptores A. might enfeoff B.,
eo that B. would hold of A. and A. would hold of X.

Mortmain. — Two statutes of Edward I. deal with mort-
main. Mortmain (dead hand) was applied to the holding of

1 Literally = " whereas purchasers."

EDWARD I. TO RICHARD III. (1272—1485). 41

lands by religious persons who were dead in law, and also
by, corporations, whether ecclesiastical or not. The reason
of the dead-set made against allowing land to be given or
even sold to religious houses was that these bodies were not
liable for the services due to the lord of the fee, and we can
understand the feeling of the great lords against allowing
their " fees " to become the property of the Church. An
attempt to check the practice had been made by Magna
Charta, but this only applied to "religious men," and it
had been plentifully evaded by means of recoveries. The
Statute De Viris Religiosis1 (7 Edw. I. st. 2, c. 13) men-
tions these evasions, and provides against colourable gifts
and leases, and " craft or engines " to defeat the law. No
gift or sale in mortmain is to be made without the licence
of the lord of the fee, and the penalty is forfeiture of the
land in the first instance to the immediate lord of the fee,
or if he does not claim it, then to next chief lord and so on;
and if none of the mesne lords claim, then to the Crown.
But still the religious men found ways and means, especially
by collusive actions, to "drive a coach and six" through
the statute, until six years later, by the 32nd chapter of the
Statute of Westminster II., the justices were ordered to
impanel a jury whenever " religious men and other
ecclesiastical persons " claimed land and the defendant did
not appear to defend the suit. The jury were to try
whether the " religious men ' ' really had the title which
they set up, or whether it was only a friendly and collusive
suit. After this drastic measure the clergy had to try
another tack, and in course of time they discovered Uses
(see p. 54). The law as Edward I. left it, remained practi-
cally the same down to modern times.

Writ Of Waste.— % the Statute of Gloucester (1278)
owners of land not in possession were protected from waste

1 Literally = " concerning religious men."

42 THE STUDENT'S LEGAL HISTORY.

or destruction of the property by tenants who had only a
limited interest. Writ of Waste was to be granted against
tenants by the curtesy, tenants in dower, and tenants for
life or for years ; and the penalty to be exacted from them
was threefold the amount of the damage done.

The Law of Real Property settled.— Beyond the statutes
just referred to, there was no legislation of importance on
the subject of real property until Henry VIII. Littleton's
Tenures, written in the reign of Henry IV., is invaluable
as showing' the law of the time on this subject, and should
be consulted by all who desire a true knowledge of English
real property law.

Copyholds. — From it we learn that by decisions of the
Courts — when is not precisely settled — the tenant in vil-
leinage, who held purely at the will of his lord,1 had become
a tenant by copy of court roll according to the custom of
the manor. Fixity of tenure had been secured to him so
that, as it was forcibly put by Coke, " copyholders stand on
sure ground; now they weigh not their lord's displeasure,
they shake not at every sudden blast of wind, they eat,
drink, and sleep securely; only having a special care of the
main chance, to perform carefully what duties and services
soever their tenure doth exact, and custom doth require."
In Littleton's time, indeed, far from being a mere tenant at
will, the copyholder had an alienable interest in the land.
In form, the vendor of a copyhold surrendered the land to
the lord, but it was to the use of the purchaser, whom the
lord was bound to admit, and if he did not he could be com-
pelled by suit before the Chancellor. Littleton quotes
Brian, C. J. : " His opinion hath always been and ever shall
be, that if tenant by custom paying his services be ejected
by the lord he shall have an action of trespass against

1 Supra, p. 12.

EDWARD I. TO RICHARD III. (1272—1485). 43

him."1 " And so was the opinion of Danby, C.J., in
7 Edward IV.," 2 which seems to show that the opinions
of these judges were delivered on points then not free from
controversy.

Procedure. — The legislation of Edward I. was also
directed to reform the procedure of the Courts. No suit for
trespass to goods could lie in the King's Court for less than
forty shillings damages : this was intended to prevent men
being put to the expense of attending the Courts in West-
minster to answer trifling charges (Statute of Gloucester,
c. 8). To prevent collusion, whereby the ends of justice
were defeated, inquests of murder are to be taken by lawful
men chosen by oath, and of no affinity to the prisoner.

Prescription in Real Actions.— Periods of Prescription

were prescribed for the real actions in order to defeat stale
claims. The Writ of Right was not to issue where the
claim was older than Richard I. ; Novel Disseisin, where
the claim arose before the first voyage of Henry III. to
Gascoign, and so on; but there was no prescription or
limitation of personal actions (Statute of Westminster I.,
c. 39).

Other Reforms. — The champion in the Writ of Right
should not be compelled to swear that he or his father saw
the seisin of his lord or his ancestor, and that his father
commanded him to defend that right (Statute of West-
minster I., c. 40). Penalties were imposed on sheriffs and
defendants who caused delay in suits; and we find three or
four clauses in the Statute of Westminster I. (cc. 45, 46 et
seq.) evidently intended to check the law's delay. By c. 42,
suitors were allowed to sue by attorney, thus obviating tlie
necessity of personal attendance in court on each stage of
the action.

1 Year Book, 21 Edw. IV. a Ibuf., 7 Edw. IV.

44 THE STUDENT'S LEGAL HISTORY.

Statute of Westminster II.— By the Statute of West-
minster II. (1285), a long1 statute of fifty clauses, many
other legal changes were made. By c. 15, an infant Tnay
sue by his next friend : a provision construed to mean that
an infant must sue by next friend. By c. 19, when there
is no executor to administer the deceased's effects, the
Ordinary (an official of the bishop's court) must pay the
debts, as the executor would have been bound to do. The
action of waste may be maintained by one tenant in common
against another (c. 22).

Land liable for Debts : Elegit. — But the more important
clauses are 1, 18, 24, and 30. Cap. 1, generally called the
Statute De Donis, has already been dealt with. The
eighteenth clause gives to creditors who have obtained judg-
ment for their debts the right to have the land of the debtor
taken in execution to satisfy the judgment. The writ of
execution against land was called elegit, because the
creditor might elect to take the land, a remedy that has
remained to the present day.

Actions on the Case. — A still more important change was
made by cap. 24 of this famous statute. The common law,
even at this early stage, was highly inflexible. The judges
interpreted the maxim, " Where there is a wrong there is a
remedy ' ' into meaning that where there is no remedy there
is no wrong. The clerks in Chancery, who issued the writs,
at a very early period decided that where they could not find
a precedent they would not grant a writ. Those who have
had any experience of Government departments will at once
recognize this trait of the official mind. The consequence
was that an unfortunate suitor who could not bring his
complaint within the four corners of an official writ had no
redress. The evil was so great as to cry aloud for a remedy,
and accordingly was dealt with by a clause of the Statute
of Westminster II. " Whensoever from henceforth it shall

EDWARD I. TO RICHARD III. (1272 — 1485). 45

fortune in the Chancery that in one case a writ is found,
and in like case,1 under like law and requiring like remedy,
is found none, the clerks of the Chancery shall agree in
making the writ; or the plaintiffs may adjourn it until the
next Parliament, and let the cases be written in which they
cannot agree; and let them refer themselves until the next
Parliament, that by consent of men learned in the law a
writ shall be made, lest it might happen after that the
Courts should long time fail to minister justice unto com-
plainants." From this time arose "actions on the case,"
so called because the writs were framed in consimili casu.
If the Common Law Courts had taken full advantage of the
powers given them by enactment, there would probably
have been no need for the Court of Chancery; but they did
not seize the opportunity, and more than once refused to
allow the validity of new writs.

Nevertheless, many actions on the case were allowed.
For instance, in the case of trespass, which was a malfeas-
ance, or wrongful invasion of the plaintiff's property or
person, the writ of trespass on the case extended the remedy
to a misfeasance, or improperly or negligently performing
what had been agreed to be performed. E.g. A. had agreed
to carry B.'s horse across the Humber, and by overloading
the boat the horse was lost. At common law B. had no
remedy. He could not have the writ of trespass, because A.
had not taken possession of the horse wrongfully. He could
not have the writ of covenant, because the agreement was
not by deed. There was, in fact, no common law writ to
meet the case; but in 22 Edw. III. the judges allowed a
writ of trespass on the case because the facts were similar
to those of trespass. Out of this grew

The Law of Simple Contract. — Up to this time no action

would lie for breach of a simple contract, i.e. a promise not

*

1 The original Latin is " in consimili casu."

46 THE STUDENT'S LEGAL HISTORY.

contained in a sealed deed, except for debt.1 But in the
forty-second year of Edward III. we find a dictum to the
effect that if A. promised B. £10 if B. married A.'s
daughter, an action of trespass on the case would lie if A.
did not perform the contract. One is surprised to find this
adjudged to be " a like case " to trespass. The reasoning
was — if A. wrongfully seized B.'s property (malfeasance) it
was trespass. If A. promised to do something for B., and
did it so negligently (misfeasance) that B. suffered loss
thereby, it was like trespass. If A., by promising to do
something for B., induced B. to do something and then A.
failed to do his part (non-feasance), B. had sustained loss
by relying on A.'s promise, and this was also like trespass.
On such an ingenious, though scarcely convincing, piece of
judicial reason rests the whole of the English law of simple
contracts, by which a promise given for valuable considera-
tion is enforceable by the Courts. For if there were no
valuable consideration — that is, if B. had not put himself
in a worse position, either by doing something, or paying
or promising to do or pay something, he had suffered no
damage, and therefore had no action. It was not long
before the Action on the Case almost entirely superseded
the action of debt. The reason was that in Debt the defen-
dant could wage his law (see p. 8), and so escape paying a
debt at the expense of perjury; while in an action on the
case wager of law was not allowed. Coke says,2 " Wager of
law lieth not when there is a specialty or deed to charge the
defendant, but when it groweth by word, so as he may pay
or satisfy the party in secret, whereof the defendant having
no testimony of witnesses may wage his law, and thereby
the plaintiff is perpetually barred, as Littleton, sect. 514,
saith; for the law presumeth that no man will forswear
himself for any worldly thing; but men's consciences do
grow so large (specially in this case passing with impunity)

1 Vide, supra, p. 27. 2 Co. Litt. 295 a.

EDWARD I. TO RICHARD III. (1272—1485). 47

as they choose rather to bring an action upon the case upon
his promise, wherein (because it is trespass sur le case) he
cannot wage his law, than action of debt."

The Law Merchant : Statutes Merchant. — Mercantile law

of this period is very scanty, probably because commercial
transactions were in the hands of a limited class, who were
all members of various trades' and merchants' guilds, who
had either courts of their own or preferred to pursue each
other before certain local courts. The Mayor's Court,
London, and the Court of Passage, Liverpool, are survivors
of these ancient jurisdictions. It is obvious that, at a time
when even the King's Courts had a difficulty in executing
their judgments, these local tribunals had a much greater
difficulty. Especially was it the case when a judgment
debtor did not live in the locality. By the Statute of Mer-
chants (1285), amending the Statute of Acton Burnel
(1283), a simple way of enforcing mercantile debts was
provided. The merchant could summon his debtor before
the Mayor of London, York, or Bristol, to acknowledge the
debt and day of payment. A recognizance was to be entered,
and the mayor's clerk to make out a bill obligatory, sealed
by the debtor and the king's seal. This was called a Statute
Merchant, and is the first instance, so far as we know, of
the royal authority being extended to validate mercantile
contracts. If the debtor did not pay on the day named,
the creditor must produce the bill to the mayor, " who shall
incontinent cause removeables of the debtor to be sold to
pay the debt." We find, also, in the Year Books of Edward
III. cases where the assistance of the Chancellor and the
Council is invoked in cases where alien traders were con-
cerned. In one case, in 1389, * a merchant of Genoa who
had his ship lying in the Thames petitions the Lord Chan-
cellor for justice against three other Genoese merchants

1 Select Gas. in Ch., p. 9 (Selden Society's Publications, vol. x.) ; see
also, same volume, p. 3.

48 THE STUDENT'S LEGAL HISTORY.

who owe him large sums of money, and craves a speedy
remedy. The petitioner states that his ship is lying un-
freighted, that certain creditors of his in London are unpaid,
and that he cannot afford to wait the length of time neces-
sary to prosecute an action at common law. The order made
on the petition was to command the defendants to appear
before the King in his Council in his Chancery " on Friday
next."

Imprisonment for Debt.— If the debtor had no moveables
within the mayor's jurisdiction, but had some within the
realm, the mayor must send the recognizance to the chan-
cellor, who shall send a writ of fieri facias to the sheriff in
whose county the goods were. If the debtor had no goods
he should be imprisoned.

Sedition. — The criminal law also received attention in the
time of the Edwards. Edward I. enacted, " from hence-
forth none" should be "so hardy to tell or publish any
false news or tales, whereby discord, or occasional discord
or slander, may grow between the king and his people or
the great ones of the realm." l

The law of treason had, as has been shown,2 been extended
by the subtlety of the Norman lawyers. The process was
checked by the famous Statutes of Treason of Edward III.
(1352). The offence was cut down to the following: —

(1) Compassing or imagining the death of the king,

queen, or their eldest son.

(2) Violating the queen, the king's eldest unmarried

daughter, or his eldest son's wife.

(3) Levying war against the king in his realm or adher-

ing to his foes.

(4) Counterfeiting the king's coin or seal.

(5) Slaying the chancellor, treasurer, or judges while in

the discharge of their duty.

1 Statute of Westminster I. c. 34. * Supra, p. 21.

EDWARD I. TO EICHARD III. (1272—1485). 49

Pleadings. — Written Pleadings now came into use. In-
stead of the verbal altercations between the parties by
which they arrived at an " issue," the plaintiff put his case
in writing, and delivered it to the defendant. To this the
defendant replied, and the plaintiff then rejoined on the
reply. It seems that these written altercations might go-
on indefinitely; beginning with the plaintiff's declaration,,
followed by the defendant's plea, they went on through the
mazes of the reply, the rejoinder, the sur-re joinder, the re-
butter, the sur-rebutter, and so on alternately by each party.

Indictments in Writing. — As the reader has seen, the old
way of putting a prisoner on his trial was for some men of
the vicinage to " present " him to the sheriff or the judges
in eyre, swearing that they believed him to be guilty of
some crime. This was called "indicting" the prisoner.
Under Edward I. the practice arose of putting all indict-
ments in writing, and until 1916 there might be seen at
assizes or sessions a parchment document almost exactly the
same as that used in 1320, save that at first it was writ in
Latin — for the better understanding of the prisoner, it is
supposed — and afterwards in English : —
" Middlesex "} The jurors on their oath present William
to wit. ) Styles that he did on the tenth day of
March in the year of our Lord one thousand nine hundred
and seven one pair of boots of the value of fivepence sterling
the property of Thomas Smiles feloniously steal take and
carry away against the peace of our Sovereign Lord the
King his Crown and dignity." There is the same simplicity
of phrase, the same terseness of statement, the same allega-
tion of a breach of the peace, and the same entire absence
of punctuation as our forefathers, the grand jurors of
Edward I.'s time, exhibited.

Certainty of Criminal Pleading.— Until 25 Edward III.
it was not uncommon for a man to be put on his trial as
S.L.H. 4

50 THE STUDENT'S LEGAL HISTORY.

u a notorious thief " or a "general oppressor " or upon some
other vague and general charge. Edward III., carrying on
the policy inaugurated by Edward I., forbade1 men to be
put on trial unless the indictment stated specifically the acts
which were going to be alleged as criminal. From that day
to this, uncertainty in an indictment is a fatal error, and the
principle has become well established that the prosecution
must let the prisoner know beforehand of what he is accused
in such a manner that he can properly prepare his defence.

Commissioners of Assize. — " The great judge and the
little judge, The judges of assize, " as Hood calls them, first
appear in the reign of Edward I. The circuit, or assize
system, no doubt took its rise from the Justices in Eyre;
but the judges of assize as they exist at the present time
were developed in temp. Edward I., and are the creation of
the hereinbefore much-quoted Statute of Westminster II.
By clause 30 of that Act the justices itinerant were given
power to try all civil cases by means of the writ Nisi Prius.
Before this, the justices itinerant seem to have confined
themselves to pleas of the Crown and various real actions
known as assizes. But from this time the justices went on
circuit by virtue of a special royal commission of Gaol
Delivery, Oyer and Terminer, Assize, and Nisi Prius. This
gave them power to deliver all the gaols, i.e. by trying all
those who had been imprisoned on a charge of crime; to
hear and determine (Oyer and Terminer) all things affecting
the royal peace, crown, and dignity; and all writs of assize
(Mori d' Ancestor, Novel disseisin, nuisance, and the like) ;
and also try such cases as should be brought before them on
a writ of Nisi Prius. The commission could be issued not
only to the king's justices, but also to anyone else. In
fact, it was as commissioners they sat, even though they
might also be justices.

1 25 Edw. m. c. 3.

EDWARD I. TO RICHARD III. (1272—1485). 51

The Writ of Nisi Prius. — At Common Law, when an issue
was joined, the plea concluded "therefore of this the said
A. B. prays may be inquired of by the country," or " and
of this he puts himself upon the country." Thereupon the
Court awarded a writ addressed to the sheriff of the county
where the venue of the action was "that he cause to come
here " (i.e. to Westminster) on such a day, twelve libros et
legates homines — that is, a jury. This was called the writ
of Venire Facias. The intolerable inconvenience of sum-
moning a jury from (say) Westmorland or Devon to try an
action at Westminster caused a practice to spring up of
continuing the cause from term to term until such time as
the justices in eyre were about to visit the county, and then
of transferring the cause to those justices. The Statute of
Westminster II., c. 30, ordered that in future there should
be inserted in the Venire Facias the words that the sheriff
should command the jurors to come to Westminster on such
a day in Michaelmas or Easter terms " nisi prius " (unless
before) that day the justices appointed to take assizes shall
come into his said county. To this day the justices of
assize, when they sit to try civil actions, are said to be
" sitting at Nisi Prius." In the time of Elizabeth the writ
of Nisi Prius was extended to actions tried at Westminster
(see p. 75).

THE COURT OF CHANCERY AND THE COUNCIL.

We have seen how in the preceding period the three
Courts of Common Law were established, all growing out
of the justices who, presided over by the Great Justiciar,
formed an essential part of the Curia Regis.

The formation of the separate Courts of Exchequer,
Common Pleas, and King's Bench, took away most of the
legal business from the Council ; but some was still left. It
consisted of appellate jurisdiction over the three Courts of
Common Law, and original jurisdiction, not bounded by the

52 THE STUDENT'S LEGAL HISTORY.

law, but used to " give redress to all men according to their
deserts." It was, in fact, the remnant of the King's Pre-
rogative of Justice. This jurisdiction was exercised by the
King in his Council in his Parliament. The word Parlia-
ment simply means the magnates of the realm, earls,
barons, judges, prelates, and such councillors as the king
summoned to attend. The Council consisted of such of
these as the king called specially to advise him in judicial
business. It exercised the same functions as the House of
Lords and the Privy Council afterwards exercised. In
Richard II. the Council no longer sat in Parliament; and
the jurisdiction of the Lords and the Council became dis-
tinct. In course of time the Lords only heard appeals by
writ of error. The Chancellor was an influential member of
the Council in Parliament, and afterwards of the Council.
He was, in fact, the head of the legal department, for out
of his office all writs issued. The original procedure in the
'Council in Parliament was by petition.

These petitions were addressed to the King, and were
considered by him in Council. Some cases came within the
Common Law, and these would be met by the issue of a
writ ; others were matters of grace and favour, sometimes
contrary to the Common Law, and at others of a special
kind not within the Consuetudo Curies. The last kind would
be decided generally by the Council, with the chancellor
as the chief legal member of it. So that the chancellor's
jurisdiction was derived from the Council.

But the establishment of the Chancery as a court of
judicature did not take place until many years after. Until
Edward III. we find petitions made direct to the chancellor.
But it is very doubtful whether there was in this period a
Court of Chancery — for the trial of causes — as a separate
tribunal distinct from the Council. (See Chapter VIII.)
It is important to remember that the chancellor was an
administrator rather than a judge. His judicial duties only
arose in the course of his office as chief legal member of the

EDWARD I. TO RICHARD III. (1272—1485). 53

Council, to which everyone was entitled to look for redress
of any and every grievance. His separate judicial position
grew upon him very gradually. It was not until somewhere
about the reign of Henry VI. that any distinction appears
to be made between the common law and the equity juris-
diction of the chancellor; and from about Henry VII. we
see the rise of the modern Court of Chancery. From this
time forth there was established in England a Court of
Equity concurrent with the Common Pleas, the Exchequer,
and the King's Bench. This Court of Equity invented new
doctrines, new processes, and new remedies. To it our legal
history owes uses and trusts, the specific performance of
contracts, injunctions to prevent the continuance of a
wrong, new principles governing the guardianship of
infants, the recognition of rights of property in married
women, and many other important doctrines, remedies, and
forms of procedure.

The Writ of Subpoena is said to have been invented by
John de Waltham, Bishop of Salisbury and Keeper of the
Rolls, in the reign of Richard II. As a matter of fact,
De Waltham did not invent the subpoena, he only adapted
it to the use of the Court of Chancery ; and it is by no means
certain whether he was the first person to adapt it. The
Writ of Subpoena was so called because it commanded the
person to whom it was addressed to appear in the Court of
Chancery on a certain day, and answer the complaint of the
plaintiff. It was a flexible kind of process, easily adapted to
any form that might be desired; and its efficacy was that,
if the defendant did not appear as he was ordered, he was
liable to be committed for contempt of Court. The device
was the more easily accomplished, forasmuch as all the
king's writs issued out of Chancery ; although until his time
they were all returnable in one of the three Common Law
Courts. Despite many remonstrances by the House of Com-
mons during the Lancastrian period, the new Court throve
apace, and speedily established two important doctrines.

54 THE STUDENT'S LEGAL HISTORY.

The first was the doctrine of Uses. The second was the
right to issue injunctions to restrain acts not necessarily
prohibited by the common law, but contrary to good, con-
science. Indeed, the whole of the Chancellor's jurisdiction
was based on conscience, and this was necessarily so, seeing
that it took its rise from the delegation to it of the king's
conscience in matters of justice.

Uses. — The Doctrine of Uses was based on the idea that
the person really entitled, as a matter of equity and good
conscience, to the enjoyment of property, was not of neces-
sity the person who had the actual possession of it, nor even
the person who had the actual legal possession of it. The
Court of Common Pleas could only recognize the person who
was seised, because the various Writs of Right and Assizes
were only framed so as to give relief to the person entitled
to the seisin. Now seisin could only be acquired in certain
stated forms: by descent from the person last seised, by
feofhnent with livery of seisin, or by one or two other pre-
scribed modes. But the Court of Chancery did not ask
whether or no a person claiming land had procured a formal
conveyance. Did the last real owner intend the claimant to
have the benefit of the property? If so, whoever had that
kind of possession which the common law recognized must
give the use and benefit of the land to him who had the
conscientious right to it. Thus came a separation between
the use and the seisin, the one being the ownership, recog-
nized in Chancery, and the other the sole estate known to
the ancient Courts of Common Law. The word user comes
not from usus, but from the Latin opus, old French os. Sir
Frederick Pollock and Mr. Maitland point out that before
the Norman Conquest we may find a man saying that he
conveys land to a bishop to the use of a church.1 The earliest
reliable reference to the Use occurs in 50 Edward III. c. 6,

1 Pollock and Maitland, vol. ii. p. 226.

EDWARD I. TO RICHARD III. (1272—1485). 55

giving creditors execution against lands and chattels in spite
of gifts to uses made in defraud of them. 7 Richard II.
c. 12 forbids aliens, and 15 Richard II. c. 5 forbids spiritual
persons and corporations, to hold lands by way of use-, and
1 Richard I. c. 1 makes all grants by, and executions
against, a settlor or grantor of lands binding on his heirs
and feoffees to uses. It will be seen that these statutes refer
to uses as already in existence ; and it is a traditional belief
that they were invented by the clergy in order to defeat the
Statutes of Mortmain.1 However this may be, it is safe to
say that uses, or equitable estates, first came into prominence
in the period from Edward I. to Richard III., and were
fully established before the end of that period. After the
Statute of Uses (Henry VIII.) the use became a trust. Sir
Robert Atkyns, in the case of The Att.-Gen. v. Sands,2
says, " a trust is altogether the same that a use was before
27 Henry VIII. (Statute of Uses), and they have the same
parents, Fraud and Fear, and the same nurse, a Court of
Conscience." The first recorded "bill" in equity which
turns upon a trust is Dodde v. Browning, reported in
I Calendars xiii. in one of the first four years of Henry V.

Procedure in Chancery : Petition : Bill.— The procedure in
Chancery was entirely different from that at common law.
To begin with, all the proceedings were in English. No
writ was required to give the chancellor jurisdiction, because
he simply exercised the prerogative of the king to grant
relief in matters of grace and equity.3 The party who
wanted redress for his wrong presented a Petition to the
Court, which petition was afterwards called a Bill. This
bill 4 commenced the proceedings. It contained a statement

1 Gilb. For. Rom. 17.

2 Hard. 491 (20 Car. II.).

* The word equity is here used in its widest sense a* meaning justice or
right, apart from any question of legal right.
4 From libellum = a, writing.

56 THE STUDENT'S LEGAL HISTORY.

of the facts alleged by the plaintiff, and if it disclosed a case
for interference the subpoena was issued, commanding the
defendant to appear on such a day and make answer. At
first, no doubt, the defendant appeared in person, but gradu-
ally a practice arose by which he was allowed to submit a
written answer on oath. The power to compel a man to
answer a complaint on oath was one of the secrets of the
success of the new Court ; for at the common law the defen-
dant was not allowed to give evidence on his own behalf,
much less could he be compelled to submit to an examina-
tion by the plaintiff.

Discovery : Interrogatories. — Hence arose the practice of
filing a bill in Chancery, in the form of a long string of
questions, to which the defendant had to reply in writing
and on oath. When a party to a common law action wanted
to get at evidence of facts known only to the other party,
he would file his bill of interrogatories in Chancery and read
the answers in the action at common law. The same thing
happened in the case of documents. If the other party had
documents in his hands, there was at common law some diffi-
culty in compelling him to produce them at the trial. For
one thing, you might not know quite what documents he
had, and you could not ask him, because he could not give
evidence. But in Chancery you could file a bill to compel
him to discover 011 oath and in writing what documents he
had in his possession relating to the case. This was called
a Bill for Discovery of Documents.

Injunction to restrain Action at Common Law.— Before
the end of the Yorkist line the Chancery had grown in
power to a wonderful extent. It had invented the searching
procedure by bill : it had fostered the system of -uses ; it had
discovered the injunction; and had found out how, by that
formidable weapon, to override the common law, when the
latter was in conflict with the principles of good conscience.

EDWARD I. TO RICHARD III. (1272—1485). 57

Suppose A. had a right of action against B. by the common
law and not by the rules of the Chancery, A. began his
action in the King's Bench or the Common Pleas, B.
promptly applied to the Lord Chancellor, by bill, stating the
facts; and the chancellor issued an injunction commanding
A. not to go on with his action at common law. If A. dis-
obeyed the injunction he was guilty of contempt, and the
Court of Chancery would send him to prison.

These instances have been given to show what, in the
early days of the Court of Chancery, were the motives of its
jurisdiction. (1) Where the common law had no remedy, as
in the case of uses; (2) where the Common Law Courts had
no procedure, as seen in discovery; (3) where the common
law, relying merely on some technical formal ground,
worked, a manifest hardship. In these cases the chancellor
would interfere.

At the time with which we are dealing the jurisdiction
of equity was very vague. Its principles were still more
undefined. " Equity is the length of the chancellor's foot,"
said a wit ; and he was right.

Justices of the Peace. — Besides the Chancery Court which
was concerned with civil matters, Edward III. set up in
every county a tribunal far from ostentatious, but in reality
of great power. This was the tribunal of the Justice of the
Peace. Long before Edward III. there had been certain
men in every county who were bound to preserve the king's
peace. They consisted of the sheriffs, the king's constables
and bailiffs, and a few others — all ex officio. They could
arrest disturbers of public order, and hold them in prison
or bail them ; and from the nature of their duties were called
"Conservators (i.e. preservers') of the peace."

1 Edward III. C. 16. — But Edward III. appointed in each
shire " good men and lawful, that were no maintainers of
evil or barrators in the county, to keep the peace." This,

58 THE STUDENT'S LEGAL HISTORY.

the first Act on the subject, merely adds to the ex officio
conservators a number specially appointed by the crown.

4 Edward III. C. 2. — The Jurisdiction was speedily ex-
tended ; for only three years after their creation, the keepers
of the peace were empowered to receive accusations, and act
on them by committing- the accused to prison to wait the
coming of the judges of assize, when such keepers were
ordered to send their indictments before the said judges. In
this we see the origin of the preliminary jurisdiction of
justices in petty session, i.e. the jurisdiction to inquire into
an allegation, and, without trying the prisoner, to see if
any primd facie case is made out against him. If the accu-
sation is altogether frivolous, or the evidence very flimsy,
the prisoner is allowed to go ; but if not, he is committed to
the assizes or sessions to be tried.

35 Edward III. C. 1. — There are other statutes of the same
reign dealing with the powers of the Keepers of the Peace,
and conferring a more and more extended jurisdiction, and
we come at last to 1360, when a consolidating Act was
passed. In every county there shall be one lord, " and with
him some three or four of the most worthy in the county,
with some learned in the law," to keep the peace (s. i.).
They are to have power to " pursue, arrest, take, and chastize
them according to their trespass or offence" (s. ii.). They
may imprison or punish according to the law and custom of
the realm (s. iii.), and also inform offenders and " inquire
of all those that have been pillors ( ? pillagers) and robbers
in the parts beyond the sea, and be now come again, and go
wandering, and will not labour as they were wont in times
past " (s. iv.). They may arrest and imprison all those
they may find by indictment or suspicion, and take surety
or mainprize for the good behaviour of those " that be not
of good fame. To the intent that the people be not by such
rioters or rebels troubled nor endangered nor the peace
blemished " (ss. v. and vi.). We find in this clause one of
the most important functions of the new tribunal, namely,

EDWARD I. TO RICHARD III. (1212— 1485). 59

that of preventing crime by " binding people over " to keep
the peace or be of good behaviour.

Conservators, now called Justices of the Peace. — Further,
the justices of the peace, as they now began to be called,
might hear and determine at the king's suit all felonies and
trespasses done in the county (s. vii.), but all fines imposed
by them for trespass must be reasonable and just (s. x.).

Appeal from Justices of the Peace to the King's Bench. —

From the very creation of the office, the Court of King's
Bench assumed an appellate jurisdiction by means of the
writs of certiorari and mandamus. By means of these a
subject could always appeal to the King's Bench against a
conviction wrong in point of law, or against an unfair trial.
The first mandamus found in the books directed to justices
of the peace is in Edward IY.

1 Edward IY. c. 2: Quarter Sessions.— The Statute
34 Edward III. c. 1 gave the justices of the peace the power
to take indictments. An Act of the next Edward greatly
enlarged this power by wholly denuding the Sheriff's Tourn
of all criminal jurisdiction and giving it to the justices of
the peace sitting in Quarter Sessions. The reason given in
the preamble of the statute is the corruption of the sheriffs,
who, it appears, allowed much licence to their menial ser-
vants to arrest people on their own responsibility. It is not
impossible that Parliament was easily persuaded to abolish
the ancient but tumultuous and popular Court of the Sheriff.

The King's Peace : Extension of the Theory.— The King's
Peace: Before the end of this period the theory of the
Pax Regis had extended to its full limits. In the time of
Edward I. it was still law that there must be some violence
to constitute a crime a breach of the peace, and so a plea of
the Crown. But very soon after it became customary to
allege in all indictments that the offence was committed
" contra pacem domini regis," an allegation which the

60 THE STUDENT'S LEGAL HISTORY.

accused was not allowed to deny, even when there was no
suggestion of violence having actually been used. Even
up to 1916, if some pupil of Fagin snatched a pair of
boots from a shop door and ran away with them, he was
indicted that he did " feloniously steal take and carry
away " the boots " against the peace of our Sovereign Lord
the King his Crown and dignity/' The effect of inserting
the allegation contra pacem, &c., was to enable every prose-
cution to be conducted in the name of the Crown. It is
owing to this, in great measure, that appeals of felony fell
into disuse, and were almost, though not quite, obsolete
before the reign of Henry VII. It was a displacement of
private vengeance by public justice.

SUMMARY OF THE PERIOD.
Edward I. — Richard III. inclusive.

1. Real Property:

(a) Freeholds are made alienable inter vivos; but sub-

infeudation is put an end to (Quia Emptores,
Edward I.).

(b) Entails are established (De Donis, Edward I.), and

continue in full force and effect until Taltarum's

Case, when the courts emphatically decide in

favour of common recoveries as a means of barring

entails (Edward IV.).
(c). Copyholds, formerly tenants in villeinage, gain

security of tenure, and no longer hold at the will

of the lord,
(d) Various slight changes are effected, e.g. the writ of

waste is given against limited owners.

; r X

2. Law of Treason is codified and simplified (Edward III.).

EDWARD I. TO RICHARD III. (12T2— 1485). 61

3. The Law of Simple Contract, i.e. that a party who has

given valuable consideration for a promise can
bring an action for damages if the promise is
broken, dates from this period (precise date not
known).

4. The Courts of Justice :

(a) The Council, sitting as the Court of Chancery, is

found established as a Court of Equity.

(b) Justices of the peace are created with a local

criminal jurisdiction. Quarter Sessions take the
place of Sheriff's Tourn.

(c) Justices of assize, i.e. with a commission of gaol

delivery, oyer and terminer, assize, and nisi
prius are appointed instead of justices in eyre
(Edward I.).

5. Procedure:

(a) Indictments begin to be in writing (Edward I.),

and are ordered to be certain and definite
(Edward III.).

(b) Written pleadings take the place of verbal alter-

cation between the parties in civil causes (about
Edward I.).

(c) Bills, petitions, and the subpoena are used in

Chancery (Richard II.).

(d) " Actions on the case ' J are introduced by virtue of

the Statute "In Consimili Casu " (Edward I.).

( 62

CHAPTER IV.
HENRY VII. TO ELIZABETH (1485—1603).

