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Published online by Cambridge University Press: 12 February 2009
How much the English Law, in the present day, is indebted to the Roman, appears to be still a point on which writers differ. Professor Stubbs, in his edition of “Documents Illustrative of English History,” holds that the debt is slight; or, at all events, that few remains exist, in modern times, of laws that had their origin in the days of the Roman occupation of Britain; while Mr. Finlason, in his preliminary essay to the last edition of “Reeves' History of English Law,” argues, on the other hand, that we derive much of our system of jurisprudence and many of our present laws from this source. M. Guizot holds the same on behalf of the origin of the old French laws.
page 98 note * See his “History of Civilization in France,” Bohn's, translation, vol. ii.Google Scholar, Lecture II.
page 98 note † “Private Law amongst the Romans,” by Maine, , p 11Google Scholar.
page 100 note * “Ancient Laws and Institutes of England,” edited by thorpe, preface.
page 100 note † See “The Laws and Institutes of England,” Thorpe's edition; “Laws of King Edgar,” No. 5, p. 113; also “Laws of King Knut,” No. 18, p. 165.
page 101 note * “Liber Custumarum,” A. S. Gloss Rolls Edition.
page 102 note * Those who wish to pursue this subject further will find it fully treated in an essay, by Dr. Brentano, annexed to the edition of “the Statutes of the Early English Guilds,” published by the Early English Text Society See also the preface to the same work.
page 102 note † “Laws and Institutes of England;” “Laws of King Ethelred,” No. 9. See also “the Laws of King Edgar.”
page 102 note ‡ “Laws and Institutes of England,” p. 125.
page 103 note * “Liber Custumarum,” p. 635.
page 103 note † “Laws and Institutes of England.”
page 103 note ‡ Ibid., p. 107.
page 104 note * In the laws of Edward, King of Wessex, about the year A.D. 920, is an enactment which apparently shows that the use of a “proxy” or “representative” to conduct your plaint was known and permitted amongst the Saxons; this, it will be found subsequently, was the original meaning of the word “attornatus;” it is as follows:—
“Of peoples ranks and laws.
“3. And if a thegn throve so that he served the king, and, on his summons, rode among his household; if he then had a thegn who him followed, who to the king's ‘utware’ five hides had, and in the king's hall served his lord, and thrice with his errand went to the king, he might then with his ‘foreoath’ his lord represent at various needs, and his plaint lawfully conduct, wheresoever he ought.”
page 104 note † “Laws and Institutes of England,” thorpe's, edition, preface, p. v, note I.Google Scholar A suggestion is here offered of a different origin of the word “Riding ” from that ordinarily given, which ascribes it to a mutilated form of the word “trything,” and signified the third part of a county or shire. The word “trehyng” or “trything” seems to occur first in the laws of Edward the Confessor, No. 31. Now in the Saxon laws of the previous century mention is made in various places of ordinances; which regulated the course to be taken when a man failed to attend the “gemôt,” or when stolen cattle and thieves were to be tracked, and which enjoined that the chief men of the burg, the tigthing, or the hundred, and the Reeve should “ride to him ” or them. See the laws of King Athelstane, No. 20, “Of him who fails to attend the gemôt,” where it says, “And he who for the ‘wites’ will not desist, then let all the chief men of the ‘burh’ ride to him and take all that he has; and let the king take possession of half, the men who may be in the Riding (ridan).“ Again in the Secular Laws of King Edgar, No. 7, “Let there be chosen from the gemôt those who shall ride to him, &c, … and if either a kinsman or a stranger refuse the riding (rade), &c.” Similar provisions are made by the laws of King Knut, No. 25, in words almost precisely the same, and, besides the enactments mentioned above, there are a certain collection of statutes or ordinances printed amongst the “Laws and Institutes of England,” Thorpe's edition, which were compiled for the regulation of a “Frith-guild,” and ordained by the Bishops and Reeves belonging to London; the 5th section runs thus:—“That no search be abandoned, either to the north of the march or to the south, before every man who has a horse has ridden one riding (ane ride geriden); and that he who has not a horse work for the lord who rides or goes for him until he come home, or right shall have been previously obtained.” The above note was written and then erased, but is now restored as a partial confirmation of the suggestion therein made, may be found in the “Domesday Book of Lincolnshire,” edited by MrSmith, C. G., vide introduction, p. 18Google Scholar, note.
