LECTURE XXXII.

The institution of Judges itinerant, or Justices in Eyre—The advantages attending it—The jurisdiction of these Judges—Their circuits—The present form of transacting the county business—The division of the Curia Regis into four courts—The jurisdiction of the court of King’s Bench.

The greatest and most beneficial step taken by Henry the Second, was the institution of judges itinerant, or justices in eyre, as they were called, from the Norman word eyre, equivalent to, and derived from the Latin iter. I observed before, that almost all businesses relative to the administration of justice were, in the Saxon times, transacted in the county, and hundred, that the leet and manor courts were held in the county, near the suitors doors, and that none but the causes of the great lords, or such as were of difficulty, were handled in the curia regis. Under the reign of the Conqueror, I took notice, that the administration of other causes was facilitated in the king’s great court, and that, consequently, the business of the inferior courts began to decay; and I laid open the motives William had for that conduct, the introduction of the Norman, and suppression of the Saxon law. But the scheme succeeded in the same manner as his other one did, of rooting out the English language, and introducing his own in lieu thereof. As this produced a new language, from the mixture of both, so that caused the English law to consist henceforward partly of feudal, partly of old Saxon customs. However, the causes of most persons were still determined in the inferior courts; for they were but few who were able to undergo the trouble and expence of suing in the curia regis, especially, as all persons, whose causes did not properly belong to the cognizance of that court, were obliged to pay a fine for declining the proper jurisdiction, and for having licence to plead in the superior[355].

But by this time the decisions of those courts, where the freeholders were judges both of law and fact, had fallen into great and just disrepute, had occasioned many mischiefs, and were likely to produce many more. The reasons, as they are delivered by lord Hale, were principally three: First, the ignorance of the judges in the law: for as the freeholders in general were Saxons, they must be supposed to be entirely ignorant of the feudal law, which was now introduced with respect to titles in lands; or, if they did know any thing of it, it is not probable that they would prefer that to their own customs. Nay, the Norman freeholders could be of little service in this point, considering their illiteracy, their education being confined solely to arms, as also their frequent absence almost every year to attend their lords in war. With respect to the Saxon law also, it could be little expected that it should be regularly observed, now that the clergy, who only were acquainted with it, were removed, and none of the judges could possibly know more than an illiterate juryman at this day, who could neither read nor write, might be able to pick up by attending a court held once a month. How inadequate such a knowledge would be, even in those times, when the laws were comparatively few, need not be enlarged on[356].

It is true, some remedies were applied to obviate the bad consequences of this ignorance; but they were very ineffectual. It was required that the sheriff, who presided, should have some skill in the laws, but notwithstanding, he was seldom found to have any; and if he had, it was not very probable, as he was a Norman, that the jury would pay much regard to his direction in giving their verdicts. As a further remedy to this ignorance, by the laws of Henry the First, the bishop, the barons, and the great men of the court, that is, the king’s immediate tenants, were ordered to attend. But the bishop, in obedience to the canons, applied himself solely to his ecclesiastical jurisdiction; and the others were generally in the king’s service; so that they could but seldom attend, and if they did, they could do but little service, being almost all bred to nothing but the sword, and as illiterate as any other set of men.

The next mischief, and which flowed from the former, was, that this bred great variety of laws in the several counties, whereas the intention of the Confessor in his compilation, and of his successors afterwards in theirs, was to have one uniform certain law, common to the whole kingdom. But the decisions, or judgments, being made by divers courts, and by several independent judges, who had no common interest, or communication together touching the laws, in process of time, every several county was found to have several laws, customs, rules, and forms of proceeding; which is always the effect of several independent judicatories, administered by several judges. And, indeed, this I look upon to be one of the great causes of very many local customs in many parts of England, different from, and derogatory to, the general common law.