General. — The Tudor period, though one of the most im-
portant in the history of England, politically and
economically, presents a singular lack of material for the
purely legal historian. The legal changes were few. The
common law by this time was fairly well ascertained, thanks
to the labours of Britton, Fortescue, Hale, Littleton, the
author of the Fleta, and a few other diligent text- writers.
The decisions of the judges had begun to be recorded in the
Year Books, to the greater certainty of the law, and for the
better guidance of their successors.

During the reign of Henry VII. the attention of Parlia-
ment was fully occupied with measures for recruiting the
national energies, so seriously shaken by the prolonged
Wars of the Roses. Henry VIII. was busily and con-
tinuously engaged in consolidating the royal power, and in
domestic and religious undertakings. Mary's time was
taken up in trying to restore the religion so ruthlessly pulled
down by her father and brother; and in the reign of
Elizabeth men's minds were full of religion and of wealth.

Yet it must not be thought that the law stood still.
Some changes there were, one of them, at least, of the first
importance to lawyers. But the chief est feature of the legal
history under the Tudors was the steady consolidation of the
common law, as will be seen when it is stated that the great
works of Coke, embodying that consolidation, appeared
immediately after the end of Elizabeth's reign.

HENRY VII. TO ELIZABETH (1485—1603). 63

The Statute of Uses (27 Hen. YIII. c. 10).— The law of
peal property underwent considerable changes, the moving
cause being the Statute of Uses, an Act more important
to the conveyancer than any other — so important, indeed,
that writers on real property law always call it " the
statute." The object of the statute can best be gathered
from its preamble, which, in the manner of those times, set
forth at great length the ills and grievances by which legis-
lation had been called forth.

Summary of Statute of Uses. — Preamble : Whereas by
the common laws of this realm lands, tenements and
hereditaments be not devisable by testament, nor ought to
be transferred from one to another but by solemn livery and
seisin, matter of record (e.g. fines and recoveries), writing
sufficient made bona fide, . . . yet nevertheless divers and
sundry imaginations, subtle inventions and practises have
been used, whereby the hereditaments of this realm have
been conveyed by fraudulent feoff ments, fines . . . (&c.)
craftily made to secret uses, intents, and trusts, ... by
reason whereof, and by occasion of which, fraudulent
feoffments . . . (&c.) to uses, confidences, and trusts,
divers and many heirs have been . . . disinherited, the
lords have lost their wards, marriages, reliefs (and other
feudal incidents), . . . the king's highness hath lost the
profits of the lands of persons attainted, . . . and many
other inconveniences have happened . . . ; for the extirping
and extinguishment of all such subtle practised feoffments
(&c.) ... it is enacted :

(a) That where any person stand or be seised of and in
any . . . hereditaments, to the use, confidence, or trust of
any other person or persons, or of any body politick . . .
that in every such case that or those persons which have or
hereafter shall have any such use, confidence, or trust in
any such lands ... or hereditaments, shall from hence-
forth be deemed to have such estate, possession, and seisin

64 THE STUDENT'S LEGAL HISTORY.

of and in the lands . . . and other hereditaments as he or
they had before in the use, confidence or trust of the same
lands ... or hereditaments.

The object of the statute was, it will be seen, utterly to
destroy the doctrine set up by the Court of Chancery of the
distinction between the seisin, or legal estate, in land, and
the use, or. beneficial estate. How it utterly failed to accom-
plish that object will be seen. Two or three points are to
be noticed :

(1) Some person must be seised of the land. The word
" seised " applied only to the possession of an estate of free-
hold; * therefore, if A. was possessed of a term of years, i.e.
a leasehold, to the use of B., the statute did not apply. For
the same reason it did not apply either to copyholds or to
goods and chattels.

(2) He must be seised to the use of another; therefore,
if there was a feoff ment "to A. and his heirs, to the use of
A. and his heirs, " the statute did not apply.

(3) There is nothing in the statute to take away or
diminish the jurisdiction of the Court of Chancery as a court
of conscience, which would enforce an obligation conscien-
tious though not legal.

(4) The statute did not destroy the "use." It only
clothed the use with the seisin, taking that seisin out of the
legal feoffee. E.g. if A. was seised in fee simple to the use
of B. for life, and after his death to the use of C. for life,
and after his death to the use of D. in fee simple, the
effect was: To B.'s use for life is added the seisin for life
(leaving the rest of the seisin in A.). When B. dies, C.'s
use for life receives a seisin for life to clothe it. When B.
and C. are dead, D.'s use arises, and it is clothed with a
seisin of the same magnitude, i.e. the use being in fee
simple, the seisin is of the fee simple, and as a fee simple is

1 Supra, pp. 25-27.

HENRY VII. TO ELIZABETH (1485—1603). 65

the largest possible estate in land, the seisin given to A. is
exhausted.

As has been shown, the statute did not quite destroy the
equitable doctrine of the separation of legal and beneficial
estate (vide supra). That theory still took effect with
regard to copyholds and leaseholds, and goods and chattels.

Tyrell's Case: S & 5 Philip & Mary: Trusts.— The old

doctrine was soon to be revived, under another name, it is
true, but of the same nature and substance, by one of the
most important cases to be found in the reports. One Jane
Tyrell, in the fourth year of Edward VI., for the sum of
£400, bargained and sold to her son George Tyrell all her
manors, lands, tenements, &c., to hold the same to G. T.
and his heirs for ever. [The effect of the bargain and sale
was to give the use to G. T., and the statute gave him the
same seisin as he had use, viz. the fee simple.^ The limita-
tions continued — to G. T. and to his heirs for ever, to the use
of Jane for life, and after her death to the use of the said
G. T. and the heirs of his body, i.e. in tail.

The bargain and sale to G. T. and his heirs gave G. T.
the use in fee simple, and the statute gave him the same
seisin. Then follow two other uses, one to Jane, and one to
G. T. in fee tail. The question arose whether the last two
uses were executed by the statute; that is to say, whether
by the Statute of Uses Jane, who had a use for life, took
also the seisin for life, and G. T. the same as to his estate
tail. " But all the judges of the C. B., and Saunders, C.J.,
thought that the limitation of uses above is void, . . .
because an use cannot be engendered of an use." *

It is difficult to support the finding of Saunders, C. J., and
the other judges of the Common Bench, upon the reason
which is given in the judgment. Why " an use cannot be
engendered of an use " is more than a modern lawyer can

1 Tyrell's Case, Dyers' Rep. 155a.
S.L.H. 5

66 THE STUDENT'S LEGAL HISTORY.

imagine. The effect of the decision, namely, that the statute
only applied to the first use, is generally expressed thus :
there cannot be a use upon a use. It is not impossible to
find a reason for the decision in Tyrell's Case. The best
argument seems to be that George Tyrell stood seised to the
use of himself, while the statute only refers to a person who
is seised to the use of another. Therefore the statute had
no application.

The Court of Common Pleas, as will be seen, declared all
the uses, except the first, void.

Trusts. — This was the opportunity of the Court of
Chancery. As we have noted, the jurisdiction of that Court
was not directly diminished by the Statute of Uses. As
soon as the common law judges refused to take notice of any
use except the first, the chancellor took all the others under
his protecting cegis, and enforced the ultimate use in the
same manner as before the statute. To take an example :
X. enfeoffed A. to the u£e of B., to the use of C. The
common law courts only took notice of the first use, which
carried the legal estate to B. C. went to the chancellor,
who compelled B. to hold merely as C.'s trustee, C. taking
the benefit. From about this time the use enforced by the
Court of Chancery was known as a trust, the word " use "
being applied only to that which took effect under the
statute, i.e. the first.

The Statute and Conveyancing. — The Statute of Uses is,
perhaps, the most important to a conveyancer. By taking
advantage of it, means were invented to transfer the seisin
without the troublesome formality of " livery of seisin." By
taking advantage of the same peculiarity, namely, the
facility for transferring the seisin by merely conveying a
use, many inconvenient rules of the common law were
dexterously avoided, and, without going into details, which

HENRY VII. TO ELIZABETH (1485—1603). 67

will be found in treatises on real property, it may be stated
that modern conveyancing dates from the Statute of Uses.

The Law of Wills of Land. — Whatever may have been
the law before the Conquest, it is certain that after that
time no will of land was permitted to be made. It is not
clear why such a rule should have prevailed in the case of
non-military tenures, but one readily understands why it
should be enforced in the case of land held by knight-
service. For to allow a will of such land would have been
to deprive the lord of relief, wardship, and marriage, his
most valuable feudal rights.

In the early days of uses, it became the practice for
owners of land to convey their estates to a feoffee, to hold it
to such uses as the feoffor should appoint by his will. For
example, the owner of land desired to dispose of it by will.
He enfeoffed A. in fee simple. Then, by some writing to
take effect after his death, or even by word of mouth, he
declared his will that A. should hold to the use of B. and
his heirs. Thus, the full limitation would be to A. and his
heirs, to the use of B. and his heirs. This kind of disposi-
tion of land is generally called a will of uses.

When the Statute of Uses was passed, it incidentally
destroyed the will of uses, because when the feoffor enfeoffed
A., and did not immediately declare any uses, A. held to
the use of the feoffor, and the Statute of Uses clothing the
use with the seisin, A. had no estate at all.

Five years after the Statute of Uses, it was found im-
possible to continue the absolute restriction on the devise of
freeholds, and, therefore, an Act was passed allowing a
certain liberty of testation. The Statute of Wills (1540)
begins by reciting : " Our said sovereign lord, most vir-
tuously considering the mortality that is to every person at
God's will and pleasure most common and uncertain, of his
most blessed disposition and liberality, being willing to
relieve and help his said subjects in their said necessities

68 THE STUDENT'S LEGAL HISTORY.

and debility, is contented and pleased that it be ordained
and enacted by authority of this present Parliament."

Sect. 1 gives power to all owners of socage lands to dis-
pose of by a last will and testament in writing or otherwise
by any act or acts lawfully executed during life. Sect. 3
reserves to the king, as against the devisee, the same reliefs
and other payments as were made by an heir. Sect. 4
allows a tenant by knight-service to devise two-thirds of
such land by will, saving to the king or the lord his rights
of wardship and primer seisin in the other third part. The
statute said nothing about copyholds, and as the Statute of
Uses did not affect copyholds, they were still devised by
wills of uses. By a further Act two years later it was
declared that married women, infants, and idiots, cannot
make a will of land.

It is important to notice that the Act does not provide any
particular form of will. Blackstone declares that under the
statute " bare notes in the handwriting of another person
were allowed to be good wills," because they came under the
designation of " other act lawfully executed in the testator's
life." A further point is, that a number of the rules which
formerly applied to wills and uses, were applied also to wills
under the Act, e.g. a will of uses only referred to such land
as had been given to the feoffee to uses. Without the same
reason, the new will only referred to such land as the testator
had when he made it. Thus, " I devise all my land to A. B."
did not give A. B. all the land the testator had when he died,
but only that which he had when he made the will.1

Statutes of Bankruptcy, 3$ & 35 Hen. VIII. c. $, and
13 Eliz. c. 7. — The Law of Bankruptcy took its rise in this
period. By a statute of Henry VIII. all persons who tried
to defraud their creditors either by fleeing the realm or by
"keeping house," i.e. stopping at home and refusing to

1 See also p. 130.

HENRY VII. TO ELIZABETH (1485—1603). 69

allow admission to creditors, might be declared bankrupt.
All their property was to be forfeited and sold, and the pro-
ceeds rateably divided amongst the creditors. Unlike the
present law, however, the Act of Henry VIII. left the
bankrupt still liable for the balance of his debts, and he was
liable to imprisonment. A further statute of Elizabeth
amended the procedure and constituted a Court of Commis-
sioners in Bankruptcy. The statute of Elizabeth only
applied to traders. It is only necessary to say here that
under both the Acts bankrupts were treated as criminals.

Statutes to prevent Fraud.— There are two famous Acts
of Elizabeth passed with the laudable view of preventing
frauds. They are both of the utmost importance to the
student, and are generally called 13 Eliz. c. 5, and 17 Eliz.
c, 4. The first is to protect creditors against fraudulent
debtors who put their^property out of the reach of execution.
By the statute all conveyances and dispositions of property,
made with intent to defraud creditors, are utterly void and
of none effect. The best opinion seems to be that this was
only an emphatic declaration of the common law, and no new
idea. 27 Eliz. c. 4 enacted that when a man fraudulently
made a voluntary gift of land in order to defraud a subse-
quent purchaser, the gift should be void. This Act was pro-
bably rendered necessary by the facility with which secret
gifts could be made by means of verbal uses and trusts.

Star Chamber. — The Courts of Justice had already been
established almost exactly in the form which lasted to 1875,
but there was another Court established in the reign of
Henry VII. As I have shown on a previous page, the King
in Council always exercised a vast authority in all legal
matters. Especially they interfered to redress the grievances
of the poor against the powerful. From the time of
Henry VII. the judicial power of the Council was chiefly
exercised by the Committee of the Council called the Star

70 THE STUDENT'S LEGAL HISTORY.

Chamber; and this Committee vastly extended the scope of
the Council's jurisdiction under the Tudors and the Stuarts.
In this period, also, the Chancellor, himself, had attained
jurisdiction in equity. In fact, he was the sole judge of the
Court of Chancery.

3 Hen. YII. C. 1. — In the year 1488 was passed an Act
whose purpose can be best gathered from an extract from
its preamble : " The king, our said sovereign lord, remem-
bereth how by unlawful maintenance, giving of liveries,
signs, and retainders by indentures, promises, .oaths,
writings, or otherwise embraceries of his subjects, untrue
demeanings of sheriffs in making of panels and other untrue
returns, by taking of money by juries, by great riots and
unlawful assemblies, the policy and good rule of this realm
is almost subdued, and for the not punishing of these incon-
veniences, and by reason of the premises, little or nothing
may be found by inquiry, whereby the laws of the land in
execution may take little effect, to the increase of murders,
robberies, perjuries, and unsureties of all men, living, and
losses of their lands and goods to the great displeasure of
Almighty God."

There can be no doubt that at this time, notwithstanding
the abolition of much of the sheriff's ancient power, he had
still a great deal of authority, and that his authority was
often exercised mischievously and corruptly. As to the
corruption of jurors, and their intimidation by local
magnates or factions, there is abundance of testimony. It
is one of the reasons given in the preamble of 1 Edw. IY.
c. 2,1 for the disestablishment of the sheriff's tourn and the
setting up of quarter sessions. It formed a parliamentary
grievance throughout the Middle Ages, and was the subject
of many a popular satirical ballad.

Criminal Jurisdiction. — The statute goes on to ordain
that the chancellor, treasurer, and keeper of the privy seal,

1 Supra, p. 59.

HENRY VII. TO ELIZABETH (1485—1603). 71

or two of them, with a bishop and a temporal lord of the
Privy Council, and the two chief justices of the King's
Bench and Common Pleas (or two other justices in their
absence), should have authority to call before them and
examine all those charged with " any misbehaviour before
rehearsed" (i.e. in the preamble), and to punish them on
conviction.

The Privy Council as a Court.— It is shown in Chapter
VIII. how the Common Law Courts grew out of the Curia
Regis or King's Council. But it is certain that the Council
did not part with all right of jurisdiction. Sitting as an
administrative body, one of the duties it took upon itself
was to interfere upon occasion to prevent a manifest failure
or miscarriage of justice, especially where the offender was
too powerful to be dealt with by the sheriff, or where he was
the sheriff, or where the offence was followed by maintenance,
i.e. the perversion of justice by violence and intimidation.
It required a great deal of moral and physical courage for a
jury to return a verdict against a Percy or a Fenwick when
the case was tried in Northumberland. There were pretty
sure to be scores of armed retainers of the Percy or dozens of
the Fenwick sept in the Court; desperate men, only too
ready to risk life and limb on the bidding of their chief.

The Council seems to have had not only criminal but civil
jurisdiction; for from 1350 to 1422 there were at least ten
petitions presented by Parliament or by the Commons House
against the encroachments of the jurisdiction. In 1350, the
petition was that men should not be tried by the Council in
question touching their freeholds or life or limb; another
one prays that no Common Pleas be tried by the Council, and
so on. It is obvious, therefore, that long before 3 Henry VII.
there was plenty of jurisdiction in the Privy Council, and it
becomes difficult to say what was the effect of 3 Henry VII.
c. 1. It is suggested that the effect was to establish a
regularly constituted Court for the trial of the offences

72 THE STUDENT'S LEGAL HISTORY.

specified. There had undoubtedly been some jealousy
between the Houses and the Council ; and Henry, who wished
to establish order, and saw that it could only be done by a
strong- central body with the power to strike hard and swiftly,
took it out of the power of Parliament to complain by in-
ducing them to pass an Act constituting the tribunal, which
was, after all, only a committee of the hated Privy Council.

Civil Jurisdiction of the Star Chamber.— Besides the

criminal, there was a certain amount of civil jurisdiction
exercised by the Star Chamber. Certain admiralty cases,
actions by or ag-ainst aliens and between corporations were
cognizable.

Decline and Fall. — The Court of Star Chamber was a
powerful instrument in the hands of the Crown; and not
long after Henry VII. it had ceased to be anything more
than a mere tool by which the prerogative was maintained.
The great complaint against it was its inquisitorial proce-
dure; i.e. instead of the prosecution being obliged to prove
guilt, the prisoner was brought up and examined by the
Court with a view to extracting admissions of his guilt from
his own mouth. It was abolished on account of its manifold
abuses, in 1640.

Treason. — During the Wars of the Roses one of the
features that least commended itself to the English mind
was the series of executions and confiscations of property
by which every change in the fortunes of war was followed.
When the Yorkists were uppermost they tried, condemned,
and executed all those who had supported or assisted the
Lancastrians. When the Red Rose was in its turn trium-
phant, the process was reversed. It was useless for the
traitor to protest that in affording aid in men, money, or
counsel he had only obeyed the person who was at the time,
in fact, on the throne. The answer given was that though

HENRY VII. TO ELIZABETH (1485—1603). 73

Edward was king de facto, Henry was king de jure; or, on
the other hand, that though Henry was king de facto,
Edward was king de jure. These were indeed perilous
times for honest men who cared not two straws for politics,
and had not the folly or the courage to brave death or exile
in defence of someone else's principles.

Henry VII. assented to an Act by which treason was
defined to be an offence committed only as against the king
de facto, and not as against the king de jure. Henry VIII.
passed an Act to enable treasons committed out of the realm
to be tried within the realm.

The Court of Wards and Liveries.— The Court of Wards

was another body established by the Tudors (32 Henry VIII.
c. 46). An Act of the following year annexed to this Court
another, called the Court of Liveries, so that the tribunal
became known as the Court of Wards and Liveries. Its
functions were to manage the property of wards who held
in capite of the Crown and to act as guardian of the person
of such wards. The Court controlled the marriage of those
in its guardianship, levied fines for marrying without the
king's licence, and, when the heir attained his majority,
fixed the amount payable to the king for " suing out his
livery. " There was no jurisdiction except where the land
was held in chivalry, — that is, not when the tenure was
socage. As far as related to all matters whatsoever con-
nected with the king's wards and their estates, the juris-
diction of the Court of Exchequer was taken away. When
tenure in chivalry was abolished,1 the Court of Wards and
Liveries was discontinued.

High Commission Court. — In Elizabeth's reign two new
Courts were created. The first was the Court of High Com-
mission, created by virtue of 1 Eliz. c. 1, the statute consti-

1 See p. 83, infra.

74 THE STUDENT'S LEGAL HISTORY.

tilting1 the Queen head of the national Church. Power was
given to the sovereign to appoint commissioners to exercise
jurisdiction in spiritual matters, such as heresies, schisms,
and all abuses and contempts of ecclesiastical authority.
The uses and abuses of this Court, its rigorous action under
Archbishop Laud, the hostility it excited, and its eventual
abolition by the Long Parliament, form an interesting
chapter in the political, religious, and constitutional history
of the country, but they have little interest for the lawyer.

Exchequer Chamber. — There was another Court, how-
ever, established by Elizabeth, of great legal interest, and
that was the famous Court of Exchequer Chamber, which
was, and continued to be for nearly 200 years, the highest
Court of authority in the common law. Before this time
there had been a Court sitting in the Exchequer Chamber,
consisting of all the judges, i.e. the barons of the Exchequer
and the justices of either Bench, to try appeals on points of
law from the Common Pleas only.

Appeals from King's Bench.— By 27 Eliz. c. 8, where
any judgment should be given in the K. B. in debt, detinue,
account, covenant, trespass, ejectment, or action on the case
first commenced there, except where the Crown was a party,
the party against whom judgment was given might appeal
on a point of law to the Court of Exchequer Chamber. The
proceeding was by writ of error, and the Court was to con-
sist of the barons of the Exchequer, and the justices of the
Common Pleas, or at least six of them.

Appeals from Exchequer. — By another Act, four years
later, a similar appeal was allowed from the Court of Ex-
chequer to a Court consisting of the justices of the other two
Courts, or six of them at least. It appears to have been an
ancient practice for the judges of any Court in which a case
of special difficulty arose to adjourn it to a Court consisting
of all the common law judges sitting in the Exchequer

HENRY VII. TO ELIZABETH (1485—1603). 75

Chamber. Instances are to be found in Shelley's Case,1 and
in the famous Case of Shipmoney (Charles I.).

Trials at Nisi Prius. — Another important reform was
effected in the trial of civil actions. Up to this time all
causes triable in Middlesex had been heard at bar, i.e. by
several of the justices or barons of the respective Courts.
By 18 Eliz. c. 12 trials in Middlesex were assimilated to
trials at assizes. The writ of Nisi Prius,2 which had
hitherto only issued for actions triable by the judges of
assize, was to be granted also for issues triable in West-
minster Hall, and, consequently, any civil case could now
be tried by two judges and a jury. The saving of time
effected by this change was enormous.

The Action of Assumpsit. — In a previous page 3 will be
found an account of dicta as early as Edward IV. in favour
of an action on the case for the non-performance of a
promise not under seal. These dicta were confirmed in the
succeeding reign (Henry VII.), when we find it declared by
the whole Court of King's Bench that an action would lie
for non-feasance as well as for raaZ-feasance, This action of
trespass on the case, viz. for breach of a contract not under
seal, and not a mere debt or liquidated sum for work and
labour, or for goods supplied,4 was called assumpsit. The
name " assumpsit " was given because the plaintiff sued the
defendant quare cum assumpsisset, that is, because he had
undertaken. For instance, in Henry IV. an action was
brought against a carpenter quare cum assumpsisset to build
a house within a certain time, which he had not done. At
that time the action failed. But in the reign of Henry VII.
jusctices on the King's Bench took a contrary view. There
are two cases reported in the same Year Book in the twenty-
first year of Henry VII. One of them is as follows : " If

1 Coke's Reports, 106. 2 See page 51. 3 Supra, p. 45.

4 These would be covered by the common law action of debt.

76 THE STUDENT'S LEGAL HISTORY.

one covenants to build me a house by such a day, and does
not do it, I have an action on the case for this nonfeasance
as well as if he builds it imperfectly. And so it is if one
makes a bargain with me that I shall have his land to me
and my heirs for £20, and he refuses to perform it : I shall
have an action on the case, and there is no occasion for a
subpoena." The judge (Chief Justice Fineaux) of the
King's Bench is, as it would seem, the real author of
assumpsit, and it is evident that his desire to give an action
on the case for the non-performance of a promise made for
valuable consideration was much influenced by the fear of
the growing jurisdiction of the Court of Chancery. The
common law judges were very jealous of the subpoena, as
they invariably style the process of the chancellor.

It was only from the end of Elizabeth's reign that the
action became of general use. When it did become common
it ousted the action of debt almost entirely from the Courts.
That action, like all other early forms, was highly technical,
formal, and cumbrous to a degree that made its use dan-
gerous. Moreover, it proceeded with a stately dilatoriness
extremely irritating to the plaintiff who wanted his money.
But the action of assumpsit, being in form an action to
obtain redress for a wrong done, was quicker, and not so
tedious. After it came into favour we scarcely hear of the
action of debt.

The Action of Ejectment. — It has been indicated else-
where that by the common law, when a lessee was ousted
from his holding, his remedy was to bring an action of
trespass for damages. At some time or other, but certainly
in or before Edward IV., he could not only get damages,
but a writ of possession by which he was put back on his
land. Thus he stood in as good a position as a freeholder,
and was not put to the trouble and expense of a real action,
in which he might possibly have to stake his right on the
stoutness of a champion or the strength of his armour.

HENRY VII. TO ELIZABETH (1485—1603). 77

At some time in the Tudor period — the date is not pre-
cisely known — it occurred to an ingenious pleader to adapt
the remedy of ejectment to the case of a freeholder. This
is how it was done : A. claimed a freehold estate in land
actually in the occupation of T., the latter being a tenant
of B. A. made a lease of the disputed land to X. X. went
to take possession, and was promptly turned out by T.
Then X. sued T. for ejectment. Now, the respective titles
of X. and T. depended upon the titles of their landlords.
If A. was the real owner of the land, then X., as his lessee,
had the best right to possession, and T. was a trespasser
when he turned him out. On the other hand, if B. was the
real owner, T. was lawfully in occupation, and was justified
in ejecting X. So the real question was, which of the two,
A. or B., was owner of the land. Therefore, when T. was
sued by X., he wrote to B., and B. came in and defended
the action. X. also wrote to A., and A. came in and prose-
cuted the action. So that a verdict for the plaintiff would
mean that A. was the real owner of the land, and the
question of title to real property was tried by a mere action
of trespass.

The Action of Trover and Con version. —Another of the

actions on the case arising out of the Statute In Consimili
Casu was that of trover and conversion. Trover comes from
trouver=to find; and the action would lie where A. had
found B.'s property and then converted it to his own use,
i.e. used it for his own purposes. It was in substance like
the action of detinue,1 being for wrongfully withholding
property from him who was the rightful owner. In such a
<case as the one just given, detinue would not lie in many
cases; for instance, if the defendant had parted with the
property before 'the action was brought, because if A. had
sold or given the thing to C., it was C. and not A. who

1 Supra, p. 28.

78 THE STUDENT'S LEGAL HISTORY.

withheld it from B. But the facts were similar, and the
damage to A. was the same, and so an " action on the case "
was given.

The original action of trover, no doubt, was one in which
the defendant really had found the goods; but speedily it
was applied by a fiction to cases which were covered by the
old writs of detinue and trespass. For instance, if A. lent a
horse to B., and B. refused to return it, this was detinue,
and A. could sue for the return of the horse or its value.
Or, again, X. came to Y.'s house and wrongfully carried
away a horse. This was trespass. But the actions of tres-
pass and detinue were both technical, especially detinue.
In the case of trespass, the plaintiff had to prove that the
original taking had been wrongful, as well as that the defen-
dant was wrongfully withholding the possession of the
horse ; while in the action of trover the plaintiff only had to
prove that at some time or other the defendant had posses-
sion of the horse, and had exercised dominion over it.

One cannot fix the date when it took place, but it did
happen that at some period between the time of the Statute
In C&nsimili Casu and the middle of the reign of Elizabeth,
a plaintiff whose goods were detained or had been wrong-
fully taken by the defendant could bring ah action upon the
case for trover instead of detinue or trespass. The plaintiff
was allowed to allege that the defendant found the thing
and then converted it to his own use, and this allegation
of finding, which the defendant was not allowed to deny,
brought the case within the reach of trover.

The first case reported, as far as can be found, was Mul-
grave v. Ogden,1 in the year 1594, the substance of which
can be gathered from the report. " Action upon trover of
twenty barrels of butter, and counts that he tarn negligenter
custodial 2 that they became of little value, and upon this it

1 Croke's Keports, Elizabeth, p. 219.

2 Trans. = So negligently guarded them.

HENRY VII. TO ELIZABETH (1485—1603). 79

was demurred,1 and held by all the justices,2 that no action
lieth in this case, for no law compelleth him that finds a
thing to keep it safely : as if a man finds a garment, and
suffers it to be moth-eaten, or if one finds a horse, and giveth
it no sustenance; but if a man finds a thing and useth it, he
is answerable, for it is conversion ; so if he of purpose mis-
useth it, as if one finds paper and puts it into the water, but
for negligent keeping no law punisheth him."

Of course, the defendant had not really found the butter.
He was probably a man who had undertaken in a friendly
way to take charge of it ; but it had to be stated that he
found it.

There is another case reported in 1595, under the name
of Ascue v. Sanderson,3 which was an action against a
sheriff for having seized three hundred sheep in execution
under a writ of fieri facias, and having sold one hundred of
them he did not return the others to the debtor. Here there
is no doubt about the action, and, indeed, from the reports
of these two cases, especially the absence of any question as
to the form of the writ, it is safe to conclude that the action
of trover had been started some little time. At all events,
it was in general use under Elizabeth, as may be seen from
the fact that there are at least a score of cases scattered up
and down the pages of Croke's Reports.4

SUMMARY.
Real Property:

(a) The Statute of Uses was passed in Henry VIII. to
avoid use of lands ; but the main object of the Act
was defeated by the decision in Tyrell's Case, and
the trust came into force instead of the use, being
the same thing under another name.

1 Objected to on a point of law.

8 Of the Queen's Bench.

8 Croke Eliz. pp. 433, 434.

4 Croke Eliz. pp. 352, 485, 495, 638, 724, &c.

80 THE STUDENT'S LEGAL HISTORY.

(b) Modern conveyancing dates from the Statute of

Uses.

(c) Wills of land permitted. Two-thirds knight-service

lands, and all in socage tenure. (Statute of
Wills, Henry VIII.)

The law of bankruptcy begins (Henry VIIII.) and is

amended by Elizabeth. Elizabeth's Act only
applies to traders. Bankrupts are treated as
criminals.

The two statutes to prevent fraud on creditors (13 Eliz.
c. 5) and purchasers (27 Eliz. c. 4).

The Courts of Justice :

(a) The Court of Star Chamber established (Henry

VII.).

(b) The Court of Wards and Liveries (Henry VIII.).

(c) The Court of High Commission (Eliz.).

(d) The Court of Exchequer Chamber (Eliz.).

Legal Procedure :

(a) The action of assumpsit, i.e. trespass on the case for

non-performance of simple contract (Henry VII.),
and begins to supersede action of debt.

(b) The action of ejectment is extended by a circuitous
procedure to freeholds, and partly ousts the real
actions.

(c) Writs of nisi prius issued for Middlesex actions,

thus enabling two judges to try cases as at assizes
(Eliz.).

(d) The action of trover and conversion comes into use,
and gradually supplants detinue.

(81 )

CHAPTEE Y.

JAMES I. TO JAMES II. (1603—1688).

General. — It is a stale saying that the Stuart period was
one of good legislation and bad government. With the bad
government this work has nothing to do. It is only con-
cerned with the good legislation.

Notwithstanding the political troubles that convulsed the
nation during almost the whole of the Stuarts' reigns, the
development of the law proceeded steadily. Mercantile
causes deserted the ancient but impotent merchant courts,
and were tried by the king's judges. The law of real
property received, perhaps, few additions or alterations
until the time of Charles II., but, in the reign of that merry
monarch's grandfather, the greatest of English lawyers,
Coke, endeavoured to raise that branch of legal learning to
the level of a science. Coke so laid down the law of real
property, and so explained it, that except for statutory
alterations his works may be looked upon as a code of the
law of real property to this day. After many futile
attempts, military tenures were abolished by the first
Parliament of Charles II., an act which entailed many
important consequences.

Parliament also regulated and settled the intestate succes-
sion to personalty, and the law relating to monopolies, thus
calling into existence the patent laws.

In this period also the law relating to offences against
the king and his government received much attention, and
an important change was effected in favour of the liberty of

S.L.H. 6

82 THE STUDENT'S LEGAL HISTORY.

the subject by regulating the procedure of the writ of
Habeas Corpus.

The celebrated Statute of Frauds was passed with the
view of compelling people to put important transactions
into written form. It precluded a plaintiff in many cases
from suing until he could produce documentary evidence,
and made writing necessary in the conveyance of land.

With much of the legislation of the time we do not
intend to deal. The series of statutes directed against
Homan Catholics and Protestant Dissenters, the great
Petition of Right, and other measures which mark the time,
are fully dealt with in the learned work of Mr. S. E,.
Gardiner.

The Law of Real Property. — Under the Tudors the
burdens of tenure in chivalry had been severely felt. They
were still more grievously felt under the Stuarts. One of
the early acts of the Parliament of James I. was to approach
the king with a proposal to abolish knight-service and its
incidents, compounding with the king for his revenues
arising out of it. The negotiations broke down upon a paltry
question of a few thousands a year, and during the whole of
the reign of the first two Stuarts, the royal landlord exacted
the uttermost farthing from his tenants in capite. Excessive
fines and reliefs were levied, and when a king's ward,
having attained majority, and with difficulty raised the sum
to sue out his livery, entered upon his inheritance, he found
the buildings in disrepair, the timber cut, and the whole
estate in ruins, because His Majesty's Court of Wards and
Liveries had taken everything possible, and not spent a
penny on the property. A female ward was in a worse
plight; she might either be bestowed in marriage on the
highest bidder, or ordered to marry a man so repulsive that
she could not accept him. The disobedience resulted in a
fine to the king of the value of the match.

JAMES I. TO JAMES II. (1603—1688). 83

Abolition of Knight-Service Tenure.— In the first year of
Charles II., called by a polite fiction the twelfth year,
tenure by knight-service was abolished, and all land so held
was -turned into free and common socage.1 The Court of
Wards and Liveries was abolished. Wardships, values,
and forfeitures of marriage, and aids and all incidents of
the feudal system were put an end to.2

Since this statute the greater part of the land of the
kingdom has been held in socage, except grand and petty
serjeanty, copyhold and gavelkind.

Wills of Land.— The Statute of Frauds,3 in order to
remedy the inconvenience occasioned by the Statute of
Wills, provided that in future all wills of land should be in
writing, signed by the testator or by someone in his presence
at his direction, and should be witnessed and attested by
three or four credible witnesses in the presence of the
testator.

Charters of Conveyance. — Another section of the Statute
of Frauds (sect. 1) enacts that no conveyance of freeholds
made merely by livery of seisin shall be valid unless it is
evidenced by a document signed by the feoffor or an agent
authorized in writing.

Leases. — Pursuing the same policy, the same section
declared void all leases merely by word of mouth; but
the next section made an exception in favour of leases not
exceeding three years.

Personal Property: The Statute of Distributions.—

Statutes dealing with personal property were rare in early
law, simply because personalty Jormed so little of the
country's wealth as not to be worth legislating about. We

1 12 Car. II. c. 24, e. 1. 2 Ibid., ss. 1 and 2.