As then the riding is a division into which the large shires were sub-divided, it does not seem to be an unreasonable inference to draw that a “riding” signifies the district within which the Reeve and mounted men were bound to ride in search of an outlaw, or thieves, or cattle stolen or strayed, and may be termed a police district.
page 106 note * Hence they were termed “inspeximus” charters, from the initial word of the deed of confirmation.
page 106 note † See the case of the liberties of the Abbot, of Westminster, , “Placita de Quo Warranto,” p. 275, temp. Ed. IGoogle Scholar.
page 108 note * “Laws and Institutes of England,” No. IX., Thorpe's edition. See also ib., “Institutes of Civil Polity,” No. 9.
page 108 note † No. XVI.
page 108 note ‡ See the Ecclesiastical Constitutions of Poor, Richard, Bishop of Salisbury, A.D. 1874Google Scholar, quoted in Dugdale's, “Origines Juridicales,” p. 21Google Scholar.
page 109 note * Stubbs', “Documents illustr ative of English History.” Introductory Sketh, p. 8Google Scholar.
page 110 note * P. 23.
page 110 note † See the case of the Abbot of Westminster, referred to sup. p. 9.
page 111 note * See also the “Placita de Quo Warranto,” passim, and the case of the Abbot of Westminster, already referred to.
page 113 note * “Laws and Institutes of England,” ed. by Thorpe, Carta Wilhelmi, No. IV.
page 113 note † See the preface to the “Rotuli Normannie,” edited by Stapleton; also “Reeves' History of the English Law,” by Finlaison, , preface, p. lxxxvGoogle Scholar. n. 1.
page 114 note * See “10 Richard I., page 13, et passim.” Also Anglo-Saxon Glossary to that work, sub voce gemôt.
page 114 note † p. 134.
page 114 note ‡ See also “Parliamentary Writs” of the 15th October, 1325. “The Grand Jury of the Wapentake of West Derby present, that Willielmus le Gentil, at the time when he was Sheriff, and when he held his tour in the said Wapentake, ought to have remained no longer in the said Wapentake than three nights with three or four horses, &c.” Again, in the “Abbrevatio Placitorum,” p. 296, col. 2, rot 70, occurs the following entry:—“Johannes Ashburnham miles quia impedivit vicecomitem turnum suum in rapo de Hastings, &c.… committitur marescallo &c.”
page 117 note * See the Statute “De Donis,” 13 Ed. I., c. 1.
page 117 note † “Documents illustrative of English History,” edited by ProfessorStubbs, , Introductory sketch, p. 16Google Scholar.
page 117 note ‡ “Reeves' History of English Law,” edited by Finlaison, , preface, p. lxxviiiGoogle Scholar.
page 118 note * See introductory sketches by ProfessorStubbs, , to his “Documents illustrative of English History,” p. 18Google Scholar.
page 118 note † Ib., p. lxxi.
page 118 note ‡ “Laws and Institutes of England,” Notes p. 268, col. I.
page 118 note § See the introductory sketch by ProfessorStubbs, , to his “Documents, illustrative of English History,” p. 17Google Scholar; and also ”Dialogus de Scaccario,” lb, pp. 167, 168.
page 119 note * “The revived study of the Roman Law, although it never had the effect of Romanizing the English Common Law, had, as an instrument of education, a great bearing on the spread on orderly and equitable ideas of jurisprudence.”— ProfessorStubbs', “Documents illustrative of English History,” p. 118Google Scholar.
page 119 note † “Compendium Studii,” Rolls', edition, p. 419Google Scholar; see also Appendix iii., infra, from which it may almost be inferred that the Degree of Master, i.e., Dr. of Laws, was conferred in his day.
page 121 note * Vide supra, p. 113.
page 121 note † Rolls' edition, p. 230.
page 122 note * Rolls' edition, p. xxxvi.
page 122 note ‡ Documents illustrative of English History.
page 122 note † Ib., p. cxix.
page 123 note * As an instance, the word for war is rarely bellum but guerra and its declensions; the word gaol is rendered gayola.
page 124 note * “Abbrevatio Placitorum,” p. 20, 9, Richard I., Norfolk and Surrey; p. 21. Warr, &c.
page 125 note * See the quotations from these Rolls, infra.
page 125 note † “Abbrevatio Placitorum,” p. 9, rot. 13, Norfolk.
page 126 note * “Abbrevatio Placitorum.” p. 8, rot. 13, Northampton.
