III.: Royal Justice and Feudal Justice.

A well–known aphorism describes the King as “the sole fountain of justice.” It would be an anachronism to transport this metaphor into the thirteenth century. In John’s reign there still were, not one, but many competing jurisdictions. It was by no means certain that the King’s Courts were the proper tribunals to which a wronged individual must repair. On the contrary, the great bulk of the rural population, the villeins, had no locus standi except in the court of the manor to which they belonged; while the doors of the royal Courts had been opened to the ordinary freeman no earlier than the reign of Henry II. Royal justice was still the exception, not the rule. Each man must seek redress, in the ordinary case, in his own locality. To dispense justice to the nation at large was no part of the normal business of a medieval King.

I. Rival systems of Law Courts. In the thirteenth century, there existed not one source of justice, but many. Rival courts, eagerly competing to extend their own sphere of usefulness and to increase their own fees, existed in a bewildering multitude. Putting aside for the moment the Courts Christian, the Borough Courts, the Forest Courts, and all exceptional or peculiar tribunals, there existed three great rival systems of jurisdiction which may be named in the order in which they became in turn prominent in England.

(1) Local or District Courts. Justice was originally a local product, administered in rude tribunals which partook more or less of a popular character. Each shire had its assembly for hearing pleas, known as a “shire–moot” in Anglo–Saxon days, and as a “comitatus” after the Norman Conquest; while each of the smaller districts subdividing the shire, and forming units of administration for purposes of taxation, defence, justice, and police, had a moot or council of its own, serving as a court of law, to which the inhabitants of the villages brought their pleas in the first instance. These smaller districts were known as hundreds in the south, and as wapentakes (a name of Danish derivation) in the north.

The theory generally received is that all freemen were originally suitors in the courts of shire and hundred, and that the whole body of those present, the ordinary peasant (“ceorl”) equally with the man of noble blood (“eorl”), took an active part in the proceedings, pronouncing (or, at least, concurring in) the judgments or dooms there declared; but that, as time progressed, the majority of the Anglo–Saxon ceorls sank to the half–servile position of villeins—men tied for life to the soil of the manor, and passing, like property, from father to son. These villeins, although still subjected to the burden of attendance, and to some of the other duties of their former free estate, were deprived of those rights which had once formed the counterpart of the obligations. Another school of historians, it is true, denies that the mass of the population, even in very early times, ever enjoyed an active share in the dispensation of justice. It is unnecessary here to attempt a solution of the intricate problems of the courts of shire and hundred; or to discuss the still more vexed question how far the small assembly of each township is worthy to be reckoned a formal Court of Law.

(2) Feudal Courts. Centuries before the Norman Conquest, the system of popular or district justice found itself confronted with a rival scheme of jurisdictions—the innumerable private courts belonging to the feudal lords. These private tribunals, known as feudal, manorial, or seignorial courts, slowly gained ground on the older public courts of shire, hundred, and wapentake.

Practically every holder of land in England came to be also the holder of a court for the inhabitants of that land. The double meaning of the word “dominus” illustrates the double position of the man who was thus both owner and lord. In the struggle between two schemes of justice, the tribunals of the feudal magnates triumphed over, but never abolished their rivals. The earlier popular courts lived on; but the system of district justice, which had once embraced the whole of England, was honeycombed by the growth of feudal courts. As each village passed under the domination of a lord, the village–moot became a manorial court endowed with wider powers and more effective sanctions for enforcing them. Further, as complete hundreds fell under control of powerful magnates, the courts of these hundreds were also transformed into feudal courts: franchises thus took the place of many of the old popular moots. Still, the older system retained part of the disputed ground, thanks to the protection of the Crown. Many hundreds never bowed to the exclusive domination of any one lord, and the courts of the shires were guarded by the Norman Kings against the encroachment of even the most powerful barons.