3 29 Car. II. e. 5.

84 THE STUDENT'S LEGAL HISTORY.

have seen how liberty of testamentary disposition of per-
sonalty existed at a very early period, and was confirmed
by more than one declaration of the early Norman kings.
The distribution of the personalty of an intestate was in the
hands of the Church, by whom the personal estate was to be
distributed amongst the widow and next-of-kin of the
deceased. The administration was in the hands of the
ordinary of every diocese, and of the judges of the
Prerogative Courts of the two archbishops. It appears that
although each of these Courts professed to be governed by
practically the same rules, in fact each Court had its own
customary canon law and practice, so that much uncertainty
prevailed in the country. The Statute of Distributions
(1670) was passed to remove this uncertainty. By it were
established uniform rules as to the persons entitled to a
share of intestates' personalty, and as to the shares they
were to take. If there were a widow and children or issue,
the widow took one-third, by analogy to dower, and the
children shared the remainder. If there were a widow but
no issue, then the widow took one-half and the next-of-kin
the other half. Children of a deceased next-of-kin were to
represent their parents ; but this principle was not to be
extended beyond the children of brothers and sisters of the
deceased — i.e. a man's nieces and nephews represented, or
stood in the shoes of their parents; but more remote
collaterals, e.g. cousins, did not. A child who had been
advanced, or set up in life by his father, was not to claim a
share of that parent's estate unless he brought into account
— "hotchpot" it was called — the portion that had been
advanced to him. Thus the doctrine set up by the chan-
cellor, that the law supposes a parent to wish to provide
for all his children on an equal footing, was recognized by
statute. The Statute of Distributions,1 said to have been
framed by Edward Hyde, Earl of Clarendon, but not passed

1 22 & 23 Car. II. c. 10.

JAMES I. TO JAMES II. (1603—1688). 85

until three years after his flight into exile, has ever since
been the basis of the law on the distribution of personalty
ab intestato. In fact, it has only been altered twice, and
that but slightly, once in 1685, * and the second time in
1890.2

The Law of Patents. — A patent is a monopoly granted by
the Crown to a subject. Until the year 1623 it had been
customary for the Crown to grant monopolies or patents
either to favourites as a pure matter of grace, or to servants
of the Crown by way of reward for services, or to people
who, like Mompesson and Mitchell, paid handsomely for the
privilege. The Duke of Buckingham had a patent of gold
lace, another had a monopoly of taverns in the metropolis,
and so on. In 1623 was passed the famous Statute of
Monopolies,3 which declared all existing monopolies and
patents null and void, except those granted for the exclusive
use within the kingdom of some new manufacture, provided
it had been granted to the " true and first inventor "
thereof. All such existing patents were cut down to
twenty-one years from the date of the grant. As to future
monopolies, they were only to be given for the " sole work-
ing or making of any manner of new manufactures within
this realm to the first and true inventor and inventors " for
the term of fourteen years or under.

The Monopolies Act is the foundation of the present
patent laws of the world. Numerous other Acts have been
passed from time to time, especially in the reigns of Queen
Victoria and King George Y. ;4 but they all deal simply
with procedure — that is, the manner in which letters-patent
are to be applied for, and the machinery of the Patent
Office.

1 1 Jac. II. c. 17, s. 7.

2 Intestates' Estates Act, 1890.

3 11 Jac. I. c. 3.

* Patents Act, 1907 — a consolidating Act.

86 THE STUDENT'S LEGAL HISTORY.

The Common Law. — There was little or no change in the
common law, except in so far as the Reports and Commen-
taries of Coke, which pulled the common law tog-ether, so to
speak, altered the law by making its principles clearer than
they had been before. The actions on the case, viz. :
assnmpsit and trover, continued to increase in favour, to
the extinguishment of debt and detinue.

The Action of Ejectment was still further improved in
the time of the Commonwealth, so as to make it an easier
mode of trying title to land. Hitherto the real claimant
made a lease to a tenant, and that tenant suffered himself
to be ejected by the tenant of the other claimant. During
the Commonwealth a new fiction was introduced by Chief
Justice Rolle. The defendant was not allowed to deny that
a lease had been made, and that the nominal plaintiff had
been ejected by someone at his (the defendant's) orders.
Consequently no lease was made, and no ejectment really
took place. The nominal plaintiff merely alleged these
matters, and called on the real claimant to make good his
title. Soon after, the nominal plaintiff became a fictitious
person, by name John Doe, who alleged that he had been
ejected by another fictitious person, yclept Richard Roe. So
that the action of ejectment was an action brought by a
fictitious person on a fictitious lease, because he had been
ejected (which in fact he had not) from land demised to
him by the real plaintiff. The date of the birth of John
Doe is not precisely known. A case occurs in 1741, in which
he is mentioned as plaintiff ; but there is nothing to indicate
that he appears on the scene for the first time. In fact, the
report points to the conclusion that the practice is of some
standing, and it may be said that during the period now
under consideration, the action of ejectment began to be
based on a -fiction of a demise and a fiction of a trespass ; and
that shortly after, it was based on a fiction of a demise to a
fictitious lessee, and a fiction of a trespass committed by a

JAMES I. TO JAMES II. (1603—1688). 87

fictitious casual ejector. Blackstone objects, even so late as
1742, to the lease being alleged to be made to a fictitious
person, and says that the general practice is bad, but his
opinion never seems to have been acted on.1

The Statute of Frauds (29 Car. 2, c. 3) was the most
important of the Acts relating to the common law passed
during this period. Its full title is An Act for Prevention
of Frauds and Perjuries.

It enacted that upon certain contracts no action should be
brought, unless the agreement, or some note or memorandum
thereof, was in writing, signed by the defendant or his
agent. Contracts for the sale of gooods of the value of £10
and upwards must either be proved by such written
evidence, or by evidence that part of the goods had been
accepted by the buyer or part of the price had been paid to
the seller. The statute is an important one, and has given
rise to much controversy.

The Law Merchant. — Up to the reign of Elizabeth there
is, so far as can be ascertained, very little of mercantile law
to be found in the reports. This is because the law merchant
(Lex Mercatoria) was at that time only the customary law
enforced in various local courts which had jurisdiction over
local trades or local markets. The cutlers of Sheffield had
a court of their own, so had the merchants of Bristol, and
the merchants of London. But from the time of Coke we
find the law merchant administered in the Court of Common
Pleas. But it was only administered to a special class,
namely, the class of traders. By law merchant is meant the
law obtaining amongst traders and merchants relating to
bills of exchange, charter-parties, marine insurance, broker-
age, and the like. A private person could not be sued on a
negotiable instrument, because negotiability was only im-

1 Bl. Com. iii. p. 175.

88 THE STUDENT'S LEGAL HISTORY.

posed by Law Merchant, and therefore was only binding on
traders. How the law subsequently developed to its present
form will be shown in a subsequent chapter. It is sufficient
here to remark that, during the period of which we are now
treating, the Lex Mercatoria slowly developed from a body
of local customs to a system of law, part of the law
recognized by the king's courts and administered by the
king's judges. It became a customary fiction to allege that
contracts of charter-party were made at the Royal Exchange,
London, though in fact they were made abroad, on purpose
to bring the cases within the jurisdiction of the Common
Pleas. It is probable that the development of actions in
consimili casu for assumpsit assisted in the process of bring-
ing mercantile causes into the king's courts. Still, the
process was slow, so that an author of the seventeenth
century, writing of mercantile law, says : " This kind of
learning is not common in our books."

Criminal Law differed little from the criminal law of the
previous periods, except in the matter of offences against
the sovereign and the state.

Treason. — The law of treason had been administered with
great severity under the Tudors. The judges under the
Stuarts administered it still more harshly. They perverted
the Statute of Edward VI., which required two witnesses to
prove a charge of treason into meaning that the two could
each depose to an overt act of a different kind of treason.
For instance, one might swear to an act of levying war
against the king, and another to compassing and imagining
the king's death. Still worse was the wresting and twisting
of the Statute of Treason (Edw. III.). In Peacham's Case
(James I.) a clergyman was found guilty of compassing and
imagining the king's death because he had written a sermon
inveighing against the bishops and the High Commission
Court, together with a few remarks on the king. The com-

JAMES I. TO JAMES II. (1603—1688). 89

position was not in the best taste; but it had never been
seen by a single soul, except the author, until it was found
in a drawer by the officers of the Court of High Commission.
Many other executions took place on grounds no better than
this. Russell was convicted for agitating in favour of a
new parliament (1683). The only ray of light is in Pine's
Case (Chas. I.), where the judges declared that the mere
speaking of words, though they might show " an evil and
depraved mind," could not amount to treason. There must
be some act done in furtherance of the design indicated by
the words. Still, the resolution in Pine's Case was not
invariably acted upon, and people were convicted for words
written and spoken. The argument was : " A. has said that
the king's government is bad. Therefore, A. must wish
that government at an end. That government cannot be
ended, except by the king's death. Therefore, A. is
' imagining ' the king's death, which is treason."

Seditious Libel. — The law of seditious libel came into
prominence in the time of James I., and continued to be
debated until long after the Restoration. The offence was a
vague one, and seems to have consisted of writing or pub-
lishing anything to the scandal of the government, that is,
written blame, true or false, concerning the king or his
family, ministers, judges, magistrates, or officers. The truth
of the writing was no defence.

The most famous cases are the case of Prynne, who
published a book called Histriomastix, a learned but tedious
and pedantic work directed against the morality of stage
plays and players. It was supposed to be levelled at the
Queen; and the Star Chamber, who had special jurisdiction
in cases of libel, sentenced the author to have his ears cut
off (163T).

In 1680 Chief Justice Scroggs, in Carr's Case, held that
to publish any news at all was unlawful; and in the Seven
Bishops' Case, 1688, those prelates were indicted for

90 THE STUDENT'S LEGAL HISTORY.

seditious libel in presenting a petition to the king complain-
ing of the Declaration of Indulgence. They were acquitted,
but the verdict in that case did not render the law of
seditious libel less stringent.

Other cases were those of Baxter* who was tried by
Jeffreys and fined for certain passages about the " persecu-
tion of the saints/' supposed to refer to the persecution of
the Nonconformists by the bishops. The most infamous
case was R. v. Barnar distort. The prisoner was tried for
writing gossipy letters, containing the political rumours of
the day, to a friend. Two of the statements charged as
libels were " the Papists and high Tories are quite down in
the mouth" and "Sir George is grown very humble."
" Sir George " was Jeffreys, who tried the case, and it is
almost unnecessary to state that the prisoner was found
guilty. Jeffreys ruled that there was no need to find any
malicious intent. He seemed to think that any comment
on affairs of state was illegal.

Seditious Words. — In the early part of the period prose-
cutions for seditious words were frequent. The best-known
case is that of Elliot, Holies, and Ballantyne, who were
prosecuted for seditious speeches in parliament. The words
charged against Elliot were " the king's Privy Council and
his judges, and all his Council learned, have conspired
together to trample under their feet the liberty of the
subjects of this realm and the privileges of this House."
The prisoners were found guilty and sentenced to fines and
imprisonment.

Writ of Habeas Corpus and the Habeas Corpus Act,
1679. — Enough has been said on a preceding page 2 to
show the nature of the writ of Jiabea-s corpus. During the
stirring times of Charles I. and Charles II. the law relating

1 State Trials, 493. a Supra, p. 23.

JAMES I. TO JAMES II. (1603—1688). 91

to this writ received considerable attention, from the fact
that it was one of the means of protecting the liberty of the
subject against the executive and the Crown. The writ
itself was a sufficient protection against arbitrary imprison-
ment, and against prolonged incarceration without trial,
provided there was no hitch in the procedure. But the
procedure was not strict enough, and was especially weak in
five points. These were — (1) If the gaoler failed to bring
up the prisoner on the first writ, a second writ, called an
alias, had to be applied for, and if this was disregarded, a
third, called a pluries. This caused delay. (2) A judge
might fix any day he pleased for the return to the writ, and
the Stuart judges, in cases where the prisoner was im-
prisoned for reasons of state, often fixed a far distant day.
(3) There was nothing to prevent a gaoler, between the alias
and the pluries, removing the prisoner to another prison, so
that the process had to be begun again. (4) The writ could
not be issued in vacation. (5) The Court might adjourn
from time to time the application for the writ. In 1676
occurred Jenkes' Case, in which the prisoner was removed
from gaol to gaol, was refused a writ in vacation, and was
subjected to vexatious delays and difficulties. That case
was the cause of the Habeas Corpus Act,1 which was merely
to amend procedure. The chancellor and the common law
judges were each and all empowered to issue the writ. The
gaoler must make a return within three days, unless the
prisoner were confined more than twenty miles from the
Court that issued the writ; then the time was extended to
ten days, and to twenty if the distance was more than a
hundred miles. Prisoners must not be removed from one
prison to another.

The writ may be applied for in vacation. If the prisoner
is committed for a misdemeanour, he must be let out on
bail; and if he is committed on a legal warrant for treason

1 31 Car. II. c. 2.

92 THE STUDENT'S LEGAL HISTORY.

or felony, he must be released on bail if not tried in the
second term of his commitment. These provisions for
speedy trial are the essence of the Act.

The chancellor or any judge refusing a habeas corpus is
subject to a penalty of £500, and a gaoler who refused to
make a return to a penalty of £100, for the first offence,
and £200 for the second.

The Court of Chancery. — During the Tudor period, the
business of the Court of Chancery had increased to an
enormous extent. The Statute of Uses accounted for much
of the new business, and the Statute of Wills and the im-
provements in conveyancing for much more; but perhaps
the almost total abolition of private jurisdictions, and the
vastly increasing commerce of the country accounted for
most of all.

The reign of James I. marks an era in the history of the
Chancery Court. Two circumstances contribute to make
the period important. One was the approximation of equity
or Chancery decisions to a system of law, and the other the
gain for the Chancery of the preponderating judicial power
in the country. Both events happened in the chancellorship
of Egerton, Lord Ellesmere.

From Edward III. to Henry VIII. the holders of
the office of Lord High Chancellor were politicians and
ecclesiastics, sometimes knowing nothing of law except,
perhaps, a little of the Jus Civile, and a smattering of canon
law. Henry VIII. appointed for the first time a lawyer —
the blameless Sir Thomas More, whose term of office formed
such a contrast to those of his predecessors that people
devoutly hoped for a succession of legal chancellors. After
More came churchmen, politicians, and lawyers promis-
cuously, until Ellesmere, from whose time the chancellor-
ship, the coveted woolsack, has been invariably the prize of
a lawyer. Ellesmere, being a lawyer saturated with all the
lawyer's reverence for precedent and love of fixed and

JAMES I. TO JAMES II. (1603—1688). 93

orderly procedure, tried to settle the practice of the Court ;
and so began in Chancery the multitude of rules of pro-
cedure which eventually made the proceedings in the Court
of equity quite as technical as those in the Courts of law.
Whether this was better or worse than procedure by rule of
thumb, which was what the Chancery started with, need
not be discussed.

The next idea stamped by Ellesmere upon the Court
of Chancery had reference not to form, but to substance.
Hitherto "the length of the Lord Chancellor's foot" was
the only measure of the law there administered. Ellesmere
inculcated a regard for precedent. He refused to decide a
point one way one day and the other way the next. He did
not make the mistake of the old common law judges, and
refuse to entertain a case because it was without precedent,
but he considered himself bound by the decisions of his
predecessors and of himself. From his time precedent
became as valuable in equity as in law, a matter contri-
buting greatly to the well-being of the state as tending to
the certainty of law.

The second memorable thing about Ellesmere's chan-
cellorship was the famous quarrel with Coke, by which the
Court of Chancery became the preponderating power in the
justiciary, and the rules of equity were made to prevail, in
case of conflict, over the rules of common law. For many
years the chancellors had claimed to be able to override the
common law, and had, in fact, done so. Where the rules of
common law and equity conflicted, the man having the
better right at common law might go to the King's Bench
or Exchequer, or Common Pleas, bring his action, and even
get judgment. The other man went to the chancellor,
proved that he had the better right according to the rules
of the Chancery Court, and obtained an injunction to
restrain his opponent from proceeding further with his
common law action. If the common law plaintiff persisted
in going on, he committed a contempt of the Court of

94 THE STUDENT'S LEGAL HISTORY.

Chancery by disregarding its injunction, and was committed
to prison.

Not unnaturally, the justices of either bench and the
barons of the Exchequer resented the extraordinary claims
made by the chancellors, and many and fierce were the
contests between the Courts of Law and the Courts of
Equity. The matter came to a head in the year 1616. In
1614 occurred the case of Courtney v. Glanvil.1 A. had
sold to B. a jewel worth £20 on the representation that it
was worth £350, and other jewels worth £100, and had
taken as payment a bond for £600. On B. failing to pay,
A. obtained judgment for the full amount, and the Ex-
chequer Chamber confirmed the judgment. B. filed a bill
in equity to obtain relief, and it was ordered that on B.
returning the jewel and paying £100 A. should release him.
A. refused, and was committed for contempt. The common
law judges granted a habeas corpus, and let him out, Coke
declaring the decree in equity and the imprisonment to be
absolutely illegal. So far Coke was victorious.

But in 1616 another case arose on which the matter was
settled. The Earl of Oxford's Case was one where the
master and fellows of Magdalen College had granted a lease
of Covent Garden for seventy-two years at £9 a year. Fifty
years after they sold the fee (under a licence from the
Crown) to the Earl of Oxford's predecessor in title, in con-
sideration of £15 a year. For forty years the grantee
continued in possession, and spent £10,000 in building on
the land. Then the master of Magdalen took possession of
part of it, on the ground that under the Statute of 13 Eliz.
against alienations of ecclesiastical and college lands, the
conveyance was void. The Earl of Oxford brought an
action of ejectment by means of a colourable lease,2 and
the judges found for the college. The Earl at once filed a
bill in equity for relief, and Ellesmere granted it on the

1 Cro. Jac. 343. 2 Supra, p. 86.

JAMES I. TO JAMES II. (1603—1688). 95

ground that the claim of the master of Magdalen was
against all good conscience.

Coke openly murmured against what he called the sub-
version of the laws of the land, and in the same year made
a bold endeavour to put an end to the obnoxious proceed-
ings. A case occurred in which the plaintiff had obtained a
judgment at law by the trick of enticing the defendant's
witnesses into a beer-house while the action was being tried.
The defendant duly filed his bill for relief in equity, and
the plaintiff was ordered not to proceed with his judgment.
Coke heard of it, and advised the plaintiff's attorney to
prosecute the defendant and his counsel under the
Statute 27 Edw. III. By that Act the king's subjects are
forbidden to impeach the judgments of the King's Court in
another court.

In the same year Coke persuaded a brother judge to try
to persuade a grand jury to indict under this statute persons
who had applied to the chancellor for relief against judg-
ments. The grand jury refused to expose themselves to the
risk of Ellesmere's indignation, but the irate chief justice
persisted in forcing on the crisis. He publicly announced
his intention to refuse to hear any counsel who had art or
part in presenting bills in equity for relief against common
law judgments. There is no doubt of the righteousness of
Coke's indignation. The law — the common and statute law
— was his divinity. In it he saw no flaw, no imperfection.
Moreover, he magnified his office. The chief justice was a
judge according to the ancient and undoubted laws and
customs of the realm. The lord high chancellor was a new-
fangled invention, a hybrid sort of creature, half judge,
half secretary of state, whose decisions were founded on
nothing more solid than his own whims and fancies.

Ellesmere took a different view. He was not disposed
to surrender a jurisdiction that had been exercised for sixty
years at the least. Distrustful of his own power to cope
with the rugged chief justice, he appealed to the king.

96 THE STUDENT'S LEGAL HISTORY.

James consulted Bacon, the attorney-general, and a number
of other lawyers, who decided in favour of the Chancery.
The reasons given by them amount in substance to two.
First, as to the Statute of 27 Edw. III., it applied only
to appeals to foreign courts. Second, there was a strong
current of practice for sixty years in favour of the injunc-
tions in question. It had even been known for judges to
direct persons to apply for them.

The king adopted Bacon's opinion, and ratified it by a
decree bearing date the 14th of July, 1616. From that day
down to 1875, when the Court of Chancery ceased to have
a separate existence, these injunctions continued to issue.
The ground upon which they were supported by Lord
Ellesmere was that they did not question the legality of the
judgments, but only the "hard conscience" of those who
obtained them.

Other names famous in the history of the Court of
Chancery occur in this period. Bacon, on taking his seat,
defined the function of his Court to be " to supplement, not
to subvert, the law." Lord Keeper Coventry (Charles II.)
pursued the policy of Ellesmere, and founded his decisions
mainly on principles deduced from the decrees of his pre-
decessors. Indeed, Lord Hardwicke ascribed to him the
foundation of modern equity; and it may be taken that
after his time few new principles were introduced, though
the old principles have been extended and amplified and
explained, more particularly by Lord Eldon.

The student who cares to make a comparison between
equity as Coventry left it, and the equity of to-day, will do
well to consult Bohun's Cursus Cancellarice, a text-book
written about 1700. The first fifteen pages contain a clear
and succinct account of the Chancery jurisdiction of the
time. The author divides the jurisdiction into (1) ordinary
or legal, (2) extraordinary or absolute. In exercising the
ordinary jurisdiction the Court was guided by the rule of
law and even by legal procedure, i.e. as to pleadings, &c.

JAMES I. TO JAMES II. (1603—1688). 9T

This came about in two ways : (a) where some statute gave
the chancellor jurisdiction; and (b) where the proceedings
concerned some officer of the Court or his servant. Examples
of the first are to be found in the case of habeas corpus. The
chancellor, in granting a writ of habeas corpus, proceeded
on exactly the same lines as the Court of King's Bench.
As to the second, in the days of which we are writing, every
Court claimed for its officers the privilege of being sued
only in their own Court. Common law actions, e.g. of debt,
against a clerk in Chancery or one of his menial servants
must be brought in a department called the Petty Bag
Office. The pleadings (in Latin) were delivered exactly as
in an action in the Common Pleas, and after all had been
delivered and an issue arrived at, the "record" (i.e. the
papers belonging to the case) was made up and sent to the
King's Bench or Common Pleas to be tried. The Court of
Law having tried the issue, returned the case to the
Chancery with a report, and on this report the chancellor
delivered judgment.

As to the extraordinary or equitable jurisdiction, we find
that procedure was by bill, as at first; that is, a written
statement by the plaintiff setting forth his grievance.
Bohun gives some curious advice to counsel as to drawing
bills. "No counsellor" ought to "put his hand to bill,
answer, or other pleading, unless it be drawn, or at least
perused, by himself in the paper draught "I " And counsel
are to take care that the same be not stuffed with repetition
of deeds, writings, or records in hcec verba: but the effect
and substance of so much of them only as is pertinent and
material to be set down, and that in brief terms, without
. . . tautologies, multiplication of words, or other imper-
tinences ... to the end the antient brevity and succinct-
ness in bills, and other pleadings, may be restored and
observed. Much less may any counsel insert therein matter
merely criminal or scandalous under the penalty of good
costs to be laid on such counsel," to be paid to the aggrieved

S.L.H. 7

98 THE STUDENT'S LEGAL HISTORY.

party before such counsel will be heard. He instances one
counsel who alleged " in that part of the bill which charges
a confederacy" that the defendants were "brethren in
iniquity." The offensive phrase was struck out as scan-
dalous or impertinent, and " counsel forced to pay good
costs." One wonders what would happen nowadays if a
member of the Bar were ordered to pay the costs of striking
out part of one of his pleadings.

By way of showing the young practitioner how to avoid
prolixity and vain repetition, one author gives a precedent
of a bill (in a comparatively simple case) which takes up
six pages of close print. He then goes on to show how a
bill should be drawn. It ought to consist of nine parts,
viz. : — (1) The direction, containing the title of the judge,
&c. ; (2) The introduction, humbly complaining, &c., with
the plaintiff's name and address; (3) The premises, setting
out the transactions antecedent and leading up to the bill,
which must begin with "Whereas"; (4) The allegations,
e.g. that the plaintiff had done such and such things at
the defendant's request; (5) The complaint, as of fraud,
oppression, and confederacy. It appears to have become
customary to allege that the defendant was confederating
with divers persons unknown to defraud the plaintiff;
(6) The clause giving cognizance in equity, e.g. that the
plaintiff could get no relief at law; (7) The interrogatory,
which repeated in the form of questions the whole of the
premises and allegations ; (8) The prayer of the bill, e.g. to
perform a contract, injunction, &c. ; (9) The conclusion, in
which the plaintiff asked for a writ of subp&nato be granted.

From this book we gather that the rules as to bills,
answers, and other proceedings in Chancery had now
attained some degree of strictness. The plaintiff must
frame his bill according to rule and precedent; the answer
must be filed within a certain number of days, and in a
regular form.

As to substance, we find that Chancery had embraced the

JAMES I. TO JAMES II. (1603—1688). 99

following matters : — trusts, relief against fraudulent bar-
gains, relief against penalties and forfeiture, specific
performance of contracts, declarations of right, e.g. as to
th« several customary rights of lord and tenants of a manor,
alimony, injunctions to restrain nuisances, the guardian-
ship of infants, and the management of their estates.
The following limitations had been laid down :

(1) The Court cannot override a statute.

(2) Where the plaintiff has an effective remedy at

common law for the same thing, to common law
he must go.

(3) The Court will not interfere in favour of volunteers,

i.e. persons who had not given valuable considera-
tion for what they claim.

(4) " He that hath a title only in equity shall not prevail

against him that hath a title both in law and
equity. "

(5) The Court will not relieve a man against the reason

and policy of the common law.

Juries. — In 1670, a decision was given which has had an
important effect upon the proceedings in English Courts of
Law. At the present time it is the everyday practice for
counsel to tell juries that they are the sole judges of the
facts. Perhaps this always was so; but it was the practice
for judges of the sixteenth and seventeenth centuries to
force juries into returning verdicts according to the views
of the judge. A refractory jury might find themselves in
the position of culprits, and be fined or imprisoned. Since
about the fifteenth century, jurors had ceased to be wit-
nesses, and had become judges whose duty was to weigh the
evidence given in open Court.

In 1670, two Quakers, Penn and Mead, were indicted at
the Old Bailey for unlawfully assembling, and causing
others to assemble, in Gracechurch Street, contrary to the
Conventicle Act. The Recorder, who presided, summed up

100 THE STUDENT'S LEGAL HISTORY.

violently against the prisoners, and directed the jury to
find them guilty; but the only verdict that the jury would
return was "guilty of assembling in Gracechurch Street/5
which amounted to " not guilty." The Recorder promptly
fined the whole twelve, who paid, all except one Bushell,
the foreman ; him the Recorder committed to prison, but he
sued out a writ of Habeas Corpus. The return to the writ
was that the prisoner was committed for finding a verdict
" against full and manifest evidence, and against the direc-
tion of the Court." Vaughan, C.J., delivered judgment;
from first to last he pooh-poohed the contention of the
Recorder. He said, If you bring the same evidence before
two lawyers, or even two judges, how rarely do you find
them both coming to the same conclusion? How could the
Recorder set up that he was certainly right and the whole
twelve jurymen surely wrong? It amounted to a claim of
infallibility. Moreover, some of the jury might be person-
ally acquainted with facts of which the judge knew nothing.
The last reason given by Vaughan is of considerable
historic interest as showing how, at that time, jurors were
not quite divested of the character of witnesses; but the
whole effect of the decision was to establish the right of
jurors to give any verdict they thought proper, with
absolute immunity except in cases of corruption.

The Jurisdiction of the House of Lords. — The limits of
the judicial function of the House of Lords were settled in
the reign of Charles II. In 1667 they claimed to try, as
a court of original jurisdiction, an action brought by one
Skinner against The East India Company. There was an
immediate outcry from the Commons, and the Lords have
never since claimed to exercise original jurisdiction, except
in peerage cases, the trial of peers for treason and felony,
and impeachments by the House of Commons. Eight years
after, a second outcry arose from the Commons because the
Lords heard an appeal in Equity, in the case of Shirley v.

JAMES I. TO JAMES II. (1603—1688). 101

Fagg. Here, however, the Upper House gained its point,
and continued to hear appeals. The appeal in common law
cases was as old as the Curia Regis and the Magnum Con-
cilium, the appellate jurisdiction of the Great Council
becoming vested in the House of Lords when that body
came into existence.

SUMMARY.
Real Property :

(a) Tenure by knight-service, with all its incidents

of wardship, marriage, aids, reliefs, fines, &c.,
abolished, and the land turned into free and
common socage.

(b) Conveyances of freeholds to be evidenced by writing.

(c) Leases for over three years to be in writing.

(d) Wills of land to be in writing, signed by the
testator and attested by credible witnesses.

Personal Property. — The Statute of Distributions settled
the succession to personalty ab intestato.

Patents for Inventions. — The Statute of Monopolies
created the modern law of patents.

The Common Law remained practically in statu quo ante,
but was illustrated by the works of Coke.

Ejectment was simplified as a means of trying title to
freeholds.

Evidence. — Written evidence made compulsory in certain
cases by the Statute of Frauds.

Mercantile Law. — Mercantile cases begin to come into
the King's Courts, but are for the most part confined to
the class of traders.

102 THE STUDENT'S LEGAL HISTORY.

Criminal Law :

(a) Treason receives great attention, and the law is

strained by the judges.

(b) Seditious libel and seditious words. — The law is

much debated and strained as against the prisoner.

The Court of Chancery :

(a) Quarrels arise between the Courts of Law and

Equity, and the latter prevail.

(b) Ellesmere, Bacon, and Coventry systematise the

law and procedure of the Court.

Trial by Jury. — Juries are declared to be the sole judges
of the facts and unimpeachable for verdicts given — other
than corrupt verdicts.

Procedure. — The procedure on the writ of Habeas Corpus
in criminal cases is regulated.

( 103 )

CHAPTER VI.

WILLIAM AND MARY TO THE END OF LORD
ELDON'S CHANCELLORSHIP (1688—1827).

General. — The Revolution of 1688 made little or no
difference to the laws of the country, except in a political
sense. It is, however, convenient to make it a point of
departure in considering the legal history of England.

From William and Mary to the end of Eldon's chancellor-
ship there was no such fundamental change in any branch
of the law as had marked the previous periods — nothing, for
instance, like the Statute of Uses, or Charles II. 5s Act for
the abolition of knight-service. The law developed slowly,
chiefly by the decisions of a number of able men who pre-
sided over the Courts both of Common Law and Equity, and
if we want to trace the history of the law of England during
this period we must pay more attention to the Reports than
to the Statute Book. Holt and Mansfield on one side of
Westminster Hall, and Hardwicke, Thurlow, and Eldon on
the other, practically left the law as we find it to-day.
Since their time, many alterations in procedure and con-
veyancing have been made, and many amendments of the
law of crimes and their punishments ; but it is safe to affirm
that the judges of the King's Bench Division to this day
abide by the principles of Mansfield and Holt, and the
judges of the Chancery Division look very largely for their
law to Eldon and to Hardwicke.

104 THE STUDENT'S LEGAL HISTORY.

Real Property. — There was a tendency during this period
to amend the law of real property by improving the law
of conveyancing. In 1703 and 1706 Acts were passed for
the registration of deeds and wills in the West Riding of
Yorkshire, and in 1707 a similar statute passed in relation
to the East Riding. The object was to render titles to land
more secure, and the policy thus inaugurated of causing
instruments of title to land to be registered has since
been extended to the important county of Middlesex. Then
there are the Act of 1721, by which, for the first time, the
lands of insane persons were enabled to be conveyed by
persons appointed to act for them ; an Act to amend the law
as to the foreclosure and redemption of mortgages; and
many others of slight interest.

Besides these, there were the two important Acts
9 Geo. II. c. 36 (1736) and 11 Geo. II. c. 19 (1738), the
first making sweeping alterations in the law of mortmain,
and the second a leading statute on the law of landlord and
tenant. The Mortmain Act changed the old law in this
respect : formerly no conveyance of land could be made to a
corporation, or to the use of a corporation, without the
licence of the Crown or other immediate lord of the fee.1
By the Act of 1736, no land could be given to a charity by
will, but gifts inter vivos could be made if they were
either (a) for full and valuable consideration, or (b) made
at least twelve months before the donor died — the idea
being to check death-bed donations. The Statute 11
Geo. II. gave a landldrd power to sell goods which he had
distrained for rent. Formerly he could only impound
them.2 Again by the old law, a tenant might easily avoid
distress by removing the goods from the premises, because
only things on the land could be distrained. By the new
Act the landlord could follow the goods if they were
removed with a fraudulent intention of defeating the land-
lord's right.

1 Ante, p. 40. 2 Ante, p. 13.

WILLIAM AND MARY TO GEO. IV. (1688—1827). 105

Wills of Copyholds. — 55 Geo. III. c. 892 is a good speci-
men of the kind of legislation on legal questions that
obtained in the time of Lord Eldon and Lord Thurlow.
These celebrated chancellors were intensely conservative.
The alteration of one of the technical rules of real property
was to them little less than sacrilege. " Abolish contingent
remainders!" said Lord Eldon, when a Bill with that
object was laid before Parliament, "you might as well try
to abolish the law of gravitation ! ' ' And so influential were
these two chancellors that for years they prevented any
legal reforms by Act of Parliament.

Before 1815, a will of copyholds was made in the same
way as a will of freeholds had been made before the Statute
of Uses — that is, by the owner surrendering his copyhold to
the lord to the use of a friend, who was admitted by the
lord.1 The copyholder then made a will by which he devised
the use of the land to a devisee, and the friend held as
trustee for that devisee. The device was cumbrous in the
extreme, and its inconvenience must have been felt
frequently. The easiest way to deal with the matter would
have been to say at once that it should be lawful for copy-
holders to devise their copyholds, but this was too sweeping
a change for my Lord Eldon. So a statute was passed
enacting that a will of uses of copyholds should be valid
although no previous surrender had been made — as pretty a
specimen of tinkering as is to be found in the Statute Book.

The Law of Copyright dates from this period, the first
Copyright Act being passed in 1709 (8 Anne, c. 19). The
law on the subject has recently (Copyright Act, 1911) been
consolidated and amended.

The Law Merchant. — " Before Lord Mansfield's time, we
find that in the courts of law all the evidence in mercantile

1 See p. 67.

106 THE STUDENT'S LEGAL HISTORY.

cases was thrown together; they were generally left to a
jury, and they produced no established principle.'* l More
than anyone else, Lord Mansfield helped to bring about in
this a change.

