The History of English Law before the Time of Edward I. Frederic William Maitland

of Stanton. As the king’s interference becomes more frequent and more normal, the work of penning such writs will naturally fall into the hands of subordinate officials, who will follow precedents and keep blank forms. A classification of writs will be the outcome; some will be granted more or less as a matter of course, will be brevia de cursu, writs of course; those which are directed to a feudal lord will be distinguished from those which are directed to a sheriff; those which bid the sheriff do justice, from those which bid him summon the defendant to the king’s own court; those which relate to the ownership of land from those which relate to debts. But the introduction of the possessory assizes gives to this system of writs a peculiar definiteness and rigidity. The new actions have a new procedure appropriate to them and are governed by carefully worded formulas. Thus the first writ issued in an assize of novel disseisin commands the sheriff to summon an inquest in order that one precise question may be answered:—Did B unjustly and [p.130] without a judgment disseise A of his free tenement in X since the king’s last journey into Normandy? At countless points an action thus begun will differ from a proprietary action for land begun by a writ of right; both of them will differ from an action of debt, and even between the several possessory assizes many distinctions must be drawn, in particular as to the number of “essoins,” excuses for non-appearance, that the litigants may proffer. Thus before the end of Henry’s reign we must already begin to think of royal justice—and this is becoming by far the most important kind of justice—as consisting of many various commodities each of which is kept in a different receptacle. Between these the would-be litigant must make his choice; he must choose an appropriate writ and with it an appropriate form of action. These wares are exposed for sale; perhaps some of them may already be had at fixed prices, for others a bargain must be struck. As yet the king is no mere vendor, he is a manufacturer and can make goods to order. The day has not yet come when the invention of new writs will be hampered by the claims of a parliament. But still in Glanvill’s day the officina iustitiae has already a considerable store of ready-made wares and English law is already taking the form of a commentary upon writs.

The accusing jury.The accusing jury also has become part of the ordinary mechanism of justice. The first definite tidings that we get of it are somewhat puzzling. To all seeming Henry insisted, first for Normandy in the year 1159, and then for England in the year 1164, that the ecclesiastical courts ought to make use of this institution. Laymen ought not to be put to answer in those courts upon a mere unsworn suggestion of ill fame. Either someone should stand forth and commit himself to a definite accusation, or else the ill fame should be sworn to by twelve lawful men of the neighbourhood summoned for that purpose by the sheriff: in other words, the ecclesiastical judge ought not to proceed ex officio upon private suggestions.³⁵ Henry seems to be forcing this rule upon reluctant prelates, and at [p.131] the same time to be asserting that it is an ancient rule. From this we may perhaps infer that the synodal jury, described to us by Regino of Prüm, had been known in Normandy—it may be, in England also—but that of late it had been thrust aside by a laxer procedure which was less fair to the laity. This part of the story must remain very obscure.³⁶ However in 1166 the accusing jury becomes prominent. In every county twelve men of every hundred and four men of every township are to swear that they will make true answer to the question whether any man is reputed to have been guilty of murder, robbery, larceny, or harbouring criminals since the king’s coronation. Those who are thus accused must go to the ordeal. Even if they are successful there, even, that is to say, though the judgment of God is in their favour, they must abjure the realm. Ten years later at Northampton a sharper edge was given to this new weapon; forgery and arson were added to the list of crimes for which inquisition was to be made; the criminal who failed at the ordeal was to lose a hand beside that foot of which the earlier ordinance deprived him. The new ordinance was to endure during the king’s good pleasure. Such inquests were to be taken before the itinerant justices of the king; they were also to be taken by the sheriffs, and here we may see the origin of those inquisitions into crime which in later days the sheriff makes twice a year as he takes [p.132] his “turn” through the hundreds.³⁷ Every time that the justices are sent on their rounds the king can at pleasure add to the list of questions that they are to put to the jurors; in the next century that list, the articles of the eyre (capitula itineris), will be long and will be constantly growing longer. Closely connected with the discovery of crimes is the ascertainment of the king’s rights. Criminal justice is one source of revenue, but there are others, and the inquest may be used for their detection. From the verdicts of local juries the king collects whatever information he may require about his demesne lands, his feudal rights, the receipts of his sheriffs, the misconduct of his officers.

Structure of the king’s court.There can be no doubt that one result of these various measures was to increase at a rapidly accelerating rate the amount of judicial business that was transacted in the king’s name. The functions of his court were changed and a corresponding change in its structure became necessary. It was no longer to be an extraordinary tribunal, a court for great men, for great causes, for matters that concerned the king; it was to become an ordinary tribunal for the whole realm. Many difficulties, however, meet us if we attempt to define the structural changes.³⁸ In the first place, we are tempted to use terms which are more precise than those that were current in the twelfth century. In particular we are wont to speak of the Curia Regis without remembering that the definite article is not in our documents. Any court held in the king’s name by the king’s delegates is Curia Regis. Thus the institution of what in course of time will be a new tribunal, a Court of King’s Bench or a Court of Common Pleas, may be found in some small rearrangement, some petty technical change, which at the moment passes unnoticed. In the second place, the form which his court shall take, the mode in which it shall do justice, these are matters for the king; he is very free to decide them from day to day as he pleases, and this by a few spoken words. In the third place, we have direct evidence that Henry tried experiment after experiment.³⁹ He was keenly interested in the work of justice and learnt from year to year the lessons [p.133] that experience taught him. Therefore it is but too possible that we may give undue weight to this or that passage in a chronicle. However, from the year 1178 we hear that the king has chosen five men, two clerks and three laymen, who are not to depart from the king’s court but are to hear all the complaints of the kingdom; questions that they cannot decide are to be reserved for the king and his wise men.⁴⁰ We here see the definite selection of a small number of men who are to do justice habitually. The court that they are to hold is to be a permanent and a central court; but a reserve of justice is to remain in the king and his councillors. It is probable that we have here a measure of great permanent importance. From the following years we begin to get records which seem to put before us a tribunal which in the main is like that here described. It sits term after term; usually at Westminster, often at the exchequer. It is constituted by the king’s most trusted advisers. There is Ranulf Glanvill who in 1180 became chief justiciar. There are the three famous clerks who have served Henry well during the fierce strife with Becket, Richard of Ilchester, now Bishop of Winchester, John of Oxford, now Bishop of Norwich, Geoffrey Ridel, now Bishop of Ely. There is the treasurer, Richard son of Nigel, who is to be Bishop of London. A little later there is Hubert Walter, who is rising to greatness. Some laymen there will be; but earls and powerful barons are conspicuously absent. We cannot fix the number of the justices. Sometimes ten or twelve will be mentioned. But the court seems to have, as it were, a fringe; the chief justiciar, the treasurer, two or three bishops, will usually be sitting, while others come and go; some of them may be away upon circuits; others who are named may be not justices, but chamberlains or sewers; and the king is still making experiments, trying now one man and now another.⁴¹

The central court.However, we may say that before the end of the reign there is a permanent central tribunal of persons expert in the administration of justice—of sworn judges.⁴² It can be distinguished from the [p.134] courts held by the itinerant justices, for, though every such court is curia Regis, this is capitalis curia Regis.⁴³ It can be distinguished from the exchequer, for,