Roger of Lincoln, Constable of Devon, was accused by Thomas Silvester that on Monday next before St. Denis' Day, 16 Edw. I., he caught Silvester on St. Peter's Cemetery in Exeter and dragged him by the legs to gaol shackled by four fetters and afterwards threw him head first without a ladder into the bottom of the gaol a depth of rot less than fifteen feet, manacled, on the neck-so that by the fall, he bled all night at the nose, "os suum et fundamentum eius." He kept him in this dungeon from Tuesday till Friday after seven o'clock without meat or drink so that he was nine times in a faint and as though dead.

He also complained that Roger had seized some cattle of his. Roger pleaded that Silvester had previously been the King's Bailiff and had come of his own accord to render account of his receipts as such that he was found in arrears £36, and that he was arrested and sent to the King's prison until he should pay his arrears. Afterwards certain friends of his came and became bail for the debt and he was released: and later he came and delivered the cattle in payment. Silvester stuck to his story.

The Commissioners directed the Coroners to summon twenty-four jurors to try the fact: the result is not given.

A whole tragedy appears in the plaint against William de Saham," a Justice in Eyre in Huntingdonshire. The story as told is a long one but the salient features are as follows: Simon of Fenstanton (near St. Ives, Huntingdonshire) was said to be insane and incapable of disposing of his property-a writ was obtained directed to Richard de Holebroke, Royal Seneschal,30 commanding him to commit the insane man with his lands and chattels to the care of some of his reliable relatives or friends who would be willing to treat him well and answer for his sustenance from the property. After a finding of insanity by an Inquisition by the Counties of Huntingdon and Cambridge, de Holebroke delivered the guardianship to Robert and the other sons of Simon. Simon however escaped from them and without their knowledge sold part of his property to Nicholas de Segrave, whereupon Robert obtained a Writ directed to the Earl of Cornwall ordering him if he found that de Holebroke had made Robert and his brothers Committee, to replace Simon in the'r custody and take any lands sold by Simon into the King's hands.

When de Holebroke returned to England he heard that de Segrave was trying to have a Fine between him and Simon of the land bought, levied before the Court; he appeared before the Justices, showed them the King's writ and opposed the Fine as did the Royal Attorney, Gilbert de Thorntone; but nevertheless the Justices allowed

the Fine to be levied. De Segrave first appeared before the Commissioners bringing with him Godfrey Pickeforde and Thomas de Belhus formerly Sheriff of Cambridge-he said that the sons of Simon had been holding him in chains and depriving him of the management of his property although he was of sound and disposing mind, and that the King sent his Writ to Pickeforde directing him to go to the house of Simon with the Sheriff of Cambridge and other good and lawful men of the County and if they found him of sound mind and good memory they should cause him to have full control of himself and his property. Pickeforde stated that he received the Writ, and went along with the then Sheriff ("now present in Court and who asserted the same ") and other lawful men of the County to Simon's house found him in irons in his chapel32 but of sound mind and good memory, and so he had the irons removed and took him into his Hall before the Sheriff and the other faith-worthy men before whom he answered all questions well and wisely and bade them to dinner and spoke on all other matters sanely. As it seemed to Pickeforde and the others that he was of sound mind they delivered to him free administration of his estate.

On the Commissioners examining the Records, it was found that neither the objection of Robert nor that of Gilbert de Thorntone, the King's Attorney, had been entered or anything else than the licentia concordandi between Nicholas de Segrave and Simon. The Judge, William de Saham, then appeared and said that Robert did frequently object in the Eyre to the Fine being levied on the ground that his father Simon was non compos mentis and Gilbert de Thorntone for the King alleged the same-saying that Simon many times. naked and girt with a sword visited the ladies of the country and did many other things such as those so afflicted do. The Judge said that on such representations the Justices in Eyre superseded the proceedings and refused to go further. Then Nicholas took Simon to the Exchequer at Westminster, where he was examined by Privy Councillors and found by them competent to levy a Fine-the Earl of Cornwall, the King's representative, then directed the Court to proceed with the investigation.

The King put an end to the proceedings before the Commission s by a Writ dated at Berwick-on-Tweed as de Segrave was employed in his service in Scotland-and "predicta querela remansit sine die."33

Toronto.

66

WILLIAM RENWICK RIDDELL.

1 This "Le Mireur a Justices," 'Mirreur des Justices." "Speculum Justiciarorum," "Mirror of Justices," long considered of authority was put in its true place by Frederic William Maitland in his edition published by the

39-C.B.R.-VOL. III.