When we consider what change this was, we shall see
how important was Lord Mansfield's tenure of ofiice. He
was appointed Chief Justice in 1756. A great predecessor,
Lord Holt, had considerably improved the Mercantile Law.
It is not too much to say that he accomplished more for
Mercantile Law in England than the whole body of his
predecessors collectively. He is said to have had a special
corps of jurors, city men, who were always empanelled to
try commercial causes. With their help Holt settled two,
at least, of the most important branches of the Law Mer-
chant— namely, the law relating to bills of lading and the
law of bailments. The latter he transplanted almost entire
from the Roman law; and settled principles relating to all
kinds of bailees in the celebrated case of Coggs v. Bernard*
This decision is still authoritative on the law of factors,
pawnees, carriers, innkeepers, and all kinds of depositees.

One decision of Lord Holt was somewhat extraordinary.
It is the well-known Clerke v. Martin,3 in which the Chief
Justice refused to allow as Law Merchant a custom which
had arisen amongst traders to count promissory notes as
negotiable instruments, on the same footing as bills of
exchange. Lord Holt seems to have been under the impres-
sion that the Law Merchant, being part of the common law,
must have been in existence from time immemorial, and as
the usage of treating promissory notes as negotiable had
sprung up within the memory of man, that they could not
be under the Law Merchant. The result was an Act of
Parliament,4 which placed these instruments on the footing
of negotiability. As to the question of principle, however,

1 Lickbarrow v. Mason, 2 T. K. 63, per Buller, J.

2 2 Lord Eaymond, 909. ' 2 Lord Raymond, 757.
* 3 & 4 Anne, c. 9.

WILLIAM AND MARY TO GEO. IV. (1688—1827). 107

it was long doubtful whether new Law Merchant could be
made, and the point has only been decided within the last
few years against the view which Holt took.1

But the work of Mansfield consisted in incorporating into
the law of England the Law Merchant. Before his day the
Lex Mercatoria consisted of customs prevailing in trade,
which customs had to be proved by evidence as facts.
Mansfield laid it down that the Law Merchant was law, and
was, therefore, a question for the judge and not for the
jury. The jury might be asked to find as a fact whether a
custom did in fact obtain, but the legal effect of that
custom was for the judge to determine. It followed from
the position that the Law Merchant was part of the law of
the land that whenever any custom or usage had been
found to be part of the Law Merchant, it required no
further proof in any case which might afterwards arise.
The full effect of the new departure can hardly be over-
rated. Take, for instance, the case of the liability of the
drawer of a bill of exchange, who alleged that he had
received no consideration for it. The holder proved that
he had received it from some one for valuable consideration.
Before Lord Mansfield's time he would also have to bring
evidence to prove that by the usage of merchants the mere
fact that the defendant had not received consideration did
not absolve him from liability. The jury then decided the
whole question of Liable or Not Liable. Now observe the
line taken by Mansfield. He said the question of liability
is one of law, that is, of the Law Merchant, which is part of
the common law. It is only for the jury to find two facts,
namely, (1) that the defendant signed the bill, and (2) that
the plaintiff is a holder for valuable consideration. If they
find both facts in the affirmative, it is for the judge, as a
matter of law, to decide whether by the Law Merchant the
defendant is liable or not.

1 Goodwin v. Robarts, I Ap. Ca; 476.

108 THE STUDENT'S LEGAL HISTORY.

A glance through the reports of the eighteenth century
shows how Lord Mansfield built up the law of marine
insurance, as, for instance, in the case of Woolridge v.
Boy dell (Dougl. 16 A.), where the question of implied
warranties arose, and the Chief Justice laid down the rule
that "contracts for insurance must be founded in truth."
In Lewis v. Rucker (1761), he laid the foundation of that
important branch of maritime law called "particular
average." In Tyrie v. Fletcher (1777), he set forth the
rules as to when the premium paid on a policy of marine
insurance must be returned, and laid it down that the risk
of such a policy is entire — a novel doctrine; and he also
declared, what has been taken for law ever since, that a
contract for marine assurance is one of indemnity, and not
like life assurance, which is a wager. In Worsely v. De
Mattos (1758) he decided that all Acts concerning bank-
rupts are to be construed favourably for creditors and to
suppress fraud.

The work of Mansfield was ably carried on by his
successors, notably Lord Chief Justice Ellenborough ; and it
may safely be asserted that before the year 1827 the Law
Merchant, as we know it to-day, was, in principle, settled.

International Law. — The greater part of our law on the
subject of rights of belligerents and neutrals, prize of war,
and those other matters which form the English contribu-
tion to the law of nations, was the work of Sir William
Scott, afterwards Lord Stowell, brother of the more famous,
but not more learned, John Scott, Lord Eldon. During
the Napoleonic wars, it was Lord Stowell who had to
adjudicate upon almost all the cases of prize, with the
result that he enriched the pages of the law reports with a
series of great judgments, leaving the law in such a state
as to be the foundation of all the modern decisions. Such
cases as The Twee Gebroeders* The Maria,2 The Hoop,3

1 3 C. Eob. 336. 3 1 C. Rob. 340. 3 Ibid. 196.

WILLIAM AND MARY TO GEO. IV. (1688—1827). 109

The Immanuel,1 The Gonge Margaretha,2 remain the lead-
ing cases on the protection of neutral territory, the right
of visitation and search, trading with the enemy, the right
of neutrals to trade with the enemy's colonies, contraband
of war, blockade, and kindred subjects.

The Law of Gaming and Wagering.— Amongst the Acts
affecting the civil side of the common law were 7 Geo. II.
c. 8, and 10 Geo. II. c. 8, by which the " infamous practice
of stock- jobbing " was prohibited. The first of the Acts
(1727) recites at great length how " great inconveniences
have arisen and do daily arise by the infamous practice of
stock- jobbing, whereby many of His Majesty's good sub-
jects have been and are diverted from pursuing and
exercising their lawful trades and vocations," and then
goes on to forbid under a penalty of £500 any " putts or
wagers, or contracts in the nature of putts or wagers," on
public stocks or funds. Any money paid on account of
such contracts was to be recoverable, with double costs.

In the same spirit of legislating against gambling, the
Statute of 9 Anne, c. 14, had declared all securities given by
way of payment for gaming or wagering debts 011 the same
footing as securities for illegal consideration. And from
the time of Anne to the reign of George III. statutes were
frequently passed to suppress lotteries. Still, wagering
contracts were, in themselves, as legal as any other con-
tracts, and at that time the Courts were not unfrequently
made to decide wagers.

The Law of Bankruptcy.— A distinct change was made
here (1711). Previous to this date, when a tradesman
became bankrupt, his creditors took all his property, and
the debtor was still indebted for the balance, for which
balance he could be arrested. By 10 Anne, c. 20, the

1 2 C. Bob. 186. 2 1 C. Eob. 189.

110 THE STUDENT'S LEGAL HISTORY.

creditors were made to accept the most the debtor could
give, and were then obliged to restore the bankrupt to
liberty. There were nearly a score of other Acts passed
relating to bankrupts and bankruptcy, but they referred
only to details.

Common Law Procedure.— Some attempts were made
after the Revolution to deal with the procedure in the
Common Law Courts, especially with a view of minimising
technicality and providing more expeditious means of trial.
Two or three matters were reformed. One was the removal
of an anomaly that had disgraced the Courts since the estab-
lishment of the Curia Regis by William I. Until 4 Geo. II.
c. 26 (1731), all pleadings in common law actions had
been in a curious language called, by courtesy, French.
Since that Act they have been in English. A second reform
was to provide (1705) that judges might give judgment on
demurrers (points of law) without regarding any defect in
the writ.1 To understand the full effect of, and full need
for, the statute, let the student turn to Croke (Elizabeth),
where he will find an objection taken to a writ because a
word was wrongly spelt: — " elemosynary " instead of
"eleemosynary." The objection failed, not because it was
frivolous, but because the wrong spelling was customary,
and therefore right. The next reform (12 Geo. I. c. 31)
was rendered necessary by the increasing volume of the
business of the Courts. Instead of the two justices or
barons required by 18 Eliz. c. 12, for trials at nisi prius, it
was enacted that a single judge should be competent to try
such causes, thus allowing twice as many cases to be tried
in the same time.

Equity: Development. — The chief doctrines of equity
may be said to be the doctrines of trusts, the doctrines con-

1 Another Act to the like effect, 5 Geo. I. c. 13.

WILLIAM AND MARY TO GEO. IV. (1688—1827). Ill

nected with the administration of assets, married women's
separate property, mortgages, guardianship of infants,
specific performance, fraud as distinct from common law
deceit, relief against penalties and forfeitures, and injunc-
tions. There are other matters which are merely connected
with the peculiar procedure of equity, as, for instance, dis-
covery of documents and interrogatories, and the taking of
various accounts, e.g. between partners.

We have seen that uses began as early as Edward III.,
but we have it on the authority of Lord Mansfield that it
was not until the chancellorship of Lord Nottingham
(Car. II.) that trusts became what they are in modern
times. Lord Nottingham established as a principle that
admitted of very few exceptions that the limitations of a
trust estate were to be regarded as analogous to the limita-
tions of a legal estate. With regard to trusts of lands, the
Statute of Frauds assisted in the development of Lord
Nottingham's theory by enacting that all such trusts should
be evidenced by writing, and that lands held upon such trusts
should be liable to execution for debts of the cestui que trust
in the same way as if he were seised at law ; not by the same
process, that is, the writ of elegit addressed to the sheriff, but
by the process of equitable execution, that is, the appoint-
ment of a person by the Court to receive the profits of the
land in order to satisfy the judgment debt. The doctrine
of resulting trusts where the purchase was made in the
name of another l was as old as uses themselves, but Lord
Nottingham decided, in Cook v. Fountain, 1676, that where
the purchase was made in the name of a child there should
be a presumption of advancement, which would rebut the
presumption of a resulting trust.

But it is too much to say that Lord Nottingham settled
the law of trusts. For instance, he held in two reported
cases that a trustee was compelled to accept a trust, a

1 " Snell's Equity," llth ed., p. 117.

112 THE STUDENT'S LEGAL HISTORY.

doctrine wliicli would not be accepted for a, moment in these
days. In fact, it may be taken that, with one exception, all
the great equitable doctrines and the practice of the Court
of Chancery were settled finally by Hardwicke, Thurlow,
and Eldon. The service rendered by Ellesmere, Nottingham,
Bacon, and the chancellors of that time was practically
this : — They laid it down as a maxim that Equity ought
to act according to rule. Before them, every Equity judge
decided each particular case according to what he thought
were the merits of that case. But Lord Nottingham finally
settled that chancellors were almost as much bound by pre-
cedent as were chief justices.

The Stuart chancellors laid the foundation; but, as I
have stated, the real builders of the system of modern
Equity are the great triad, Hardwicke, Thurlow, and
Eldon. Look at the reports, and you will almost certainly
find the leading case on any particular equitable doctrine
in a judgment of one of these three, most probably Eldon.
Since 1827, when, after a reign of twenty-six years, the
greatest master of equity quitted the woolsack, no new doc-
trines have been invented, no new principles applied by
judges in Chancery. Eldon, in fact, left Equity a system
of justice as much fixed, settled, and by rule limited, as the
Common Law was. The last new right created by the
chancellors was the one known as " restraint on anticipa-
tion." Lord Thurlow is said to have been trustee of a
marriage settlement, and by his advice a clause was inserted
giving the wife an income without power of anticipation,
i.e. without power to alienate it or charge it. The clause
was copied by other conveyancers, and soon came into com-
mon use. Lord Thurlow also asserted emphatically the
right of the Court to interfere between parent and child for
the latter's benefit, remarking on one occasion, when his
power was questioned, that he had no doubt but the Court
of Chancery had arms long enough to enforce its decrees.

To conclude the subject, at the establishment of the

WILLIAM AND MARY TO GEO. IY. (1688—1827). 113

Court of Chancery under Edward III., and down to the
chancellorship of Ellesmere, Equity was " the length of
the chancellor's foot." As soon as the woolsack began to
be filled regularly, and, as of course, by successful lawyers,
the procedure of the Court was regulated, and some regard
was paid to precedent, but the chancellors did not consider
themselves absolutely bound by the decisions of their pre-
decessors. But Lord Nottingham and after him Coventry,
Hardwicke, Thurlow, and Eldon, altogether abolished the
"chancellor's foot," and based the jurisdiction entirely on
settled rules and principles, guided by precedents.

Criminal Law. — A noticeable feature of the criminal
jurisprudence of this period was the enormous number of
crimes punishable capitally. Prior to this time, in theory of
law, there were a great many capital crimes, but, in prac-
tice, executions were rare, except for treason or homicide,
or other grave offences. The reason was, that in very many
cases the offender had " benefit of clergy," i.e. if he could
read, or write his own name, he escaped death — a survival
of the days when the ability to read and write was strong
primd facie proof of the clerical character. In 1691, by
3 William and Mary, c. 9, benefit of clergy was taken away
in cases of theft from dwelling-houses (including burglary),
and other statutes followed, so that Blackstone (1743)
laments that no fewer than 160 crimes are subject to the
penalty of death.

Before the end of the period, however, one of the worst
features of the criminal law had been to a great extent
removed. Until the year 1813, a person convicted of
felony, without benefit of clergy, was liable to capital
punishment, to forfeiture and to attainder. The con-
sequence of the last part of the punishment was, that the
felon's wife and family took none of his property, nor could
any one inherit an estate from or through him, because his
blood was attainted. Blackstone defends the law as it

S.L.H. 8

114 THE STUDENT'S LEGAL HISTORY.

existed in his day by arguing that a man is far more likely
to be restrained from crime if he knows that detection
means beggary for his family as well as ruin for himself;
but early in the nineteenth century different views began to
be put about, and, in consequence, by 54 Geo. III. c. 145,
and by 9 Geo. IY. c. 31, the law of forfeiture for felony
was greatly modified. Prisoners convicted of treason or
murder, or of aiding and abetting, or being accessory to
either of those crimes, were left in the same state as before.
In all other cases, however, forfeiture should extend only
to the life interest of the criminal. There should be no
attaint of blood, except in the cases aforementioned, but
the heir should succeed to the property of the felon as
though the latter had died a natural death.

Habeas Corpus: Further Legislation.— The Act of

Charles II. had improved the procedure in Habeas Corpus,
but there were three points it left untouched, viz. : (1) it
only referred to cases where the prisoner was in custody on
a charge of crime; (2) it did not fix the amount of bail that
might be demanded; (3) and most important of all, it did
not provide any guarantee against falsity in the return to
the writ. It might and did happen that a gaoler would
falsely return that the prisoner had been committed legally,
as for felony on a magistrate's warrant, and the judges
who granted the writ had no means of going behind that
return. With the view of remedying these imperfections,
a statute was passed in 1816 (56 Geo. III. c. 100), extend-
ing the statutable remedy to cases of imprisonment, other
than imprisonment on a charge of crime; for instance,
detention under the pretext of lunacy. The Act also pro-
vides that judges might examine into the truth of the
returns made to the writ. The other defect, viz. that
relating to bail, had been tried to be met by the Bill of
Rights (1689), which enacted that " excessive bail should
not be required." It was impossible to fix an amount, and

WILLIAM AND MARY TO GEO. IV. (1688—1827). 115

so at the present time bail is at the discretion of the magis-
trate or judge, subject to review by the High Court in cases
of excess.

Treason: Procedure. — The unfair means adopted by the
officers of the Crown in prosecuting persons accused of high
treason has been stamped upon the public mind by the trials
of Russell and Sidney (James II.), and the " campaign " of
the infamous Jeffreys in the West after Monmouth's Rebel-
lion. The prisoner did not know until he stepped into the
dock to take his trial what he was to be charged with ; the
jury was often packed by the sheriff; the accused could not
compel the attendance of witnesses to testify for him; and
if any witnesses came forward on his behalf they were not
allowed to be sworn, so that their testimony was nearly
valueless.

The Bill of Rights (1689) enacted that all jurors in cases
of treason should be freeholders; and some years after, by
7 Will. III. c. 3, and 7 Anne c. 21, more extensive reforms
were introduced : —

(1) No indictment for treason, except an attempt to

assassinate the king, was to be found more than
three years after the date of the alleged offence.

(2) The prisoner should have a copy of the indictment

ten days before the trial.

(3) He should also have a list of the Crown witnesses

and a list of the jurors empanelled (i.e. out of whom
the jury to try him was to be chosen) ten days
before trial, and in the presence of two witnesses.

(4) He should have the same means of compelling the

attendance of witnesses for him as the Crown had
to procure the attendance of witnesses against him.

(5) His witnesses were to be sworn.

(6) Two witnesses must prove acts relating to the same

treason, e.g. one cannot prove an act of " com-

116 THE STUDENT'S LEGAL HISTORY.

passing the king's death," and another an act of

"levying war against the King in his dominions." l

Another concession to the public demands for the fair

trial of prisoners accused of high treason was made by 20

Geo. II. c. 30 (1747), by which such prisoners were allowed

the assistance of counsel. The greatness of the concession

will be appreciated when one remembers that it was not until

1836 that other prisoners were allowed the like privilege.

Treason. — But although the procedure in cases of treason
was reformed after the Great Revolution, the law itself left
a great deal to be desired. In William III. one Harding
levied men in England, and sent them over to France to
join the French forces in an attempt to restore the Stuarts.
The judges declared this to be a " compassing and imagining
the death " of William. The theory generally held was
that any act which might have a tendency to dethrone the
king by force is " imagining " his death. But the strangest
case of all is that of Damaree and Purchase (1710), who,
with a riotous mob, paraded the streets, shouting " Down
with the Presbyterians," and proceeded to pull down a
number of dissenting meeting-houses. They were found
guilty of levying war against the queen in her realm. The
argument upon which they were condemned is to be found
in Hale's Pleas of the Crown. It is : — There are two kinds
of "levying war," viz.: — (1) Levying a war against the
king and his army with intent to do his majesty some
grievous bodily harm, to depose him, or compel him to
change the course of his government, or the like; and (2)
levying war for a public object. Thus, to join a mob for
the purposes of pulling down all dissenting chapels was
treason; but it would not have been " levying war " to join
a mob with intent to pull down one or two particular
meeting-houses.

1 Vide supra, p. 88.

WILLIAM AND MARY TO GEO. IV. (1688—1827). 117

Hale's view was indorsed by Lord Mansfield in the Lord
George Gordon Case, which arose out of the No Popery
riots. "If," he says, "the multitude assembled with
intent, by acts of force and violence, to compel the legis-
lature to repeal a law, it is high treason " — i.e by levying
war.

The trials of Home Tooke and Hardy, in 1794, gave rise
to decisions on the words "imagining the king's death."
The defendants were members of two political societies,
having for their objects the carrying on of an agitation for
universal suffrage and annual parliaments. No acts of
violence had been committed; but the case for the Crown
was that the ulterior object of the societies was to depose
the king and set up a republic. The Attorney-General
(John Scott) contended that if he proved an intention to
depose the king that was enough. In law it amounted to
"imagining his death." Erskine, for the defence, con-
tended that this kind of treason consisted in an actual
intention to kill the king. He admitted, however, that
evidence of intention to depose was evidence of imagining
death; but the inference was one of fact, not of law, and
therefore it was for the jury.

Such cases as that of Damaree and Purchase have not
arisen since the Riot Act * (1714), which was passed partly
in consequence of it; but in other treasons the law remains
the same as it was laid down by Mansfield, Hale, and the
other old authorities. Only the punishment has been
altered.2

Riots : The Riot Act 3 (1714) was passed partly in conse-
quence of Damaree's Case,4 and partly in consequence of
the frequent riots and tumults which arose between the
Hanoverians and the Jacobites. Twelve persons assembling
together riotously in a public place constitute an unlawful

1 1 Geo. I. st. 2, c. 5. 3 Infra, p. 140.

3 1 Geo. I. st. 2, c. 5. * Supra, p. 116.

118 THE STUDENT'S LEGAL HISTORY.

assembly; and if they refuse to disperse within one hour
after a proclamation has been read to them, they are guilty
of riot, and can be dispersed by force. They are guilty of
felony without benefit of clergy (i.e. of a capital offence),
and if, in dispersing the mob, any of them are killed, the
slayer is exonerated from guilt. Since the passing of the
Act, it has been usual, before ordering the police or the
military to use deadly weapons, for some magistrate to read
the statutory proclamation, a ceremony commonly called
"reading the Riot Act." It may be pointed out, however,
that at common law any subject may, and every subject
ought to, assist the magistracy in suppressing riots; so it
may happen that a soldier who kills a rioter to prevent an
imminent breach of the peace, or a felony, is protected,
although no proclamation has been read. The soldier is not
protected because he is a soldier, or because he acted by
command of his superior officer, but because he is doing his
duty as a citizen.1 The effect of the Riot Act was much
discussed in the case of the Bristol Riots (1831), when it was
declared to be common law that magistrates ought to use
every means in their power to suppress public disorder.

Development of the Law of Libel : Seditious Libel. — We
have referred to the law of seditious libel as it stood before
1688. After that date, prosecutions under this head were
frequent, especially towards the end of the 18th century,
when, after a long contest between Erskine on the one hand,
and the law officers of the Crown and the judges on the
other, the legislature interfered, and revolutionized the law.
The point of contest may be shortly stated thus : — Was the
guilt of the libel — that is, its criminal character, a question
for the judge, or was it for the jury ? By a long series of
decisions from William III. to Lord Mansfield, it had been
laid down in terms positive that the judge, and the judge

1 Case of Arms, Pop. 121.

WILLIAM AND MARY TO GEO. IY. (1688—1827). 119

alone, could decide the question of the nature of the libel.
The only question for the jury was the fact that the words
complained of had been composed or published by the
defendant. The judge asked the questions — " Do you find
the prisoner published the libel in London ? and do you find
that the words refer to the people they are said to refer to?"
and to these the jury had to say " Guilty " or " Not
Guilty." The form of questions should be noted, because
it became important in the time of Erskine.

To come to the authorities, in the case of R. v. Fuller,
Lord Holt, C.J., asked the prisoner whether he could prove
the truth of his words, and on receiving an answer in the
negative, directed the jury to convict. In R. v. Tutchin
(1704), the same judge told the jury — " If you are satisfied
that he is guilty of composing and publishing these papers
in London, you are to find him guilty." 1 Clearly, Holt did
not leave the question of the criminality of the words to the
jury. After this comes the case of R. v. Francldin (1731)
for publishing the Hague letter, supposed to have been
written by Bolingbroke. Lord Raymond, C.J., presided,
and he plainly told the jury: — "Gentlemen, if you are
sensible and convinced that the defendant published that
Craftsman of the 2nd January last, and that the defamatory
expressions in the letter refer to the ministers of Great
Britain, you ought to find the defendant guilty." "Whether
these defamatory expressions amount to a libel or not, . . .
this does not belong to the office of the jury, but to the
office of the Court." But in the time of Lord Mansfield the
matter came to a head. One Woodfall was indicted for
publishing Junius's letter to the king, and the jury returned
a verdict of "guilty of publishing only." This celebrated
verdict was afterwards returned by other juries in cases of
libel. Its effect was to acquit the prisoner, because they
did not find that the libel meant what it was said to mean,

1 14 State Trials, 1905.

120 THE STUDENT'S LEGAL HISTORY.

nor that it referred to the person to whom it was said to
refer. This was in 1770. The chief of the opposition
lawyers, headed by Lord Camden, no mean jurist, fiercely
attacked the chief justice in Parliament. Mansfield declined
to argue the matter. In 1777 Home Tooke was tried for
having written that the king's troops engaged in the
American War had been guilty of murder. Here, again,
Mansfield only left to the jury the publication and the
innuendoes, reserving the question of the criminality for
the Court.

The last great case is R. v. Shipley,1 commonly called the
Dean of St. Asaph's Case. A pamphlet called A Dialogue
between a Gentleman and a Farmer, containing some
remarks on the then existing system of parliamentary repre-
sentation, had been written by Sir William Jones, and
published by the Dean of St. Asaph, his brother-in-law.
The trial came on at Exeter Assizes in 1783, and Erskine
defended with his usual wonderful eloquence and fire, with
the result that the jury found the verdict " guilty of pub-
lishing only." It appears from Erskine's own account that
he had it in his mind to bring forcibly home to the public
the dangerous, and, as Erskine considered, wrong view of
the law taken by Mansfield. The presiding judge at Exeter
was Mr. Justice Buller, in whose Chambers Erskine had
been. The great advocate, during the whole of the trial,
took up the position that the pamphlet was innocent, and
that it was entirely a question for the jury whether it was
innocent or not; — that is, the jury must determine the
criminality of the libel, or, to put it another way, they must
decide whether the pamphlet was a libel or not. The judge
took the contrary view, and told the jury it was for them
only to find the publication and the innuendoes. When the
jury had brought in their verdict, Mr. Justice Buller told
them that by adding the word " only " they would be

1 21 State Trials, 847.

WILLIAM AND MARY TO GEO. IV. (1688—1827). 121

negativing or, at all events, not finding the truth of the
innuendoes. Erskine, very properly, asked that the verdict
be entered as given, but the judge, also very properly, in-
sisted on making clear to the jury the incompleteness of
their finding. They then found the innuendoes, and, as this
had the effect of a verdict of guilty, Erskine applied to the
King's Bench for a new trial, on the ground of misdirection
by the judge. Whoso wishes to gain an idea of the force of
Erskine's eloquence can do so by reading the report of his
argument in support of the motion.1 We cannot say more
than that he insisted that, by the common law, the jury had
a right to bring in a general verdict, i.e. of guilty or not
guilty on the whole question. He insisted that the criminal
intent makes the crime, and that criminal intent is a matter
of fact, and therefore for the jury. Lord Mansfield delivered
judgment, most uncompromisingly against Erskine. Justice
Buller's direction was, he said, abundantly supported; in
fact, the rule had been uniform since the Revolution.

There seems very little doubt that the chief justice was
absolutely right in law. A course of practice dating back
for a hundred years, and supported by such authorities as
Chief Justices Holt, Raymond, and Lee, not to mention
Mansfield himself, was quite enough. Moreover, it is a
general rule of law that the construction of a document, i.e.
its legal effect, is matter of law, and therefore for the judge.

The immediate result of The Dean of St. Asaph's Case
was to declare the law with great distinctness, but indirectly
it was the cause of an entire alteration in the law. In 1792,
Fox's Libel Act " enacted and declared " that in a trial for
criminal libel " the jury sworn to try the issue may give a
general verdict of guilty or not guilty upon the whole
matter put in issue; . . . and shall not be required or
directed by the court or judge before whom such indictment
or information shall be tried to find the defendant or defen-

1 2 State Trials, 961.

122 THE STUDENT'S LEGAL HISTORY.

dants guilty merely on the proof of tlie publication by such
defendant or defendants of the paper charged to be a libel,
and of the sense ascribed to the same in such indictment or
information/' This statute directly overruled the law as
laid down in the King's Bench for a hundred years, and
established the principle that Erskine had contended for.

I have treated of the point settled by Fox's Act at some
length, because although that Act, in point of form only,
settled a subsidiary question, and not the main point, viz.
of the nature of a seditious libel, in fact it did very much
more. I have shown on a previous page l the kind of words
that were held seditious by Jeffreys, Scroggs, and others
before the Revolution. After the Revolution the law was
in nowise altered.

For instance, in the case of Francklin, the libel consisted
of a mere political article, censuring the foreign policy of
the government. The libel for which Tutchin was convicted
was an article charging the ministry with corruption and
bad management.

The law is best summed up by Lord Holt : — " Nothing
can be worse to any government than to endeavour to pro-
duce animosities as to the management of it ; this has always
been looked upon as a crime, and no government could be
safe without it is punished."

After the Libel Act, when the question of criminality
was left to the jury, it is strange to observe that convictions
for seditious libel were for a time more numerous, juries
being, if anything, stricter than the judges had been before.
But the fact is accounted for when we consider that the
nation was in a state of wild excitement owing to the
excesses of the French Revolution. On December 17th,
1792, an extraordinary verdict was given. Two prisoners in
the King's Bench prison had put up a placard, " This house
to let. Peaceable possession will be given by the present

1 Supra, p. 90

WILLIAM AND MARY TO GEO. IV. (1688—1827). 123

tenants on or before the 1st day of January, 1793, being
the commencement of the first year of liberty in Great
Britain." They were charged with seditiously devising,
contriving, and intending to excite and stir up divers
prisoners to escape, by publishing an infamous, wicked, and
seditious libel, and were found guilty. But the nation soon
recovered from its panic, and since 1815 prosecutions have
been rare, and convictions rarer, because the prosecution
has had to prove, to the satisfaction of twelve shop-keepers,
that the accused had the intention of stirring up the people
tc overturn the government by force.

Every day we see in the newspapers articles which
Mansfield and Holt would have held to be grossly seditious
libels, but which the twelve shop-keepers consider reasonable
comment on public affairs.

Justices of the Peace and Quarter Sessions.— In 1694 an
Act was passed greatly strengthening the position of the
Court of Quarter Sessions. It had grown a common practice
for persons indicted at these courts to apply before trial to
the King's Bench to have the cases removed from the local
court on a writ of certiorari. As the statute * puts it —
" Divers turbulent, contentious, lewd, and evil-disposed
persons, fearing to be deservedly punished where they and
their offences are well known," put the prosecution to a
lot of trouble and expense, and endeavoured to have the
indictment tried at Westminster or London. It was pro-
vided, therefore, that no certiorari should issue unless the
applicant entered into recognizances to appear at the next
assizes. Moreover, if the applicant is eventually convicted,
the King's Bench should order him to pay to the prosecutor
all the costs of and incident to the certiorari.

1 5 Will. & Mary, c. 11.

124 THE STUDENT'S LEGAL HISTORY.

SUMMARY.
Real Property:

(a) The first Yorkshire Registry Acts were passed.

(b) The Mortmain Act allowed conveyances in mort-

main, inter vivos, under certain restrictions.

(c) The law of distress was altered by giving the land-

lord the right to sell the goods distrained on, and
to follow goods improperly removed.

(d) An alteration was made with regard to wills of
copyholds.

Personal Property: The only change was the invention
of a new kind of property by the Copyright Act.

The Law Merchant was improved and settled by Chief
Justices Holt and Mansfield.

International Law : A series of important decisions was
given by Sir William Scott (Lord Stowell).

Procedure at Common Law :

(a) One judge enabled to try causes at nisi 'prius.

(b) Judges to decide demurrers without regard to any

defect in the writ.

Chancery: Law and Procedure: The chief doctrines of
modern equity, and the practice of the Court finally
settled. Since the chancellorship of Eldon, equity
has been a certain system of law.

Criminal Law:

(a) Capital punishment became more common.

(b) Forfeiture and attainder for treason and felony
partly abolished.

WILLIAM AND MARY TO GEO. IV. (1688—1827). 126

(c) The law of treason remained the same, but the

procedure was modified in favour of the accused,
and counsel allowed to defend.

(d) The Riot Act created the law as to unlawful
assemblies, and directed a certain method of
procedure for dispersing them.

(e) The law of seditious libel, and the question of

general verdicts, gave rise to a long controversy
between Erskine and Lord Mansfield. Finally,
Fox's Libel Act enabled juries to give a general
verdict of guilty or not guilty.

(f) Frivolous applications for writs of certiorari to

remove causes from Quarter Sessions checked by
compelling the applicant to give security for costs.

( 126 )

CHAPTER VII.

GEORGE IV. TO PRESENT DAY (1827—1921).

General. — It is from the year 1827 that we must date
modern legal history. It was in that year that Parliament
entered on the work of Law Reform. Until then, legisla-
tion upon legal subjects had, with very few exceptions,
been of the most piecemeal character. There had been from
the earliest times an unwillingness on the part of Parlia-
ment to interfere with law as distinguished from politics.
The consequences were — (1) That the greater part of English
Law was contained in the decisions to be found in the
Books; (2) That many laws had survived when the reasons
for them had vanished ; (3) That laws, highly inconvenient,
not having been repealed, of necessity had to be evaded by
devices more or less cumbrous and expensive.

Bentham had, before this, commented severely on two
things. The first was the want of system and of certainty
in the law, caused by the fact that it had been made by the
judges upon the spur of particular occasions, and by the
difficulty of extracting with sureness the ratio decidendi.
The second was the extraordinarily harsh penal laws. Death
was the punishment alike for killing a man and for stealing
a sheep; for high treason and for petty larceny.

Henry Brougham, afterwards Lord Chancellor, was a
devout Benthamite; and in 1827 he delivered in the House
of Commons a long and brilliant speech on the Laws of
England. He dwelt particularly on the necessity for codifi-
cation, especially of the criminal law; on the absurdity of
fines and recoveries; on the complexity of the methods of

GEORGE IV. TO PRESENT DAY (1827—1921). 12T

conveying land ; on the cumbersome process of the Common
Law Courts; on the extraordinary technicality of writs and
pleadings ; on the fictions which had to be resorted to ; and
on. the harshness of the penal laws. The result of this
remarkable speech was the appointment of two commissions
— one to consider the criminal law, and the other the
methods of the Courts at Westminster and the Common
Law. The intention of Brougham was to codify the whole
of English Law; but the actual result of the commissions
consisted of the presentation of certain valuable reports,
which afterwards led to the appointment of further com-
missions, upon whose labours were based the Real Property
Act of 1845, the Common Law Procedure Acts of 1852,
1854, and 1860; and the Criminal Law Consolidation Acts
of 1861. More immediate results were the abolition of fines
and recoveries; the complete revolutionizing of the law of
dower, and the confining of capital punishment to murder
and high treason.

It may be said, in fact, that almost every legal change
since 1827 has been upon the lines indicated by Brougham,
and by him borrowed from Bentham. These changes have
been for the most part merely in matters of procedure, con-
veyancing and codification. There has been singularly little
alteration in the substantive law.

The dismissal of Eldon from the chancellorship rendered
the occasion appropriate for introducing measures of legal
change. He had held his high office for twenty-six years,
and though he had done no slight service by consolidating
the principles and practice of the Court of Chancery, he had
persistently opposed all sweeping or radical changes in the
law. It is as much to Eldon's retirement as to Brougham's
agitation that we owe the series of measures at this time
enacted.

