It was said before, that in some personal actions the solennitas attachiamentorum was not to be observed, and this was in several cases of privilege; as, in addition to those that have been already mentioned, where the plaintiff was a crusader or a merchant, whose affairs demanded despatch; where there was some urgent necessity; as in assizes of darrein presentment, quare impedit, and non permittit, lest the plaintiff should incur the lapse of six months; where the subject in contest was a perishable article, as ripe fruit; or, in an action of trespass, where the injury was atrocious, and against the king's peace; where regard was to be had to the quality of the person injured, as the king, queen, or their children, brothers, sisters, or any of their relations or kin; in any of the above cases, it was usual, in the first instance, to have a writ to the sheriff, quod habeat corpus, &c., ad respondendum. But this writ against the body, instead of the clause ad audiendum judicium de pluribus defaltis (which would have been absurd), had one, containing the cause wherefore the formality of attachment was dispensed with; as, Præcipimus tibi, quod, omni occasione et dilatione postposita, propter privilegium mercatorum, quorum placitum instantiam desiderat, habeas, &c., and so in other cases. But, notwithstanding this intention to avoid delays, the defendant might have an essoin de malo veniendi, before he appeared.1 In capital cases, there was no attachment but that per corpus and any one, with or without a precept, might arrest such an offender. 2

In mixed actions, as those for dividing a common, de proparte sororum, of partition, and the like, the usual process was, distress real, and not distress personal.

Thus far Bracton speaks of the commencement of mixed and personal actions; but, notwithstanding the full manner in which he has treated the whole proceedings in real actions, he leaves these without any further discussion.3 The small proportion that personal property bore to real, in these days, might be a reason why the remedies provided for the recovery of it, should have undergone very little consideration (a). Consistently with the inferior light in which personal property was held, it is probable that the

(a) There is a whole chapter upon contracts (c. ii. s. 27), which are expounded very fully, whether as to their nature, simple contract or deed, or their subject matter, leases, bailments, and the like; and it is said, "according to the nature of the actions, the forms of the remedial writs are adopted." But then, as the remedy would in most cases be far more convenient in the county court, the only remedial writ would be "justicies," to the sheriff to empower them to hear the case in that court. In the vast majority of cases, this would be the most convenient course; and hence little is said about the procedure in such actions in books which professedly treat of proceedings in the king's superior courts, which were, for the most part, confined to suits relating to real property. The Mirror shows that there were personal actions, with procedure as well adapted to them as those in real actions; and in the Mirror they are treated of as fully. The reason why the author had not found so much about them in Glanville or in Bracton was, that those authors--both of them judges in the king's superior courts-confined themselves to proceedings before those courts, and their proceedings were almost entirely in real actions. Because (as has been 3 Vide ante, 459.

1 Bract. 444.

2 Ibid. 444 b.

nature of personal actions had not been much refined upon. We shall see, in the following part of this history, how they gradually grew into notice, and at length became equally important with real actions. It is to be lamented that our author passes over with the same silence the redress to be obtained by a writ of error; the practice of which must be collected from authorities of a later period.

seen), originally, the primary jurisdiction in all actions was in the county courts, whose jurisdiction was not limited, as that of the courts baron was, to sums under forty shillings, but extended to any amount ;-because there were no other courts of primary and ordinary jurisdiction. And though a practice had arisen of requiring the king's writ of justicies to the sheriff, to give the county court jurisdiction in cases above that amount; yet it is probable that, for many reasons, the cases which concerned mere personal rights of action continued to go into that court, and were not removed thence, so often as causes which concerned the inheritance. Moreover, some actions, as in debt, in which wager of law-a usage arising out of the old Saxon system of compurgators-was allowed, and which actually, in law, survived to our own times (although, of course, obsolete ages ago)—was one which, if it were to be resorted to, would be far more conveniently resorted to in the county court, where all the compurgators would be well known, than in the curia regis. Added to this, the nature of personal actions generally required a greater degree of speed in the proceedings than real actions, in which speed was not of great importance, and which required deliberate judgment. That personal actions were not only numerous, but far more numerous than real, will be manifest upon a little consideration, and is apparent from many passages in the Mirror. The matters and transactions out of which they arose were of daily and hourly occurrence; whereas suits to recover real estates must, from their nature, be far fewer in number than cases of trespass, for instance, for trespass or distress, would occur every day; while actions to recover land would be in comparison few. The Mirror mentions many classes of personal actions, and treats of them so fully as to show that they were common. For instance, there is a whole chapter upon wrongful distresses, which were very frequent in those times, and of which the Mirror says, "An action granted upon personal trespass, occurreth to people wrongfully distrained; and it is said that if the distress is carried away (out of the county), the cognizance belongs to the king's court, which could grant replevin; but to hasten the remedy, sheriffs and hundredors had power to take sureties, and deliver the distresses, and hear and determine the plaints of the wrongful distress." And it is obvious that these were, for many reasons, cases fit for the local courts. And so, for various reasons, of the greater proportion of personal actions. The Mirror mentions various classes of such actions in different passages. Thus, in one place, it speaks of actions of account, and of leading away distresses (c. iv. s. 5); and in another place, of actions where one denies his gift, his bailments, his deed, or other kind of contract (c. iii. s. 23); and in another place, of obligations and covenants (c. ii. s. 32), and trespasses, and taking of goods (c. i. s. 24).

