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

its principal justices will be also the principal barons of the exchequer,⁴⁴ it has a seal of its own and may well sit away from Westminster, while the fiscal business could hardly be transacted elsewhere.⁴⁵ It can be distinguished from those great councils of prelates and nobles that the king holds from time to time; questions too high for it are to be reserved for such councils.⁴⁶ Probably it is already getting the name of “the bench” and its justices are “justices residing at the bench.”⁴⁷ Though it is curia Regis and capitalis curia Regis it is not necessarily held coram ipso Rege. Apparently the writs that summon litigants before it, bid them appear “before the king or before his justices,” that is to say, before the king if he happens to be in England and doing justice, and if not, then before his justices.⁴⁸ No doubt when the king is in this country he will sometimes preside in court, but whether the justices will then follow the king in his progresses, we cannot say for certain; as a matter of fact during the last eight years of his reign the king’s visits to England were neither frequent nor long. Westminster seems to be becoming the home of this tribunal; but as yet all its arrangements are easily altered.

Itinerant justices.The visitation of the counties by itinerant justices has become systematic. From the early years of the reign we hear of pleas held on circuit by Richard Lucy the chief justiciar, by Henry of Essex the constable, and by Thomas Becket the chancellor. In 1166 the assize of Clarendon was enforced by a party of justices headed by Richard Lucy and Earl Geoffrey of Mandeville. In 1168 Richard of Ilchester, Guy the dean of Waltham, William Basset and Reginald Warenne visited most of the counties. In 1175 the north and east were perambulated by Ranulf Glanvill and Hugh of Cressi, the south and west by William of Lanvallei and Thomas Basset, while the king himself seems to have been journeying with other justices in his suite.⁴⁹ In 1176 to execute the assize of Northampton eighteen justices were [p.135] employed and the country was divided into six circuits; in 1179 twenty-one justices were employed and the country was divided into four circuits; indeed from 1176 onwards hardly a year went by without there being a visitation of some part of England. These itinerant justices seem to have been chiefly employed in hearing the pleas of the crown (for which purpose they were equipped with the power of obtaining accusations from the local juries) and in entertaining some or all of the new possessory actions. The court that they held was, as already said, curia Regis; but it was not capitalis curia Regis, and probably their powers were limited by the words of a temporary commission. They were not necessarily members of the central court, and they might be summoned before it to bear record of their doings;⁵⁰ still it was usual that each party of justices should include some few members of the permanent tribunal. Also the counties were frequently visited for fiscal purposes, justices or barons of the exchequer being sent there to assess aids and tallages, while the chief justice of the forest often traversed the land and afflicted the people.

Cases in the king’s court.No judicial rolls of the reign have come down to us, but during the last years of it such records were being compiled.⁵¹ For our knowledge of what went on in the courts we have still to look to annalists and biographers, and they are apt to give us not the usual but the extraordinary. We dare not, for example, draw many general inferences about the constitution and procedure of the king’s court from that famous scene in the castle of Northampton, in which Henry and Becket were the principal actors. We see, however, that, even though the king was angry and was striving to crush one who had become his enemy, he did not venture to pass judgment. To find the judgment at the king’s request was the function of the assembled prelates and nobles, or, if the prelates would not aid in the work, then the lay barons would do it. Even the duty of pronouncing the judgment was delegated; it was committed to the justiciar, the Earl of Leicester.⁵²

      Scenes in court.Another life-like, if not impartial, story tells of a great suit between the Abbot of Battle and the Bishop of Chichester, another of a [p.136] similar suit between the Abbot of St. Albans and the Bishop of Lincoln. In both cases abbatial privileges were urged against episcopal rights; in both the bishop practically lost his cause; but in both papal claims were involved, and the king, who had no mind to break with the pope, succeeded in bringing about what was in form a compromise; in neither case therefore was a judgment pronounced. In the one,⁵³ which occurred in 1157, the king sat in the chapter house of the monks at Colchester. Around him were the two archbishops, three bishops, his chancellor (Becket), the two chief justiciars (the Earl of Leicester and Richard Lucy) and several other barons, while the hall was filled by no small multitude of the people.⁵⁴ At times, it would seem, the king retired with a few chosen councillors, the chancellor, the two justiciars, the constables of England and Normandy, a chamberlain and a clerk, and gave a private audience to one of the parties. Some of the principal members of the court had openly and warmly taken sides before the discussion began. The justiciar Lucy was the abbot’s brother, and played the part of an advocate rather than of a judge; the chancellor also had espoused the abbot’s cause, and they and other members of the court took counsel with the abbot while the case was proceeding. The dispute between the Abbot of St. Albans and the Bishop of Lincoln⁵⁵ was heard by the king in the chapel of St. Catherine at Westminster in the year 1163. He was surrounded by the prelates and nobles; no less than thirteen bishops were present. But again we see the king retiring to consult with a much smaller body, which consisted of the Earl of Leicester, Richard de Hommet the constable of Normandy, and that expert clerk, Richard of Ilchester. Along with these he carefully perused the St. Albans charters, and showed, so the monks said, a wisdom comparable to that of Solomon,⁵⁶ for he declared that the unsealed land-books of the Anglo-Saxon kings were as good as sealed since they were confirmed by a sealed charter of Henry I. In vain another of the king’s confidential clerks, Geoffrey [p.137] Ridel, disturbed this private session, and suggested defects in the abbot’s title; the king turned him out of the room. The public session was resumed; the king delivered an opinion unfavourable to the bishop—“privileges prevail against prescription”⁵⁷—but advised a compromise; the bishop confessed the immunity of the abbey and got some land in return for the confession. On another occasion the king sitting at Clarendon heard a suit between the Abbot of Battle and Gilbert de Balliol.⁵⁸ The justiciar, Richard Lucy, was present, but Henry took a prominent part in the discussion, maintaining the validity of the royal charters produced by the abbot and swearing by God’s eyes that such charters cost him dear. Still the judgment was given by the unanimous consent of the whole court. Short of proclaiming his own will to be the judgment of his court, there was little that he could not or would not do by way of controlling all the justice that was done in his name. During the early years of his reign, though he was abroad and though he had left a justiciar in England, he maintained this control. The Abbot of St. Albans sent all the way to Toulouse for a writ directing the justiciar to rehear a case, in which, in consequence of the abbot’s default, certain lands had been adjudged to his adversary. He had to pay the heavy sum of a hundred pounds for that writ, and certainly it was of no ordinary kind, for he had scorned to appear in a court held by a mere justiciar.⁵⁹ But even for ordinary writs men had to go abroad.

      The Anesty case.The curious story told by Richard of Anesty has often been re-told.⁶⁰ He was claiming as heir to his uncle certain lands of which Mabel of Francheville, whom he asserted to be illegitimate, was in possession.⁶¹ He had to begin by sending to Normandy for the king’s writ; soon after he had to send for another writ directed to the archbishop, since the question of bastardy would be transmitted to the ecclesiastical court. The litigation in the spiritual forum was tedious; he was adjourned from place to place, from month to month. The king summoned the army for the expedition to Toulouse; Richard had to go as far as Gascony for yet another royal [p.138] writ bidding the archbishop proceed despite the war. The litigation went on for another year, during which he appeared in the archbishop’s court on some ten different occasions. Once more he had to visit France, for he required the king’s licence for an appeal to the pope. He sent his clerks to Rome and the pope appointed judges delegate. Then his adversary appealed, and again he had to send representatives to Rome. At length the pope decided in his favour. Thereupon the case came back to the royal court and week after week he