CHAP. 4. Our kings must often have entrusted the administration BOOK III. of justice to their justiciaries, and to officers much more Itinerant subordinate, before the times of Henry the Second. But it judges. is not until some while after the accession of that monarch that we find England divided into law circuits, and judges in eyre—that is, itinerant,' or travelling judges, appointed to hold their assizes in given places, and at given times, in those circuits. The first division of the kingdom was into six circuits. Subsequently the six were reduced to four; the country north of the Humber being one of the four. For that northern division six justices were appointed, and on account of distance, and still more on account of the condition of those provinces, these northern functionaries were vested with special powers. This is one of the measures which have contributed to make the reign of Henry II. so memorable in our history.* growth of element in ment. But, important as these organizations must appear, Further under any view of them, the instructions given to the judges the popular concerning the modes in which they were to obtain the evi- governdence necessary to enable them to detect the delinquent, were fraught in a still higher degree with good for the future. For it was in this part of the proceedings that not only the jury principle, but a kind of representative principle, came into new and most salutary action. When Henry II. returned from Normandy, in the year 1170, he found the people loud in their complaints on account of the extortions and oppressions which had been practised upon them in his absence. Henry, with the advice of his great council (optimates), sent judges (barones errantes) to visit the different counties, and to collect evidence in relation to these charges. In pursuance of these instructions, the judges were empowered to demand on oath, from all barons, knights, and freemen, and from all citizens and burgesses, that they should say the truth concerning all that should be required of them on behalf of the king, concerning the interval between the death of a king and the proclamation of his successor as being an interval in which there was no king, waited for the death of Henry, with the intention of raising at that moment against the aldermanic class.-Ibid. § xlvii. * Madox, c. iii. СПАР. 4. BOOK III. and that they should not conceal the truth for love or hatred, favour or affection, gift or reward. As the sheriffs and the bailiffs were the parties most vehemently accused, their conduct was to be especially investigated. Inquiry was to be made concerning the amount of money which they had unduly levied on the hundreds or townships since the king had passed into Normandy, so that every excess in rating might be ascertained, and every injury done by that means corrected. Care was to be taken also, to discover in what instances the guilty had been allowed to escape without punishment, and the innocent had been accused without cause. So wide was the range of this inquiry, that all landholders were embraced in it, and required to give a true account of all things taken from their tenants, by lawful judgment, or without judgment. Archdeacons and deans were subject to this scrutiny, in common with sheriffs and bailiffs. Great was the terror excited by these proceedings. The result indeed, was not altogether such as the fears of the offenders, and the hopes of the injured, had led them to expect. But the effect was good. It showed the delinquents the power that might at any time be evoked against them. Nearly all the sheriffs were removed from their office, and many of their subordinates were subjected to heavy fines.* It will be seen, that in all these proceedings, the judges administered the law by means of jurors. In so doing, they made their uses, as far as practicable, of the old Saxon hundred. It should also be observed, that they conformed themselves to another old Saxon usage, by accepting 'four men and the reeve,' as representative of a township. In a grand inquest held at St. Albans in the time of John, each of the demesne towns of the king sent its four good men and its reeve. We read also of four discreet knights,' and sometimes of twelve men, as required from every county, corresponding with the four men summoned from the borough, or the jurors summoned for the hundred. As these parties had been wont to present the grievances of the people before the representatives of the king in the old shiremotes, СНАР. 4. so now they presented them before the judges, who had BOOK III come into the place of the sovereign by a special appoint ment. tion of two ciples. It is not easy to speak with confidence touching some of Recognithe nicer shades of fact in the history of our constitution great prinduring this stage. We may see, however, very clearly, that the government was carried on by means of two main elements-by authorities deputed mostly by the crown on the one hand, and by means of evidence to be furnished by the people on the other. Over a large surface the king's power could avail nothing, apart from evidence so obtained; at the same time, such evidence could avail nothing, apart from the assent of the crown. Great was the power of the crown; but great also was the power of jurors, whether as restricted in their function to the presentation of evidence, or as permitted to be judges of evidence when presented. authority Germanic The history of authority among the Teutonic races is a course of history which moves upward, from the less to the greater. among the The state begins with the smaller community, which grows tribes. large by embracing other communities like itself. The unit is before the aggregate; and to the last, the unit is mindful of this fact, and jealous of its individuality. The tithings make up the hundred, the hundreds may become a shire, and the shires may become a kingdom-but the lowest was first, and is not content to be injuriously overshadowed by the highest, which has come last. Sovereignty among the Anglo-Saxons always bore the marks of being thus originated; and sovereignty in the case of the proudest of the Normans was powerfully influenced and modified by these antecedents. With the Celtic tribes, the policy which obtained has been the reverse of all this. The course of power with that race has been from above-from the greater to the less. Out of the uses of the representative principle for remedial and judicial purposes above mentioned, sprang its uses, as we shall see in another place, for legislative purposes, and for the general purposes of finance. When once a political machinery has become established, nothing is more *Edinburgh Rev. xxxvi. 