CHAPTER VIII.

HENRY III.

The Eyre-The Jury-Capitula Itineris-Of Læse-Majesty-Who to judge thereof Of Homicide-The Office of the Coroners-Imprisonment and Bail -Of Outlawry-at the King's Suit Reversal of Outlawry-Of Murdrum -Presentment of Englishery-Abjuration-Ordeal goes out of Use-The Duel-Appeal of Homicide-Exceptions thereto-Proceeding per Famam Patria-Of other Appeals-Of Theft-Of Provors-Of Vetitum NamiumDies Communes in Banco-Statute of Marlbridge-Distresses-Writ of Entry in the Post-Legatine and Provincial Constitutions-The King and Government-Statutes-Bracton-Miscellaneous Facts.

WHAT has been said of our criminal law in the reign of Henry II. was confined to such pleas as related to the king's crown and dignity. We shall now be enabled to treat more fully of this subject in all its parts. As criminal justice was most commonly administered in the country before the justices itinerant,1 it may be proper to give some account of the course of proceeding there; after which we may go on to the consideration of crimes, as to their nature and punishment; with the method of pursuing and prosecuting offenders, from the time of the fact committed to their condemnation in court (a).

Previous to the coming of the justices itinerant, there issued a general summons, as was before shown 2 for all persons

The eyre.

to attend at a certain place and time; which time was to be at least fifteen days from the proclamation of the summons. (a) The author here follows Bracton, who speaks only of justices itinerant; and he appears to have regarded the justices itinerant and the justices in eyre as the same; but the former were at first appointed to go their circuits yearly, or twice a-year; whereas the latter, there is reason to believe, went once in seven years. It appears that, towards the latter part of the reign, the justices itinerant were restrained from going oftener than once in seven years (Lord Littleton; Hen. II., vol. ii. p. 208); and in the histories of the contemporary chroniclers, it is stated that the people actually remonstrated against their coming oftener. The explanation of this is, that their commissions were not merely for the administration of justice, but also embraced the collection of various branches of the royal revenues-fines and amercements, talliages and forfeitures; and they often pressed their exactions so that they were dreaded as oppressors rather than hailed as protectors. The Mirror, under the head of "Justices in Eyre" (not mentioning justices intinerant), says that it was ordained that kings or their justices should go circuit every seven years through all the shires, to hear and determine all pleas, receive the rolls of sheriffs, bailiffs, &c., and see if any had erred, either in the law or to the damage of the king, and those things which they found not determined, they should determine them; and that in the eyre they should inquire of all offences which belonged to the king's suit and jurisdiction-i.e., involved fines or amercements at his suit. And they were to inquire of all manner of pleas and presentments after the last eyre taken and received -the first to inquire, hear, and determine the articles presented in the last eyre

1 Vide ante, vol. i. 201.

2 Ibid. 403.

When the justices came, the first step to be taken was to read the writs or commission under which they derived their authority. After this, if the justices pleased, one of them, being, as Bracton says, major et discretior, was openly to propound the occasion of their coming, to enlarge upon the utility of the institution of itinera, and the benefits that followed from keeping peace and good order; he was particularly to notice the violation of justice committed by murderers, robbers, and burglars; and inform the whole assembly that the king commanded all his liege subjects by their faith, and as they would preserve their own property, to give every advice and assistance towards repressing such and the like offences.