Selden Society, London, 1895. The very learned editor calls it "an enigmatical treatise," devoured by Coke with uncritical voracity" and considered by him a very ancient and learned treatise of the laws and customs of the Kingdom" (Coke, 9 Rep., Preface), which has done much harm "to the sober study of English legal history "-speaking of the author, whoever he was, the editor truly says: The right to lie he exercises unblushingly. A good instance is given us by the daring fable about the forty-four false judges whom King Alfred hanged in the space of a year unless fortune has served him or us very ill, we must hold that he did not scruple to invent tales about times much later than those of Alfred."

Those interested are referred to two Papers by J. S. Leadam, Transactions Royal Historical Society, 1892, pp. 192-262, and 13 Law Quarterly Review (January, 1897), pp. 85-103; my article "King Alfred's Way with Judges," 16 Illinois Law Review (June, 1921), pp. 147-149, is of lighter calibre, but may be interesting to some.

* Maitland's Mirror of Justices, ut suprâ, Introduction, xxiv.: "the only or almost the only time in English history when a sweeping denunciation of the King's Justices as perjurers, murderers and thieves would have had enough truth in it to be plausible and popular our one great judicial scandal

a unique event": Stubbs, Constitutional History of England, vol. ii.. p. 125: Pauli, Geschichte von England, vol. iv., pp. 50, 51: Seeley, Life & Reign of Edward I., pp. 75, 76: Lord Campbell, Lives of the Chief Justices of England, Murrray, London, 1849, vol. 1, p. 75: Edward Thompson Co.'s new revised and very beautiful edition. Northport, L.I., 1894, vol. 1, p. 111: Lord Campbell, Lives of the Lord Chancellors Lea and Blanchard, Philadelphia, 1847. vol. 1, p. 147: Foss, of course, speaks of it under the name of each of the accused judges.

William de Brompton was found guilty on other charges, imprisoned and fined he had been a Judge of the Common Pleas from 1274. Foss in his Biographica Juridica places the fine at 6,000 marks, i.e. £4,000: Tyrell in his History makes it 3,000 marks, £2.000—the Receipt Book shows the true amount paid to have been £3.666 13s. 4d., i.e., 5,500 marks. He seems to have been reinstated as Judge, but this is uncertain.

The word "neptem," neptis," in Classical Latin was generally granddaughter" e.g., Ovid in his Metamorphoses, 4.530, speaks of Ino as "neptis Veneris." But like the corresponding nepos," grandson," it became even in Classical but post Augustan times in use for the child of a brother or sister. The "nephews" and "nieces" of ecclesiastics were not infrequently suspected of closer relationship to the cleric.

Præcipe in capite, or Præcipe quod reddat in capite was a Writ of Right issued at the instance of a claimant of any land: it was directed to the Vicecomes or Sheriff and began (after the address "Rex Vicecomiti, &c.) "Præcipe. A. quod juste, &c., reddat B." and describes the land claimed-then it proceeds to direct the Sheriff if B. does not deliver up the land to A. to summon him to Court, A. having given security, &c.

For all the learning on the Writ see Fitzherbert De Naturâ Brevium, 4, 6. 10. It corresponded to our (former) Writs in Ejectment.

Essoigns were an integral and important element in practice at the Common Law-the rules were intricate and in many cases uncertain. An essoign corresponds in substance to our adjournment or continuance.

"Statutum Marlebergie" (the genitive and dative singular, nominative and vocative plural of the First Declension was in most medieval MSS. written with an "e" not our "") or "Statutum de Marlebergie" or "Statute of Marlborough, made at Marlborough, alias Marlberge, November 18, 1267, 52 Hen. III., by cap. 28 provides that "if any Wrongs or Trespasses be done to Abbotts or other Prelates of the Church and they have sued their Right for such wrongs and be prevented with death before judgment therein, their Successors shall have actions moreover the Successors shall have like withdrawn from their House

actions for

.

things

and Church before the Death of their Predecessor though their said Predecessor did not pursue their Right during their Lives: And if any intrude into the Lands of such Religious Persons in the time of Vacation successors shall have a Writ to recover their Seison."

. . the This is called the penultimate chapter as there are 29 chapters in the Statute, this being the 28th.

In other words, did not enter a "Suggestion of Death."

Statutum apud Westmonasterium editum," the "Statute of Westminster the Second," 1285 13 Edw. I., St. 1, by chapter 51, provided for the Judge "sealing an Exception."