But the third and greatest evil, was the frequent injustice of the judgments given in those petty courts, and every business of any moment being carried by parties and factions. The contest about the crown had been carried on with such violence, that one half of the people, all over the kingdom, were professed enemies to the other; and though both sides, wearied with war, came into the expedient of Henry’s succession, and he behaved so that there were no factions against him, yet as to individuals, the sense of past injuries, and the rancour arising from thence, still remained. For the freeholders being the judges, and these conversing with one another, and those almost entirely of their own party; and being likewise much under the influence of the lords, every one that had a suit there sped according as he could make parties; and the men of great power and interest in the county did easily overthrow others in their own causes, or in such wherein they were interested, either by relation, tenure, service, dependance, or application. True it is, the law provided a remedy for false judgments given in these courts, by a writ of false judgment before the king, or his chief justice; and in case the judgment, given in the county court was found to be such, all the suitors were considerably amerced. Yet this was insufficient for the purpose: For, first, it was too heavy and expensive for many that were aggrieved; next, it was hard to amerce all for the fault of a few, viz. the jury, who gave the verdict; and the amercement, though sometimes very severe, being equally assessed, on all the freeholders, was not a sufficient check upon the injustice of some juries[357].

The king therefore took a more effectual course; and, in his twenty-second year, by advice of his parliament, held at Northampton, instituted justices itinerant. He divided the kingdom into six circuits, and to every circuit allotted three judges, men knowing and experienced in the laws of the realm, to preside in such cases as were of consequence, and to direct the juries in all matters of law. They were principally empowered to try assizes, that is, as I explained in my last lecture, the rights of possession, which had been notoriously invaded in the last reign; and which, from the continuance of the old parties, could not even, in this reign, be fairly determined in the inferior courts[358].

Not that this was their sole business; for they had in their commissions power to enquire into several other matters, such, particularly, as the king found, by the advice he had received from the several counties, to be evils not likely to be remedied in the county courts. These were, before every commission for justices itinerant in eyre went out, digested under certain articles, called Capitula Itineris, or The chief heads of the eyre or circuit, which specified what actions they were to deal with. These were, in general (for the commissions varied at different times, being sometimes more, sometimes less extensive) civil and criminal actions, happening between party and party; actions brought at the suit of the crown, either for public crimes, or the usurpation of liberties, franchises, or jurisdiction from the crown, which had been very frequent in the former times of confusion; and also the escheats of the king.

The thing I find most remarkable is, that, in these distributions of England into circuits, are omitted some counties, (I do not mean Middlesex, where the curia regis sat, or Chester, which was a county palatine, for they of course were not to be included) as particularly Lincoln, in the second eyre; also York, in the second eyre, is but one county, whereas, in the first, it is two, York and Richmond; as in Lancashire also, Lancaster, and Copeland; and Rutland is omitted in both. All which shews, that the limits and divisions of all the counties were not ascertained with precision at that time. The second eyre was instituted three years after the first, by parliament also held at Windsor, and in this there were but four circuits. After these two first, the king appointed the circuits, and distributed the counties at his pleasure.

The usual times of their going was once in seven years. However, they were not stated certainly; for sometimes, if there was a more than ordinary complaint of want of justice, they went every three or four years, and sometimes, if there was no complaint, they were intermitted beyond seven. Neither was the number of judges sent on the circuits fixed, but alterable at the king’s pleasure.

The determinations in these circuits, being under the inspection of men of integrity and skill, were in high estimation, and accordingly are several times quoted by Bracton, as being of as great authority as the decisions in the curia regis; and in consequence thereof, the business in the county courts continually declined; justice was every day administered worse in them, and at length they were confined, except in some cases, to pleas under forty shillings. Nay even these were, upon application, easily removeable by a writ called a pone, into the king’s courts[359].

But as the hopes of obtaining justice in the inferior courts waxed every day more faint, it was found necessary, during the intervals of the eyres, to substitute other courts in their place. Hence the invention of justices of assizes, of oyer and terminer, of goal delivery; and the necessity of affairs afterwards obliging these to be sent very frequently, it was thought fit, about the end of Edward the Third’s reign, to lay aside the justices in eyre, as superfluous, since these other did their business, except as to pleas of the king’s forests, where the eyres were continued. And, in process of time, to prevent the enormous expence of bringing juries up to the king’s courts, the justices of the nisi prius were instituted, to try issues joined in the king’s courts, and, the verdicts so found to return to the court from whence the record was brought; which court, on the record so found, proceeds to judgment. These are the judges who now transact the county business in their circuits, under the several commissions before-mentioned; and going regularly twice every year for that purpose, the whole business they transact is, in common speech, called Assizes; that being, in the antient times of their institution, the principal part of their employment, though now such actions are scarce ever brought; personal actions, which may repeatedly be tried, having superseded them[360].