Although it was the policy of the Norman Kings to prevent their barons from gaining excessive powers of jurisdiction, it was by no means their policy to suppress these jurisdictions altogether. The Conqueror and his sons were glad that justice should be administered, even in a rough–and–ready manner, in those districts whither the Crown’s arm was not long enough to reach, and where the popular courts were likely to prove inefficient. The old system and the new existed side by side; it was to the interest of the central government to play off the one against the other.

In later days (but not till long after Magna Carta), each manorial court had three distinct aspects, according to the class of pleas it was called upon to try. Later writers distinguish absolutely from each other, the Court Baron, settling civil disputes between freeholders of the manor; the Court Customary, deciding non–criminal cases among the villeins; and the Court Leet, a petty criminal court enforcing order and punishing small offences. The powers of these courts might vary, and in many districts the jurisdiction over misdemeanours belonged not to the steward of the manor, but to the sheriff in his half–yearly Circuits or “Tourns” through the county. In imperfectly feudalized districts the Tourn of the sheriff performed the same functions as the Court Leet did within a franchise.

(3) Royal Courts. Originally, the King’s Court had been merely one among many feudal courts—differing in degree rather than in kind from those of the great earls or barons. The King, as feudal lord, dispensed justice among his tenants, just as any baron or freeman dispensed justice among his tenants, bond or free. No one dreamed, in the time of the Norman Kings, that the Curia Regis could undertake the labour of dispensing justice for the whole nation. The monarchy had no machinery at command for a task which no Anglo–Saxon King, nor even William I., could have undertaken. No attempt in this direction was made until the reign of Henry II., who was placed in a position of unprecedented power, partly by circumstances, but chiefly by his great abilities. Even he, born reformer as he was, would never have increased so greatly the labours of government, if he had not seen that the change would enhance the security of his throne and the revenue of his exchequer.

From an early date, however, the business of the Monarch was wider than the business of any other lord. In a dim way, too, it must have been apparent from the first, that offences against the established order were offences also against the King, and that to redress these was the King’s business competent in the King’s Courts. The Crown, further, asserted a right to investigate pleas of special importance, whether civil or criminal. Still, under William and his sons, royal justice had made no deliberate attempt to become national justice, or to supersede feudal justice: the struggle came with the reforms of Henry II.

Thus the three great systems of jurisdiction, popular justice, feudal justice, and royal justice succeeded each other, on the whole, in the order in which they are here named. Yet the sequence is in some ways logical rather than chronological. No absolute line can be drawn, showing where one system ended and the next began. The germs of manorial jurisdiction may have been present from an early date. Shire–courts and hundred courts alike were continually in danger of falling under the domination of powerful local magnates. Yet, the shire–courts were successful in maintaining till the last (thanks to royal favour) their independence of the manorial jurisdictions; while only a proportion of the hundred courts fell into bondage. The royal courts, again, from an early date, withdrew causes from the Shire Courts and interfered with manorial franchises. The Courts Baron were silently undermined, until they sank into decrepitude without ceasing to exist. With these caveats, the three systems may be regarded, in some measure, as following one another in the order named:—popular justice, feudal justice, royal justice.

II. Legal Procedure. The procedure adopted in litigation in Anglo–Saxon and Norman times was similar in essentials in all three classes of tribunals, and differed materially from the practice of courts of law at the present day. Some knowledge of the more glaring contrasts between ancient and modern procedure will conduce to an understanding of several obscure provisions of Magna Carta.

Avoiding technical language, and eliminating special procedure peculiar to any one court or country, the principal stages in a litigation in a modern court of law may be given briefly as follows: (1) On the complaint of the party aggrieved a summons, or writ, is issued by an officer of the Court. Proceedings are opened by the command addressed to the defendant to appear in Court and answer what is alleged against him.

(2) In the usual case each party lodges written statements of his facts and pleas—that is, of the circumstances as they appear to him (or such of them as he hopes to bring evidence to prove)—on which he founds his claim or his defence, and of the legal principles he intends to deduce from these circumstances. When these statements of facts and pleas have been revised and adjusted, the complete data are before the Court; each party has stated what he considers essential to his case.

