FOOTNOTES
[1] Cf. Historical Essays and Studies, vol. ii. p. 505
[2] Europe during the Middle Ages, Chapter VIII. Part 3. I may remind the reader that Hallam regarded his Constitutional History as a continuation of this chapter, which sketches the development of the constitution from the earliest times down to the accession of Henry VII., the point at which the present work begins.
[3] English Law at the Renaissance, p. 27.
[4] Middle Ages (12th ed.), ii. p. 267.
[5] This statute is not even alluded to in Ruffhead's edition, and has been very little noticed by writers on our law or history. It is printed in the late edition, published by authority, and is brought forward in the First Report of the Lords' Committee, on the dignity of a Peer (1819), p. 282. Nothing can be more evident than that it not only establishes by a legislative declaration the present constitution of parliament, but recognises it as already standing upon a custom of some length of time.
[6] The pleadings, as they are called, or written allegations of both parties, which form the basis of a judicial enquiry, commence with the declaration, wherein the plaintiff states, either specially, or in some established form, according to the nature of the case, that he has a debt to demand from or an injury to be redressed by, the defendant. The latter, in return, puts in his plea; which, if it amount to a denial of the facts alleged in the declaration, must conclude to the country, that is, must refer the whole matter to a jury. But if it contain an admission of the fact, along with a legal justification of it, it is said to conclude to the court; the effect of which is to make it necessary for the plaintiff to reply; in which replication he may deny the facts pleaded in justification, and conclude to the country; or allege some new matter in explanation, to show that they do not meet all the circumstances, concluding to the court. Either party also may demur, that is, deny that, although true and complete as a statement of facts, the declaration or plea is sufficient according to law to found or repel the plaintiff's suit. In the last case it becomes an issue in law, and is determined by the judges without the intervention of a jury; it being a principle, that by demurring, the party acknowledges the truth of all matters alleged on the pleadings. But in whatever stage of the proceedings either of the litigants concludes to the country (which he is obliged to do, whenever the question can be deduced to a disputed fact), a jury must be impanelled to decide it by their verdict. These pleadings, together with what is called the postea, that is, an indorsement by the clerk of the court wherein the trial has been, reciting that afterwards the cause was so tried, and such a verdict returned, with the subsequent entry of the judgment itself, form the record.
This is merely intended to explain the phrase in the text, which common readers might not clearly understand. The theory of special pleading, as it is generally called, could not be further elucidated without lengthening this note beyond all bounds. But it all rests upon the ancient maxim: "De facto respondent juratores, de jure judices." Perhaps it may be well to add one observation—that in many forms of action, and those of most frequent occurrence in modern times, it is not required to state the legal justification on the pleadings, but to give it in evidence on the general issue; that is, upon a bare plea of denial. In this case the whole matter is actually in the power of the jury. But they are generally bound in conscience to defer, as to the operation of any rule of law, to what is laid down on that head by the judge; and when they disregard his directions, it is usual to annul the verdict, and grant a new trial. There seem to be some disadvantages in the annihilation, as it may be called, of written pleadings, by their reduction to an unmeaning form, which has prevailed in three such important and extensive forms of action, as ejectment, general assumpsit, and trover; both as it throws too much power into the hands of the jury, and as it almost nullifies the appellant jurisdiction, which can only be exercised where some error is apparent on the face of the record. But great practical convenience, and almost necessity, has generally been alleged as far more than a compensation for these evils.
[7] The population for 1485 is estimated by comparing a sort of census in 1378, when the inhabitants of the realm seem to have amounted to about 2,300,000, with one still more loose under Elizabeth in 1588, which would give about 4,400,000; making some allowance for the more rapid increase in the latter period. Three millions at the accession of Henry VII. is probably not too low an estimate.
[8] Rot. Parl. vi. 270. But the pope's bull of dispensation for the king's marriage speaks of the realm of England as "jure hæreditario ad te legitimum in illo prædecessorum tuorum successorem pertinens." Rymer, xii. 294. And all Henry's own instruments claim an hereditary right, of which many proofs appear in Rymer.