After this, says Bracton, the justices were to withdraw into some private place; and call to them four, or six, or more of the majores comitatus, who were called busones comitatus; being persons on whom the rest depended, and by whom they were governed. With these the justices were to converse, and show how provision was made by the king and his council for all persons, as well knights as others, being fifteen years of age, to make oath that they would not harbour any outlaws, murderers, robbers, or burglars, nor collude with those who did; and, if they knew of any, that they would cause them to be attached, and report it to the sheriff and his bailiffs; that they would follow every hue and cry with their family and men; that they would arrest all suspected persons, without waiting for the mandate of the justices or sheriff, and make report to the justices or sheriff of what they had done. These principal persons of the county were to swear to observe all this; and moreover, that if a person came into a town to buy victuals which were suspected to be for the maintenance of malefactors who were harboured in the country, they would arrest the party, and deliver him to the justices or sheriff; that they themselves would not receive any stranger into their houses by night; or, if they did, that they would not permit him to go before it was broad day, and then not without the testimony of three or four neighbours.2

After this conference with the principal people of the county,

which were not ended, and afterwards to determine matters since then (c. iv. s. 21); and it is elsewhere said to be an abuse that a man should have an action personal from a longer time than since the last eyre (c. v. s. 7); and it appears, also, that crimes were not inquired into if committed before the last eyre. Thus, then, it seems clear, that justices 'in eyre' (a phrase probably derived from the old word eyrer, to go, from the Latin ire, and akin to the Latin word, iter, used in Bracton), meant justices who went once in seven years to hear and determine pleas of the crown, and all other matters which justices itinerant would hear. Britton also, who wrote after the end of this reign, has a heading, "De Eyres:"-" Quant a nos venes al eyres de nos justices."

1 The anomalous appellation of busones is to be met with nowhere but in this passage of Bracton. Sir Henry Spelman says, he had seen a MS. that was written barones comitatas; if so, it possibly means the barones majores, or lords within the county. The distinction between barones majores and minores had become more important in the days of Bracton than it had been before; for it is supposed that the latter were, about that time, excluded from the legislature, writs of summons being directed only to the former. Vide Spelman and Du Cange voce busones.

2 Bract. 115 b. 116.

the justices, we may suppose, returned into the open court, to attend to the rest of the business. The next step was the calling over the serjeants and bailiffs of hundreds, each of whom was to swear to choose out of his hundred four knights, who were to come immediately before the justices, and make oath that they would elect twelve other knights; or, if knights could not be had, twelve liberos et legales homines, who were no appellors, nor The jury. appealed, nor suspected of breach of the peace, or the

death of a man, or other offences, and such as were well qualified to despatch the king's business on that occasion. The names of these twelve were immediately to be inserted in a schedule, which was to be delivered to the justices. As the twelve of each hundred appeared, one of them took the following oath: "Hear this, ye justices, that I will speak the truth of that which you shall command me on the part of our lord the king; nor will I, for any thing, omit so to do, according to my ability; so help me God, and these holy gospels;" after which every one was to swear separately for himself, "The oath which John here has taken, I will keep on my part; so help me God, and these holy gospels." When they had all sworn in the above manner, the capitula itineris capitula were read to them in order; and when those were gone through, the justices informed them, that they were to answer in their verdict, separately and distinctly, upon every article thereof, and were to have their answer there at a certain day. Besides this, they were to be told, privately, that if any knew of any suspected persons in his hundred, he should instantly take them if they could be found; if not, their names were to be conveyed to the justices, in a schedule, privately, that they might not have notice to escape; upon which the sheriff would be commanded to take them, and bring them before the justices.

1

itineris.

These articles of inquiry, called the capitula itineris, were not always the same, but differed as times or places required. We have before given some specimens of the capitula in the preceding reigns; the following are the articles of inquiry mentioned in Bracton. The first was of the old pleas of the crown begun before the former justices, but not determined; then of the new pleas of the crown that had arisen since (for such as had happened before the former iter, and had not been prosecuted, could not now be inquired of; and, should any one be charged with an old crime, he might plead such matter in discharge of himself); of the perjury of jurors at a former iter; of those in misericordia regis, but who had not been yet amerced; of the king's wards; his vacant churches; his estreats; his serjeanties, and purprestures on his land; of measures and weights; of sheriffs and other bailiffs who held pleas of the crown; of usurers deceased, and their chattels; of the chattels of Jews killed; of counterfeiters of the coin; of burglars, fugitives, outlaws; of those who had not made suit after offenders; of new

1 Vide arte, vol. i. 202.