(3) Proof is, in due course, led; that is, each party is afforded an opportunity of proving such facts as he has alleged (and as require proof through the denial of his opponent). This he may do by documents, witnesses, or oath. Each party has the further privilege of shaking his opponent’s evidence by cross–examination.

(4) The next important stage is the debate, the main object of which is to establish by legal arguments the pleas founded on; to deduce the legal consequences inherent in the facts which have been proved.

(5) Finally, the Judge gives his decision. He has to determine, after weighing the evidence led by either party, what facts have really been established, and how far the various pleas of plaintiff and defendant respectively are implied in these facts. Reasoning of such a kind as can be successfully performed only by a trained legal mind is thus necessary before the final decree or sentence can be pronounced by a Judge in a modern court of law.

A trial in Anglo–Saxon and early Norman times stands in notable contrast to all this in its stages and procedure, and even more in the spirit which pervades the whole. Thus, the proceedings, from first to last, were purely oral, there being no original writ or summons, no written pleadings, no record kept of the decision except in the memories of those present. The functions of “the Judges” were entirely different, and called for no previous training, since they were not required either to weigh a mass of evidence or to determine the bearing of subtle legal arguments, but merely to see fairplay, and to decide, according to simple rules, well established by centuries of custom, by what test the allegations of plaintiff and defendant were respectively to stand or fall. Finally, the arrangement of the stages of the litigation was entirely different: it is with something of a shock that the modern lawyer learns that in civil and criminal causes alike “judgment” invariably preceded “trial.” Reflection will convince him that each of these words had in the Middle Ages a meaning different from what it bears to–day. That this is so can be best understood by following the stages of the old procedure.

(1) The initial difficulty was to obtain the presence of the defendant in Court, since there existed a strange reluctance either to compel his attendance or to allow judgment to pass against him by default. No initial writ was issued commanding him to appear; almost endless delays were allowed.

(2) When both parties had been, after many adjournments, actually brought face to face before the Court, the statements alike of the claim and of the defence were made verbally and in set formulae, the slightest slip or stumble in the words of which involved complete failure. This is merely one illustration of the tremendously formal and technical nature of early legal procedure, a trait common to all primitive systems of jurisprudence.

(3) Before the plaintiff could put the defendant on his defence, he required to show some presumption of the probability or bona fides of his case. This he usually did by producing two friends ready to substantiate his claim, known sometimes as his “suit” (Latin secta), or his “fore–witnesses.” Their testimony had no reference to the particular facts of the case; it was not weighed against the “proof” afterwards led by the defendant; its object was merely to warrant the Court in demanding “proof” from the latter at all.

(4) Then came the judgment or “doom,” which partook in no respect of the nature of the judgment of a modern tribunal. It came before the proof or trial, not after it, and was therefore called a “medial” judgment. It consisted in decreeing whether or no, on the strength of the previous procedure, the defendant should be put to his proof at all; and if so, what “proof” should be demanded.

Now, the exact test to be appointed by the court varied somewhat, according to circumstances, but long–established custom had laid down with some exactitude a rule applicable to every case likely to occur; and, further, the possible modes of proof were limited to some four or five at the outside. In Anglo–Saxon times, these were mainly compurgation, ordeal, witnesses (whose functions were, however, widely different from those of witnesses in modern law), and charters. The Norman Conquest introduced for the new–comers, a form of proof previously unknown in England—“trial by combat”—which tended, for the upper classes at least, to supersede all earlier procedures. The “proof,” of whatever kind it might be, thus appointed by the “judges” for the defendant’s performance was technically known as a “law” (Latin lex) in the sense of a “test” or “trial” or “task,” according to success or failure in which his case should stand or fall. To pronounce a “judgment” in this sense was a simple affair, a mere formality in the ordinary case, where room for dubiety could hardly be admitted: thus it was possible for “judgment” to be delivered by all the members of a feudal court, or all the suitors present at the hundred or shire–moot.

