ERRING JUDGES OF THE THIRTEENTH CENTURY.

The Royal Historical Society (of London) has published much material of great interest to lawyers a humble Fellow, I think none is more interesting than that published in 1906: "State Trials of the Reign of Edward the First, 1289-1293."

The subject is the investigation into the alleged cruelty, injustice and venality of the Royal Officers, great and small, in England, during the absence of the King in Gascony, 1286-1289-among them some of the Judges. It is well known to students of legal history that several Judges were accused and some convicted and severely fined some losing their Commissions as well.

It is, however, gratifying to know that examination of the extant official records enables the learned editors to say that very many charges were found to be without real basis in fact-nevertheless there was a drastic and dramatic weeding out of the judicial Bench which made a great impression; and since that time while there has been in England a sporadic case from time to time until comparatively recent years, of judicial corruption-as witness the deplorable. case of Bacon--there has been no complaint of wholesale impropriety.

The earlier instance of drastic and extensive punishment of Judges by King Alfred we now know to be entirely mythical, depending wholly for authority on the lying "Le Mireur a Justices." 1 The transactions in King Edward's time, however, are authenticated by extant records, and are mentioned by reliable historians.2

It is not the purpose of this Paper to discuss the matter at large; but only to give some account of certain of the proceedings before the Commissioners or Auditores. I shall not transcribe the original Latin but translate as literally as the idioms of the two languages permit, abbreviating in unimportant matters.

All the Justices of the Bench and especially William de Brompton" were accused by the Abbot of Roche (a Cistercian Abbey near Rotherham in Yorkshire) and the investigation took a wide course.

The complaint was that one John Paynel, by the maintenance of John of Kirkby then Bishop of Ely whose niece Paynel had married, had a writ of precipe in capite against William the preceding Abbot of Roche concerning certain land in Roxby in Lincolnshire, and that the writ was returned into Court on the Octave of St. John the Baptist. On this day the Abbot aforesaid was essoigned and had "a day" 15 days after Michaelmas-(" 15 days"

meant a fortnight at the Common Law) on which day he craved a view of the land and had a day 15 days after St. Martin's on which day the Abbot was essoigned and had a day 15 days after St. Hilary's on which day the parties pleaded--so that within the half year four days were given to the said Abbot-against the law and custom of the Realm, according to which in one year only three or in two years only five days could be given in a Writ of Right-to the damage of the said Abbot, etc. This was the first ground of complaint-a status being claimed by the complaining Abbot under the penultimate Chapter of the Statute of Marlborough."

The second ground of complaint was more serious:

When the Justices had on the day last named given Abbot Walter a day the morrow of Ascension Day, Walter died shortly before the return day at Beaulieu (a Cistercian Abbey in the New Forest)and on the day, monks of Roche came before the Justices and informed them that he was dead "which was testified by true and lawful men and the letters of the Abbots of Beaulieu and of Netley (a Cistercian Abbey on Southampton Water) that they had buried him on Tuesday; but the said Justices did not admit or enrol this evidence, against the Statute of Westminster II. but by error and favor adjudged default10 against the said Abbot after his death. And they directed the issue of a writ called parvum cape to seize the land into the King's hand and to summon the Abbot to be before them on the Octave of St. John the Baptist to hear judgment on his default made after appearance. On this day monks of Roche came with monks of Beaulieu before the Justices and said that no default could be made because the Abbot was dead which they were ready to prove-notwithstanding this, the Justices adjudged Seisin of the land to Paynel, no inquisition being had and the said Abbot in mercy."12

Damages were claimed for the existing Abbot and his House of £1.000.13

William de Brompton, brought before the Commissioners, pleaded that the plea between the (former) abbot and Paynel was before him and his fellows of the Bench and judgment was rendered therein. according to the law and custom of the realm-and afterwards on Royal Writ they sent the Record and Process before Ralph de Hengham and his fellows holding Pleas of the Crown's "and he says that the said judgment was there affirmed as good according to the law and custom of England-whence it appears that he ought not to be called upon to answer without the said Ralph. and his fellows who affirmed the said judgment as good. And he said that

if the Auditores so directed he would answer without them." His dilatory plea was ineffective: he was asked about the essoigns-four days in half a year-and he said that heretofore the Justices of the Bench were accustomed of their own volition to give to the parties more than three days in a year "according to the nearness of the County (Court) before duel waged or the sending of the Grand Assize."

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As to the evidence of the death of Abbot Walter, predecessor of the present Abbot, he said that he did nothing against the law and custom of the realm-for he said testimony of this kind by letters of Bishops or Abbot is not admissible as authentic (tanquam autentica) in the King's Courts except in special cases, that is to say, when the Bishop writes to the Justices of the Bench that a certain person is excommunicated for contumacy or absolved if previously excommunicated and the like.

And moreover, he said that an Inquisition was had on precept of the King concerning the death of Abbot Walter by which Inquisition it was found that he was alive on the day of judgment rendered.17

The Abbot complainant admitted that it might be that the judgment had been afterwards affirmed by Ralph de Hengham in the (King's) Bench-but claimed nevertheless that it was not good but that Ralph had increased not corrected the wrong done thereby to

the Abbot.