10" Sic per errorem et fauorem et manutenementum predictum have been an almost formal and technical way of alleging misconduct:

44

66

seems to

When a tenant was duly summoned and failed to appear, unless he could essoign de malo lecti," de malo veniendi," Ide malo ventris" "de malo ville." “de ultra Mare," or some other good excuse properly presented in Court, "defaltam adjudicauerunt Justiciarii "-the Justices adjudged default, and directed the lands claimed to be taken by the Sheriff "into the King's hand." in manum Regis; this they commanded by the writ parvum cape. The seizure by the Sheriff was mesne, minor, parvum, and not final. The tenant whose land was thus taken by the Sheriff, had the right to claim "per plevinam," and upon showing good cause might (not necessarily would) receive back the land until trial. Woe unto the litigant who rashly essoigned double. In Hilary Term, 1 Joh., 1200, as assize was held to determine if "Eudo the uncle of William de Takele had been seized in his domain and of fee of the quarter of a military fee in Hertherst of which land Herevicius de Geddinges and his son Thomas were in possession." 'Ipsi essoniaverunt se de malo venidendi et postea de malo lecti: et capta fuit assisa per defectum "-they essoigned for difficulty in travel (i.e. bad roads, swollen fords, broken bridges, outlaw robbers, &c.) and then for sickness, and the assize was taken by default. Fortunately for them the Jury found against the plaintiff "quod Eudo non fuit inde saisitus," that Eudo was not then seized, and judgment went that Willelmus nichil capiat per assisam illam." William should take nothing by that assize. In the same Term, Reginald de Leham had been sued for forty shillings claimed by Petronella, widow of Humphrey Robertson-suing by her Attorney Walter Robertson as dower given by her husband ex dono viri sui." "Reginaldus essoniavit se de malo veniendi et de malo lecti et non jacuit essonium)-Reginald essoigned himself de malo venidendi et e malo lecti: and he did not cast an essoign. See Curia Regis Rolls .. Richard I. and John, King's Printer, London, 1922, pp. 135, 146.

11 66

Inquisitia" has a wide signification in Common Law proceedingshere it means an inquiry by the Grand Assize. See note 16, post.

12 44

In misericordia "-in mercy. When a complaint proved baseless or a defence failed the unsucessful litigant was in misericordia and was liable to pay a fine to the King. The fine was not uncommonly half a mark, 6s. 8d., but sometimes much higher. I find one of 40s-worth about $175 or $200 at the present value of money. No small part of the Royal revenue came from these fines. We in Ontario still compel a litigant to pay at every step by stamp or in money.

13 A tremendous sum in those days equivalent to some $80,000 to $100,000 at the present value of money.

"Of course a writ of Certiorari.

15 Ralph de Hengham was Capitalis Justiciarius. Chief Justice of the King's Bench, which Court had supervision over all the Common Law Courts of the Realm: he became C.J. in 1274 and continued as such till 1289 when he was succeeded by Gilbert de Thornton mentioned in the Text. We shall come across him again. The story runs that his whole offence was to alter a Record and make a poor man's fine 6s. 8d., instead of 13s. 4d.

As the Year Book, Michaelmas Term, 2 Richard III. (1484) 10 (A) pl. 22, has it-after speaking of the gravity of the offence of erasing a Record, the Report proceeds: "p. talibus actibus Justic. pantea deinde fuer. psentat & convict,. & unus fecit finem de octingentis is marc.' videlicet Ingham: Justic alii &c., Et tantum fuit pro eo quod vdam paup fecerit finem p. quodm. debito ad. 13s. 4d. & idem Justic, fecerit rasari & pro pietat' fecit inde 6s. 8d."-for such acts Justices were long ago presented and convicted and one paid a fine of 800 marks, i.e., Ingham and other Justices &c. As to him the offence was that a certain poor man was to have paid a fine of 13s. 4d. for a certain debt and this Justice from sympathy caused it to be erased and to be inserted therein, 6s. 8d.

Coke, 4th Inst., f. 255, says that Ingham built the Clockhouse and supplied the Clock at Westminster Hall for his fine of 800 marks, (£533.6.8.) but Blackstone with unusual skepticism points out that "the first introduction of clocks was not till an hundred years afterwards about the end of the 14th Century.” Black. Comm., Bk. iii, p. 408, n(x): Original ed., Oxford, 1770. Blackstone was probably in error, for clocks had been in use from the 11th Century. This very clock with the motto "discite justitiam, moniti" is said to have been gambled away by Henry VIII, Ency. Brit., Vol. 6, pp. 536, 537. At all events, it was a tradition at Westminster Hall-Coke, 4th Inst., p. 255, tells us that in the reign of Queen Elizabeth, Chief Justice Sir Robert Catlin (C.J., Q.B., from 1559 to 1572) accused Mr. Justice John Southcote (Justice, Q.B., 1563-1577) with altering a Record-the Judge denied it in open Court and said "he meant not to build a clock house."