About this time, also, it seems that the curia regis, the business there increasing, was divided, for the more convenient dispatch thereof, into four courts; and to each its separate jurisdiction allotted. The exchequer, indeed, was in some sort a separate court before, and had its distinct business of the province; and in it the treasurer, not the Justiciarius Angliæ, presided, as he did in the other courts. It is not impossible that, before this time, they had, in the curia regis, set apart different days for different kinds of causes. But they were all, in one respect, the same court; because they had the same judges, namely, all such nobles as attended the court. But this being found inconvenient, as these great men were generally ignorant in law, and business began to encrease, it was found proper to appoint settled skilful judges, and to divide the court, and appoint each part its separate jurisdiction. However, those limits were not exactly settled, or, at least, not exactly observed, for some time after: For we find in John’s reign, that common pleas, that is, civil suits between party and party, and particularly fines of lands, which are of the same nature, were held in the King’s Bench; though, on the contrary, we find no pleas of the crown tried in the court of Common Pleas. I suppose the reason was, that the latter being derived out of the former, the king’s bench had a concurrent jurisdiction with it, until restrained by that branch of Magna Charta, Communia placita non sequantur curiam nostram. The first of those courts in dignity and power, especially while the Justiciarius Angliæ remained, was the King’s Bench, though of late days the Chancery hath over-topped it. Here, as the king used frequently, in the antient times, to sit in person, the king is supposed always present; which is the reason why a blow given in this court, upon any provocation whatsoever, is punished with the loss of the hand, as it is done in the presence of the king. The proper jurisdiction of this court is causes where the king is either directly or indirectly concerned, except as to his revenue[361].

In all pleas of the crown therefore, that is, suits of the king to punish offences, as indictment of treason, felony, breach of the peace, are proper subjects for this court. He is indirectly concerned in this, that all erroneous judgments, given in the Common Pleas, or other inferior courts, are here reformed; for the king is concerned to see justice done to his subjects.

Secondly, for the same reason, this is a proper court to grant prohibitions to courts that exceed their jurisdiction, though this is not particular to the King’s Bench, but common to all the four courts.

Thirdly, it hath cognizance of all privileges and franchises, claimed by any private persons or corporations; and if any usurped upon the king in this respect, they are called in, by a quo warranto, to shew by what title they claim such privileges. Likewise where any member of a corporation is disfranchised, or removed from, or disturbed in his office, here shall he be remedied. For when a king has given a franchise, he is concerned, in honour and interest, to see that every man entitled, shall enjoy the benefit of it.

Fourthly, the king is interested in the life, limbs, and liberty of every subject. Therefore this is the court wherein appeals, brought by private persons, of murder, felony, and maim, should be tried; and if any man complains of wrongful imprisonment, this court shall, by writ of habeas corpus, have him brought into court, with the cause of his imprisonment returned; and if the cause is insufficient to discharge him, or if the offence he is charged with be bailable, to bail him. Nay, this court, in favour of liberty, hath a power, in all cases; they may, if they see proper, bail a man for crimes that are not ordinarily bailable by common law.

Fifthly, they have a right to hold plea of all the trespasses done vi & armis, though brought principally for a private reparation to the party; for this action favours of a criminal nature, and the king is entitled to a fine for the breach of the peace.

Lastly, it has cognizance of all personal actions brought against persons that have the privilege of this court. The persons privileged are two, first the officers of the court, who are supposed to be constantly attendant thereon, and to whom it would be inconvenient, as well as to the court, to sue or be sued elsewhere; and therefore the privilege extends to suits brought as well by, as against such officers; secondly, the prisoners who are in the custody of the marshal of the court, and who are consequently not at liberty to appear in any other. These therefore can only be sued here; for the court will, in such case, order the prisoner up from their own prison to make his defence; and, under the colour of this rule, they now, by a fiction, make all sorts of a actions suable in this court; for it is only alledging the defendant is in the custody of the marshal, though in fact he is not, and that is held sufficient to found the jurisdiction[362].

I shall next proceed to the jurisdiction of the high court of Chancery, the second in antient times, but for some ages past the first court of the realm.