William de Brompton then said that if there was any error in the process, it should be corrected by the Auditores: they sent for Record and Process and' issued a Precept to the Sheriff of Lincolnshire to have Philip Paynel's tenant of the land present before them on the Quinzaine of St. Hilary's Day to hear the Record, etc.—it was accordingly read. Afterwards on the Octave of St. John the Baptist came before the Auditores, the Abbot and also Philip Paynel and Robert de Rowelle the tenants of the land. The Abbot asked that if any errors were found in the Record, the Auditores should correct them. And now came the dramatic climax. I translate literally:

"And inasmuch as on inspection of the aforesaid Record and Process had before Thomas de Weylaunde1 and his fellows, it appears that a certain Inquisition held at the suit of the Abbot himself was returned into the Bench at Westminster before the Justices aforesaid by which it was found that the said Abbot, whom the monks of Roche asserted to be dead on the Tuesday next before Ascension Day in the 13th year of the present King at Beaulieu in the County of Southampton, was there alive three weeks after St. John the Baptist Day of the same year, crossing over Hamble Water20 — and

also, inasmuch as the said Record was at the suit of the said Abbot brought before the King when John Paynel better proved the life of the said Abbot than the present Abbot the death of his predecessor, in that the said John (Paynel) proved by men in religion, Knights and servants worthy of belief and the Abbot by monks and his household whose evidence was not so good as that which the said John produced-whereby the Court of the King was sufficiently satisfied that the said Abbot predecessor of the present Abbot was alive at the time that seisin of the said tenements was given (to Paynel) by default of the said Abbot-and inasmuch as the said judgment which was rendered by the Justices of the Bench was afterwards confirmed by the Judges sitting for the King and by the whole Council of the King21 and inasmuch as the parties who are now in judgment are not the same as those when judgment passed, it is considered that the said William de Brompton) Philip (Paynel) and Robert (de Rowelle) go hence without a day and that the said Abbot take nothing by his plea but be in mercy for false plea. And let him sue by Writ if he thinks he can better himself."22

Ralph de Hengham, Chief Justice of the King's Bench,23 was equally fortunate. William de Camville, a merchant of Bristol, complained of him that when he brought the Record and Process of a false judgment of the Mayor, Bailiffs and Commonalty of Dublin2* under the seal of the Chief Justiciar of Ireland before de Hengham and also brought before him Adam Hundred and William de Beverley then Bailiffs of Dublin, to hear judgment concerning the said Record and Process, de Hengham refused to hear him, drove him from the Court and threatened him that if ever thereafter he produced this Record and Process before him he would have him imprisoned for a year and a day where he would see neither hand nor foot.

William further complained that when he offered himself against Adam Hundred and asked judgment on the Record and Process, de Hengham made him count (Narraret) de novo against the Attorney of Adam Hundred, so that he impeded William unjustly lest he could recover against the Dublin Court by reason of the false judgment and the said Court lose its franchise-he vouched the Rolls of Easter Term, 16 Edw.25

A third complaint was that when judgment was given against Adam Hundred by de Hengham as for want of defence (tanquam pro indefenso), and William procured a Writ from de Hengham to the Chief Justiciar of Ireland to deliver to de Camville £40 and 1 mark then in the custody of the Chief Justiciar of Ireland and to

distrain Adam by lands and chattels to the value of £200 claimed by de Camville of him-" then came the said Ralph and wholly annihilated (adnichilauit) his judgment formerly before him rendored."

A fourth complaint was that after he had prosecuted his said action before de Hengham for two full years and even half a year after judgment obtained from de Hengham, the latter sent the Record and Process to the Court of Dublin for determination. A fifth complaint renewed this in different words.

De Hengham came and said that William did not have the original Writ of the King with Record and Process but some sort of a Writ under a seal he did not know and that he could not proceed without the original Writ-he vouched the Rolls and Writ to Warranty.

De Camville said that he produced the original Writ under the seal of the Chief Justiciar of Ireland and he also vouched Rolls and Writ-consequently the parties were at issue on the first complaint.

On the second there was a straight denial and vouching of Record by both parties.

As to the third and fourth, de Hengham said that the Writ issued. by him was for distress only; and that he had a Writ of the King to send the Record of the plaint to Ireland. The Writ is copied in extenso: condensed, it sets out that on behalf of the Mayor and Citizens of Dublin it was shown that the King's predecessors had granted to them that if error or injustice were claimed by either party in pleas heard before them, the same might be corrected by “Our Chief Justiciar, or Council or our Justices of the Bench,"26 that he Camville had averred error in an action in Dublin between him on the one side and William de Beverley and Adam Hundred on the other and had caused the said plea to be brought before de Hengham in England "contrary to the said concessions and liberties by Our progenitors granted and to the no small damage and detriment of the said citizens." The Judge was ordered no further to intromit in the said plea but to send it to Ireland.27

"And inasmuch as it is found that the said Ralph had not an Original Writ whereby he could proceed and moreover it is found by the said Writ of the King that the said Ralph could not proceed in the said plea to the prejudice of the said citizens but that he must remit the said plea to Ireland: Therefore it is considered that Ralph go quiet (recedat quietus) from the plaint of the said William: And that William take nothing by his plaint but be in mercy for false claim. And he is pardoned inasmuch as he is poor."28

Let us mention one who was not a Judge.