(5) The crucial stage, this “trial” which thus came after “judgment,” consisted in one party (usually the defendant) essaying, on the day appointed, to satisfy the court as to the truth of his allegations by performing the task or “law” which had been set or “doomed” to him. When this consisted in the production of a charter, or of “transaction witnesses” (that is, the testimony of those officials appointed in each market–town to certify the conclusion of such bargains as the sale of cattle), it commends itself readily to modern approval. More frequently it took the form of “an oath with oath–helpers,” the plaintiff bringing with him eleven or twelve of his trusty friends or dependents to swear after him the words of a long and cumbrous oath, under risk of being punished as perjurers for any slip in the formula. Sometimes the decision was referred to the intervention of Providence by appealing to the ordeal of the red–hot iron or the more dreaded ordeal of water. After the Norman Conquest, the trial in all litigations between men of high rank, took the form of duellum or legally regulated combat between the parties. The defendant gained his case if he caused the plaintiff to own himself a “craven,” or if he held out till nightfall against the plaintiff’s attempts to force him to utter that fateful word.

This earlier form of “lex” or trial (which is referred to in several clauses of Magna Carta) was thus entirely different from the modern “trial.” It may be said without exaggeration that there was no “trial” at all in the current meaning of the word—no balancing of the testimony of one set of witnesses against another, no open proof and cross–examination, no debate on the legal principles involved. The ancient “trial” was merely a formal test, which was, except in the case of battle, entirely one–sided. The phrase “burden of proof” was inapplicable. The litigant to whom “a law” was appointed had rather the “privilege of proof,” and usually won his case—especially in compurgation, and even in ordeal if he had arranged matters properly with the priest who presided. In one sense, the final “trial” was determined by the parties themselves, or by one of them; in another and higher sense the facts at issue were left to Providence; a miracle, if necessary, would attest the just claim of the innocent.

The essentials of this procedure were the same in Norman as in Anglo–Saxon England, and that in all three classes of tribunals—popular, manorial, and royal courts. Two innovations the Normans did make; they introduced trial by combat and “inquisitio.” Among the prerogatives of the Norman Dukes was this right to compel the sworn evidence of reliable men of any district—men specially picked for the purpose, and put on oath before answering the questions asked of them. This procedure was known as inquisitio (or the seeking of information) from the point of view of the government making the inquiry, and as recognitio (or the giving of information) from the point of view of those supplying it. This device was capable of endless extension to new uses in the deft hands of the Norman Kings. William employed it in compiling Domesday Book; while his successors made it the instrument of experiments in the science of taxation. It has a double claim to the interest of the constitutional historian, because it was one of the influences that helped to mould our Parliamentary institutions; and because several of the new uses to which it came to be put had a close connection with the origin of trial by jury. The recognitors, indeed, were simply local jurors in a rude or elementary form.

III. Reforms of Henry II. in Law Courts and Legal Procedure. It was reserved for Henry of Anjou to inaugurate a new era in the relations of the three classes of courts. He was the first king deliberately to plan the overthrow of the feudal jurisdictions by insidiously undermining them, if not yet by open attack. He was the first king to reduce the old district courts so thoroughly under the control of royal officials as to turn them practically into royal courts. He was the first king also to throw open the doors of his own courts of law to all–comers, to all freemen, that is to say, for the villein had for centuries still to seek redress in the Court of that very lord of the manor who was too often his oppressor.