De Hengham paid £4303 6s. 8d. 6455 marks of his fine of 7000 marksperhaps the balance, 545 marks, went for the clock and clock house.

He figured in nine cases and was acquitted in five-he was taken into favour again to and by 1300 he was a Judge once more-and the next year became Chief Justice of the Common Pleas he retired in 1309 and died in 1311, being considered worthy of burial in St. Paul's. Campbell says: "He may be truly considered the father of Common Law Judges: he was the first of them who never put on a coat of mail- . contented with the er

mined robe," op. cit., p. 113.

16 I can find no rule against the number of "days" to be given in a year, &c: and the Commissioners treated the objection of the Abbot as baseless, passing it over sub silentio.

Before the time of Henry II, the only method of trial of right to possession or property in land was by Duel-that King by the assent of his nobles allowed the question to be tried by a "Grand Assize" of 12 Juratores and 4 Milites, on payment of a small fee to the Crown, generally 6s. 8d.

The duel or Battel was generally waged in the County Court but sometimes (and in later years always) at Westminster before the Judges of the Court of Common Pleas and the Serjeants-at-Law.

"This fact makes it almost if not absolutely certain that the Abbott applied by plevina for the land seized into the hands of the King by the Sheriff: that an Inquisition was ordered and found against him. The complaint against the Judges was a dernier ressort.

"John Paynel was the original claimant to whom seisin was given; but he must have placed Philip Paynel in possession or perhaps Philip succeeded to the inheritance-one Robert de Rowelle was also in possession of the land or some of it. Both Philip Paynel and de Rowelle were interested and had a right to be present in Court on Oyer of Record and Process. The modern form of the names is "Pennell" and "Rowell."

19 Thomas de Weylaunde (Weyland) had been Chief Justice of the Common Pleas since 1278 with Puisnés, Roger de Leicester, Walter de Helyun (or Elias de Beckingham). John de Lovetot and William de Brompton.

When

the King returned, de Weyland promptly fled, disguised himself as a monk and hid in a Monastery at Bury St. Edmunds. Discovered "wearing a cowl and a serge jerkin," he was starved into surrender; he obtained leave to abjure the Realm on forfeiting all his lands and chattels to the Crown-he was deported at Dover and died in exile leaving a name execrated like those of Jeffries and Scroggs for a time but now wholly forgotten.

20 Hamble River rises near Bishops Waltham and after a short course forms a narrow estuary opening into Southampton Water on the east between Southampton and the English Channel.

21 The Privy Council (or Star Chamber) sitting at the Common Law before the Statute of 1487, 4 Henry VII, c. 1-See my Paper: 'The Judicial Committee of the Privy Council," Missouri Bar Association, 1909.

66

23 This was a not uncommon entry when a litigant failed for any reason, corresponding to our without prejudice to an action "-it might even be granted during the course of an unfinished action. As an example of the_latter, in Hilary Term, 10 Richard I, (1199), in an Assize Mort d'Ancestor, Reginald de Lenna and John his brother being Claimants (patentees), the proceedings were held in abeyance because Richard the elder brother did not prosecute the case and was in misericordia; but "Johannes querat breve si voluerit versus tenentes "-let John seek a writ against the tenants if he likes.

In another case in Hilary Term, 1 John. (1200), William son of Osbert sued his brother Thomas by writ of Mort d'Ancestor: the action " remanet quia ipsi sunt fratres," but William was allowed to have a Writ of Right, Breve de Recto.

In Hilary Term, 2 John, 1201, the Abbot of this same House. Roche, sued by his attorney Reginald the Monk, the Prior of Holy Trinity at York and his House about the advowson of the Church at Roxby claiming that not the Prior but one Walter de Scotenin had the last presentation. Walter did not appear and the Prior went without a day: "et Walterus perquirat se si voluerit." One Ralph Painel figures in this action.

23 As to Ralph de Hengham, see n. 15 ante.

24 William de Camville (de Canuile or de Kanuile), a Bristol merchant, sued Adam Hundred and William de Beverley (de Beuerlaco) in the City Court of Dublin (Diuelyna, Dieuelina, Dublinia-all these names appear in this case) and failed. He procured the Chief Justiciar of Ireland to certify the proceedings and brought it before de Hengham in the King's Bench of England without an Original Writ of Certiorari, a clear irregularity even if