page 126 note † “Rotuli Literarum Patentium,” p. 1.
page 126 note ‡ “Abbrevatio Placitorum,” p. 27, col. 1, rot. 12.
page 127 note * See also “Abbrevatio Placitorum,” p. 25, rot. 20, col. 2, Devonshire.
page 127 note † “Rotuli Literarum Patentium,” 3rd year of John, King, p. 1Google Scholar.
page 127 note ‡ Page 232, col. 1, rot. 33.
page 127 note § Page 586, Northumberland. See also ib., p. 588.
page 127 note ∥ Gloss, sub voce attornator.
page 128 note * “Rotuli Literarum Patentium,” A.D 1201.
page 128 note † Ibid., p. 47, col. 2. See also p. 44, col. 2.
page 129 note * “Abbrevatio Placitorum,” p. 88, col. 2, rot. 1.
page 129 note † Ibid., 143, col. 1, rot. 13, “Placita Coram Concilium Domini Regis,” 38 Henry III.
page 131 note * “The precise effect of the enactment of Magna Carta that Common pleas should be held ‘in aliquo certo loco,’ is not clearly stated in the text-books: in the first place, it is not the fact that a new Court of Common Pleas was created, but simply that such pleas were no longer to be heard in the King's bench, where hitherto they had been held, and which both then and subsequently followed the King's Court. Now there are several cases in the ‘Abbrevatio Placitorum,’ which show that attempts were made to override this enactment of Magna Carta; for instance, at p. 239 there is a statement to the following effect:—It was told the aforesaid Nicholas that he should bring his action before the justices of the bench, because, ‘common pleas’ by the great charter of the liberties of England ought not to follow the King's Bench.” Also note the case, at p. 222, col. 1, rot. 41 (Essex); and the same case on a further hearing at p. 283, col. 1, rot. 41, in which latter report are the following words (the defendant pleads that his is a common plea and could not be heard Coram Domino Rege):—“quia hoc esset contra formam Magne Carte in qua continetur quod communia placita teneantur, in loco certo hoc est in Banco,” &c. Further instances may be found in the “Abbrevatio Placitorum.” By the term “the bench,” is meant the Exchequer (see infra, p. 135 and note §), or, more strictly speaking, that side of it in which the judges were termed “justices,” in distinction to the “Barones,” who presided on the revenue side. This distinction existed long before the reign of King John (see the Dialogus de Scaccario, referred to p. 118, infra). When the Great Charter was granted there is no evidence that a new court of Common Pleas was made, but these pleas were heard at Westminster by the justices of the Bench, and this side of the court no longer followed the King. the Parliamentary Writs show that both the King's Bench and Exchequer (revenue side) still followed the King, and that it was not until the reign of Edward II., by an ordinance dated the 26th August, 1309, the king and his council appointed six justices of the Common Bench.; the reason for this measure is also given, namely, “because of the increase of suits rendering two places necessary for the despatch of business.” From thenceforward the various appointments of Judges to the Exchequer, King's Bench, and Common Bench are clearly distinguishable. Each court has its separate staff of judges. This, it is apprehended, is the first creation of a separate Court of Common Pleas.
page 132 note * Davidson's, “Conveyancing,” Introduction, p. 4Google Scholar.
page 132 note † “Documents illustrative of English History,” Introductory Sketch, , p 23Google Scholar.
page 132 note ‡ Bacon's, Roger “Opus tertium,” p. 419, Rolls' EditionGoogle Scholar.
page 132 note § See the Ecclesiastical Constitution of Richard Poor, Bishop of Salisbury, quoted in Dugdale's, “ Origines Juridicales,” p. 21Google Scholar. “Nec advocati sint clerici vel sacerdotes in foro sceculari, nisi vel proprias causas; vel miserabilium personarum prosequantur.”
page 132 note ∥ “Writers before Chaucer,” p. 691.
page 133 note * Bacon's, Roger “Opus tertium,” p. 84Google Scholar. Rolls' edition, translation taken from the preface, by J. S. Brewer, p. xviii. See the whole passage given infra, Appendix iv.
page 133 note † “Liber Albus,” Bk. 1, part ii.
page 133 note ‡ The rights of “soc ” and “sac,” which formerly were amongst the privileges of the nobles or barons, were now also granted by charter to the burghers of the large towns. The earliest precedent of this seems to have been in the reign of John; these liberties included immunity from all jurisdiction, except that of the King's Justices. See “Documents illustrative of English History.” Introductory Sketch, by ProfessorStubbs, . p. 42Google Scholar.
