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

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.