Real Property. — In no department of the law have more
changes been made than in the Law of Heal Property. Yet

128 THE STUDENT'S LEGAL HISTORY.

the alterations have not been so much in the law relating
to realty as in the law relating to the disposition of realty,
that is, the Law of Conveyancing. It is not within the
scope of this work to enter upon a discussion of the details
of modern Real Property Law. Only the main features
will he considered. The Fines and Recoveries Act, 1833,
abolished the cumbrous business known as fines and
recoveries.1 For these fictional actions disentailing deeds
were substituted in cases where the entail was to be barred ;
and in the cases where a married woman wished to convey
an interest in land, she was to execute a deed jointly with
her husband; and to prevent undue marital influence, she
was to acknowledge, before a commissioner or a judge at
Westminster, that the deed was her own voluntary act. By
the Dower Act, 1833, the law of dower was greatly modified.
Instead of a wife being entitled to dower only in lands of
which the husband was seised, she took dower out of his
equitable estates also. But, on the other hand, the husband
was enabled to alienate his land inter mvos or by will, free
from dower, which he was only able to do formerly by a
series of intricate conveyancing manoeuvres too long to
explain here.

The law of prescription, i.e. the acquisition of a right in
another's property (e.g. rights of way and the like), was
much simplified by the Prescription Act, 1832, which pro-
vided that a presumption of right should arise by twenty
years' user, and become irrebuttable at the end of forty
years.2 The Rules of Descent were also altered about the
same time. By the Common Law, no ancestor could inherit
from a descendant; no relation of the half-blood could be
heir ; and the course of inheritance might still in some cases
be arrested by attaint of blood. The Inheritance Act, 1833,
reversed all three of these rules; and it also enacted that

1 See pp. 38, et seq.

2 The periods for profits a prendre are thirty and sixty years respectively ;
and for right of light twenty years' irrebuttable.

GEORGE IV. TO PRESENT DAY (1827—1921). 129

for the future descent should not be traced from the person
last seised, but from him who last acquired by purchase.1
The Real Property Limitation Act also, in 1833, barred all
claims to realty, or money charged on land, or to legacies,,
unless they were made within twenty years of the time when
they vested. The period was cut down to twelve years by the
Heal Property Limitation Act of 1874. Other important
statutes in this connection are, the Conveyancing Acts,
1881, 1882, and 1890; and the Settled Land Acts of 1877,
1881 to 1893, of which accounts are to be found in the text-
books of Williams and Goodeve. The object of the former
was to simplify deeds of conveyance; and the latter were
intended to give to tenants for life of settled estates greater
facilities for dealing with those estates. The measure is
most important, for half the land of the country is under
settlement. Copyholds are optionally enfranchisable by
the Copyhold Act, 1894.

Feoffment with Livery was practically superseded by the
Eeal Property Act, 1845. Up to that date it was nominally
still the way of conveying freehold hereditaments; but in
fact it had long been obsolete. For two centuries lawyers
had been using conveyances by deed in order to avoid the
necessity at livery of seisin. These deeds, being merely
conveyancers' devices, were necessarily somewhat technical,
and the law of conveyancing was much simplified by the
provision that freeholds in possession might be conveyed by
a simple deed of grant. In 1875 and 1897 were passed the
Land Registry Acts, which were intended to make land
transferable by registration at a Land Registry. These Acts
are, as yet, only in operation in the County of London.

Wills. — Until 1837 testaments of personalty could be by
word of mouth, though, since the Statute of Frauds, wills of

1 I.e. not by inheritance, escheat, or partition.
S.L.H.

130 THE STUDENT'S LEGAL HISTORY.

land must be in writing. The Wills Act, 1837, codified the
law relating to wills and testaments, and introduced a good
deal of new law. First and foremost comes the proviso that
all wills and testaments * must be in writing. Then, that all
property can be directly devised or bequeathed by will,
including copyholds.2 Next, that all wills speak as from the
testator's death, so that all property of which he dies pos-
sessed may be included in it. Various other sections
modified, explained, or annulled decisions which had been
given on the Statute of Wills and the Statute of Frauds.

Married Women's Separate Property was invented by the
Court of Chancery; but it only applied to cases where the
property had been expressly given to the married woman's
separate use. The Married Women's Property Act, 1882,
made all the property " separate property ' ' where the
parties married after 1882, or where the property was
acquired after that year. There had been other Acts in
1870 and 1874 giving some lesser rights of the same kind
to married women; but the Act of 1882 swallowed up its
predecessors.

Equity. — Since the chancellorship of Lord Eldon, most
of the alterations made in Equity, or Chancery Law, have
been by statute. There have been a few — a very few — new
extensions of old doctrines, and there has been one case in
which, by judicial decision, a doctrine formerly set up by
judicial decision has been overturned — namely, the doctrine
of precatory trusts. It had frequently been held that where
a testator gave property to A., with a " hope " or " trust "
or " confidence " that A. would provide for B., A. was held
a trustee for B. By the authority of the late Sir George
Jessel that series of decisions has been of late years over-
turned; and it is now established that a trust must be

1 Except those of soldiers and sailors in expeditions^
* See p. 105.

GEORGE IV. TO PRESENT DAY (182T— 1921). 131

declared in imperative language.1 So far as I know, that is
the only important new doctrine of Equity since Eldon.
There has also been a certain amount of reluctance to follow
other old doctrines established by the early chancellors,
especially in one direction, viz. the old judges in Equity
were very ready to make the trustee's position extremely
onerous. The trend of modern decisions and practice is to
make his duties and liabilities as light as may be, provided
that he acts honestly and to the best of his judgment.

There have also been numerous statutes on the subject of
trusts and trustees, with the object of clearing up doubtful
points, and of relieving trustees from undue burdens. These
are the Trustee Acts of 1850, 1852, 1857, 1859, 1888, and
1893, the last of which codifies the provisions of the former
Acts and greatly improves the position of the trustee who is
honest but unfortunate or mistaken. Another object of the
statutes is the saving of expense to the trust estate. Thus,
new trustees can be appointed without the expense of an
application to the Court; and a trustee is not responsible
for the dishonesty or incompetence of an agent or co-trustee
whom he thought honest and competent. A further piece of
legislation is by the Rules of the Supreme Court, issued in
1883. Under the old system of Equity, a trustee acted very
much at his peril. If the trust instrument did not state his
powers fully and accurately, and he was in doubt, he had
to make up his mind and act to the best of his judgment.
Should he turn out to be wrong, he would probably render
himself liable to an expensive lawsuit and heavy loss. By
the new rules, he can go to a judge of the Chancery Division
and obtain a solution of the difficulty, and the directions
given by such judge completely exonerate the trustee from
all liability. By the Trustee Relief Act, 185T (now re-
enacted as part of the Trustee Act, 1893), a trustee who

1 But see Comiskey v. Bowring-Hanbury, [1905] A. C. p. 84, where, how-
ever, there was a gift over which helped to show that the testator did not
intend an absolute gift.

132 THE STUDENT'S LEGAL HISTORY.

is in difficulty may pay the whole of the trust fund into
Court and get rid of all future responsibility.

International Law.— During the Great War (1914—1918)
the Prize Courts, under the presidency of Sir Samuel Evans,
Lord Sterndale, and Sir Henry Duke successively, and the
Committee of the Privy Council on appeal, gave many
decisions of importance. No new principle was established,
unless it can be said that one was established in The Kim*
when it was held that the doctrine of continuous voyage,
applied by American Prize Courts during the American
Civil War,2 extended to cases where contraband goods were
to be sent to the hostile country not necessarily by tran-
shipment. In other words, the doctrine is now that of
continuous transportation, and not continuous voyage. The
Zamora 3 disapproved the dictum of Lord Stowell in The
Fox 4 to the effect that the Crown can, by order, prescribe
or alter the law which Prize Courts have to administer;
and emphatically laid it down that Prize Court law is not
municipal law, but the law of nations.

Joint Stock Companies and Limited Liability.— By the

common law every association formed for the sake of sharing
profits, is either a corporation or a partnership; and a
company which is neither one nor the other is a thing
unknown to the common law. A corporation was formed
either by Royal Charter or Act of Parliament. When un-
incorporated companies with a joint stock divided into
transferable shares began to assume importance, the recep-
tion they met with from the Courts and the legislature was
not encouraging. They could not sue their debtors, and
each member was answerable for the whole of the company's
debts. The Bubble Act, 6 Geo. I. c. 18, attempted to put

1 [1915] P. 215. 2 The Bermuda, 3 Wall. 514.

8 [1916] 2 A. C. 77. 4 Edw. 312.

GEORGE IV. TO PRESENT DAY (1827—1921). 133

them down altogether; but the futility of this course was
soon perceived, and in 1825 the Act was repealed.

The same statute which repealed the Bubble Act l em-
powered the Crown to grant charters of incorporation to
joint stock companies, and at the same time declare the
persons incorporated personally liable for the corporation's
debts. This was followed in 1834 by a statute empowering
the Crown to grant privileges to companies by letters patent,
especially that of suing and being sued in the name of a
public officer. In 1844 it was enacted that all companies
might obtain a certificate of incorporation without applying
to Parliament for a charter ; but the only limit to the liability
of individual members was that creditors had to show that
they could not obtain payment from the company before
they sued the individuals composing it.

But the extensive character of modern commercial under-
takings demanded greater protection for joint stock enter-
prise. Accordingly, in 1855, an Act was placed upon the
statute-book enabling companies registered under the Act of
1844 to obtain from the registrar of joint stock companies a
certificate of incorporation with limited liability. By limited
liability is meant, that the liability of each member is
limited to the amount of capital which he undertakes to
subscribe. Extensive alterations were made by Acts of the
two succeeding years; and by the Companies Act of 1862,
the law on the subject was consolidated and extensively
amended. Incorporation is now no longer a privilege; and
any seven persons may form themselves into a company for
any lawful object, and with limited liability. The various
statutes passed on this subject since 1862 have been chiefly
with the objects of preventing the machinery of the Com-
panies Acts being used to defraud shareholders and the
public, and to provide means for putting an end to joint
stock concerns when they are insolvent or fraudulent, or for

1 6 Geo. IV. c. 91.

134 THE STUDENT'S LEGAL HISTORY.

any reasons unable to successfully carry out the object for
which they were formed, notably the Companies Act, 1900.
These Acts are now consolidated into one statute, the
Companies (Consolidation) Act, 1908.

The Law Merchant. — No branch of law received less
attention from the legislature until the nineteenth century ;
and in the last three reigns none has received more. A
number of Acts, in the nature of codifying statutes, have
been placed on the statute-book. Thus, in 1882, the Bills
of Exchange Act codified the law relating to bills, cheques,
and promissory notes. In 1890, the Partnership Act did
the same for the law of partnership. This was followed in
1893 by the Sale of Goods Act, which codified the existing
common and statute law affecting the most widely used con-
tract of all. The Act of 1893, it is believed, only made one
alteration in the law of sale. There has been other legisla-
tion affecting the law merchant which Holt and Mansfield
made, notably, the Mercantile Law Amendment Act, 1856,
by which a few amendments were made and doubts cleared
up; but the striking feature of the history of the law mer-
chant in this period has been the three statutes briefly
referred to above. A Commercial Court has also been estab-
lished as part of the machinery of the King's Bench Division
for the more expeditious trial of commercial causes.

Bankruptcy. — The law of bankruptcy has undergone con-
siderable changes in the last seventy years. Until 1895, a
debtor was not allowed to declare himself a bankrupt; but
by the Bankruptcy Act of that year a debtor might declare
himself insolvent to one of his creditors, and the creditor
might then ask for a commission in bankruptcy to issue.
The Bankruptcy Acts of 1849 and 1861 allowed the debtor
himself to petition to be made a bankrupt; but the Act of
1869 allowed him only to call a meeting of his creditors and
explain his position to them. The creditors could then

GEORGE IV. TO PRESENT DAY (1827—1921). 135

appoint a trustee to take the debtor's estate and realize it
for their benefit. This was liquidation, not bankruptcy
properly so called. In 1883 the new Bankruptcy Act
allowed the debtor to present a petition to the Court to
make himself a bankrupt. The great feature of the Act of
1880 is the provision for constituting the Board of Trade a
supervising authority in bankruptcy cases. The functions
of the official receivers appointed by the Board are, in
general terms, to act as official trustees or caretakers of the
bankrupt's estate, and to endeavour to find out whether the
bankruptcy is due to the recklessness or fraud of the bank-
rupt, and if so, to report the facts to the Court in order that
the culprit may be duly punished. Since 1869, any person
except a married woman, whether a trader or not, can be a
bankrupt. The Bankruptcy Act, 1914, continues, in the
main, the policy of the Act of 1883, with a few alterations,
principally as to practice. By section 125, sub-section 1,
every married woman who carries on a business, whether
separately from her husband or not, is made subject to the
bankruptcy laws; and by sub-section 2 a married woman
carrying on a trade or business is liable to bankruptcy pro-
ceedings on a judgment against her, whether the judgment
is or is not expressed to be payable out of her separate
estate. This is new; and was rendered necessary by the
vastly increased number of women traders. The subject
of the Bankruptcy Courts will be found treated of
on p. 155.

Criminal Law.— From 1827 to 1832 a series of Acts con-
solidating various parts of the criminal law was passed.
7 & 8 Geo. IV. c. 28 made certain reforms in criminal
pleading, abolished benefit of clergy, and enacted that no
felon should suffer death except for a felony which was
excluded from the benefit of clergy before the Act. In the
same year the law relating to larceny and the law of mali-
cious injury to property were consolidated; and in the

136 THE STUDENT'S LEGAL HISTORY.

following year the law relating to offences against the
person. In 1830 a similar Act was passed on the law
relating to forgery; and in 1832 as to coinage offences.
These Acts made a few alterations and additions; but they
left untouched the definitions and principles of common
law. In 1837 the punishment of death was abolished except
in very few cases. Two important statutes were passed, in
1851 and 1853 respectively, to amend procedure in criminal
cases, especially to enable judges at the trial to amend
indictments slightly wrong in form only, and to simplify
indictments; e.g. in an indictment for stealing bank-notes
or coin, it is sufficient to state that the prisoner stole so
much money. The Act of Edward III., as to certainty in
criminal pleadings, had been construed to mean that the
particular kinds of coin and numbers of each kind must be
specified in the indictment.

But the nearest approach to a criminal code is to be
found in the Criminal Law Consolidation Acts, 1861. They
are, the Larceny Act, the Malicious Damage Act, the
Forgery Act, the Coinage Offences Act, and the Offences
against the Person Act. These Acts, again, do not define
most of the offences they deal with, but leave the common
law definitions untouched. For instance, the statute last
mentioned, though it deals with the sentences for murder
and manslaughter, does not say what those offences are.
The statute of 1861 in course of time required amendment,
and a series of enactments, drawn on somewhat bolder lines,
aimed at simplifying and amending*, as well as consolidating,
certain parts of the criminal law. The draughtsmen no
longer shirked the difficulty of definition. The Forgery
Act, 1913, embodies within its twenty-two sections parts of
more than sixty statutes, and repeals the greater part of
the Forgery Act, 1861. Forgery is compendiously defined
as "the making of a false document in order that it may
be used as genuine "; and the Act deals also with offences
kindred to forgery — e.g. "uttering," forgery of dies and

GEORGE IV. TO PRESENT DAY (1827—1921). 13T

seals, possession of material for the purpose of forgery.
The Perjury Act, 1911, defines perjury and deals with
various aspects of it which were formerly the subject of
numerous statutes, as well as of the Common Law. The
Larceny Act, 1916, is a well-drafted Act dealing in a similar
manner with the crime of theft. The Incest Act, 1908,
makes incest a crime; and is remarkable for a unique
proviso that all charges under the statute shall be heard
in camera. Such a proviso runs contrary to the general
theory and practice of English law. The -subject of the
right of a judge to order a trial in camera was dealt with
in Scott v. Scott ([1913] A. C. 417), where the House of
Lords decided that there is no power to order a case to be
tried in camera, however disgusting or painful the details
may be, unless justice cannot be done otherwise. Before
this decision it was common practice to order nullity suits
to be tried in camera. Scott v. Scott decided that the
practice was unlawful. There have been many other altera-
tions, especially measures for the prevention of crime
(particularly 8 Edw. VII. c. 50), and for the punishment of
offences against children and young persons.

One of the blackest blots on the pre-Benthamite penal
system was the unfair way in which prisoners were treated.
We are accustomed to speak and think of " old English fair
play," and to contrast it proudly with continental modes of
trial. As a matter of fact, the fair treatment of prisoners
on trial is of modern growth. Before the Revolution of 1688
the matter stood thus : a man accused of treason or felony
could not be defended by counsel, except that a member of
the Bar was allowed to argue a point of law for the prisoner.
It was only in cases of misdemeanour, where conviction
would not entail loss of life and property, that counsel was
allowed to defend. Besides, the behaviour of judges and
prosecuting counsel, especially in cases of treason, sedition,
and other State offences, was frequently most brutal. The
Attorney-General, Coke, who prosecuted Raleigh for

138 THE STUDENT'S LEGAL HISTORY.

treason, referred to that eminent explorer, warrior, and
statesman as a " scurvy knave."

After 1688 the behaviour of counsel and judges was less
flagrantly indecent, and in some cases was as fair as could
be wished; but still prisoners felt the necessity of opposing
trained advocacy by trained advocacy. In 1747 a " full
defence by counsel " was allowed to those accused of treason;
but it was not until nearly a century later (1836) that the
same privilege was extended to persons accused of felony.
In the same year was passed an Act to prevent a previous
conviction being given in evidence to the jury in the case
before them, except where the prisoner brings evidence of
his good character.

The right of appeal in Criminal cases was granted in
1907 (see p. 182).

•v

Indictments and Criminal Trials. — The Indictments
Act, 1915, brought about a revolutionary change in
criminal procedure. Under the law as it stood prior to this
Act, indictments were obliged to be written on parchment ;
and, by long custom, must contain certain ancient formulae.
Thus, an indictment for burglary must state that the
prisoner " burglariously, " "broke and entered." In
felonies the word " feloniously " must be used. In treason
it was customary to state that the prisoner was " seduced
by the Devil," and "not having the fear of God in his
heart," committed the crime charged. Further, if a
prisoner was once put in charge of the jury, and the indict-
ment turned out to be defective, there was no power of
amendment. An old rule did not allow of felony and mis-
demeanour to be included in the same indictment. The
statute of 1915, with the rules made thereunder, is an
attempt to apply, as nearly as may be, the modern practice
relating to pleadings and the procedure thereon which have,
since the Judicature Act, 1873, prevailed in civil cases.
The indictment need no longer be written on parchment.

GEORGE IY. TO PRESENT DAY (1827—1921). 139

It must commence with the name of the Court of trial, and
must contain a plain, brief statement of the offence charged,
with particulars thereof. The judge has power to amend
at any stage of the trial if it can be done without injustice.
Any number of felonies or misdemeanours can be included
in one indictment; and — a very great innovation — felonies
and misdemeanours may be included in the same indict-
ment. If a felony and a misdemeanour are charged in the
same indictment, the prisoner has the same right of
challenging jurors as if all the offences charged were
felonies. To prevent injustice to prisoners, if the Court
should be of opinion that a person accused may be
embarrassed or prejudiced in his defence by the joinder of
counts or offences, or if for any other reason it is desirable
to do so, the Court may order a separate trial of any count
or counts of an indictment. The contrast between the
indictment at Common Law and the indictment under the
Indictments Act, 1915, may be seen from the following
examples of indictments for murder : —

1. At Common Law.

Middlesex ( The jurors for our lord the King upon their
to wit. | oath present that John Styles on the first day
of June in the year of our Lord one thousand nine hundred
and fifteen feloniously wilfully and of his malice afore-
thought did kill and murder one James Noakes against the
peace of our sovereign lord the King his crown and dignity.

2. Under the Indictments Act, 1915.

STATEMENT OF OFFENCE.
Murder.

PARTICULARS OF OFFENCE.

John Styles on the first day of June 1921 in the county
of Middlesex murdered James Noakes.

140 THE STUDENT'S LEGAL HISTORY.

Treason. — In the early part of Queen Victoria's reign
certain persons who thirsted for notoriety made some stir
in the world by pretending to attempt the Queen's life. In
consequence of these acts of folly, the Treason Act, 1842,
provided that, when an attempt was made to injure in any
manner the person of the Queen, the offender should be
tried as if for murder, but punished as if for treason. Dis-
charging or aiming firearms, or throwing, or using, or
attempting to use, any weapon, with intent to alarm or
injure her Majesty, was made a high misdemeanour,
punishable by imprisonment and whipping.

By the Treason Felony Act, 1848 (s. 3), conspiracies to
depose the Queen, to levy war against her, or to induce any
foreigner or stranger to invade her dominions, were made
felony punishable by transportation for life, or imprison-
ment for two years. They had been held to be overt acts
of compassing the Queen's death under the statute of
Edw. III., and had been made substantive treasons by 36
Geo. III. c. 7, made perpetual by 57 Geo. III. c. 6, when
the intention was expressed, uttered, or declared by publish-
ing any printing or writing, or by any overt act or deed.
The Treason Felony Act repealed the 36 and 57 Geo. III.,
except so far as related to offences against the person of the
sovereign, but did not affect the old Act of Edw. III., or
the construction put upon it.

It was held in R. v. Casement ([1917] 1 K. B. 98) by the
King's Bench Division and the Court of Criminal Appeal
that an indictment charging high treason by adhering to
the King's enemies elsewhere than in the King's realm was
a good indictment. [See also R. v. Lynch ([1903] 1 K. B.
444)]. The point was by no means free from doubt,
although Hawkins (Pleas of the Crown, bk. 2, ch. 25, s. 48,
Curwood's edition) supported the view, which must now be
taken to be the law.

Libel. — The law relating to criminal defaTnatory libels

GEORGE IY. TO PRESENT DAT (1827—1921). 141

was considerably modified by the Libel Act, 1843, com-
monly called "Lord Campbell's Act." Formerly it was
good law to say, " The greater the truth the greater the
libel," a statement at first blush somewhat difficult to
appreciate, but nevertheless, resting on a perfectly reason-
able basis,1 and still correct in cases of seditious libel. By
Lord Campbell's Act it was apparently partially, and really
wholly, repealed in cases of defamatory libel. Any person
maliciously publishing a defamatory libel, knowing the
same to be false, is liable to two years' imprisonment and a
fine. But if he did not know it to be false, he can only be
imprisoned for one year. Then comes the important part : —
If the defendant can prove the libel to be true and pub-
lished for the public benefit, he is entitled to an acquittal,
and to his costs of defence. A departure, however, is made
from the usual criminal procedure. To entitle the defen-
dant to give evidence of justification, he must plead the
truth of the libel specially, and also the facts and reasons
why the publication was for the public benefit. To this
plea the prosecutor shall be at liberty to reply by a general
denial. Thus, private prosecutions for libel were put much
upon the same footing in point of form as civil actions
for defamation. One curious point may be noticed. The
plea of justification is to be " in the manner now required
in pleading justification to an action for defamation." The
" now " refers to 1843, so that counsel drawing a plea of
justification to an indictment for defamatory libel must still
use the archaic forms which obtained before the Common
Law Procedure Act, 1852.

More sweeping alterations have been made by the News-
paper Libel Act, 1881, and the Law of Libel Amendment
Act, 1888. By the former, a Court of Summary Jurisdic-
tion may inquire into the truth of a newspaper libel, and
may, if it deems the offence a trivial one, inflict a fine not

1 This dark saying is interpreted infra, p. 199.

142 THE STUDENT'S LEGAL HISTORY.

exceeding £50. The Act of 1888 makes privileged fair and
accurate reports of proceedings in Courts, and at public
meetings, meetings of such bodies as town councils, and
certain other lawful gatherings. Again — and this is an
extraordinary privilege granted to the newspaper press —
no one can prosecute a person responsible for a newspaper
libel except by an order of a judge of the High Court. The
9th section allows, but does not compel, the defendant in a
prosecution for criminal libel to give evidence " at any and
every stage of such charge."

Evidence. — Bentham, in his strictures on the laws of
England, attacked some of the rules of evidence then pre-
vailing. He urged that the discovery of truth was the end
of the rules of evidence; and, therefore, the incompetency
of witnesses ought, as far as possible, to be removed. At
that time, the Common Law Courts would not allow evidence
to be given by either party to the suit, nor by his or her
wife or husband, nor yet by their privies in blood, estate, or
interest, i.e. by those persons who might, directly or
indirectly, be affected by the judgment. The consequence
was the exclusion from the witness-box of the people who
were most likely to know anything about the matters in
question. A further rule was that no person was competent
to give evidence in an action if the judgment therein might
subsequently be evidence for or against himself. The
person accused of a crime was not allowed to give evidence
at the trial; neither was his or her wife of husband. The
reasons adduced in support of the old rules were that the
evidence ought to be that of impartial persons. Our
ancestors seem to have been haunted by a bogey of perjury;
for they believed that a witness with an interest in the suit
would not hesitate to perjure himself in order to further
his own ends.

In 1833, Bentham's views so far prevailed that by
3 & 4 Will. IV. c. 42, it was enacted that no person should

GEORGE IY. TO PRESENT DAY (1827—1921). 143

be incompetent to testify in any civil proceeding because
the judgment therein might be given subsequently as
evidence for or against himself. But the old notion was
not dead; because the Act went on to provide that in no
case should a judgment be admitted as evidence for or
against any man who had given his testimony in the action.
The bill, as it was introduced by Brougham, L.C., was
much more sweeping; but, as yet, parliamentary opinion
was not ripe.

In 1843, by Lord Denman's Act, the Benthamite theory
was carried out still further. No witness was to be excluded
from giving evidence by reason of incapacity, from crime or
interest, except the parties or their husbands or wives.

By a further Evidence Act, introduced by Lord Brougham
in 1851, one of the exceptions in Lord Denman's Act was
taken away, and parties to civil suits were allowable and
compellable witnesses. Two years later, Lord Brougham
carried another Act, removing the disability of husbands
and wives of parties. This statute left the law practically
as it stood until the year 1898, that is, only making incom-
petent persons accused of crime and their husbands or wives.
A great number of the statutes passed in the last forty
years have allowed the defendants in criminal proceedings,
or their husbands or wives, to give evidence; but in no case
have they rendered those persons compulsory witnesses.
The Licensing Act, 1872, was the first of these enabling
statutes, which now number about twenty, including the
Criminal Law Amendment Act, 1885, the Corrupt Practices
at Elections Act, 1883, the Libel Act, 1888, and the Pre-
vention of Cruelty to Children Act, 1894. And, finally, by
the Criminal Evidence Act, 1898, a husband or wife can
give evidence for the other if the latter is charged with a
criminal offence; but cannot be called for the prosecution
except in a very few cases. And, most revolutionary change
of all, a prisoner is entitled, but not compellable, to give
evidence on his own behalf. There are certain limitations

144 THE STUDENT'S LEGAL HISTORY.

as to the cross-examination of prisoners and their husbands
or wives who give evidence. (C. E. Act, 1898, s. 1).

Such witnesses cannot be asked questions about the
prisoner's credit and character, unless the prisoner has, in
his defence, attacked the character of the prosecutor or tried
to show that some one else is guilty of the crime, or has
given evidence of good character. Except where the wife
(or husband) is willing, the other spouse cannot be called,
i.e. is neither a competent nor compellable witness.1 This
does not apply where the offence was committed against the
wife.

The proof of documents was, before Lord Brougham's Act
of 1845, extremely difficult. It was necessary, in all cases
where the contents of a written instrument had to be
adduced in evidence, to produce the original document. By
that Act, official documents were to be received in evidence
without proof of the seal or signature of the person sealing
or signing the same; and by the second Brougham's Act
(1851) it was permitted to prove the contents of official
books, registers, etc., by means of a copy officially certified
to be correct, thus avoiding the trouble and expense of
bringing the originals into Court.

The Bankers' Books Evidence Act, 1879, was the begin-
ning of a change, the principle of which has been somewhat,
and probably will be still more, extended. The old judicial
notion was, that litigants were made for the law, and not
law for the litigants. The modern idea is to make the
practice of the Courts conform, as far as may be, to the
convenience of the business world. Before the Act of 1879,
not only the parties to the suit, but also third persons, might
be compelled to come into Court as witnesses and bring their
books of account. To bankers, such a practice was ruinously
inconvenient ; and in 1878, Mr. Eavenscroft of the Birkbeck
Bank refused to take to Court one of his ledgers. The

1 R. v. Leach (1912), App. Gas. 305.

GEOKGE IV. TO PRESENT DAY (1827—1921). 145

refusal might have been serious for the witness; but, as it
turned out, there was no need for his books to be produced.
The case aroused much attention ; and in the following year
the- Act alluded to was placed on the statute-book to enable
bankers to furnish, for the information of the Court, sworn
copies of their books, instead of the books themselves. Now,
by a rule of the Supreme Court, made in 1893, a judge,
sitting in Chambers, can always order that instead of a
party being compelled to bring his business books into
Court, a copy shall be made by some one whom the judge
appoints.

Procedure in the Common Law Courts. — One of the most
frequent subjects of the denunciations of law reformers has
ever been the methods and procedure of the tribunals. At
the beginning of Queen Victoria's reign this standing
grievance had only too much cause. Process well enough
adapted to the days of the feudal barons, when nobody was
in a great hurry, and when the great desideratum was
eventual justice, was unsuited to an age of commerce, when
the demands of every trade and calling were daily becoming
more severe, and when speedy decision was almost as
valuable as exact justice. In preceding pages the rigour of
the Common Law has been spoken of. It would be better,
perhaps, to call it the rigidity of the Common Law judges,
who refused to administer anything except the letter of the
law, and that most literally. For instance, it having been
laid down as a principle that all pleadings should be
accurate, objection was occasionally taken on account of
mistakes in spelling. Again, it is a very sound principle
that no one should be sued on a contract except the persons
liable under it. This again had been interpreted to mean
that if A. sued B. and C. on a contract, and B. turned out
not to be liable, C. went scot free, because A. had sued the
wrong persons. Again, in order to bring certain wrongs
within the purview of the Courts, various fictions had been

S.L.H. 10

146 THE STUDENT'S LEGAL HISTORY.

allowed, and indeed were strictly enjoined. Thus, in the
action of conversion,1 the plaintiff originally could only
have a remedy if he alleged that the defendant found the
goods and converted them to his own use. If the allegation
of finding was omitted from the declaration, the plaintiff
failed in his action. And in case of any slip of this kind,
the party in fault was not allowed to amend his error and
continue his action. It was quite impossible for the judge
to allow him to make any amendment of his writ or plead-
ings. The unlucky plaintiff who made a stumble could only
give up that action and bring another. The defendant who
erred must see judgment given against him.

These defects had been commented on by Brougham in
1827, when he moved for the appointment of the two com-
missions before referred to. No immediate result followed
the labours of those commissions ; but in 1850 another small
commission was appointed to inquire into the process and
practice of the Superior Courts of Law at Westminster,
i.e. the King's Bench, Common Pleas, and Exchequer. In
1852 this commission presented their report, suggesting
various amendments, together with a draft bill. This bill
passed into law the same year, and was the first of the three
statutes known as the Common Law Procedure Acts (1852,
1854, and 1860). Their effect was enormous. They swept
away from the procedure of the Courts of Law much of the
prolixity, the expense, the tediousness, and the air of
unreality that had previously characterized them. To sum
up the chief provisions —

(a) The Writ.— By 2 Will. IV. c. 39, a writ of summons
had been substituted for the old original writ
addressed to the sheriff, except in the three remain-
ing real actions.2 The Common Law Procedure
Acts went on to say that the writ should not set out
in detail the cause of action.

1 Supra, p. 77. 2 Supra, p. 24.

GEORGE IV. TO PRESENT DAY (182T— 1921). 147

(b) All real actions were abolished.

(c) Judgment in default could be given if the defendant

did not appear to the writ. Formerly, the plaintiff
had to proceed by way of outlawry; but now out-
lawry on mesne process is abolished.

(d) Amendment. — At any stage in the trial, the judge

could allow a party to amend his pleadings.

(e) Non-joinder and mis joinder of parties. — As has been

said before, the presence of a wrong plaintiff was
fatal to the case, and the presence of a wrong
defendant might be. The absence of a rightful
plaintiff or defendant might also be fatal to the
action, however just the claim might be. One of
the most beneficial clauses of the Act of 1852 was
that whereby a plaintiff or defendant might, by
leave of a judge, be put in or struck out at any stage
of the proceedings; and whereby in no case has any
non- joinder or mis- joinder of parties to be fatal to
the claim.

(f) Reference. — Where a claim or a defence was a matter

of account or detail, the judge was empowered to
order the accounts or technical details to be tried
by a referee who could go into the matter more
informally, and perhaps with more technical know-
ledge.

(g) Pleadings. — Great reforms were made here. No
pleading must be embarrassing — if it was, it might
be struck out. No fictitious allegations need be
made; e.g. in an action for conversion, it was not
necessary to allege that defendant found the pro-
perty; in action for trespass, it was not necessary
to allege that it was done m et armis et contra
pacem.1 Again, special demurrers were taken away.
A special demurrer was a technical objection to

1 Vide supra, p. 24.

148 THE STUDENT'S LEGAL HISTORY.

pleading, not generally on a point of law, but on
a technical rule of pleading. Such a special
demurrer was brought before the trial of the action;
and the first thing counsel used to do when the other
side delivered a pleading was to scan it carefully to
try to find ground for a special demurrer. The most
frivolous points were raised, often with success; and
always with the result of delaying the trial of the
action.

(h) Action of Ejectment.— The Act of 1852 abolished
John Doe and Richard Hoe. In other words, the
action of ejectment was now to be brought by an
ordinary writ, addressed to the person actually in
possession of the disputed tenement, who, if he held
of a superior landlord, must give notice to that
landlord, who could apply for leave to be made a
defendant.

(i) Equitable defences for the first time were allowed to
be heard in Courts of Law. As we have seen, a
man who had no defence at Common Law might
have a very good one in Equity; and his only course
before the Common Law Procedure Acts was to file a
bill in Chancery for an injunction to stop the Com-
mon Law action. Under the new procedure, he
could plead his equitable right in the original action.
The result of the measure was greatly to diminish
the number of " common injunctions " to restrain
Common Law actions, and to cause Law and Equity
to be concurrently administered to some extent. But
the remedy in this instance was not wide enough. If
a plaintiff had two claims, one legal and one equit-
able, arising out of the very same set of circum-
stances, he still had to bring two actions.

(k) Discovery. — The bill for discovery has already been
described. This, again, was a case of bringing a
second action in Equity because of the unbending

GEORGE IV. TO PRESENT DAY (1827—1921). 149

conservatism of the Common Law procedure. The
Act of 1854 enabled a party to a Common Law action
to apply to a judge by summons in that action for
an order for discovery.

