Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

But since the time of king Edgar, at least, this court has been divided into two, the criminal matters, both ecclesiastical and civil, and also the view of frank pledge was dispatched in one court called the tourn, that is, the circuit, from the bishop and sheriffs going circuit through the county; and the civil business was dispatched in another, called, the county court. The law was, that the sheriff and bishop should twice in the year go their circuit or tourn, namely, in the month following Easter, and the month following Michaelmas; and should hold their court in every hundred of the county; but the view of frank pledge was to be taken only once a year, namely the tourn after Easter. But for the more ready dispatching civil causes, the county court was held once a month, that is in twenty-eight days, reckoning a month by four weeks and not by the calendar[311].

Out of these courts were others afterwards derived, for the more easy and expeditious way of distributing justice. Out of the sheriff’s tourn, were two, the hundred court, and the court leet, and they had cognizance of the same matters the tourn had, and were erected independent of the sheriff’s tourn, for the mutual ease of him and the inhabitants, where, in large counties, the hundred lay too remote to be conveniently visited in the circuit. But many inconveniencies arising from the sheriff’s power not running in these separated jurisdictions, the hundred court, which was held by the steward of the hundred, were all, except a very few, that had been given in fee to some great men, reunited to the tourn, and so they vanished in Edward the Third’s reign[312].

The leet was of the same nature as the hundred court, derived out of the tourn, and made a separate jurisdiction; but it was held in the name of a subject, by the lord of the manor’s steward, and to the lord belonged the profits of the courts leet. They were, however, though held by a subject, in his own name, esteemed as the king’s courts, and allowed to be courts of record, as well as the tourn from which they sprung.

Out of the county court, which was for private causes, was derived the court baron. It was held from three weeks to three weeks, as all courts were in the early Saxon times. It was when a manor was exempted from the sheriff’s county court, and the jurisdiction granted to the lord, to hold plea of civil suits. In this the suitors were the judges, as in the county court[313].

In these several courts was justice administered in the Saxon times, and even for a considerable time after the conquest, for the most part. But soon after that time inconveniencies were found, partly from the partiality of the judges in these inferior courts, and partly, from their ignorance in law. Then began the higher court to draw to themselves the jurisdiction of these matters, and the county courts to be confined to pleas of such matters as exceeded forty shillings in value. The pleas of lands were likewise brought in there, and discussed either in the higher courts, or before justices of nisi prius. The appointment of justices errant, and justices of assize; of justices of goal delivery, and of the quarter sessions, together with the many powers granted by divers acts of parliament to one or more justices of the peace, have, in a succession of ages, continually sunk the business of these courts, and have left them but a shadow of what they were.

But although most of the business in the old times was in these inferior courts, there was one superior, that even in the Saxon times, had a concurrent jurisdiction with them, the curia regis. The curia regis sat in the king’s palace, and removed with him from one part of the kingdom to another, generally in the king’s hall; except when they judged questions belonging to the king’s treasure, when they sat in his treasury, called the exchequer, from the chequered cloth wherewith the table was covered. The judges were, the judiciary, the chancellor, and the treasurer, together with such great lords as were attendant on the court; so that, in parliament time, all the great lords sat there; and this was the foundation of the lords judicature in parliament. The judiciary presided in all cases that did not concern the revenues, and indeed his power was so exorbitant by the antient law, being regent of the kingdom in the king’s absence, that sometime after the conquest, the kings thought proper to abolish the office, and divide even his judicial power into several hands[314].

The chancellor was one of the most learned ecclesiastics. It fell, therefore, naturally to his province to make out all writs, and processes, and letters patent, and consequently the great seal of the kingdom was lodged with him. He attended, likewise, something in the nature of an equity judge; not that there was any such thing as a distinct court of equity, but, as a learned and pious man, to direct with his advice whenever the case happened, where conscience dictated one way and the strict law another. The treasurer was present also to take care that the king had his fines from offenders, which he was afterwards to collect into the exchequer where he presided, where also he set leases of the king’s lands for years, collected his rents and debts, and took care of his escheats and forfeitures. The proper jurisdiction of this court was where the king was concerned in interest as to his revenue; where one of the great peers was to be tried for heinous offences, or even where two persons had been guilty of crimes that seemed to have a general influence, and tended to general confusion. For unless the crime of a lower person was very heinous indeed, he was tried in the country, in the tourn.

Civil causes likewise between the great lords fell under their inspection, but those between meaner persons they seldom meddled with, unless they had for difficulty been referred or adjourned to them from the courts below, and if they, in that case, found the cause of great difficulty, they adjourned it to the curia regis in full parliament. However, as they had the power of judging civil causes between all persons in the first instance, if they thought the cause of such a nature, that justice was not likely to be done in the country, they had many applications from such as had those apprehensions; and as this court had a discretionary power, either of sending them back to the county-court, or of admitting them here, this gave an occasion for exacting fines for license to plead in the king’s court, and thereby of increasing his revenue; until at length, when the inferior courts declined in reputation, and every man sought for justice in the curia regis, these fines, being arbitrary, became an intolerable grievance, which was remedied by those famous words in Magna Charta, Nulli vendemus, nulli negabimus justitiam, as I shall observe hereafter. Such were the courts held in the Saxon times, and for some time after the conquest, whose several jurisdictions it is proper to point out, for the better understanding of the alterations that afterward ensued[315].

I next proceed to the method of trial, or determining the matters in issue in these courts. And they were the same that were used abroad, which I have already mentioned, and shall therefore barely run them over. First, ordeal, either by putting their hands in boiling water, or holding a red hot bar of iron in their hands; or by cold water, that is, tying their hands together, and their feet together, and throwing the person accused into a pond; and this method the ignorant vulgar have adopted to try witches. Secondly, the oath of the party, with compurgators, or, as it is called, waging his law; and in this manner was Earl Goodwin acquitted of the murder of Alfred, king Ethelred’s brother. Thirdly, battle, which was the usual method of trying the title to lands, and appeals of felony, or capital crimes.