the administration of justice by a common court for the whole land was the holding of the King's Court in a definite spot, instead of following the king from place to place, as was the custom under the early Normans. This purpose was partly attained by Magna Carta, which provided that the common pleas should no longer follow the king, and probably from the confirmation of Magna Carta by Henry III. onwards the Common Pleas sat at Westminster. In all cases where the injury was alleged to be contra pacem domini regis the cause went to the King's Court, it being provided by Magna Carta that the sheriff, who had formerly exercised certain criminal jurisdiction in the court leet of the sheriff, or the Sheriff's Tourn, (a) should no longer hold pleas of the Crown.

By the statute of Marlborough, 1267, (b) it was provided that no one should answer for his freehold without the king's writ; and by the statute of Gloucester, 1278, (c) pleas above 40s. were to be taken in the King's Court. Thus the sheriff's jurisdiction in the county court was still further abridged.

The Royal Writs.-The various royal writs which came into use at this period were as follows:

(1) The Writ of Right for land might be returned into either the manorial court or the King's Court; it, however, always contained a nisi feceris clause, sending it to the sheriff's court if not tried in the manorial. The lord might also give his tenant leave to try his cause in the King's Court, in which case the writ contained the words quia dominus remisit curiam. (d)

(2) The writ of Præcipe Quod Reddat, which might be used for land or debt, was always returnable in the King's Court.

(3) The Justicies was a writ addressed to the sheriff, directing him to try the case, where it was not desired to hear the cause at Westminster.

The following writs were used when it was desired to

(a) Names given to meetings of the county court, at least when the sheriff exercised criminal jurisdiction.

(b) 52 Hen. III. c. 22.

(c) 6 Edward I. c. 8.

(d) See Pol. & Mait., i. 368 et seq.; Reeves, i. 193 et seq.

JUDICIAL INSTITUTIONS TO THE TIME OF EDWARD I. 229

remove a cause from one of the inferior courts into the sheriff's or king's courts:

(a) Tolt, by which the cause was removed by the sheriff's precept from the manorial or hundred courts to the shire court.

(b) Pone, by which the cause was called up from the shire court to the King's Court.

(c) Error.-In the case of some error on the face of the

pleadings, the cause might be ordered up by. writ of
error to be reviewed in the King's Court at West-
minster, after judgment had been given in the lower

court.

(d) Recordari Facias.-If the lower court were not a court of record, the judges were ordered to make a record by the writ of Recordari facias and send it up to Westminster.

By these writs the King's Court supervised the inferior local courts. (e)

The Inquest or Assize. This was a method of procedure in the King's Court introduced in the reign of Henry II., by which the title to land was tried by an inquest of twelve vicini or neighbours, who gave their verdict from their personal knowledge of the facts. There were several methods of proceeding by inquest or assize.

(1) The Grand Assize.-If any action for property in land was brought in the feudal court, the tenant might have the action removed into the King's Court. The title was then tried by the vicini or neighbours, and the tenant was said to put himself on Grand Assize. This method was found to be tedious, therefore in 1166 the petty assize of novel disseisin was instituted.

(2) Petty Assize of Novel Disseisin, 1166.-If A were not out of possession, by this assize his remedy was by royal writ, and a jury of vicini was summoned to decide the question of fact, whether the disseisin was wrongful. This possession, as opposed to

(e) For examples of the various writs see Holdsworth, H. E. L. 424 et seq.

C.L.E.

16

property, was protected, and that by the king's writ independently of the lord's jurisdiction. This assize, however, did not help the heir of the person originally disseised or put him into possession, and it did not lie against the heir of the disseisor, therefore was instituted—

(3) The Assize of Mort d'Ancestre, which put the heir into possession.

(4) The Assize of Darrein Presentment.-By this assize the

title to advowsons was decided; a jury was summoned under the king's writ to determine who presented last, and the right to the next turn depended on their decision.