(1) Injunctions might also, for the first time, be granted
by the Courts of Law. Hitherto, they had been
issued only out of Chancery. But here again the
powers given were extremely limited. A Court of
Law could only grant an injunction where the
plaintiff had a cause of action for damages; that is,
the continuance of an existing tort, but not the doing
of a threatened wrong, could be restrained.

(m) Trial by Judge alone. — Down to 1854, all trials at
nisi prius were before a judge and jury. A judge
alone could not try an action ; but by the Act of 1854
the parties were allowed to dispense with a jury.

(n) Adjournment. — It seems too absurd to be true, never-
theless it is a fact, that it had been held before the
Common Law Procedure Acts that a trial at nisi
prius could not be adjourned. The origin of the
rule lay in the fact that the writ of nisi prius was
originally used for trials on circuit, where the judges
sat de die in diem until all the causes were finished.
But since 1852, the presiding judge has had power to
adjourn such a case for any period in his discretion.

Procedure since the Judicature Act, 1873.— The Judicature
Acts, especially that passed in 1873, made important
changes in the procedure of the Courts. In the first place,
as every division of the High Court can now give relief in
all cases, and can grant every remedy, and take cognizance
of every defence in every action, multiplicity of suits has
been, to a great extent, abolished. A plaintiff can, in the
same action, claim both legal and equitable remedies; and
can ask, by the same writ, for redress of all his grievances
against the defendant. For instance, he can, at the same

150 THE STUDENT'S LEGAL HISTORY.

time, sue for damages for breach of contract and for libel,
but subject to the rule that the Court may order issues to be
tried separately, if it thinks that confusion would ensue
from their being tried together. Then the defendant may
counter-claim in the same suit if he has any substantive
cause of action against the plaintiff; so that, as far as
possible, all differences between the parties may be settled
at once. It follows that no injunction can be issued from
one division to restrain proceedings in an action in another
division, so that "common injunctions" have fallen into
desuetude. Again, the judges have been authorized to make
rules for the regulation of procedure, with the intent that
the practice of the Courts may keep pace with the needs of
the times.

Forms of action are abolished, and the plaintiff need not
now state whether he sues in trespass or on the case, in
detinue or in trover. All that is required is for the plaintiff
to state in his pleadings the material facts on which he
relies, and the relief he claims, e.g. damages or injunction,
&c. Not only have most of the technicalities of pleadings
been abolished, but their length and number have been cur-
tailed. An entirely new procedure has been applied to
commercial causes, pleadings being altogether dispensed
with in most of such cases. Chancery proceedings also have
been shortened and rendered less expensive by the practice
of beginning certain actions by originating summonses.
When an action is so commenced, frequently it does not go
into Court at all, but is decided by the master or the judge
in chambers in a summary way.

Trial by Jury in Civil Causes.— During the Great War,
by the Juries Act, 1918, an alteration was made in the mode
of the trial of cases at Common Law which may be termed
revolutionary. As a temporary measure, the Act provided
that the normal method of trial should be by judge alone.
Any litigant in a cause where a charge of fraud was made,

GEORGE IV. TO PRESENT DAY (1827—1921). 151

or in an action for libel, slander, malicious prosecution,
false imprisonment, seduction or breach of promise of mar-
riage had the right to demand a jury; but in any other case
the Court was to order trial by jury only when convinced
that the cause would be tried better with a jury than by a
judge alone. By the Administration of Justice Act, 1920,
these provisions were made permanent, save that a party
can always ask for a jury, and must be granted one unless
the Court is of opinion that the action cannot as con-
veniently be tried with a jury as without a jury. The
absolute right to a jury in the cases mentioned above is
preserved.1 Similar provisions are applied to County
Courts.

Women in the Courts. — By the Sex Disqualification
(Removal) Act, 1919, women were made eligible to exercise
all public functions and hold all civil and judicial offices
and posts, and to be admitted to all civil professions and
vocations. The result was to admit women to the Bar, to
the solicitor's profession, and to be magistrates and jurors.
By section 1, sub-section (6), provision is made for the em-
panelling of a jury of men only or women only, in the
discretion of the judge, recorder or chairman of the court,
on the application of a party, or of the prosecution or the
accused. A woman may, at her own request, be exempted
from service in respect of any case, where the reason for the
application is the nature of the evidence to be given or the
issues to be tried. There is no reason, in law, why women
should not now occupy the highest judicial offices.

Fusion of Law and Equity. — This is a somewhat mis-
leading, though generally used term. The Judicature Act

1 The Juries Act, 1918, was to remain in force " during the continuance
of the present war and for six months thereafter." The Act of 1920 is
to come into force on the expiry of the said period, unless by an Order in
Council an earlier date is fixed. Up to the publication of this edition the
Act of 1918 is still in operation (October, 1921).

152 THE STUDENT'S LEGAL HISTORY.

enacted l that " in every civil cause or matter commenced in
the High Court of Justice, Law and Equity shall be
administered by the High Court of Justice and the Court of
Appeal respectively/' And it is further enacted2 that
where the rules of Law and Equity conflict, the rules of
Equity shall prevail. This does not mean, nor must it be
taken to mean, that equitable principles are to be applied to
matters formerly exclusively dealt with at Common Law.
It simply means that in every action the judge can take
cognizance of all the rights of the parties, whether at
Common Law or in Equity. For instance, actions for per-
sonal injuries were always tried by the Common Law Courts,
and never went into the Courts of Chancery. Consequently
there are no rules in Equity here, nor can the plaintiff or
defendant be allowed to set up any argument deduced from
equitable rules. A case in point is Britain v. Rossiter,
where the plaintiff claimed damages for wrongful dismissal
on a verbal contract which was " not to be performed within
a year from the making thereof." On such a contract the
Statute of Frauds requires evidence in writing, but there
was a rule in Equity that if the contract so required to be
in writing by the statute had been part performed, it would
be enforced notwithstanding the want of written evidence.
But the only contracts which had ever come within the
purview of the Courts of Chancery were contracts for sale of
land and in consideration of marriage. Therefore, the
equitable doctrine of part performance was restricted to
those particular contracts. The rule is now understood, but
at first it gave rise to a great deal of misconception.

County Courts. — In 1846 an Act was passed creating a
new civil tribunal which has absorbed a great amount of
business. The statute took away the jurisdiction of Courts
of Requests, which were then the places for recovery of

1 Section 24. 2 Section 25, sub-sect. 11.

GEORGE IY. TO PRESENT DAY (1827—1921). 153

small debts, and also the jurisdiction of various local Courts,
and established a new kind of County Court for the prose-
cution of claims of small amount. The whole country was
diyided into districts, over each of which a judge was
appointed to decide all cases where the claim was for not
more than <£20, except actions of ejectment, or in which the
title to real property, or any toll, fair, market, or franchise
should be in question, or where any provision of a will or
settlement might be disputed, or for any malicious prosecu-
tion, libel or slander, seduction or breach of promise of
marriage. All actions were to be tried by the judge, unless
one of the parties demanded a jury; and if a jury were
demanded, it should consist of five men instead of the
Common Law twelve.1

By various amending Acts, the jurisdiction of the new
County Courts has been enlarged. In 1847 the jurisdiction
in bankruptcy was transferred to them from the Court of
Bankruptcy and the district Courts of Bankruptcy. In 1850
the limit of claims upon which actions could be brought in
the County Court was raised from £20 to £50; and if a
plaintiff brought in a Superior Court any action which he
might have brought in the County Court, and recovered not
more than £20 in an action based on contract, or £5 in an
action based on tort, he should not be entitled to costs of his
action in the Superior Court. And by the County Courts
(Jurisdiction Extension) Act, 1903, these Courts are given
jurisdiction to try causes up to £100; but only about fifty
of the Courts are nominated where actions involving more
than £50 can be tried. Another statute, passed in 1865,
gave a limited equity jurisdiction to the County Courts; and
by the County Courts Act, 1867, actions of ejectment or
actions to try title to land might be commenced there in all
cases where the value or rent of the property was not more
than £20 a year. The County Courts Acts, 1888, raised the

1 The five were increased to eight by the C. C. Act, 1903.

154 THE STUDENT'S LEGAL HISTORY.

limit of annual rent or value to £50. A further increase in
the business of the County Courts was made by forbidding
actions to be brought in the Hundred-Courts which might
be commenced in County Courts (1867) ; and also by pro-
visions depriving of his costs a plaintiff who brings an action
in the High Court of Justice and recovers not more than
£50 in an action of contract, or £20 in an action of tort,
provided that he could have sued in the County Court (1887).
Moreover, the judges of the High Court have power to remit
to any County Court for trial an action begun in the High
Court by an impecunious plaintiff, who, if he loses, will not
be able to pay the defendant's costs.

The Court of Probate.— Until 1857, the jurisdiction over
granting or revoking probate of wills and letters of adminis-
tration of the personal property of deceased persons had
been vested in various Ecclesiastical Courts, in which such
jurisdiction had resided since the Conquest.1 By the Court
of Probate Act (20 & 21 Yict. c. 77), all causes and matters
relating to this kind of business were taken away from those
courts and established in a newly constituted tribunal called
the Court of Probate, presided over by a judge qualified in
the same way as the judges of the Superior Courts at
Westminster.

The Divorce Court. — It has been shown 2 how jurisdiction
in matrimonial causes was assumed by the Ecclesiastical
Courts. Those Courts, acting on the rules of canon law,
would only grant judicial separations and not divorces a
mnculis matrimonii. For such a total dissolution of the
marriage bond the parties had to resort to Parliament for a
private bill, the evidence being heard in the House of
Lords. The Matrimonial Causes Act, 1857, constituted a
new Court for Divorce and Matrimonial Causes, to be pre-

1 See pp. 19 et seq. 2 Page 18.

GEORGE IV. TO PRESENT DAY (1827—1921). 155

sided over by the judge of the newly constituted Probate
Court and with power to give relief on all claims for divorce,
judicial separation, and nullity of marriage. Owing to the
enormous increase in matrimonial causes, due in part to the
unsettlement caused by the Great War, in part to the very
general change in the standard of morality, and in further
part to the facilities granted to poor persons to have their
cases brought to trial without costs of solicitor or counsel,
the Probate, Divorce, and Admiralty Division, as constituted
of two judges, proved unable to keep pace with its work.
The Administration of Justice Act, 1920, gave power to the
Lord Chancellor, with the concurrence of the President of
the Division and the Lord Chief Justice to frame rules to
provide for the trial of matrimonial causes of any prescribed
class by commissioners of assize (section I).1

The Courts of Bankruptcy.— By 1 & 2 Will. IV. c. 56,
a Court of Bankruptcy was established consisting of four
judges and six commissioners. The latter were practically
judges of first instance, with an appeal to a Court of Review
consisting of three of the four judges, and further appeals,
first to the Lord Chancellor and then to the House of Lords.
In 1869 this Court was abolished, and for it was substituted
the London Court of Bankruptcy, consisting of a chief
judge and a number of registrars. This Court only acted
for the metropolitan area, the jurisdiction in county cases
being given to the County Courts. But in every case an
appeal lay to the Chief Judge. In 1883 the separate juris-
diction of the Bankruptcy Court was taken away, and the
Court amalgamated with the High Court of Justice. A
judge of the King's Bench Division now takes the place of
the Chief Judge.

The Fusion of the Courts. — In 1873 the Judicature Act
became law, and on the 1st November, 1875, it came into

1 No such rules had been made up to the publication of this edition.

156 THE STUDENT'S LEGAL HISTORY.

operation. By it the Courts of Exchequer, Common Pleas,
Queen's Bench, Chancery, Probate, Divorce, and Admiralty
were fused together as the High Court of Justice. The
High Court was divided into five divisions, namely, the
Exchequer Division, the Common Pleas Division, the
Queen's Bench Division, the Chancery Division, and the
Probate, Divorce, and Admiralty Division. By the Act of
1881, the Exchequer and Common Pleas Division were fused
and amalgamated into the Queen's Bench Division, so that
the High Court now consists of three sides, the King's
Bench, Probate, Divorce, and Admiralty, and Chancery.
All causes of nullity of marriage, divorce, and judicial sepa-
ration, admiralty cases, as well as probate of wills and intes-
tacies, were assigned to the Probate, Divorce, and Admiralty
Division. To the Chancery Division were assigned all
matters which had been under the exclusive jurisdiction of
the old Court of Chancery by any Act of Parliament, and all
causes of .the administration of the estates of deceased
persons; the dissolution of partnerships; the taking of
accounts; the redemption or foreclosure of mortgages; the
raising of portions or other charges on land; the sale and
distribution of the proceeds of property subject to any lien
or charge; the execution of trusts; the rectification, or
setting aside, of deeds and instruments; the specific per-
formance of contracts for the sale or letting of real estate;
the partition or sale of real estates ; the wardship of infants
and the care of infants' estates. To the Queen's Bench
Division were assigned all matters within the exclusive
jurisdiction of the old Courts of Queen's Bench, Common
Pleas and Exchequer.

These assignments are subject to the general rule that all
causes and matters are cognizable by any Division of the
Court. The rules as to assignment are only for the more
convenient dispatch of business, and in the case of In re
Besant,1 Sir George Jessel tried an action in which the claim
1 11 Ch. D. 508.

GEOEGE IV. TO PRESENT DAY (1827—1921). 157

was for an injunction to restrain a lady from breaking a
covenant in a deed of separation between herself and her
husband, and the lady counterclaimed for a judicial separa-
tion. Before the Judicature Act this could not have been
done. There must have been two actions, one in the Court
of Chancery for the injunction, and the other in the Divorce
Court for judicial separation. In practice the matter rests
with the judge before whom the matter is brought. If he
thinks that it would be better tried by a judge of another
Division, he forces the parties to assign it to that Division.

The Court of Appeal. — By the Judicature Act, 1873, there
was constituted a new Court of Appeal, with jurisdiction to
hear appeals from all three divisions of the High Court
of Justice. The new Court was to consist of five ex officio
judges, viz. the Lord Chancellor, the Lord Chief Justice of
England (i.e. of the King's Bench Division), the Chief
Justice of the Common Pleas Division, the Chief Baron of
the Exchequer Division, and the Master of the Rolls,
together with a number of ordinary judges of the Court,
called Lords Justices of Appeal, not exceeding nine in
number. In fact, only three Lords Justices were appointed.
Of this Court the Lord Chancellor was to be president. The
original idea was to appoint Scotch and Irish and Colonial
lawyers to the Bench of the Appeal Court; and provision
was made by the Act for carrying out that object.1 But by
the Judicature Act of 1875 the number of ordinary judges
was reduced to three, and the idea of vesting in the Court
an appellate jurisdiction from Courts other than those of
England was abandoned.2 In 1876, a further change was
made, three more ordinary Lords Justices being appointed
by virtue of the Appellate Jurisdiction Act of that year;
and in 1881 the Master of the Rolls ceased to be a judge of
the Chancery Division, and became an ordinary member of

1 Judicature Act, 1873, s. 6. 2 Ibid., 1875, s. 4.

158 THE STUDENT'S LEGAL HISTORY.

the Court of Appeal.1 Since that date, the Court has con-
sisted of the Lord Chancellor and the Chief Justice of
England (the Chief Justiceship of the Common Pleas and
the Chief Barony of the Exchequer having ceased to exist)
as ex officio, and the Master of the Rolls and five Lords
Justices of Appeal, as ordinary members. A further slight
alteration was made in 1891. Three members of the Court
form a quorum, and it was sometimes found impossible, in
the temporary absence of one of the ordinary members, to
form two Courts. It was therefore enacted by the Judica-
ture Act, 1891, that any ex-Lord Chancellor may, if he is
willing, sit as a member of the Court of Appeal.

The House of Lords. — A considerable change has been
made in the constitution of the House of Lords as an appel-
late tribunal by the Appellate Jurisdiction Act, 1876. By
that Act were appointed two life peers, called Lords of
Appeal in Ordinary, with a salary of £6,000 a year, who are
to all intents and purposes merely judges. Under the Act
they were only to be members of the House of Lords during
tenure of office; but by an Act passed in 1877, commonly
called the Blackburn Relief Act, the seat in the House, with
power to vote like any other peer of Parliament, is made to
last for life. The qualification for a Lordship of Appeal is
two years' tenure of a high judicial office in England,
Scotland, or Ireland, or fifteen years' practice at the Bar of
any of those countries. No appeal is to be heard by the
House of Lords unless there are present at least three of the
following persons: — The Lord Chancellor, ex-Lord Chan-
cellors, Lords of Appeal, or Peers of Parliament who hold or
have held high judicial office. "High judicial office"
includes the Lord Chancellorship of England and Ireland,
or a judgeship of any of the superior English, Irish, or
Scottish Courts.

1 Ibid.. 1881.

GEORGE IY. TO PRESENT DAY (1827—1921). 159

A useful power was given to the House to sit as a Court
of Appeal when Parliament is prorogued or even dissolved.
By section 14 of the Act, the Queen in Council is empowered
to appoint other two Lords of Appeal in Ordinary on vaca-
tion of office by one or both of the then paid judges of the
Privy Council. The new Lords of Appeal are Privy Coun-
cillors; and it is their duty to sit as members of the judicial
committee of that body when required to do so, and not
engaged on judicial business in the Lords.

The Privy Council. — When Brougham, in 1828, made the
celebrated speech to which reference has been made, no
Court came in for more stringent criticism than that of the
Privy Council. At that time its jurisdiction was entirely
appellate, for it had never exercised original jurisdiction
since the abolition of the Star Chamber. It assumed control
over all the Courts in the British dominions, except those
of England, Scotland, and Ireland ; and as the British Raj
extended, so the complexity of the Council's functions in-
creased. Mahommedan, Hindu, French, Roman-Dutch law
came before it for review ; and the tribunal consisted not of
trained lawyers and judges, but of the ordinary Privy Coun-
cillors, who were, for the most part, mere politicians.

Besides hearing appeals from the Colonies and India, the
Council had an appellate jurisdiction in admiralty, ecclesi-
astical, and prize cases.

One of Lord Brougham's first acts as Lord Chancellor
was to take away jurisdiction from the Privy Council as a
whole, and constitute a body called " The Judicial Com-
mittee of the Privy Council," consisting of the Lord Chief
Justices of either Bench, the Chancellor, the Lord Chief
Baron, and other high judicial officers. Two other persons
being Privy Councillors might be appointed members of the
committee, and also two retired Indian or Colonial judges.1

1 3 & 4 Will. IV. c. 41.

160 THE STUDENT'S LEGAL HISTORY.

At the time of Brougham's speech, the Council only sat
to hear appeals for nine days in the year, and even these
were not fixed. But after 3 & 4 Will. IV. c. 41, the
Judicial Committee sat regularly and on stated days.

An amending Act was passed in 1871, by which her
Majesty was empowered to appoint four salaried judges as
members of the Judicial Committee. These paid members
are bound to attend on the hearing of appeals in the same
manner that judges of the ordinary courts of law are bound
to attend their respective Courts.

Since the Judicature Act, 1873, the Judicial Committee
has only exercised appellate jurisdiction over Indian and
Colonial cases, Prize Court cases, and certain appeals on
matters of Church discipline from the Courts of the bishops
and archbishops. In determining the causes last named, the
Committee has the assistance of certain archbishops and
bishops as assessors.1

The Appellate Jurisdiction Act of 1876 practically makes
the same persons who are Lords of Appeal in Ordinary the
paid members of the Judicial Committee ; so that the highest
Court of Appeal for the United Kingdom and that for the
rest of the Empire consists of the same persons, except that,
by a recent statute, the Judicial Committee Amendment
Act, 1895, the Queen may appoint as members of the
Judicial Committee not more than five judges of the higher
Courts of India and the Cohmies, provided that such
appointees are Privy Councillors.

SUMMARY (1827—1921).
Real Property. — The law of conveyancing simplified :

(a) Fines and recoveries abolished.

(b) The law of dower amended by giving the wife dower

out of equitable as well as legal estates; but only
in lands which the husband is entitled to at death,
and of which he dies intestate.

1 Appellate Jurisdiction Act, 1876, a. 14.

GEORGE IV. TO PRESENT DAT (1827—1921). 161

(c) The law of prescription simplified.

(d) The rules of descent altered; descent being traced
from the purchaser, and ascendants being allowed
to inherit.

(e) Feoffment practically abolished, and deed of grant

substituted.

(f) Law of wills codified and amended.

(g) Married Women's Property Act, 1882, made all
property separate estate after December 31st, 1883.

(h) Conveyancing and Settled Land Acts.
(i) Land Registry Acts, 1875 and 1900.

Equity. — The doctrines of Equity as settled by Eldon
remain intact, except for statutory modifications;
which are chiefly in the direction of protecting trustees.

International Law. — Some decisions of international
importance.

Joint Stock Companies. — Allowed to be formed without
Act of Parliament or Royal Charter. The practice of
limited liability introduced.

Bankruptcy ceases to be a criminal offence; and the law
is extended to non-traders, and to married women.

Criminal Law and Procedure. — Parts of the Criminal
Law are codified, and the procedure made more favour-
able to prisoners. Treason is cut down to offences
against the person of the sovereign. Defendants in
prosecution for defamatory libel may prove truth and
may give evidence.

Evidence. — The law as to competency of witnesses is
radically changed. Almost all disabilities are removed;
even prisoners being allowed to testify in some cases.

Procedure. — Common law procedure is greatly changed
by the Common Law Procedure Acts, 1852 — 1860; and
S.L.H. 11

162 THE STUDENT'S LEGAL HISTORY.

the procedure in all cases, whether at common law or
in equity, is revolutionized by the Judicature Acts and
Rules. Forms of action are abolished; pleadings
shortened and simplified, and delay lessened. A new
style of practice is invented for commercial causes. The
right of trial by jury in civil cases curtailed by Adminis-
tration of Justice Act, 1920.

Fusion of Common Law and Equity. — The principles are
not fused, but the remedies are administered concur-
rently in all Courts since 1873.

The Courts of Justice :

(a) County Courts are established, in 1846, for the trial

of small cases; and their jurisdiction has been
largely extended since then.

(b) The Courts of Probate and Divorce take the place
of the Ecclesiastical Courts for matrimonial and
probate cases. Merged into the High Court of
Justice by the Judicature Act, 1873.

(c) The Court of Bankruptcy is established in 1837;

and superseded by the London Court of Bank-
ruptcy in 1869, this, in turn, being merged into
the High Court of Justice in 1883.

(d) The High Court of Justice is formed in 1873,
absorbing all the jurisdiction of the superior
Common Law and Equity Courts, as well as Pro-
bate, Divorce, and Admiralty jurisdiction.

(e) The Court of Appeal, formed in 1873, takes over

all appeals from the High Court of Justice.

(f) The House of Lords as an Appellate Court is
reconstructed by the Appellate Jurisdiction Act,
1876.

(g) The Privy Council as a whole ceases to have any
jurisdiction, and its judicial functions are vested
in a judicial committee of that body.

(h) A Court of Criminal Appeal is founded.

( 163 )

CHAPTER VIII.

COURTS OF JUSTICE.

IN the Anglo-Saxon period courts of justice were for the
most part local. The great Court was that of the shire-
reeve (afterwards called sheriff), which will be treated of
in a subsequent page. There was a sort of appeal to the
witan and the king; but it is not until after the Norman
Conquest that we see the administration of justice cen-
tralised in the hands of the king.

William I. established the Curia Regis or Aula Regis,
which consisted of the great officers of state, such as the
treasurer, chancellor, chamberlain, marshal, and a certain
number of barons selected by the king as his counsellors,
presided over by the justiciar. To these were added a cer-
tain number of justitiarii (justices or judges), whose
business it was to be present when legal matters were dis-
cussed, or causes tried. The non-legal members of the Curia
Regis seldom attended the trial of a case, as was only to be
expected; and the old writs generally directed the litigant
to appear before the king's justices (justitiarii mei).

These justices decided not only purely legal cases, but
also matters connected with the exchequer or financial
department of the Curia Regis; such as the proper mode of
assessing the feudal reliefs, fines, and forfeitures. They had
also civil and criminal jurisdiction in all cases, both original
and appellate, and to this is traced the appellate jurisdiction
both of the King's Bench and the Privy Council.

As business increased, a division of labour became a
necessary convenience, and so we find the Curia Regis

164 THE STUDENT'S LEGAL HISTORY.

considered as a Court of Justice, separated from the Curia
Regis considered as the king's advisers. The councillors of
the Crown took the name of concilium ordinarium, and the
term curia regis was applied only to the judicial body.
This separation took place in or about the year 1178
(Henry II.). A further sub-division soon became neces-
sary, and it was accomplished by forming a separate Court
to deal with financial business, and with all disputes arising,
directly or indirectly, out of the assessment and collection
of the royal revenues.

THE COURT OF EXCHEQUER.

The judges of this Court were called Barons of the Ex-
chequer, with the Chief Baron as president. Its functions
were to collect and account for the revenues of the Crown ;
and as, until 12 Car. II., much of these revenues was
derived from the feudal dues payable by tenants in capite,
and as their amount and incidence involved questions of
law, it was necessary to appoint lawyers to assess them.
All cases in which the revenues of the Crown were con-
cerned came before the Barons of the Exchequer, — e.g.
Bate's Case in James I., and Hampden's Case (Case of Ship-
money) in Charles I. All sheriff's and king's bailiffs or
stewards had to account to the Exchequer, and all moneys
due from towns holding * in the king's demesne had to be
paid there. After the dissolution of the monasteries,
Henry VIII. set up a Court of Augmentation to attend to
the collection of the firstfruits and tenths formerly belong-
ing to religious houses, but now belonging to the Crown.
By 1 Ph. & M. c. 10, this Court was fused into the Court
of Exchequer. Besides revenue cases, the Exchequer soon
assumed jurisdiction over causes both at Common Law and
in Equity.2 The equity side had especial cognizance of

1 See Jud. Act, 1873. 2 Infra, p. 168.

COURTS OF JUSTICE. 165

actions brought by clergymen for the recovery of tithes, and
the common law side of actions for debt. On the equitable
side, there was an appeal direct to the House of Lords, and
on the common law side, after 31 Edw. III. c. 12, to the
Exchequer Chamber by writ of error. In 1841, the equit-
able jurisdiction of the Court was taken away. In 1875, l
the Court itself became a division of the High Court of
Justice, and in 1880 the name of the Exchequer Division
was taken away and its judges became justices of the
Queen's Bench Division.

The next split from the main body of the Curia was by
the formation of a Court called

THE COURT OF COMMON PLEAS (HEN. III.).

or, as it is frequently called, the Common Bench.

Its jurisdiction extended to all civil cases between subject
and subject, which were called, in the older legal
phraseology, Common Pleas, to distinguish them from Pleas
of the Crown. It had exclusive jurisdiction in all "real "
actions.2 By Magna Charta, article 17,, it is provided that
" common Pleas shall not follow the King's Court, but shall
be held in some certain place," and the place fixed upon was
Westminster Hall. Still we find the Common Pleas sitting
at York in the reign of Edward III. The judges of the
Common Pleas were called justices, with the Lord Chief
Justice as president. After the establishment of this Court
there remained in the Curia Regis all criminal jurisdiction
and appellate jurisdiction from the inferior Courts, and all
civil business which had not been transferred to the
Exchequer and Common Pleas. So that there were now
three Common Law Courts, viz. the Exchequer, the Com-
mon Pleas, and the Curia Regis, or, as it came to be called,
" Bancum Regis," the latter name finally supplanting the
former, and being Englished as

1 See Jud. Act, 1873. 2 Pages 24 et seq.

166 THE STUDENT'S LEGAL HISTORY.

" THE COURT OF KING'S BENCH "

which begins to be a separate Court (Hen. III.), absorbing
all the judicial business of the Curia Regis, except, perhaps,
the ultimate appeal. In fact, from about 1300, the Ban-
cum Regis (King's Bench) and Curia Regis became inter-
changeable terms. The Court of King's Bench was the
most powerful in the country. It had two sides — the
CROWN SIDE and the PLEA SIDE. The Crown side was con-
cerned with criminal matters, appeals from inferior Courts,
the liberty of the subject, and the control of corporations.
It issued the writs of Mandamus, Habeas Corpus, and Quo
Warranto. On the Plea side, it had the cognizance of all
actions of trespass, or any tort alleged in the old pleadings
to be committed m et armis, actions for forgery of deeds,
maintenance, deceit, and all torts savouring of fraud; but
it had no right to entertain actions for mere debt, or actions
for breach of covenant, or the like; these belonged to the
Common Pleas. It seems that the real original jurisdic-
tion of the Court was in matters criminal or semi-criminal.

The King's Bench was always deemed to be the highest
in the land. And, indeed, the Common Pleas and
Exchequer were merely branches of it. The sovereign him-
self was supposed to sit there, and its writs were returnable
coram ipso rege; though, in fact, the king did not sit there
personally, as far as is known, during legal memory, with
the exception of James I., who, however, was prevented by
Coke, C.J., from interfering in the actual decisions. (Case
of Prohibition, 1607).

In consequence of the supposed presence, of the king, the
Court of King's Bench had a right to review the judgments
of the Common Pleas by means of writs of error. Sir J.
Gilbert, in his book on the origin and practice of the King's
Bench, says that it is the " sovereign eyre " (that is, court
itinerary); and because the justices in Eyre always made all
civil causes to cease in the counties into which they came,

COURTS OF JUSTICE. 167

therefore the King's Bench, when sitting in Middlesex, had
power to order a cause to be removed from the Common
Pleas (which always sat in Middlesex) to be examined for
error. This may have been the reason; but it is quite as
reasonable to suppose that the Common Pleas, being merely
an off-shoot of the King's Bench, the latter assumed the
right of appellate jurisdiction as a matter of course, in the
same way that the Lord Chancellor heard appeals from the
Master of the Rolls.

There was no Writ of Error at Common Law to call in
question the decisions of the King's Bench ; and this for the
reason that the King's Bench was the highest Court in the
land. But there was an appeal to the Magnum Concilium,
and afterwards to the House of Lords. It is curious to
notice how the King's Bench maintained its dignity. On a
Writ of Error addressed to the Common Pleas, the Chief
Justice of the inferior Court sent up the Record in the case
to the King's Bench; but on an appeal from the latter Court
to the House of Lords the Chief Justice of the Bancum
Regis did not part with the Record; he merely sent up a
copy to the Lords. Gilbert mentions this as a proof of the
superior dignity of King's Bench.1 But by the statute of
Elizabeth already referred to,2 a writ of error could be
issued to the King's Bench triable in the Exchequer
Chamber, but only for actions "originally begun" there.
A case removed into that Court by writ of error proceeded
to the House of Lords as the next and final appeal, and was
not subject to review by the Exchequer Chamber. And,
moreover, actions begun by original writ in the King's
Bench did not come within the Act of Elizabeth, because
original writs were issued by the clerks of the Court of
Chancery,3 and, therefore, the actions begun in this way
were held to have begun in Chancery. The only cases

1 Gilb. Hist. & Orig. of K. B. 319. 2 Supra, p. 74.

• Supra, p. 29.

168 THE STUDENT'S LEGAL HISTORY.

"originally begun " in the King's Bench were those begun
there by privilege and on the Bill of Middlesex and Latitat.

FICTIONS BY WHICH THE COMMON LAW COURTS
EXTENDED THEIR JURISDICTION.

After the sketch given in the preceding pages of the
jurisdiction of the three Courts of Common Law, it may
surprise the student to hear that the Court of Exchequer,
until its merger in the High Court of Justice in 1875, tried
common pleas ; for instance, actions of debt between subject
and subject; and the Court of King's Bench tried every
kind of actions except the old real actions. Even jurisdic-
tion over realty was usurped by the fictional action of eject-
ment (see pp. 76 et seq.), a proceeding personal in form, but
actually a means of trying title to real estate.

The reason for the fictions about to be described was
the anxiety of the judges to extend the business of their
own Courts, a desire that will seem not unnatural when we
learn that the judges and officers of these Courts were paid
not a fixed salary, but the fees of the suitors. In these
days, when a plaintiff, for instance, pays a fee of ten
shillings for issuing a writ, the money goes into the
Treasury. In early times it would have gone to the judges
or to some other official of the Court.

The Court of Exchequer extended its jurisdiction by the
WRIT OF Quo MINUS. As we have seen, its proper jurisdic-
tion was over the king's debtors, but a plaintiff was per-
mitted to come to the Court and aver that he, Thomas
Smiles, was the king's debtor, and that he was unable to
pay the king because the defendant, William Styles, wrong-
fully withheld a sum of money from him (the plaintiff).
The Court then issued a writ against William Styles order-
ing him to answer the claim of Thomas Smiles. The form
of the writ was as follows : —

COURTS OF JUSTICE. 169

Writ of Quo Minus in the Exchequer.

George the Second, by the grace of God of Great Britain, France, and
Ireland king, defender of the faith, and eo forth : to the Sheriff of Berkshire,
greeting.

We command you, that you omit not by reason of any liberty of your
county, but that you enter the eame, and take William Styles, late of
Burford, in the county of Oxford, gentleman, wheresoever he shall be found
in your bailiwick, and him safely keep, so that you may have his body
before the barons of our Exchequer at Westminster, on the morrow of the
Holy Trinity, to answer Thomas Smiles, our debtor, of a plea that he
render to him two hundred pounds which he owes him and unjustly detains,
whereby he is the less able to satisfy us the debts which he owes us at our
said Exchequer, as he eaith he can reasonably show that the same he ought
to render; and have you there this writ. Witness, Sir Thomas Parker,
knight, at Westminster, the sixth day of May, in the twenty-eight year
of our reign.

The writ was called Quo Minus (quo minus = whereby
the less) because of these words in the original Latin form
of the document. The English translation of them is
printed in italics in the form given above.

