character, he expressly, definitively, and absolutely declared CHAP. his assent." * He afterwards pleaded his own cause with great dexterity, and many supposed that he would succeed. Upon the doctrine of representation, which is familiar to us, Balio seems clearly to have the better claim, as he was descended from the eldest daughter of the Earl of Huntingdon: but Bruce was one degree nearer the common stock; and this doctrine, which was not then firmly established, had never been applied to the descent of the crown.† I. A. D. 1291. against When Edward I. determined in favour of Baliol, influenced A. D. 1292. probably less by the arguments in his favour than by the Decided consideration that from the weakness of his character he was him. likely to be a more submissive vassal, Robert de Brus complained bitterly that he was wronged, and resolutely refused to acknowledge the title of his rival. He retired in disgust to his castle of Lochmaben, where he died in November, His death. 1295, in the seventy-second year of his age. While resident in England he had married Isabel, daughter His deof Gilbert de Clare, Earl of Gloucester, by whom he had scendants. several sons. Robert, the son of Robert the eldest, became Robert I., and one of the greatest of heroes. The descent of the crown through him to the Stuarts is, of course, universally known. The family of the Chief Justice is still kept up in the male line by the descendants of his younger son, John, among whom are numbered the Earl of Elgin, the Earl of Cardigan, and the Marquess of Aylesbury. ‡ R. Fœd. vol. ii. 545. † See Dalrymple's Annals, i. 215-243. See Dug. Chr. Ser. Rot. Fin. ii. 79. 545.; Dug. Bar. Coll. Peerage. II. A.D. 1272. THE OF CHAPTER II. LIVES OF THE CHIEF JUSTICES FROM THE ACCESSION TRESILIAN. CHAP. WE now arrive at the æra when our judicial institutions were firmly established on the basis on which, with very little alteration, they have remained to the present day. Although the AULA REGIS had existed down to the conclusion of the reign of Henry III., and cases of peculiar importance or difficulty were decided before the Chief Justiciar, assisted by the great officers of state*, it had gradually ceased to be a court of original jurisdiction, and it had been separating into distinct tribunals to which different classes of causes were assigned. Edward I., our Judicial JUSTINIAN, now not only systematised and reformed the institutions principles of English jurisprudence, but finally framed the courts for the administration of justice as they have subsisted for six centuries. "In his time the law did receive so sudden a perfection, that Sir Matthew Hale does not scruple to affirm that more was done in the first thirteen years of his reign to settle and establish the distributive justice of the kingdom, than in all the ages since that time put together." The AULA REGIS he utterly abolished as a court of justice; and he decreed that there should no longer be a Justiciar with military and political as well as judicial functions. "The Court of our Lord the King before the institutions A remnant of the Aula Regis subsisted to our own time in the "Exchequer Chamber" into which cases of great importance and difficulty continued to be adjourned, to be argued before all the judges. The practice of judges reserving points of criminal law arising before them on the circuit, I consider as having had a similar origin. The rule which prevailed-that both in civil and criminal cases the opinions of the majority of the judges in the Exchequer Chamber should over-rule the opinions of the majority of the judges of the court in which the cases originated, and in which formal judgment was to be given-admits of no other solution. † 4 Bl. Com. 425.; Hale's Hist. C. L. p. 162. King himself," or "Court of King's Bench," was constituted. Here the King was supposed personally to preside, assisted by the first common law judge, denominated "Chief Justice, assigned to hold pleas in the Court of our Lord the King before the King himself," and by other justices or "puisne judges." This was the supreme court of criminal jurisdiction, and was invested with a general superintendence over inferior tribunals. MAGNA CHARTA had enacted that civil actions should be tried before judges always sitting in the same place, so that the suitors might not be compelled to follow the King in his migrations to the different cities in his dominions; and the section of the AULA REGIS which had subsequently sat at Westminster now became the "Court of Common Pleas," having a Chief Justice and Puisnies, with an exclusive jurisdiction which it still preserves over "real actions,"-although, by ingenious fictions, other courts stripped it of much of its business in the trial of" personal actions." The management of the estates and revenues of the Crown had been early intrusted to certain members of the AULA REGIS, who were called "Barons of the Exchequer." They now formed an entirely separate tribunal called the "Court of Exchequer," with the Lord Treasurer and the Chancellor of the Exchequer to preside over them being in strictness confined merely to fiscal matters in which