In brief, then, Henry’s policy was twofold: to convert the County Courts completely into Royal Courts, since in them royal officials now dispensed royal justice according to the same rules as prevailed at the King’s Curia; and to reduce all manorial or private Courts to insignificance by diverting pleas to his own Curia, and leaving the rival tribunals to die gradually from inanition. Both branches of this policy met ultimately with success, although the event hung in the balance until long after his death. The barons, though partially deceived by the insidious nature of Henry’s reforms, did what they could to thwart him; but the current was with the Crown. Royal justice steadily encroached upon feudal justice. One of the last stands made by the barons has left its traces in several chapters of Magna Carta. These contain what seem, at first sight, to be merely trivial alterations of technical points of court procedure; but inextricably bound up with them are principles of wide constitutional importance. It was Henry’s good fortune or policy to disguise radical reforms until they looked like small changes of procedure; it follows that the framers of Magna Carta, while appearing merely to seek the reversal of these trivial points, were really seeking to return to the totally different conditions which had prevailed prior to the reforms of Henry.

The short account of that monarch’s system of procedure, necessary to a comprehension of Magna Carta, falls naturally into two divisions.

(1) Criminal Justice. (a) By his Assizes of Clarendon and Northampton, Henry reserved important crimes for the exclusive consideration of his own judges either on circuit or at his court; and he demanded entry for these judges into all franchises for that purpose. In this part of his policy, the King was completely successful; heinous crimes were, in the beginning of the thirteenth century, admitted on all hands to be “pleas of the Crown” (that is, cases reserved exclusively for royal jurisdiction); and Magna Carta made no attempt to reverse this part of the Crown’s policy: all that was attempted in 1215 was to obtain a promise that these functions, now surrendered to the Crown forever, should be discharged by the Crown’s officials in a proper manner.

(b) Henry’s usual good sense, in this matter stimulated by some notable miscarriages of justice, led him to question the equity of the procedure usually adopted in criminal pleas: for private “appeal” (or accusation by the injured party or his nearest surviving relative), he substituted, whenever possible, communal accusation; that is, the duty of indicting suspected criminals before the King’s Justices was no longer left to private initiative, but was laid on a body of neighbours—the predecessors of the Grand Jury of later days. Appeals were discouraged and rules laid down restricting the right of accusation.

(c) A necessary complement was the discouragement of “trial by combat.” An ingenious device was invented and extended to an increasing number of cases; an accused individual might apply for a writ known as de odio et atia, and evade the duellum by a reference to what was practically a jury of neighbours.

(2) Civil Justice. Henry’s innovations under this head were equally important. In his reign justice, it is sometimes said, was pigeon–holed. Much attention was bestowed on the formalities of litigation; while pleas began to be classified into stereotyped groups, each form of grievance having its appropriate remedy, to be obtained only by means of the appropriate writ.

(a) The Writ System. An unflinching rule was established that no case could be brought before the royal court until a writ had been obtained from chancery. This had to be paid for, sometimes at a fixed rate, and sometimes at whatever sum the Crown demanded. The whole procedure in the royal courts, which followed the issuing of such a writ, came to be known as “the writ system.” From an early date, much attention was directed to the devising of forms of writ applicable to various cases. The system, somewhat inflexible from the first, had become absolutely rigid long before the close of the thirteenth century. If a proper writ was not selected, or if no such writ had been invented, the wronged individual had no remedy in the King’s courts of common law. Registers of writs were drawn up, copied and enlarged, and transmitted from one generation to another.

(b) Control of Feudal Courts. Whether devised for that purpose or not, this writ system proved a useful instrument for diverting the stream of litigation from the barons’ courts to the curia regis. Henry, if we may credit Glanvill, succeeded in establishing the somewhat astounding rule that no plea concerning land could be commenced in any court without the authority of a royal writ. Even if such writs were issued as matter of course, the mere need of asking for them would supply Henry with information doubly valuable in relation to certain other expedients still to be explained. That King, applying to his own needs procedure known to the Carolingian Kings, secured an effective means of evoking suits regarding freehold from the seignorial courts to his own. This was done by procedure initiated by two types of writs: “writs of right” addressed to the holder of a court, bidding him do justice under penalty of interference by the royal court; and “writs praecipe” addressed to the sheriff, bidding him require the holder of a piece of land to hand it over to a claimant or explain to the King why he has not done so.