290. Palgrave's Commonwealth, i. c. 9. СНАР. 4. BOOK III. common than to find it made to embrace many things not included in its original design. Judicial corruption. Such, then, was the kind of effort made by the best kings of this period to protect the bearers of the public burdens against oppression, and to secure that the administration of justice between man and man should be without fear or favour. The facts might seem to warrant the conclusion that the acts of the crown itself would be especially marked by considerateness, humanity, and respect for the law. But no such inference is sustained by history. Places of emolument, even the chief offices of state, were commonly a matter of purchase; and men had learned to defend the usage gravely and without a blush, insisting that the man who had paid a heavy price for such a position was more likely to avoid what might occasion the loss of it, than the man who obtained it without cost. Our early Norman kings obtained large sums by this means. In reality, the monarchs of this interval felt little scruple about the modes of obtaining money, and appear to have thought, that while it certainly became them to see that the subject was neither despoiled nor oppressed by others, such acts as practised by themselves could rarely be a just ground for complaint.* It is notorious that in the reign of Henry II. there was no court in the land in which justice was not known to be bought and sold as a common article of merchandise. The oppressive means by which the crown enriched itself daily in those times, seem to us almost incredible. Money was sometimes given to appease the personal anger of the king, or to obtain his good offices against an adversary. Fines were extorted as the condition of allowing men to implead * Rolls and Records of the Court held before the King's Justiciars, i. Introduction. No name is more disgracefully associated with the judicial corruptness of his times than that of Richard I., who seems to have inherited the covetousness of the first William, along with his military passion. During Richard's absence from the kingdom, his brother John acted with the nobles who were intent on removing Longchamp from the office of justiciar. John one day came to a meeting, and said that Longchamp was prepared to defy them all if he would only himself grant him his protection, for which he was ready to pay 7007. within a week. John added: I am in want of money-a word to the wise,' and retired. The nobles arranged to lend John 5007. to prevent his virtually re-selling the office of justiciar for 7001.-Ibid. lxiv. lxv. BOOK III a certain to sue in a certain court, or to enter upon CHAP. 4. person, lands which they had recovered by law. Money was accepted from a suitor to help him against his antagonist, and sometimes from both suitors to help each against the other. In the latter case, it is supposed there was usually sufficient grace left to ensure the return of the money to the suitor who had not been successful. The Jews, and persons charged with criminal offences, were made to be a prolific source of revenue. When kings could thus sell what should be priceless, it is easy to imagine what inferior judges would do. The privileges, and the most natural rights, of towns, were purchased at heavy costs, and on every confirmation. of such grants new exactions were made. But, of all the forms of tyranny prevalent at that time, none is so extraordinary as the power which the king was allowed to assume over the persons and possessions of wards, and with regard to marriage generally, among the families of his nobles. The wards were commonly disposed of to the highest bidder; and a tenant in chief of the crown found one consequence of his elevation to be, that he could neither marry himself, nor dispose of his children in marriage, according to his inclination, without purchasing that liberty by a considerable payment to the sovereign.* But good came from these excesses. Normans and English were thus prepared, from the feeling of their common wrongs, to act together for their common deliverance. The provisions of Magna Charta point to nearly all the customs and abuses above mentioned as among the grievances of the times. resistance. But these exactions were made, for the most part, on Difficulty of individuals, or on isolated bodies of men. It is true, the individuals, and the bodies so dealt with, belonged to classes. But the individual noble found it difficult to move his brother nobles; and the humble burgesses of one town. possessed little means of influencing their brother burgesses *Towards the close of this period councils forbad the holding of tournaments, but Richard I. presumed to grant dispensations from such canons, and exacted a fee for so doing.-Rolls and Records, Introd. § xxii. Madox, c. iii. § 6, 7; c. vi. § 1; c. vii.-xiv. On nearly all questions touching our constitutional history during this period the work of Madox is invaluable. |