The Court of King's Bench extended its jurisdiction by
the BILL OF MIDDLESEX and the WRIT OF LATITAT. The
Court had properly the right to try cases of trespass (see
page 166, supra) ; and it also claimed and exercised the
right, when any defendant was in the hands of the marshal
of the Court, to hear and determine any complaint against
such defendant for any cause whatever. Thus, if William
Styles had committed a trespass against Thomas Smiles, the
latter's remedy would be by action of trespass in the King's
Bench. But once Styles was in the custody of the marshal
of the King's Bench, Smiles could bring suit against him
for any other cause; for instance, debt. The process
evolved by some ingenious officer of the Court was, when
Thomas Smiles wanted to sue William Styles for debt in the
King's Bench, he sued out a bill for trespass ; and, when the
defendant was in the hands of the marshal, an action was
brought for the debt, and the trespass was entirely dropped.
It was necessary to allege that the trespass had occurred in
Middlesex; and the bill was issued to the sheriff of

170 THE STUDENT'S LEGAL HISTORY.

Middlesex commanding him to bring- up the defendant.
But if the defendant did not live in Middlesex the sheriff
had no power, so he returned for answer a " Non est
inventus," that is, "the within-named William Styles is
not found within my bailiwick." A writ was then issued
to the sheriff of the county where Styles lived, commanding
him to bring up the defendant. The writ proceeded on the
supposition that Styles was a fugitive, and had run away
from Middlesex to escape the hand of justice. Subjoined
are forms of the proceeding : —

Bill of Middlesex, and Latitat thereupon in the Court of King's Bench.

Middlesex The Sheriff is commanded that he take William Styles,
to wit late of Burford, in the county of Oxford, if he may be found
in his bailiwick, and him safely keep, so that he may have his body before
the lord the king at Westminster, on Wednesday next after fifteen day of
Easter, to answer Thomas Smiles, gentleman, of a plea of trespass; [And
also to a bill of the said Thomas against the aforesaid William, for two
hundred pounds of debt, according to the custom of the court of the said
lord the king, before the king himself to be exhibited;] and that he have
there then this precept.

Sheriff's Return.
The within-named William Styles is not found in my bailiwick.

Latitat.

George the second, by the grace of God of Great Britain, France, and
Ireland king, defender of the faith, and so forth: to the sheriff of Berkshire,
greeting. Whereas we lately commanded our sheriff of Middlesex that he
should take William Styles, late of Burford, in the county of Oxford, if
he might be found in his bailiwick, and him safely keep, so that he might
be before us at Westminster, at a certain day now past, to answer unto
Thomas Smiles, gentleman, of a plea of trespass; [And also to a bill of
the said Thomas, against the aforesaid William, for two hundred pounds
of debt, according to the custom of our court, before us to be exhibited;]
and our said sheriff of Middlesex at that day returned to us that the afore-
said William was not found in his bailiwick ; whereupon on the behalf
of the aforesaid Thomas in our court before u*s it is sufficiently attested,
that the aforesaid William lurks and runs about in your county:
Therefore we command you, that you take him, if he may be found in your
bailiwick, and him safely keep, so that you may have his body before us
at Westminster on Tuesday next, after five weeks of Easter, to answer to
the aforesaid Thomas of the plea (and bill) aforesaid : and have you there
then this writ. Witness, Sir Dudley Ryder, knight, at Westminster, the
eighteenth day of April, in the twenty-eight year of our reign.

COURTS OF JUSTICE. 171

By virtue of this writ to me directed, I have taken the body of the
within-named William Styles, which I have ready at the day and place
within contained, according as by this writ it is commanded me.

The writ is called " Latitat " because of the words " lurks
and runs about."

THE COURT OF EXCHEQUER CHAMBER.

Besides the three Common Law Courts having original
jurisdiction, there was, until 1875, an Appellate Court for
common law cases from those three Courts. By 31 Edw. III.
c. 12, the Court of Exchequer Chamber was instituted as a
Court of Appeal from the Common Law side of the
Exchequer. The Exchequer Chamber consisted of the Lord
High Chancellor and the Lord Treasurer, together with the
two chief justices and all the other judges of the King's
Bench and Common Pleas; but the Chancellor and the
Treasurer rarely sat there.

By an Act already referred to,1 passed in 1585, the judges
of the Common Pleas and the barons of the Exchequer were
empowered to sit in the Exchequer Chamber to try appeals
by writ of error from the King's Bench in certain actions.

A further regulation was imposed by 11 Geo. IV. & 1
Will. IV. c. 70, s. 1 (1830), by which, on a writ of error
from one of the three Courts, the Court of Exchequer
Chamber was to be composed only of the judges of the other
two. Thus, on an appeal from the Common Pleas, the
Appellate Court would consist of justices of the King's
Bench and barons of the Exchequer; and on writ of error
from the Exchequer, the chief justices and justices of either
Bench would alone be entitled to sit.

The writ of error would lie where there was some mani-
fest error on the record, or on the pleadings, or in the
'judgment on a point of law only.

1 Supra, p. 74.

172 THE STUDENT'S LEGAL HISTORY.

THE COURT OF CHANCERY.

The "Court of Chancery" and "the Chancery" are
spoken of in very early times. But it is very doubtful
whether the Chancellor, alone, had the right to hear and
determine the matter of the petition. Indeed, such evidence
as exists is all the other way; for the judgments (or, rather,
minutes of judgments) endorsed on the early records show
that in almost every case the Chancellor sat with the
Council. The expression "the Chancery" may, in early
documents, mean the Council sitting in the Chancery — i.e.
the Council in one of its aspects. The earliest recorded
judgment of the Chancellor alone, where no mention is
made of the Council, is in 1377 where the Chancellor dis-
missed a petition. But here the plaintiff did not appear at
the hearing, and judgment for the defendant was given in
default. In (about) 1407, there is another case where
plaintiff complains that defendant detains certain chattels
and muniments confided to one deceased whose executrix
defendant is. Defendant appears in the Chancery and says
that she has already handed over all she had to the Lord
Mayor. The Chancellor (apparently sitting alone) dismisses
the case, but orders defendant, if she finds any further
muniments, to give them up to the plaintiff. On the other
hand, in cases not distinguishable, on principle, from the
above, and of the same date, we find judgments given by
the chancellor " with the advice of the justices of both
Benches, and of the King's Sergeants, and other learned
men of the Council there present "; others by the Chancellor
" and the Court of Chancery " ; and yet others by the Chan-
cellor " by the authority of the Court of Chancery."

There is, however, some evidence that the Chancellor had,
in this early period (at least as early as 18 Ric. II.), a juris-
diction apart from the Council. In that year (1389) there
is a petition by the House of Commons " that none of the
lieges may be compelled by the writ Quibusd-am certis de

COURTS OF JUSTICE. 173

causis (the predecessor of the writ Sub Pcena) or any other
like writ before the Chancellor or the Council to answer
except by the Common Law." In 1394 there is a complaint
that " divers lieges had been sent for to appear before the
Council or in the Chancery under a certain penalty " (i.e.
by the writ sub pcena). Again, in 1421, there is a like com-
plaint ; and again the words used are " Sub posna depending
before the Council or the Chancellor."

The evidence afforded by these petitions is strengthened
by the evidence of a petition by the Commons House in
2 Henry IY. The complaint is that the Common Law
judges were perpetually being sent for by the Chancellor
to the neglect of their proper business. From this it would
seem that the Justices of both Benches only attended in the
Chancery when summoned, and that they were bound to
attend when requested to do so, as the practice is to this day
in the House of Lords. A fact like this considerably dis-
counts the evidence of the judgments recorded to have been
made "with the advice of the Justices of both Benches,
etc." (supra).

It must be remembered that all writs issued out of the
Chancery, whether returnable there or not. The writs
" Quibusdam certis de causis," " Sub poena," and " Scire
facias," were certainly used to bring a defendant before
the Council; and, according to the petitions of the House
of Commons above referred to, " before the Chancellor,"
and " in the Chancery " also. The true conclusion may be
that the jurisdiction of the Chancellor and the Council over-
lapped : that petitions were heard sometimes by the one and
sometimes by the other; that in cases of great difficulty in
point of law the Chancellor, who was almost always a lay-
man, would prefer to be guided by the judges and Serjeants :
and that in cases where the defendant was a person of great
power, or the matter was of far-reaching consequence, the
Chancellor would cause the matter to be heard by the full

1T4 THE STUDENT'S LEGAL HISTORY.

Council ; while in cases of no great difficulty or importance,
he would deal with the cause himself.

There is, however, distinct evidence in favour of another
theory — viz. that " the Chancery/7 considered as a judicial
body, was only another name for the Council. A petition
of (about) 1396 is addressed to the Chancellor " and other
very wise lords of the Council or our redoubted Lord the
King."

Another petition of (about) 1397, prays the Chancellor
"of your special grace grant a writ directed to the said
Sir Hugh commanding him to be before the Council of our
Lord the King," etc. It appears from the indorsement on
the petition that a writ was issued accordingly; and that
" on the day named the within-written Hugh appeared in
the Chancery." Apparently, if this instance is worth much,
"before the Council" and " in the Chancery" were the
same thing. Possibly the Council, when it dealt with
matters judicial, sat "in the Chancery" — a theory borne
out by the prayer of another petition of about the same
date (1397) — " May it please your lordship (the Chancellor)
to send for the said (defendant) to be before you and the
Council of our said Lord the King in the Chancery." In a
third case, in 1398, an important State case of mercantile
reprisals, the petition is addressed to the Chancellor, and
the prayer is, " May it please your most gracious Lordship
to ... send for the said (defendants] to be before you on
a certain day to answer," etc. The petition is thus
indorsed, and the indorsement seems to shed much light on
the question of the constitution of the Court of Chancery :
" It is agreed by the Council that writs be sent under the
great seal," etc. And it is further noted that there were
present my lords the Chancellor, the Treasurer, the Keeper
of the Privy Seal, the Clerk of the Rolls, Messieurs John
Bussey, Henry Grene, John Russell, and Robert Faryngton,
Clerk. In 1399, in a case of maintenance, where a parson
complained that he dared not go to his parsonage, not even

COURTS OF JUSTICE. 175

in Lent to hear the confession of his parishioners, the defen-
dants were ordered by writ " to be before the King and his
Council in his Chancery. " Nor are the available instances
confined to the maintenance cases. For example, in
Henry IV. there is a petition of the ordinary " conscience "
or equity kind (a case of fraud) praying the Chancellor " to
grant a writ directed to the said (defendant) commanding
him under a certain pain to come before the Council of our
Lord the King," etc.

There are here, it would seem, enough instances to show
that the Court of Chancery was really the Council sitting in
a place called " the Chancery " — in other words, that when
the King in his Council sat to hear cases of conscience
(equity) and cases of oppression by powerful persons or
families whom the ordinary law could not reach, the sitting
took place in the Chancery — that is, in the department of
State whence all writs issued. There is no evidence to show
that the Chancellor had any jurisdiction apart from the
Council. There is very little evidence to show that there
was really a separate Court of Chancery. The evidence
rather is that the Chancellor, as president of the Council,
had petitions addressed to him : that writs were issued by
him, with or without the concurrence of the Council : that
the causes were heard by the Council, who constituted a
Court, not of Chancery, so much as in the Chancery.

It can at any rate be said with safety that the Chancellor
derived his jurisdiction from the King in his Council. The
solitary case in 1377, where it appears that the Chancellor,
sitting alone, dismissed a petition, may be explained by the
facts : (1) that the defendant appeared and made certain
admissions which made a hearing unnecessary ; ( 2) that
although no one else is mentioned as having been present,
there is no explicit statement that the Chancellor sat alone ;
(3) it would be unsafe to generalize upon a particular
instance. The petitions of the Commons may be explained
thus : The Council sat for many purposes. Acting judicially

176 THE STUDENT'S LEGAL HISTORY.

it sat in Chancery. At other times it did not. Hence
the expression " the Council or the Chancery"; because a
person would be summoned to attend in the one case " before
the Council/' and in the other case "in the Chancery."
The Council might meet anywhere wherever the king was.
The Council in the Chancery or Court of the Chancery sat
at the fixed abode of the Chancery department.

To put it shortly, the conclusion one is almost irresistibly
forced to, is that the subsequent jurisdiction of the Chan-
cellor alone, as it continued down to the nineteenth century,
was usurped from the Council — unless (which is highly
unlikely) there was some royal ordinance of which all traces
have been lost.

The early petitions to the Chancellor may be divided,
roughly, into two classes, viz. (1) Cases where the Common
Law could not be resorted to because of some defect in
the law itself, or because of some technical difficulty; and
(2) Cases where the Common Law provided a remedy, but
the petitioner despaired of justice because of the power or
local influence of the party who had done the wrong — thus
this class of cases was of a criminal or quasi-criminal crime.

The phrases " court of conscience," " law of conscience,"
and the like, were already in use. Thus, in a case in 1456,
a petitioner complains of Undue Influence and Breach of
Trust, and avers that in the course " of the Common Law,"
he has no remedy. The defendant, or respondent, by his
answer, says that the bill contains nothing to charge him
with. The petitioner replies " that the seide matier ys
sufficient to putte hym to answer after the lawe of con-
science, whiche ys lawe executory in this courte for del aulte
of remedy by cours of the common lawe." (In this case
the court consisted of the Chancellor, the justices of both
Benches, and others of the King's Council).

In Mr. L. O. Pike's introduction to the Tear Book
(12 & 13 Edw. III. p. cix.) is to be found a bill exhibited
to the Chancellor temp. Henry V. by certain petitioners who

COURTS OF JUSTICE. 177

complain that they have been tortiously disseised of a manor
since the king passed into Normandy, and that they have
no remedy because by proclamation the king has suspended
the Assize of Novel Disseisin until his return. This appears
also to be a case within the first class. It is worthy of
note that the Court, in this case, ordered an issue to be
tried by a jury of the County of Essex, and the verdict to
be returned into the Chancery. Verdict being for the
plaintiffs, it was decreed that possession of the manor be
given to them.1

As early as 1456 we find a case of the Chancellor
interfering for the relief of a mortgagee. In this case, the
petitioner had borrowed £80 and, as security, had enfeoffed
the lender in his manor of Shifton Berenger. The charter
of enfeoffment contained a defeasance clause, i.e. that if the
borrower should repay £100 at the feast of St. John the
Baptist, he should be re-enfeoffed. The borrower also gave
a Statute Merchant for £300. The lender had sued on the
statute and put the borrower in prison. He had also
endeavoured to collect the rents and profits of the manor.
And the borrower complained that the lender intended to
extort £450 for the loan of £80 "against right and con-
science "; and he prayed a sub poena and that " justice be
done as good faith and conscience requireth." In the end,
after deliberation with the Justices of both Benches, the
Chancellor decreed that as the £80 had been repaid (during
the course of the proceedings) defendant should liberate
plaintiff from custody and re-enfeoff him in his manor and
deliver up all muniments of title.

In 1432 (or 1433) there is a petition by one of two
brothers praying partition of lands left by a will of uses (see
p. 67) to the use of the brothers as joint tenants in fee tail.
The petition states, "for which particion to be made there
is now accyon atte common lawe."

1 A similar bill, based on the same grounds, is to be found in Select Cases
in Chancery (Selden Soc. Pub. vol. 10), p. 10.

S.L.H. 12

178 THE STUDENT'S LEGAL HISTORY.

In 1420 a petition is presented by a man who, before
setting out on a pilgrimage to Jerusalem, left a coffer con-
taining muniments, etc., with his mother. The mother died,
and her second husband took possession of and refused to
deliver up the coffer. The reason for petitioning the Chan-
cellor seems to have been that Detinue would not lie; and
Trover was of no use because plaintiff wanted the coffer, and
not damages. He therefore prayed a mandatory injunction.

In (about) 1416 two soldiers presented a curious petition,
which shows that the Court of Chancery, however con-
stituted, had jurisdiction to decree the taking of an account,
as well as to grant injunctions. The petitioners alleged
that they had captured certain prisoners at Agincourt ; that
an Esquire named Buckton had ransomed the prisoners
without the petitioners' consent; and that part of the
ransom was in the hands of Maude Salvayne, wife of the
Governor of Calais. An injunction was asked to restrain
Maude from parting with the fund; and a sub pcena against
Buckton that he should come up and give an account as to
the prisoners he had released.

Of cases of the second class there are large numbers. In
fact, the greater part of the earlier cases are cases where
petitioners complain of tortious acts done by persons whom
they are not able to reach in the ordinary way of law. To
take a few at random : —

In 1388, one John Biere, of Bodmin, complained that
Roger Mule and five others broke and entered the petitioner's
house at Bodmin, beat and ill-treated his servants and " la
dite maison chercheront pur le dit Johan Biere avoir inal-
menee s'ils Peussent trovee." Not finding the said John,
the evil-doers lay in wait for him day and night, insomuch
that John had been obliged to leave the district and dared
not go back. Moreover, the said Roger and his friends had
detained all John's merchandise, so that John could not
make a living ; and " the said evil-doers have of their
Covin gathered to themselves many other maintainers and

COURTS OF JUSTICE. 179

disturbers of the king's peace insomuch that they will not
be justified of the Sheriff of the County against their
will. ..." Here the powerlessness of the Sheriff against
a turbulent and numerous faction is made the ground of
resort to the Chancery. There is a like complaint by a
Cornish parson (1396) (Select Cases in Chancery, p. 23). In
1386 Thomas Catour of Beverley and Emma his wife
petition for a remedy against Sir William Monketon, Sir
John de Midleton and others, officers and servants of the
Archbishop of York, who have chased Thomas and Emma
from possession of seven shops and seven houses within the
franchise of Beverley. A writ from the Chancery is asked
for because that " Thomas and Emma can have no remedy
at common law because the tenements are within the fran-
chise of Beverley of which the Archbishop is lord."

In 1396 there is a petition which appears to allege no
special ground for interference save that the offence is one
which involves breach of a royal proclamation (Sel. Cas. in
Ch., p. 17). Another, in 1397, says, "the said William is
so rich and so strong in friends in the country where he
lives that the said David will never recover from him at
common law."

There are other cases where the petitioners ask for a writ
from the Chancery because the evil-doer is Sheriff, or a
kinsman of the Sheriff, of the county. The obvious reason
in these cases for invoking the aid of the Chancery is that
as all juries were summoned by the Sheriff, a fair tribunal
was impossible to be obtained where the Sheriff himself
was a litigant (see Sel. Cas. in Ch., pp. 21, 31, 33).

Later— in Henry VII. certainly — the Chancellor sat as a
judge alone. Probably the Chancellor's jurisdiction, as we
know it existed then, dated from the establishment of the
Star Chamber (Hy. VII.), which branch of the Council took
exclusive cognizance of the tortious acts committed by
persons who were able to defy the law; but left untouched
the administration of the Equity that had been established

180 THE STUDENT'S LEGAL HISTORY.

relating to trusts, mortgages, fraud, specific performance,
injunctions, accounts and the like. For the interlocutory
work of the Courts the Chancellor had the assistance of a
body of clerks. The chief of these was the Master of the
Rolls, or Custos Rotulorum, whose primary duty was to take
care of the documents of the Court and record its judg-
ments. The office of Master of the Rolls was one of great
dignity, and in the statute of 1388 (Ric. II.) he is placed
before all the judges and next to the Lord Chamberlain.
He was not, at the first, a lawyer, but generally a high
dignitary of the Church. For instance, it was De Waltham,
Bishop of Salisbury, who was Master of the Rolls in
Richard II. In the early days of the Court the Chancellor
sometimes delegated the hearing of a cause to the Master
of the Rolls; but the latter could only sit in the absence of
his superior and could only hear causes. Although the
business of the Chancery increased a hundredfold, the
theory that the Master of the Rolls was only a deputy was
still kept up, and when, for the time of Lord Nottingham
(Charles II.), the Chancellor sat all day and every day, the
Master of the Rolls only sat from six to ten in the evening.
This state of things continued until 1833, when a statute
empowered the Master of the Rolls to sit all day, with the
same jurisdiction as the Chancellor, other than the hearing
of appeals; that is, he could not only hear causes, but
motions and all other Court work.

Masters in Chancery. — The clerks above referred to were
from the earliest times an important part of the machinery
of the Court. It was one of the advantages of Chancery
procedure that questions of detail could be referred to them
for their report. In the time of Edward III. they were
called Masters, and by that name they were known until
the Judicature Act. In the time of Henry V. they had the
power to hear applications relating to procedure, as, for
instance, the sufficiency of the answer to a bill, objections

COURTS OF JUSTICE. 181

lo pleadings, and suck-like matters. Lord Bacon (James I.)
appears to have begun the practice, when the action depended
on accounts, of referring the accounts to a master to be
taken in his office in order " to make the cause more ready
for hearing." Cardinal Wolsey (Henry VIII.) and his suc-
cessors used to refer demurrers, i.e. objections on points of
law, to the masters, but Bacon stopped the practice. There
were very few causes in Chancery decided without inquiries
before a master. In administration actions, inquiries for
creditors and next-of-kin, the ascertaining of classes of
legatees, and the taking of accounts; in partnership actions,
the taking of accounts, the sale of trust estates and partner-
ship assets, and generally all accounts and preliminary
inquiries, took place in a master's chambers.

THE CENTRAL CRIMINAL COURT.

Before 1834, London and Middlesex cases were tried at
the Sessions House, Old Bailey. The London cases were
tried there by virtue of the commission of oyer and terminer
for London, and of gaol delivery for the prison of Newgate,
which commissions were directed to the Lord Mayor, Alder-
men, Recorder, Common Sergeant, the King's Justices at
Westminster, the Chancellor, and others.

The charter of Henry I. granted the citizens of London
the right to choose their own judge for pleas of the Crown,
and a charter of Edward III. gave a special privilege to
the Lord Mayor of being named in every commission of gaol
delivery for Newgate.

The fact that Newgate was the common gaol for Middle-
sex accounts for those cases being tried at the Old Bailey.
But there was a difference in the modes of trial. The indict-
ments of London prisoners were found by a London grand
jury at the Old Bailey. Middlesex indictments were found
by a Middlesex grand jury at Clerkenwell, and then trans-
ferred to the Old Bailey for trial. The judges were two

182 THE STUDENT'S LEGAL HISTORY.

or three of the King's Justices, the Recorder, and Common
Sergeant. The Lord Mayor and some or all of the aldermen
could be present, and when present were entitled to a voice
in the sentence.1 .

By the Central Criminal Court Act, 1834, the name
Central Criminal Court was given to a Court sitting at the
Old Bailey, to consist of the Lord Mayor, the Lord Chan-
cellor, the King's Judges, Aldermen, Recorder, Common
Sergeant, and a few others to be nominated by the Crown.
This Court has jurisdiction to try all treasons, felonies, &c.,
committed in London and Middlesex, and in certain parishes
of Essex, Kent, and Surrey. Bills of indictment were not
in future to be found at Clerkenwell. It appears that the
aldermen have still power to vote on the question of sen-
tence; but the real judicial business is done by the pro-
fessional judge who presides. There are now four Courts at
the Old Bailey, presided over by a High Court Judge, the
Recorder, Common Sergeant, and the Judge of the City of
London Court respectively; but the Act of 1834 specially
reserves the rights and privileges of the Lord Mayor and
Aldermen. The Central Criminal Court is a Superior Court,
on the same footing as a Court of Assize ; and no mandamus
will lie from the Queen's Bench Division.

A Court of Criminal Appeal was established by the
Criminal Appeal Acts, 1907 and 1908. Prior to this time
there was no appeal from a conviction on indictment except
by way of writ of error. Before the time of Queen Anne,
such a writ was held to be merely ex gratia, but in the 3rd
of Queen Anne it was resolved by ten judges that in every
case under treason and felony the writ was ex debito justitice.
Thus by a gradual course of practice the writ became,
instead of a method of exercising the clemency of the
Crown, a method of appeal. The writ was only granted by

1 St. Tr. N. S. 1137.

COURTS OF JUSTICE. 183

the Court (of King's Bench) on the ground of error manifest
on the record. For example, a writ was granted (3 Burr.
1903) where the indictment charged the offence as being
committed in the reign of a former king, but concluded
" against the peace of our Sovereign lord the King, &c.,"
which meant the now king. To supplement the deficiency
in the law, the judges used to hold informal meetings at
Serjeants' Inn to discuss difficult points in criminal law. By
11 & 12 Yict. c. 78, these proceedings were regularized.

The Court for Crown Cases Reserved was established,
with power to determine points of law which might arise at
Sessions or Assizes. There was no appeal in the proper
sense of the term. The prisoner could apply at the trial for
the Court to reserve a point of law; and if this were done
(which was quite discretionary) that point was argued before
and decided by the C.C.C.R., consisting of the Common
Law judges.

The Court of Criminal Appeal is really an appellate
court. It consists of the Lord Chief Justice and all the
judges of the King's Bench Division, not less than three
of whom form a quorum. It is summoned by the L.C.J.
with the consent of the Lord Chancellor ; and may sit in two
or more divisions, or out of London when the L.C.J. gives
special directions to that effect. The number sitting must
always be uneven; and the opinion of the majority must
prevail. Only one judgment is to be delivered, except the
Court directs to the contrary. The decision is final, save
that where the prosecutor, director of public prosecutions,
or defendant obtains a certificate of the Attorney-General
that the decision involves a point of law of exceptional
public importance, and that it is desirable in the public
interest that a further appeal should be brought, he may
appeal to the House of Lords.

Only a person convicted can appeal; and his absolute
right to do so is limited to questions of law alone. On
questions of fact, or mixed law and fact, he must obtain the

184 THE STUDENT'S LEGAL HISTORY.

leave of the Court or of the judge who tried him. On ques-
tions of sentence, only the Court of C.A. can give leave to
appeal. The powers of the Court in allowing or dismissing
appeals are wide ; but there is no power to order a new trial.
The tendency has been to construe rather narrowly the
power to allow the appeal if the Court thinks that " the
verdict of the jury should be set aside on the ground that
it is unreasonable or cannot be supported having regard to
the evidence." The Court is entitled to dismiss an appeal
on the ground that no substantial miscarriage of justice has
actually occurred. (Act 1907, s. 4, sub-s. 1.)

Writ of error in Criminal proceedings is abolished. (Act
190T, s. 20.)

INFERIOR COURTS.

The Court of Piepoudre was at once the lowest and the
most expeditious of these. It was a court of record incident
to every fair and market, and the presiding judge was the
steward of him who had the toll of the market or fair. Its
jurisdiction extended to all commercial cases arising out of
the transactions of the particular fair or market, and not
of any preceding one, so that the cause of action arose, the
complaint was made, and the cause tried on the same day,
unless the market lasted longer. From the Court of
Piepoudre an appeal by writ of error would lie to the
Superior Courts at Westminster. The etymology of the
name is a moot point. One opinion derives it from curia
pedis pulverizati the Court of the dusty foot — either because
of the dusty feet of the suitors, or because, as Coke puts it,
justice was done as quickly as dust can fall from the foot.
Another author 1 derives it from pied puldreaux (old
French = pedlar), and says the name was given because the
Court was the resort of the pedlars who traded at the fair
or market.

1 Barrington, Observations, etc., p. 337.

COURTS OF JUSTICE. 185

The Court Baron was a manorial court incident to every
manor in the kingdom. It was composed of the freeholders
of the manor, with the steward as a kind of clerk. It had
jurisdiction to try by writ of right all claims to land within
the manor, and all personal actions where the amount
claimed was not more than forty shillings. The proceedings
on a writ of right might be removed into the County Court
by a precept from the sheriff called a tolt* and the pro-
ceedings in personal actions might be removed into the
King's Courts by writ of pone. Besides these proceedings
to remove actions from the Court Baron before judgment,
there was an appeal after judgment to the Superior Courts
at Westminster.

Such appeal was not by writ of error, because the Court
Baron, not being a court of record, had no record in which
an error could be found. But a writ of false judgment was
issued, and the Court at Westminster reheard the case.

There was also another side of the Court Baron ex-
clusively for copyholders of the manor. Its only business
was to witness surrenders of, and admittance to, copyholds.
The steward presided as judge, and in this form Court
Baron still exists. But the civil jurisdiction of the Court
was taken away in 1846.

The Hundred Court was of Saxon origin, and had the
same jurisdiction in the hundred as the Court Baron had
in the manor. The free suitors were the judges, with the
steward of the hundred as clerk. The Court was not of
record; and causes were liable to removal from it, and its
judgments were subject to review precisely in the same way
as in the case of the Court Baron. The jurisdiction of this
Court was abolished in 1867, though the Salford Hundred
Court, being in the County Palatine of Lancaster, has con-
tinued to exist, with a jurisdiction similar to that of the
modern County Court.

1 " Quia tollit ac eximit causam e curia baronum."

186 THE STUDENT'S LEGAL HISTORY.

The County Court was the great tribunal of Saxon
England. Its jurisdiction in civil cases was, at first, un-
limited, but in Edward I.'s reign, suitors had shown such a
tendency to resort to the King's Courts, that by the Statute
of Gloucester it was enacted that no one should be entitled
to a writ in the superior Courts unless the debt or damages
claimed amounted to forty shillings, and the jurisdiction
of the County Court was reduced to claims under that sum.
The sheriff presided, but the freeholders of the county were
the judges. By 2 Edw. VI. c. 25, it was forbidden to
adjourn the Court for more than twenty-eight days — a
return to Saxon usage.

The County Court was not a court of record, and causes
were removable into the King's Courts by writ of pone, and
a writ of false judgment could also be had. Practically
the civil jurisdiction of the County Court ceased when the
justice of assize were granted commissions of nisi prius,
and by the County Courts Act of 1846 the ancient County
Court was completely abolished.1

ECCLESIASTICAL COURTS.

Before the Conquest there was no separate ecclesiastical
jurisdiction. All causes whatsoever were tried in the
County Court, where the bishop sat along with the earl and
the shire-reeve. But William I. allowed the clergy a sepa-
rate jurisdiction,2 and the bishop ceased to sit in the Court
of the shire. No fewer than seven kinds of Ecclesiastical
Courts arose, and each obtained some civil jurisdiction.

The Archdeacon's Court was the lowest of these. In this
Court might be "presented" persons charged with any
offence against the canons of the Church, to wit, impiety,
heresy, adultery, schism, and immorality, and also such

1 Supra, p. 152. 3 Supra, p. 18.

COURTS OF JUSTICE. 187

wrongs as refusing to pay tithes, neglect to repair
churches, and the like. In early times the archdeacon
himself presided, but he had power to delegate his judicial
authority, and in later times generally appointed a person
called the "official." There was always an appeal to The
Consistory Court, or Court of the bishop of the Diocese,
which had a jurisdiction similar to that of the archdeacon,
but extending over the whole diocese. In some cases the
two Courts had concurrent jurisdiction. In others, the
bishop was entitled to remove cases from the Archdeacon's
Court to his own. The bishop's chancellor was the judge,
and from him there lay an appeal to the archbishop of the
province.

The most important function of the Consistory Court was
in testamentary and matrimonial causes. But no will could
be proved or letters of administration granted in a Bishop's
Court when the deceased had left moveables in more than
one diocese.

The Prerogative Courts of Canterbury and York granted
probate in the last-mentioned cases, with the right of appeal
to the Court of Delegates.

The Court Of Arches was the appellate Court of the Arch-
bishop of Canterbury; and the judge was called the Dean of
the Arches. The name was derived from the name of the
church where the Dean originally sat — St. Mary-le-bow
(S. Maria de arcubus). The Court was originally a separate
Court from that of the province of Canterbury, being only
for thirteen London parishes in the peculiar jurisdiction of
the Archbishop. There was a similar Court in the province
of York. An appeal would lie from the Court of Arches to
the Court of Delegates.

The Court of Peculiars was of original jurisdiction (like
the Consistory Courts) over those parishes scattered through-

188 THE STUDENT'S LEGAL HISTORY.

out the province of Canterbury, and in the jurisdiction of
the Archbishop only, and not of the bishop of the diocese.
Hence, also, was an appeal to the Court of Delegates.

The Court of Delegates was instituted by Henry VIII.,

and consisted of certain persons appointed by royal com-
mission to hear appeals from the Ecclesiastical Courts of
the Archbishops. In 1842, this Court was abolished and its
powers transferred to the Judicial Committee of the Privy
Council.1

The Crown also had power (until 1845) to appoint a
Commission of Review to revise any particular decision of
the Court of Delegates. There was also the High Commis-
sion Court from 1 Elizabeth to 16 Charles I.2

At the present time the Ecclesiastical Courts are of com-
paratively little importance. Some of them still exist; but
their chief jurisdiction, viz. in matrimonial and testa-
mentary causes, was taken away in 1857. 3

ADMIRALTY COURTS.

Until 1875, the chief Maritime Court was that of the
Lord High Admiral of England, who delegated his power
to the judge of the Court of Admiralty. This tribunal dates
from Edward III. ; and an appeal lay to a Court of Delegates
appointed by the Crown. There was also a Court of Prize,
appointed in time of war, to decide questions relating to
captured vessels. The Admiralty Court had cognizance of
all contracts made at sea; and questions of seamen's wages
earned at sea; also flotsam and jetsam, and salvage; but
not of charter-parties made on land; nor of wreckage,
" because wreckage must be cast up on land." It had, also,
the right to try criminals. Soon after its foundation this
Court attempted to assume jurisdiction over matters con-

1 Supra, p. 159. 3 Supra, pp. 73 et seq.

3 Supra, pp. 154 et seq.

COURTS OF JUSTICE. 189

nected with the sea, e.g. charter-parties made on land,
wreckage, &c. But by 13 Ric. II. c. 5 (1390) such claims
were declared to be unfounded. In 1536, the power to try
pirates was taken away; and in 1844 all criminal juris-
diction was removed from it. By the Judicature Act,
1873, * the Court was merged in the Probate, Divorce, and
Admiralty Division of the High Court of Justice, thus
placing all the cases where the Civil Law is used in the
same Division.

1 Supra, p. 155.

( 190 )

CHAPTER IX.

THE HISTORY OF LAND TENURE IN ENGLAND.

Before the Conquest tenure of land, strictly so called, was
unknown. The system was allodial; that is, land was as
much the subject of ownership as were moveables. There
were two kinds of land, namely, bocland, i.e. land given
by the king to his thanes by a book or writing; and folk-
land, i.e. such land as was not specially granted by the
king, but was owned by those who squatted there as the
island was conquered, and who had a kind of possessory
title.

All bocland was subject to the trinoda necessitas, or three-
fold obligation of service in war, the construction and
maintenance of bridges, and the construction and main-
tenance of castles for the defence of the country.