page 133 note § That is, a person not a citizen.
page 134 note * “Abbrevatio Placitorum,” p. 143, col. I, rot. 13.
page 135 note * See “Dialogus de Scaccario ” given in Stubbs' Work, quoted sup.
page 135 note † “Abbrevatio Placitorum,” p. 133, col. 2, rot. 15, in dorso, 35 Henry III.
page 135 note ‡ Ibid. pp. 188, 189, rot. 20.
page 135 note § P. 84. the passage runs as follows:—“Circa idem tempus scaccarium Domini Regis translatum est a Westmonasterio usque ad Sanctum Paulum, ita quod placita de Banco, quae solebant deduci apud Westmonasterium, deducta fuerunt in aula Episcopi Londoniarutti; scaccarium vero impositum in camera dicti Episcopi.”
page 135 note ¶ See “Placita de Quo Warranto,” p. 834, and the statutes 27, Ed. I, No. 2, A.D. 1299, Pickering's edition.
page 136 note * “Statutes of the Early English Guilds,” issued by the Early English Text Society.
page 137 note * Ibid., p. 57.
page 137 note † Edited by Anstey.
page 138 note * About A.D. 1362—1380. Crowley MS.
page 138 note † Prologue lines, 87—93.
page 138 note ‡ Passus II., line 60.
page 139 note * “Liber Albus,” cap. xv.
page 139 note † Infra, p. 147.
page 140 note * “Documents illustrative of English History,” edited by ProfessorStubbs, , p. 417Google Scholar.
page 140 note † See also note * p. 141 infra.
page 141 note * “Placita de Quo,” p. 37.
page 142 note * Readers of the Year-books must exercise considerable caution before they conclude from the reports that the plaintiff and defendant in a given case were or were not represented by an attorney and counsel; the necessity for such care is exemplified by those cases which are reported in duplicate in Norman-French and also in Latin, the former version being sometimes so worded that the reader is misled to the belief that both parties appeared in person; whereas from the latter account it is evident that one or both sides were represented by attorneys. And again the Norman-French report may make it appear that the plaintiff and defendant pleaded in person or by attorney, when the Latin edition shows clearly that Serjeants or pleaders conducted the pleadings on one or both sides. See and consider the case of the Prior of Lewes v. the Bishop of Ely, Year-books 32 and 33, Ed. 1., Rolls' Edition, pp. 31 and 502, and also the case. pp. 423 and 525.
See Preface to the Year-books, 32 and 33 Edward I., Edited by A. Horwood.
page 143 note * See the “Statutes of Bristol and Worcester,” “Statutes of Early English Guilds,” published by the Early English Text Society, p. 400; also the “Liber Albus.”
page 143 note † P. 424.
page 144 note * P. 250, rot. 19, col. 1., p. 274, col. 2. and p. 275, col. 1.
page 144 note † See note p. supra.
page 144 note § P. 237, quoted below.
page 144 note ‡ Camden Society, p. 227.
page 145 note * “Munimenta Gildhallae.”
page 145 note † Riley's, “ Memorials of London,” p. 58Google Scholar.
page 146 note * Vide “Liber Albus,” translated by Riley, Book 1, part ii., cap. 18, It is a noteworthy fact, that nearly every charter granted to the citizens of London by successive sovereigns from Henry I. to Henry IV., contains a provision to this effect:—“There shall no longer be miskenning in the Hustings.” See these charters given in the “Liber Albus,” Riley's, edition, from p. 115 to 152Google Scholar. Miskenning signifies “mis-pleading,” and usually a fine had to be paid for leave to amend the pleadings or counts; the privilege, therefore, granted by the above-mentioned charters, was a relief from the ordinary practice in the King's and other courts; a practice which was most probably introduced soon after the Conquest, to put money into the royal purse, and to divert business from unskilled practitioners into the hands of the professional pleaders, the Norman Serjeants and countors.
page 147 note * “Abbrevatio Placitorum,” p. 237, col. 1 and 2, rot. 22 (Oxon.)
page 147 note † “Abbrevatio Placitorum,” p. 81,, rot. 33.
page 148 note * The writer ventures to suggest that the Serjeants-at-Law were a “Guild.” It is impossible to read the collection of Statutes and Ordinances of the Ancient English Guilds—edited by Mr. toulmin Smith and his daughter, for the Early English Text Society—and not be forcibly impressed with the numerous parallelisms in the characteristics of guilds whether for commercial, religious, or social purposes, and the body of Serjeants-at-Law. It is believed no Charter of such a corporation exists, but this is not a fatal objection, as charters of incorporation were not necessary, although usual. The members of a guild addressed each other as “brothers;” so, too, did the Serjeants. It was a distinctive mark of all guilds, that at their meetings and public appearances the brethren should wear the hood specially belonging to the order; so also the Serjeants had a hood, the special mark of their order.