(5) The Assize Utrum.-This was to decide whether land was lay or held in frankalmoigne, as the Church was entitled to hold pleas of land given in elymosene (i.e. in alms). (ƒ)

In all these assizes the procedure was the same; the plaintiff got the king's writ directing an inquiry and the impanelling of twelve men to form a jury, who gave their verdict from a knowledge of the facts. The method of proceeding by assize seems to have remained in use until the abolition of real actions in 1834. (g)

Procedure under the Normans. (1) Civil.-The AngloSaxon modes of proof were ordeal, compurgation, witnesses, and charters, but of these ordeal does not seem to have been used in civil cases, and compurgation disappeared before the system of inquest or assize introduced by Henry II. (The Normans introduced battle, and in the case of a writ of right for land the defendant might either choose battle or inquest. (h) If he chose battle, it was fought out by champions and not by the parties themselves, as in criminal cases.) At first the jury who took part in the inquest were composed of the vicini, or twelve men of the neighbourhood, who spoke from (f) As to these assizes see Pol. & Mait., i. 123–129; Glanvil, ii. 6 et seq.; Holdsworth, H. E. L. pp. 21, 150.

(g) 3 & 4 Will. IV. c. 27, s. 36.

(h) Reeves, H. E. L., i. 185.

their knowledge of the facts, and trial by evidence as we now understand it does not appear to have come into use until about the reign of Henry VI. The presence of two hundredors was required upon the inquest, but this was rendered unnecessary by a statute passed in the reign of Anne. (i) The parties themselves were first rendered competent witnesses in 1851. (k)

(2) Criminal. The Anglo-Saxon mode of trial in criminal accusations was either by ordeal, or by oath and compurgation after presentment or accusation by the grand jury under the system of frankpledge. The Normans introduced battle, and this was incident to the form of private accusation known as appeal, which might be pursued either in Parliament or in the King's Court.

Compurgation did not last long in criminal cases after the Conquest, and ordeal was abolished by the Lateran Council in 1215. (7) After ordeal and compurgation had gone, no means remained to test the truth of the accusation of the grand jury, and this seems to have led eventually to the introduction of the petty jury. After the abolition of ordeal it would seem, then, that accusation by a grand jury was equivalent to conviction, though in the case of a private accusation by appeal, battle could be resorted to.

Judicial Institutions in the Reign of Edward I.

Edward I. has been called " the English Justinian," because in his reign the judicial institutions of the country became settled upon a basis which remained unaltered in the main until the modern changes brought about by the Judicature Acts, 1873 to 1902. The term, however, is somewhat misleading, for Justinian merely codified the already existing law, as did Alfred the Great, whilst Edward I. really altered the already existing institutions, and settled them upon a new and permanent basis. From the Curia Regis, as understood in the sense of the King's Court or King's Council, had now (i) 4 & 5 Anne, c. 16.

(k) 14 & 15 Vict. c. 99.
(1) See Pol. & Mait., ii. 597.

separated definitely the courts of the Exchequer, the Common Pleas, and the King's Bench, whilst the King's Council, which had become a body distinct from the Commune Concilium, or Parliament, continued to exercise certain original judicial functions, principally it seems at this epoch in connection with the issue of new writs, for which no precedent existed in the Chancery or Exchequer, and for which the consent of the council had to be obtained. In the residuary or supervisory jurisdiction still appertaining to the council can be traced the origin of the present judicial functions exercised by the Privy Council. A short consideration of the various courts in order as they existed in the reign of Edward I. will serve to show how nearly the judicial system approached to that which obtained. before the passing of the Judicature Acts.

The Common Pleas. This court sat at Westminster since the confirmation of Magna Carta by Henry III. It heard causes between subject and subject not amounting to a breach of the king's peace, and its records were called de Banco rolls. (m)

The King's Bench.-This court continued to follow the king, and its records were therefore called Coram Rege rolls. (n) Later on it became fixed, like the Common Pleas, at Westminster. It was constituted of a chief justice and three puisne judges, and originally its jurisdiction was confined to crimes amounting to a breach of the king's peace (infractio pacis regis), and to matters of which the other courts did not take cognizance. It soon, however, began to encroach upon the jurisdiction of the Common Pleas by a method of procedure known as the Bill of Middlesex, (o) which alleged trespass vi et armis, and therefore breach of the king's peace, against the defendant in Middlesex, and upon this charge he was brought before the court by the sheriff; once before the court, he could be tried for debt or upon any other charge. If the defendant was not in Middlesex, the writ of

(m) Pol. & Mait., i. 177, 393.

(n) The sovereign in person used to sit in the Aula Regis, or King's Court, in early times; James I. is said to have revived the practice, but the judges informed him that he could not deliver an opinion. Steph. Comm., iii. 357, n.

(0) So called because the court sat in Middlesex, see Steph. Comm., iii. 358, n.