The great thanes who owned the bocland let out their
lands to their dependants, who were of two grades, first, the
ceorls, who were freemen paying a fixed rent in money or
kind; and, second, the villeins, who were serfs bound to
obey their master's will, and receiving from him land to
cultivate for their sustenance. The first kind of tenants are
the socmanni spoken of in Domesday Book. The word soc
means free; and it is this tenure which has become almost
universal in England since the abolition of knight-service
by the first Parliament of Charles II.1

Coke gives it as his opinion that bocland was held by
feudal tenure; but with all deference to so great an

1 Supra, p. 83.

THE HISTORY OF LAND TENURE IN ENGLAND. 191

authority, this is a mistake. The feudal tenure of land is
where the tenant has no ownership, but holds the land of a
superior in return for services rendered. The superior is
thus, the landlord ; and if that superior be king, his feudal
capacity of landlord is distinct from his political capacity
as head of the State. It is important to notice the difference
between the trinoda necessitas of the Saxon thane and the
feudal aids, reliefs, and other services of the Norman baron.
The former was a duty cast upon all owners of land as a
duty to the State; the latter consisted of quasi-contractual
liabilities to the king personally.

After the Conquest a change took place. The feudal
system was introduced from the Continent, though the
system as it obtained in England was never quite the
Continental feudal system. The great barons of France and
Germany held their land from the Sovereign, and owed to
him homage and allegiance. The vassals of the great barons,
in their turn, owed allegiance to their lord; but they owed
no duty whatever to the king. Sir Walter Scott, in Quentin
Durward, puts into the mouth of one of his characters a
sentence which sums up the whole situation. When King
Louis XI. is in the power of one of his great feudatories,
the Duke of Burgundy, he asks one of the latter 's vassals,
Count des Comines, if he (the king) can rely upon the
Count's assistance. To this Des Comines replies, " Your
Majesty may command my service, saving my allegiance to
my rightful lord the Duke of Burgundy/'

William I. was far too great a statesman to establish a
system like this in England. Instead, he granted out fiefs
to his chief vassals in return for homage, allegiance, and
the usual services. But when the barons subinfeudated,
their tenants owed allegiance to the king first, and to the
immediate lord afterwards.

After the Conquest, then, land was all held of the king.
The kinds of tenures have been dealt with in a previous

192 THE STUDENT'S LEGAL HISTORY.

chapter,1 and we will now consider the nature of the
relations between lord and vassal.

Knight-service was the most usual military tenure. Coke
described it as tenure by homage, fealty, and escuage.
This requires some explanation. The tenant was obliged to
declare himself the lord's man (Fr. homme) when admitted
to the fief. He was also bound to swear fealty to him. But
escuage, or scutage, was a comparatively modern innova-
tion. The original duty of the knight was to serve his lord
in war for forty days in the year when called upon, but the
tenant was only obliged to serve personally when the lord
took the field in person. When the lord put a deputy in
command, the vassal could send a deputy to represent him,
and when he could not find a suitable deputy, he would
send a sum of money with which a mercenary could be hired
to fill his place. Henry II. permitted his vassals to pay
instead of serving, whether the king took the field in person
or not. In fact Henry rather discouraged personal service
by his great vassals, preferring to hire mercenaries from
the continent. The sum paid by a tenant as a composition
in lieu of service was known as escuage or scutage, meaning
" shield-money, " and in course of time personal service died
out, and escuage became the rule. The knight-service thus
described is ordinary knight-service, but there were two
other kinds, viz. Castleward and Cornage.

Castleward, in the words of Coke, is " to ward a tower
of the castle of their lord, or a door of the castle, upon
reasonable warning, when their lords hear that the enemies
will come over in England. " This service was instead of
the forty days in the field, and to it were added homage
and fealty.

1 Supra, pp. 11 et seq.

THE HISTORY OF LAND TENURE IN ENGLAND. 193

Cornage l was a very curious tenure. The duty of the
tenant was " to wind a horn to give men of the country
warning " when they hear of enemies coming to the country.
"When a tenant by cornage held from a subject, it was con-
sidered a kind of knight-service, but when he held direct
from the Crown, it was grand serjeanty,2 and was a very
common tenure on the borders or marches of Scotland.
Grand serjeanty also took other forms — the service being
always free, but uncertain — e.g. to carry the king's banner
when he went to war. There was also a tenure in chivalry
called petit serjeanty, where the tenant's duty was some-
what servile — e.g. to present to the lord twelve arrows
whenever he (the lord) should hunt in such a forest.

The services of tenants in chivalry were not onerous, as
will have been perceived, but the really burdensome part of
the tenure was its "incidents." These incidents were of
four principal kinds, Wardship, Marriage, Aids, and Reliefs.

Wardship was the right of the lord to have the custody of
the land held of him on the death of any holder when the
heir was not of full age. This age was fixed at twenty-one
for males, and sixteen for females, the latter being altered
from fourteen by the Statute Westminster I. c. 22. The
lord had also the right to the custody of the heir's person
unless his father were alive, and the son was the heir-
apparent of his father. The guardian in chivalry was
obliged to maintain the ward in a manner suited to his
rank, but he was not a trustee. That is, the wardship was
not for the benefit of the ward, but of the guardian, who
took all the rents and profits of the land during the ward-
ship. When the ward came of age, he sued out his livery —
i.e. he had to pay a still further sum in order to have the
land given up to him. The guardian could sell or other-
wise alien his wardship, and the transferee was called
guardian en fait.

1 Cornu (Lat.), a horn. 2 Serjeanty =&eivice.

S.L.H. 13

194 THE STUDENT'S LEGAL HISTORY.

Marriage was the right of a guardian in chivalry to
choose a husband or wife for his ward. He could practically
sell the ward's hand ; but the ward must not be " dis-
paraged " by the match, i.e. there must be congruity of
rank and fortune. If the lord disparaged the ward by
marriage he might be deprived of the guardianship; and
the ward might lawfully refuse to entertain such a match.
But if the ward refused a lawful tender, he forfeited to the
guardian the value of the match — that is, the amount of
profit the lord would have made; and if the ward married
without the guardian's leave, he forfeited double the value
of any match that had been tendered by the guardian.

Aids were payments which a vassal must make to his
lord, or on his lord's behalf, on three occasions. First, to
ransom the lord if the latter was captured in war; second,
to make his eldest son a knight (pur faire Fitz chevalier) ;
third, to provide a dowry for his eldest daughter (pur fille
marrier). These were the three customary aids spoken of
in the various documents in the Middle Ages. They were
not fixed in amount, but by the feudal principles they had
to be reasonable and not excessive. The enactment of
Magna Charta directing that aids should be reasonable shows
how, at times, kings and mesne lords exacted large sums.

Reliefs were lump sums payable by the heir of full age
who succeeded to the inheritance of a deceased tenant.
These ought also to be reasonable, and in no case to exceed
one year's full value of the land ; but in consequence of the
excessive demands made by John, Magna Charta fixed the
amount at 100s. for a whole knight's fee; and so in pro-
portion.

On a previous page will be found an account of the
abolition of knight-service and its " incidents," and the
conversion of all such land into socage.1

1 Supra, p. 83.

THE HISTORY OF LAND TENURE IN ENGLAND. 195

SOCAGE TENURE was the descendant of the old allodial
proprietorship of the Anglo-Saxons. When the Conquest
placed the whole country at the mercy of the Conqueror,
he portioned out amongst his chief followers the land of
those Saxons who had fallen at Hastings, such grants being
held in chivalry. But many of the Saxon thanes who had
taken no very active part in resisting the invader were
allowed to retain their lands. They still held them in
socage, but it was socage tenure and not socage ownership.
The feature of socage tenure was the certainty of the ser-
vices rendered to the lord. Such services were homage,
fealty and a rent. Littleton l says, " In times before legal
memory a great part of the tenants which held of their lords
ought to come with their ploughs . . . and for certain days
to plough and sow the demesnes of the said lord. And for
that such works were done for the livelihood and sustenance
of their lord, they were quit against their lord of all manner
of services. And because that such services were done with
their ploughs they were called tenants in socage. And
afterwards these services were changed. ... by the consent
of the tenants and the desire of the lords [into] an annual
rent, &c."

The " incidents " of socage tenure were few and not
onerous — in fact the only one of general incidence was
Relief — which consisted of a year's rent payable by the heir
on the death of the ancestor. The great advantage of the
socage tenant was in escaping wardship and marriage. The
infant tenant in socage was in ward of the lord, but the
wardship was for the benefit of the ward, and the guardian's
duty was to manage the estate and account for the profits
when the infant came of age, which in this case was fourteen
years. If the lord married his ward, he was bound to
account for the value of the marriage. In fact, the guardian
in socage was a trustee for the ward. At the present time

1 Tenwres, 2, 5, § 119.

196 THE STUDENT'S LEGAL HISTORY.

most of the freehold land in England is held direct from
the Crown, which gave up its rights to reliefs, &c., by
12 Car. II. c. 24. There is, however, still some land held
in socage from mesne lords, viz. the customary freeholds of
manors. This land was all subinfeudated before the
Statute Quia emptores.1 The effect of that Act has been that,
when land has once come out of the hands of a mesne lord,
it can never come into them again, but is held direct from
the Crown. In theory of law, homage and fealty are still
due from all tenants in socage, but they are not now exacted.
It was in consequence of the homage and fealty due to the
king by all tenants of land in England that an alien could
not hold land here by the Common Law. An alien, being
the subject of another prince, could not be the " man " of
the King of England; and as he was thus incapable of
homage he was incapable of tenure, of which homage is a
necessary part. The disability was not removed until 1870. 2

1 Supra, p. 40.

2 Naturalization Act, 33 & 34 Viet, c. 14.

CHAPTER X.

THE KING'S PEACE.

IT has already been shown what the idea of the king's peace
was, and how it was at first local, then general but tem-
porary, and, lastly, general and permanent.1 The violation
of the king's peace was the original offence from which the
jurisdiction of the sovereign in criminal matters arose; and
not only was it that the king's justices should try breaches
of his peace, but also that the king should be a party to the
plea. This prosecution of violators of the peace by the
sovereign sprang not so much from the Norman conception
of the king as the foundation of justice, as from the Saxon
idea of compensation to the sufferer for a wrong done. If
you injured me you must pay the bot. If you injured the
king by violating his peace, you must pay the fine due to
him, and he, therefore, prosecuted. It has been shown how
at last it became the practice to allege every criminal wrong
as being " contra pacem domini regis ' ' ; but there is good
reason to suppose that felonies were at first the only crimes
contra pacem ; or, conversely, that crimes contra pacem were
originally all felonies. The reasons are (1) that only on a
conviction for felony was the criminal's property forfeited
to the Crown. In the law of treason promulgated by
Alfred, the traitor was declared to forfeit his life and all
that he had ; and it should be remembered that, in Alfred's
time, treason was the only breach of the peace, except crimes
of violence, committed during the great feasts of the

1 Supra, pp. 6, 20.

198 THE STUDENT'S LEGAL HISTORY.

Church, or within the precincts of the king's house. (2) It
was always a crime to compound a felony, though not a mis-
demeanour, because, in the former case, the king was
defrauded of his fine or forfeiture. (3) It has always been
laid down in the text-books, and was accepted as undoubted
law until quite recently, that when a tort was also a felony,
the felony must be prosecuted before the tort could be sued
upon. This was because the king's right to his fines and
forfeitures came before the subject's right to damages.

The rule that the Crown could only prosecute breaches
of the peace survived long after the Crown began to prose-
cute in all cases ; and gradually the term Pleas of the Crown
was applied to all criminal prosecutions, and the Crown
prosecuted in every case. But the old theory still lingered
in the rule that an indictment was bad in law unless it
alleged a breach of the peace — a rule that continued in force
until 1861, when it was changed by 24 & 25 Viet. c. 100,
s. 24.

The student should remember that the fictional allegation
of a breach of the peace was the cause of the discontinuance
of trial by combat, and is the foundation of the whole of
English criminal jurisprudence. Throughout the Middle
Ages two systems of prosecutions prevailed : (1) Appeals,
instituted by the person aggrieved or his relatives; and
(2) Crown prosecutions. Britton (temp. Edw. I.) says that,
in larcenies, there are two modes of procedure : (a) by the
party from whom the goods were stolen, and (b) by the
king. It is laid down that when the thief has been sued in
trespass by the owner, the king will not proceed against
him even though his peace has been broken. The change
from this state of the law to that described above, when
the trespass cannot be sued upon until the felony has been
prosecuted, indicates a great development. There is a case
of an appeal of felony so late as Elizabeth (Stroughborouah
v. Biggon, Moore, 571); but at that time these private
prosecutions were very rare.

THE KING'S PEACE. 199

It was the fact of the breach of the peace which gave the
Court of King's Bench jurisdiction in cases of trespass.
Blackstone says that this Court had cognizance of all tres-
passes m et armis, " in which, by strictness of law, a fine
was payable to the king"; and, until the Common Law
Procedure Acts,1 in trespass the plaintiff always alleged
•that the wrong had been committed by force and arms.
Here, again, the allegation became fictional, and was per-
mitted to be made in order to give the King's Bench
cognizance of the case.

Again, libels defamatory of the character of private
persons were criminal in the first instance because they
tended to provoke a breach of the peace ; and here we find
the reason for the maxim, " The greater the truth the
greater the libel," which prevailed until Lord Campbell's
Libel Act (1843). a To the modern mind the maxim is an
absurd one. How, we say, can a man complain when we
speak the truth about him ? But looked at from the
point of view of the king's peace the absurdity disappears.
If the libel is likely to provoke a breach of the peace, what
does it matter whether it be true or false ? It is a provoca-
tion to violence in the one case as much as the other; for
the object of the libel will be equally angry in either case;
and the king's peace will equally be violated.

The royal right of pardon probably sprang from the same
source. The king had as much right to forgive a breach of
his peace as a private person had to forgive an injury or
insult ; and to ascribe the prerogative of pardon to the king
as the "Fountain of Mercy" is probably an historical in-
accuracy. So, also, the law that there is no prescription in
crime — i.e. lapse of time is no bar to a criminal prosecution
— is only an application of the maxim, " Nullum tempus
occurrit regi," based on the idea that a breach of the peace
is a personal injury to the sovereign. And to the same idea

1 Supra, p. 146. 2 Supra, pp. 140 et seq.

200 THE STUDENT'S LEGAL HISTORY.

must be traced the undoubted law that the consent of the
injured party is no defence to a criminal prosecution. Con-
sent would undoubtedly have been a defence to an " appeal "
by the injured party, just the same as it is to a civil action
of tort; but when the king is wronged also, the consent of
the injured party does not affect the right of the Crown to
proceed for satisfaction for the wrong.

It may also be that the prerogative of dispensing with
the operation of a penal statute originated in the same way.
If the object of the law was to preserve the king's peace,
why should he not announce that he will not proceed against
persons who disregard that enactment, in just the same way
that a landowner may announce that he will not sue for
trespass anyone who chooses to take a walk over his grounds ?
It was merely, in law, a waiver by the king of a personal
right, and nothing more ; but when the notion of the peace
of the State began to prevail, Parliament objected to the
royal prerogative; because thereby the Crown could render
nugatory statutes passed for the good of the country. Hole's
Case (James II.) was a case in point, where the king dis-
pensed with the Test Act, which was meant to keep Eoman
Catholics out of the service of the Crown. Here the dispen-
sation was so unpopular that, in 1669, by the Bill of Eights,
the exercise of the dispensing power " as it hath been
assumed and exercised of late" was declared illegal; and
from that time the prerogative, though it still exists, has
never been exercised.

( 201 )

APPENDIX.

1. Before the Norman Conquest (1066).

The King's Peace was established in a limited form.
Distinction between crime and tort was not well

established.

A fine must be paid to the king for breaches of his peace.
All injuries to private persons could be compounded for

by paying bot.

2. From William I. to Henry III. (1066—1272).

The King's Peace is declared to extend over the whole
realm.

3. From Edward I. to Richard III. (1272—1485).

The Law of Treason is codified and simplified
(Edw. III.).

4. From James I. to James II. (1603—1688).

Treason receives great attention and the law is strained

by the judges.
Seditious libel and seditious words; the law is much

debated and strained as against the prisoner.

5. From William and Mary to the End of Lord Eldon's

Chancellorship (1688— 1827J.

Capital punishment became more common.

Forfeiture and attainder for treason and felony were

partly abolished.
The law of treason remained unaltered, but the procedure

was modified in favour of the accused, and counsel

allowed to defend.

202 APPENDIX.

The Eiot Act created the law as to unlawful assemblies,
and directed a certain method of procedure for dis-
persing them.

The law of seditious libel, and the question of general
verdicts, gave rise to a long controversy between
Erskine and Lord Mansfield. Finally Fox's Libel
A&t enabled juries to give a general verdict of guilty
or not guilty.

Frivolous applications for writs of cerbiorari to remove
causes from Quarter Sessions were checked by com-
pelling the applicant to give security for costs.

6. George IY. to Present Day (1827—1921).

Parts of the Criminal Law are codified, and the proce-
dure made more favourable to prisoners.

Treason is cut down to offences against the person of
the sovereign.

Defendants, in prosecutions for defamatory libel, may
prove truth, and give evidence.

Eight of appeal given in criminal cases.

COUETS OF JUSTICE.

1. Before the Norman Conquest (1066).

The Courts are local.

2. From William I. to Henry III. (1066—1272).

Curia Eegis is established, to some extent superseding
and supervising ancient local Courts.

The three Courts of Common Law are established
separately, and the Common Pleas fixed at West-
minster. The other Courts follow the king.

Justices in Eyre are appointed.

3. From Edward I. to Richard III. (1272—1485).

The Court of Chancery is established as a Court of

Equity (temp. Edw. III.).
Justices of the peace are created with a local criminal

jurisdiction (temp. Edw. III.). Quarter Sessions

take the place of the Sheriff's Tourn (temp.

Edw. IV.).
Justices of assize are appointed instead of justices in

Eyre (temp. Edw. I.).

APPENDIX. 203

4. From Henry YII. to Elizabeth (1585—1603).

The Court of Star -Chamber is established (temp.

Hen. VII.).

The Court of Wards and Liveries (temp. Hen. VIII.).
The Court of High Commission (temp. Eliz.).
The Court of Exchequer Chamber (temp. Eliz.).

5. From James I. to James II. (1603—1688).

The Court of Chancery.
. Quarrels arise between the Courts of Law and Equity,

and the latter prevail.

Ellesmere, Bacon, and Coventry systematize the law
and procedure of the Court.

6. From George IY. to Present Day (1827—1921).

County Courts are established, in 1846, for the trial of
small cases.

The Courts of Probate and Divorce take the place of
the Ecclesiastical Courts for matrimonial and probate
cases. They are merged into the High Court of
Justice by the Judicature Act, 1873.

The Court of Bankruptcy is established in 1837; and is
superseded by the London Court of Bankruptcy in
1869, which in turn is merged, into the High Court of
Justice, 1883.

The High Court of Justice is formed in 1873, absorbing
all the jurisdiction of the superior Common Law and
Equity Courts, as well as Probate, Divorce and
Admiralty jurisdiction.

The Court of Appeal, formed in 1873, takes over all
appeals from the High Court of Justice.

The House of Lords as an Appellate Court is recon-
structed by the Appellate Jurisdiction Act, 1876.

The Privy Council as a whole ceases to have any juris-
diction, and the right is vested in a judicial committee
of that body.

Court of Criminal Appeal established.

PEOCEDUEE,

1. Before the Norman Conquest (1066).

Sworn recognitors " presented " criminals for trial.
All issues of fact were tried by compurgation or ordeal.

204 APPENDIX.

2. From William I. to Henry III. (1066—1272).

Real actions begin.

Personal actions are few, only four — viz. trespass, debt,

covenant, and detinue — being cognizable in the King's

Courts.
Writs in the King's Courts take the place of verbal

complaints.

Trial by duel is introduced from Normandy.
Sworn inquest is introduced in civil matters, leading

up to trial by jury, but as yet the jurors are only

witnesses.
Habeas corpus (perhaps) is introduced.

3. From Edward I. to Richard III. (1272— 1485).

Indictments begin to be in writing (temp. Edw. I.),
and are ordered to be certain and definite (temp.
Edw. III.).

Written pleadings take the place of verbal altercations
between the parties in civil cases (circa Edw. I.).

Bills, petitions, and the subpoena are issued in Chan-
cery (temp. Rich. II.).

" Actions on the case " are introduced by virtue of the
Statute of Westminster II. (temp. Edw. I.).

*. From Henry YII. to Elizabeth (1485—1603).

Action of assumpsit begins to supersede the action of
debt.

Action of ejectment is extended to freeholds by a cir-
cuitous procedure, and partly ousts the real actions.

Writs of nisi prius are issued for Middlesex actions
(temp. Eliz.).

Action of trover and conversion comes into use, and
gradually supplants detinue.

5. From James I. to James II. (1603—1688).

Procedure on the writ of habeas corpus in criminal cases
is regulated.

6. From William and Mary to the End of Lord Eldon's

Chancellorship (1688—1827).

One judge is enabled to try causes at nisi prius.

APPENDIX. 205

Judges are to decide on demurrers without regard to

any defect in the writ.
The chief doctrines of modern equity and the practice

of the Court is finally settled.

7. From George IY. to Present Day (1827—1921).

Common law procedure was greatly changed by the
Common Law Procedure Acts, 1852 — 1860, and the
procedure in all cases, whether at common law or in
equity, is revolutionized by the Judicature Acts and
Kules. Forms of action are abolished; pleadings
shortened and simplified, and delay lessened.

A new style of practice is 'invented for commercial
causes.

The absolute right to trial by jury in all civil cases is
taken away.

PROPERTY.

1. Before the Norman Conquest (1066).

The distinction in law between land, and moveables is

small. Property in land is allodial.
The inheritance is divided amongst all the children.
A kind of dower and curtesy were in vogue.

2. From William I. to Henry III. (1066—1272).

The distinction between realty and personalty, founded

on the difference between the remedies for disposses-
sion, is made.
Real Property.

Tenure takes the place of ownership, and the theory
of tenure becomes the basis of the land laws.

Military tenures are introduced.

Dower and curtesy are made absolute legal rights.

The law of primogeniture, with the rules of descent,
is gradually introduced.

Alienation of land is checked by Magna Chart a.
Personal Property.

Testaments of personalty are freely allowed.

Intestates' effects go to wife and relatives.

Intestates' effects are administered by the Ordinary.

Ecclesiastical courts pronounce on the validity of
testaments and legacies.

206 APPENDIX.

3. From Edward I. to Richard III. (1272—1483).

Heal Property.

Freeholds are made alienable inter vivos ; but sub-
infeudation is put an end to by Quid Emptores
(temp. Edw. I.).

Entails are established by the Statute De Dora's
(temp, Edw. I.); but the courts in Taltarum's Case
(temp. Edw. IV.) decide in favour of common re-
coveries as a means of barring entails.

Copyholders gain security of tenure, and no longer
hold at the will of the lord.

Various slight changes take place, e.g., the writ of
waste is given against limited owners.

4. From Henry VII. to Elizabeth (1485—1603).

Eeal Property.

Statute of Uses (temp. Hen. VIII.) was passed to
avoid uses of land; but the main object of the
statute was defeated by the decision in Tyrell's Case,
and the trust came into force instead of the use.

Modern conveyancing dates from the Statute of Uses.

Wills of land are permitted — Statute of Wills (temp.
Hen. VIII.).

5. From James I. to James II. (1603 — 1688).

Heal Property.
Tenure by knight-service abolished, and the land held

in free and common socage.

Conveyances of freeholds to be evidenced by writing.
Leases for over three years to be in writing.
Wills of land to be in writing, signed by testator and

attested by witnesses.
Personal Property.

Statute of Distributions settled the succession to
intestates' personalty.

6. From William and Mary to the End of Lord Eldon's

Chancellorship (1688—1827).

Eeal Property.

The first Yorkshire Eegistry Acts are passed.
The Mortmain Act is passed, allowing conveyances in
mortmain, inter vivos, under certain restrictions.

APPENDIX. 207

The law of distress is altered by 11 Geo. II., which
gives landlord the right to sell the goods distrained
upon and to follow goods improperly removed.

The law regarding wills of copyholds is altered.
Personal Property.

A new kind of property is created by the Copyright
Act, 1709.

7. From George IY. to the Present Day (1827—1921).

Keal Property.

The law of conveyancing simplified.

Fines and recoveries abolished.

Law of dower amended by giving the wife dower out

of equitable as well as legal estates, but only in lands

to which the husband is entitled at death, as to

which he dies intestate.
Law of prescription simplified.
Alteration of the rules of descent.
Feoffment is practically abolished, and deed of grant

substituted.

Law of wills is codified and amended.
Married Women's Property Act, 1882.
The Conveyancing and Settled Land Acts.

( 209 )

INDEX.

PAGE

Accompt, writ of 28

Actions on the case 44-47

Actions, personal 27-28

Acton Burnel, Statute of, provision for statutes merchant 47

Administration of justice — Norman period 16

Administration of Justice Act, 1920 151

Admiralty Court 188

Aids 194

Anglo-Saxon Courts 2

Appeal, Court of, founded 157

Appeal, Court of Criminal 138, 182

Appeal of felony 31

Archdeacon's Court 186

Arches, Court of 187

Assize of Clarendon, regulating justices in Eyre 17

Assize of darrein presentment 25

Assize of mort d 'ancestor 26

Assize of Northampton 26

Assize of novel disseisin 26

Asswmpsit, action of 75

Attainder 113

Bail 23, 114

Bailment, law of 106

Bankruptcy, rise of law of 68

Courts of, modern 155

law of 109, 134

Benefit of clergy 113, 135

Bentham's comments on defects in English law... 126, 137, 145

S.L.H. 14

210

INDEX.

PAGE

Bill of Middlesex and writ of latitat 169

Bills in Chancery 55, 97

Blood feud 9

Bocland 5, 190, 191

B6t 8, 9

Brougham's (Lord) efforts at legal reform 126-7

BusheU's Case . 99

Castleward 192

Central Criminal Court 181

Chancellor, growth of the office 51

Chancery, Court of 51, 92, 172

established 51, 72, 176

growth of, during Stuart period 92

Charters of conveyance 5, 83

Circuits of the judges 50

Clarendon, assize of, regulating justices in Eyre 17

Constitutions of, regulating Ecclesiastical Courts ... 18

Coke and Ellesmere, contest between 93

Commissioners of assize 50

Common Law Procedure Acts 146-149

Common Pleas, Court of 165

Companies Acts, the 132

Compurgation 7

Consistory Courts, the 187

Contract, the law of simple 45

Conversion, the action of trover and 77

Conveyances 16

charters of 5, 83

Conveyancing Acts, the 129

Copyholds 42, 129

wills of 105

Copyright Act, 1709, the 105

,, 1911, the 105

Cornage 193

County Court, the ancient 2, 186

County Courts, the modern 152

INDEX. 211

PAGE

Court baron 185

Court of Arches •. 187

Court of Chancery. See Chancery.

Court of Criminal Appeal 182

Courts,

Anglo-Saxon 2, 3, 163

fusion of, by Judicature Act 151

Norman 16-19, 163

rise of the Common Law 17, 18, 163-170

Covenant, action of 28

Crime and tort, distinction between, early 23

Criminal appeals 182-184

Criminal law 3, 21, 88, 113, 135

Criminal Law Consolidation Acts 136

Curtesy 6, 14

Damein presentment, the assize of 26

Debt, action of 27

imprisonment for 48

lands liable for 44

De Donis, the Statute 38

Deeds, registration of, in Yorkshire and Middlesex 104

De homine replegiando, writ 22

Delegates, Court of 188

De Odio et Atid, writ 22

Detinue, action of 27

De Viris Eeligiosis, the Statute 41

Discovery 56, 148

Dispensing power, the 200

Distress, the law of 13

Statute of 11 Geo. II. relating to 104

Distributions, the Statute of 83

Divorce Court, the 154

Dower 6, 13

Dower Act, 1833 128

Ecclesiastical and civil jurisdictions separated 18

Ecclesiastical Courts ., i 186-188

212 INDEX.

PAGE

Ejectment, action of 76, 86, 148

Elegit, writ of 44

Ellesmere and Coke, contest between 93

Entry, writ of 25

Equity, development of 92, 110, 132

Estates tail 38

Evidence, amendments in the law of (1827-1921) 142

Exchequer, appeals from 74

Exchequer, the Court of 164, 168

Exchequer Chamber, the Court of 74, 171

Fictions of the Courts to extend jurisdiction 168 et seq.

Fines and recoveries 38

abolition of 128

Folk land 190

Forest laws, the 21

Forfeiture of felon's property 113

Fox's Libel Act 121

Frank pledge 3

Fraud, statutes to prevent (temp. Eliz.) 69

Frauds, the Statute of 87

Free tenure 11

Gaming and wagering 109

Gaol delivery, commission of 50

Gloucester, Statute of, writ of waste extended by 41

Grand jury 32

Grand serjeanty 193

Habeas Corpus, writ of 23, 90, 114

Act, 1679 90

Act, 1816 114

High Commission Court 73

High Court of Justice, the 156

House of Lords, claim to original jurisdiction 100

appeals in equity to 100

changes in, by Appellate Jurisdiction Act 158

INDEX 213

PAGE

Hundred Court 185

Hundred Moot ., 2

Indentures 5

Indictments in writing 49

alteration in form of 138-9

amendments in, allowed 138

Inheritance Act, 1833 128

Injunctions 56

Inquests the ancestor of trial by jury 33

International law 108, 132

Interrogatories 56

Joint stock companies 132

Judicature Acts 149, 151

Juries 3, 34-36, 103, 150

in civil cases 36, 150

in criminal cases 35

fining of, up toBushell's Case 103

functions of, in early times 36

women qualified to serve on 151

Justices in Eyre established 17

Justices of the peace 57, 123

appeals from, to King's Bench 59

King's Bench, appeals from 74

Court of 166-8, 169-171

King's Peace 6, 21, 197-200

Knight-service tenure 192

Land, alienation of, and statute Quid Emptores 40

Land laws, Saxon 4, 5, 190

Latitat, writ of, form of 170

Law and equity, fusion of 151

Leaseholds in early times 26

Leases to be in writing 83

214 INDEX.

PAGB

Libel,

changes made by Lord Campbell 's Act 140

developments in law of (1688-1827) 118

Libel Amendment Act, 1888 141

Newspaper Libel Act, 1881 141

Limitation Act, real property 129

Livery of seisin 6

feoffment with, superseded 129

Magna Charta 15, 17, 19, 23, 26, 31

Main prize 22

Marriage of feudal ward 194

Married women, separate property of 130

Master of the Bolls, office of 180

Masters in Chancery 180

Merchant, the Law 47, 87, 134

Merchants, Statute of 47

Military tenure 12, 192-195

Monopolies, Statute of, begins modern patent law 85

Mori d' ancestor, assize of 25, 26

Mortgages 177

Mortmain 16, 40

Mortmain Act (1736) 104

Nisi Prius, writ of 51

Northampton, assize of 26

Novel disseisin, assize of : 25, 26

Ordeal, trial by 7

abolition of, by Lateran Council 33

Outlawry amongst the Anglo-Saxons 9

Oxford's Case, Earl of, in the Chancery 94

Oyer and terminer, commission of 50

Patents, law of 85

Peculiars, Court of 188

Personal property, succession ab intestato 83

actions 27

INDEX. 215

PAGB

Petitions in Chancery 55

Petit serjeanty 193

Petty jury, when established 34

Piepbudre, Court of 184

Pleadings,

certainty of criminal 49

reforms in, by C. L. P. Acts 147

to be in English 110

written, established, in place of verbal 49

Pleas of the Crown 24

Prerogative Courts 187

Prescription, in real actions 43

Act, 1832 128

Privy Council as a Court 71

Judicial Committee of 159

Probate Court 154

Procedure,

common law 20, 29-32, 45, 74 et seq., 86, 145 et seq.

Common Law Procedure Acts 146

criminal 22, 32, 49, 88, 113, 138 et seq.

since the Judicature Acts 149

Property, ' ' real and personal, ' ' origin of term 26

Quarter sessions 123

Quia Emptores, Statute of 40

Quo Minus, writ of 169

Real actions 25-27

abolition of 147

Real property, law of 11-15, 38-44, 63-68, 82-3, 104, 127

Recoveries. See Fines and Recoveries.

Reliefs, feudal 194

''Restraint on anticipation," doctrine of, established ... 112

Riot Act, 1714 117

Scutage 192

Sedition .. 48, 89, 118

216 INDEX.

PAGE

Seditious libel 89, 118

Seditious words 90

Settled Land Acts 129

Sheriffs, Statute 3 Hen. VII. relating to 70

Sheriff's tourn : 2, 22

Shiremoot 2

Socage 5, 12, 195

Star Chamber, Court of 69

civil jurisdiction of 72

decline of 72

Statute of merchants 47

Subinfeudation 11, 41, 191

Subpoena, writ of 53

Succession to personalty 15, 83

to realty 14, 128

Summaries,

Anglo-Saxon period 10

Will, to Hen. III. 35, 36

Edw. I. toEich. Ill 60, 61

Hen. VII. toEliz 79, 80

James I. to James II 101, 102

Will & Mary to 1827 124, 125

Geo. IV. to 1921 . . 160-2

TaUarum's Case 39

Tenants in capite 191

Tenure, history of 190 et seq .

the theory of, introduced 11

by knight-service 12, 192

abolition of 83

in socage 12, 83, 195

Treason 4, 21, 48, 72, 88, 116, 140

counsel allowed to the accused in trials for 115

statutory changes in procedure 115

Treason Felony Act, 1848, the 140

Trespass, action of 28, 29, 45

Trespass on the case 44

INDEX. 217

PAGE

Trial, modes of, Norman period 30

Saxon period 7

by jury 3, 32-35

in criminal cases 33

at Nisi Prius 75

by a judge alone 149, 150

Trinoda necessitas 5

Trover, action of 77

Trusts 66

precatory, modern limitations on 130

Tun-moot 2

TyrrelVs Case 65

Uses 54, 63, 67

Statute of 63

summary of 63

Villeinage 12

Voluntary conveyances, statutes relating to 69

Wager of battle 31

in civil cases 32

Wager of law 8

Ward and Liveries, the Court of 73, 83

Wardship 193

Waste, writ of 41

Wer, the 9

Westminster II., Statute of 38

Wills,

of copyholds 105

of land 14, 67, 83, 129

of personalty 14, 129

Statute of 67

Act, 1837 129

Wite 9

S.L.H. 15

218 INDEX

PAGE

Writ,

procedure by 19, 29

of summons , substituted for original writ 146

de odio et atid 22

de homine replegiando 23

of entry 26

of error 171, 182

of habeas corpus 23, 90, 114

of main prize 22

of right 25

of trespass 29

of waste 41

in consimili casu 44-7

of aocompt 29

of nisi prius 51

of quo minus 169

of latitat . 169

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