If this be the true origin of the Serjeant's hood, an oft-disputed question is set at rest.
And hence, also, we may get at a satisfactory explanation why the junior members of the bar, below the rank of serjeant, were termed “apprentices;” and also how it was apprentices above sixteen years' standing were competent to proceed to the rank of serjeant. There is abundant evidence that the Serjeants held the highest rank at the Bar, but there is nothing to show whence they derived their position and special privileges, though most probably both were of Norman origin, and they seem to have held them against the rival degrees conferred by the universities upon the civilians; perhaps, too, the civilians became Serjeants —see the ease of Galfridus de Scrope infra. In the, England of the days now alluded to every trade had its guild; religious men, and even the warriors, had their brotherhoods; why, then should the lawyers, subsequent to the Conquest, have missed hedging in their privileges and order in a similar way ?
page 149 note * Du Cange, sub voc, “Servientes at legem.”
page 150 note * P. 167, about A.D. 1348.
page 151 note * “Chronica Monasterii de Melsa” Rolls Edition, Preface.
page 151 note † List of legal advisers of the Monastery of Melsa and their yearly fees.
page 152 note * See a Pamphlet by Thomas Marshall, Registrar of the County Court, Leeds.
page 152 note † See the cases of the Abbot of Abingdon and the Sheriff of Berks, sup., p. 121, the following extract from the “Liber Albus,” b. I, pt. ii. cap. xviii., Riley's, edition, p. 53Google Scholar, has come to have a humour quite unsuspected by the Mayor and Aldermen of London at the time it was written:— “Seeing that it is quite impossible for the Barons and the body of citizens of London to do otherwise in pleas of the Crown than pass through the hands of the king and his justiciars, it is a matter of necessity that the Barons and all the citizens should covet their favour and good-will, by making ample presents to them, that is to say, and to their clerks; seeing that the ancestors of the barons and citizens of London, who, in their day, so manfully and so strenuously ruled and defended the City, and the liberties and customs of London, were wont to do the same. And therefore, forasmuch as it is no dishonour or disgrace for us to follow in the footsteps of our ancestors who in former times showed such tact, it can only be to our advantage to do the same as they did; to the end that by objections raised by such persons, the citizens may not be molested and disturbed, but rather, on the contrary, in the enjoyment of their liberties may peacefully be maintained.”
page 153 note * P. 9, v. 10, the spelling and letters are partially modernized, Text B. See also ib., p. 32. Mede being taken a prisoner to Westminster, to the King, he sent a clerk to look after her, “and make hire at ese;” then she is brought to the chamber, when—
“They that wonyeth at Westminster worschiped hir alle;
Gentelliche with ioye the Justices somme,
Busked hem to the boure—there the birde dwelled,
To comfort hire kyndely.”
Mourn not, say they, for we will get thee off; then Mede thanked them and made them presents. Conscience is asked if he will wed Mede—nay, he answers, Christ forbid, for assizers, summoners, and sheriffs praise her.
“Bi ihesus, with her jeweles yowre justices she shendeth
And agein the lawe * * *
* * * here floreines go so thikke,
Lawe is so lordeliche and loth to make ende.
With-oute presentz or pens—
For I seithe Mede in the moote-halle on men of law wynke,
And thei lawghyng lope to hir.”
Ib., P. 54.
“Yit houed there an hondreth in houues of selke,
Serianutz it semed that serueden et barre,
Plededen for penyes and poundes the lawe,
And nought for loue of owre lord vunlese here lippes onis.
Thou myghest better mete the myste on maluerne hulles,
Than gete a momme of here mouth but money were showed.”
Again, when Mede (Bribery) is going to be married, the vision shows there were gathered with others—
* * * * “sysours,
And sompnours, shireves, and here clerkes.”
page 154 note * Appendix II., infra.
page 155 note * Registrar of the County Court, Leeds.
page 155 note † Vide supra.