the Crown was concerned, but gradually usurping both legal and equitable jurisdiction between subject and subject, by countenancing the fiction that the suitors were the King's debtors, or the King's accountants. The Chancellor, from being the sixth in precedence of the great officers of state, was now advanced to be the first, and he was intrusted with the power of doing justice to the subject where no remedy was provided by the common law. The appellate jurisdiction of the AULA REGIS was vested in the great council of the nation now called the Parliament, and, on the division of the legislature into two chambers which soon followed, remained with the Lords Spiritual and Temporal, who had the Judges as their assessors. All juridical knowledge was long monopolised by the clergy; but while the civil and common law continued to be CHAP. II. A.D. 1272. Ralph de CHAP. II. tice of the Court of King's Bench. cultivated by them exclusively, a school of municipal or common law had been established for laymen, who gradually formed themselves into societies called " Inns of Court," devoting their lives to legal pursuits. From the body of professional men thus trained, Edward resolved to select his A. D. 1278. Judges; and he appointed RALPH DE HENGHAM Chief Justice of the King's Bench, and THOMAS DE WEYLAND Chief Justice of the Common Pleas, allowing them a salary of only sixty marks a year, but adding a small pittance to purchase robes, and stimulating their industry by fees on the causes they tried. His origin. His progress in the law. Law books composed by him. The De Henghams had long been settled at Thetford in Norfolk; and the head of the family, towards the end of the reign of Henry III., had gained distinction as a knight in several passages of arms, had been a Judge in the AULA REGIS, and had acted as a Justice in Eyre. Ralph, a younger son of his, having a greater taste for law than for military exercises, was, while yet a boy, placed in the office of a prothonotary in London, and not only made himself master of the procedure of the courts, but took delight in perusing Glanville, Bracton, and Fleta, which, in those simple and happy times, composed a complete law library. Without the clerical tonsure, he became a candidate for business at the bar; but such was the belief, that the characters of causidicus and clericus must be united, that, to further his success, he was obliged to take holy orders, and he was made a canon of St. Paul's.* His reputation in Westminster Hall was now greater than that of any man of his time; and while he was little more than thirty years of age, on the principle of detur digniori he was made Chief Justice of the Court of King's Bench, and received the honour of knighthood. He fully answered the expectation which had been formed of him for industry, learning, and ability. His great object was to establish a regular procedure in his court calculated to expedite suits and to prevent fraud. He began with publishing a collection of writs which he had carefully made It was to conceal the want of clerical tonsure, that the serjeants-at-law, who soon monopolised the practice of the Court of Common Pleas, adopted the coif, or black velvet cap, which became the badge of their order. CHAP. II. A.D. 1278 and revised, known by the name of REGISTRUM BREVIUM, and pronounced by Lord Coke to be "the most ancient book on the law." Next, he composed an original work, which is still extant, and quoted in Westminster Hall as the -1286. "Summæ of Lord Chief Justice Hengham.' It is written in Latin, and divided into two books, called "Hengham Magna" and "Hengham Parva," giving instructions with regard to the mode of conducting actions, particularly writs of right, of dower, and of assize, from the præcipe to the execution of the judgment. It continued in MS. till the reign of James I., when it was printed and published with the following title-page: "RADULPHI HENGHAM EDWARDI Regis I. Magna Hengham et Parva vulgo MSS. lucem prodeunt. Bibliopolarum Corpori excuditur. M.DC. XVI." The Latinity is barbarous even for a lawyer, and the arrangement not very good. From a quaint analogy to the Mosaic account of the creation, he supposes the work of conducting a suit to be divided into six days; and he describes what is to be done each day-in "casting an essoin," "demanding a view," &c. But it may be considered as creating order out of chaos in the legal world, and, with all its faults, it must have been of essential service to those who were to practise before the learned author. He gave much satisfaction by his despatch of judicial business. The Judges of the King's Bench still travelled 4 Inst. 140.; 3 Rep. Preface, vii. He means, of permanent authority in the common law; which earlier treatises could not be considered. † I give a specimen: "SECUNDUS DIES. Secundo die placiti potest reus facere defaltam si velit ex consuetudine regni, dum tamen essoniatus fuerit primo die ordine præmonstato. Petens autem expectans quartam diem ipso die offerat se liti sic versus ipsum reum in hæc verba: Rchardus le Jay se profre vers William Huse de play de terre,'" &c.— Hengham Mugna, ch. viii. |