It is probable that even in 1215 the Crown had not fully developed the consequences afterwards seen to be involved in the writ of right, properly so called; but Henry II. and his sons seem freely to have used the writ praecipe in such a manner as to cause their barons to lose their jurisdiction—an abuse struck at by chapter 34 of Magna Carta.

(c) Royal Pleas and Common Pleas. The mass of new business made it necessary to increase the staff of judges and apportion the work. A natural division was that between ordinary (or common) pleas and pleas of the Crown. This distinction is recognized in many separate chapters. Thus two groups of judges were formed which, in later years, developed into separate courts—the Court of Common Pleas (known as “the Bench,” that is, the ordinary Bench), and the King’s Bench (known earlier as the court Coram Rege, supposed to be held in the King’s presence).

(d) The Petty Assizes. Special procedure for determining titles to land or rights of possession was also invented by Henry to supersede trial by battle. These Assizes, as they were called, are fully discussed elsewhere. While the Grand Assize is not mentioned in Magna Carta, its abuse was indirectly struck at by the clause concerning writs praecipe in chapter 34: the Petty Assizes, however, would seem to have won favour with the barons, who in chapter 18 demanded that regular sessions for hearing them should be held four times a year.

These were the chief innovations that enabled Henry II. to effect a revolution in the relations of royal to feudal justice. As time went on, new writs were continually devised to meet new types of cases; and litigants flocked readily to the King’s Courts, leaving the seignorial courts empty of business and of fees. Nor was this the only grievance of the barons. When one of their own number was amerced or accused of any offence involving loss of liberty or lands, he might be compelled by the Crown, under Henry and his sons, to submit to have the amercement assessed, or the criminal proceedings conducted, by one of the new Benches (by a tribunal composed of some four or five of the King’s officials), in place of the time–honoured judgment of his peers assembled in the Commune Concilium (the predecessor of the modern Parliament).

Can we wonder that the barons objected to be amerced and judged by their inferiors? Can we wonder that they resented the complete though gradual supersession of their own profitable jurisdictions by the royal courts? or that they looked with suspicion on every new development of the royal justice? Can we wonder that, when they seemed to have King John for the moment in their power, they demanded redress of these grievances, as well as of those connected with increase of feudal burdens? The cause for wonder rather is that their demands were not more sweeping: the barons, in their hour of triumph, accepted cordially one half of the royal innovations.

The chapters bearing on jurisdiction may be arranged in two groups, some reactionary, and some favourable to Henry’s reforms. On the one hand, no lord of a manor shall be robbed of his Court by the King evoking before the royal courts pleas between two freeholders of the lord’s manor; no freeman shall be judged or condemned by the King’s officials, but only before the full body of his peers; earls and barons must be amerced only by their equals. On the other hand, in prescribing remedies for abuses connected with numerous branches of legal procedure, the barons accepted by implication this new procedure itself and the royal encroachments implied therein. For example, the Crown’s right to hold “Common Pleas” was impliedly admitted, when the barons asked and obtained that these should be tried in some certain place (that is, at Westminster). Yet these very pleas must have included many cases which, prior to Henry II.’s reforms, would have been tried in a seignorial court. Again, in regulating the petty assizes, chapters 18 and 19 admit the Crown’s right to hold them. Here, as in chapter 40, the ground of complaint is not that there is too much royal justice, but rather that there is too little of it: henceforth it must be neither delayed nor denied. Further, the encroachments made by Henry II. in 1166 on the private franchises in the matter of criminal jurisdiction are tacitly accepted by the acquiescence in the King’s definition of “Pleas of the Crown” implied in chapter 24.

These, then, are the two groups into which the innovations made by Henry and his sons naturally fell, as viewed by John’s opponents in 1215: some of them had come to be warmly welcomed; while others, it was insisted, must be swept away.