The text of the following Book of Judges has been derived from Lord Campbell’s Lives of the Chief Justices, and Lives of the Chancellors, with only a few verbal alterations for the sake of connection, some transpositions, the omission of some details of less interest to the American reader, and the insertion of a few paragraphs, enclosed in brackets, thus [ ].

Most biographers have been arrant flatterers. Lord Campbell is a distinguished member of that modern school, which holds that history is of no dignity nor use, except so far as it is true; and that the truth is to be told at all hazards and without reserve. Hitherto social and political position, obtained no matter by what means, has in general secured not only present but future reputation. It can hardly fail to be a serious check upon those who struggle for distinction to understand, that, however they may cheat or dazzle their contemporaries, they must expect to encounter from posterity a Rhadamantine judgment.

The object of the present work, prepared as it is in the interest of justice and freedom, and designed to hold up a mirror to magistrates now sitting on the American bench, in which “to show virtue her own feature, scorn her own image, and the very life and body of the time his form and pressure,” will, I hope, induce Lord Campbell to pardon the liberty I have ventured to take with his writings.

R. H.

Boston, November 20, 1855.

INTRODUCTION

Hume observes, in his History of England, that “among a people who lived in so simple a manner as the Anglo-Saxons, the judicial power is always of greater importance than the legislative.” The same comparison will hold good even in communities far more advanced in civilization than the Anglo-Saxons. It has indeed been well said that the great end of the complicated machinery of the existing British government is to get twelve men into a jury box. It might even be laid down as a general principle that the freedom or servitude of a people will mainly depend upon the sort of administration of justice which they have – especially of criminal justice.

The whole course of British history will serve to justify this observation, since it has not been so much by the aid of mercenary soldiers, as by the assistance of lawyers and judges, that tyranny has sought to introduce itself into that country. It is in the history of the English courts, still more than in the history of the English Parliament, that we are to trace the origin and growth of those popular rights and of that idea of public liberty, propagated from England to America, and upon which our Anglo-American free institutions are mainly founded.

The origin of British liberty, by an ancient, constant, and affectionate tradition, has uniformly been traced back to the times of the Anglo-Saxons. It was, however, by judicial, far more than by legislative institutions, that among those progenitors of ours private rights and public liberty were guarantied.

The smallest political subdivision among the Anglo-Saxons was the tything, (teothing,) consisting of ten families, the members of which were responsible for the good conduct of each other. The head man of this community, denominated tything-elder, (teothing ealdor,) seems to have acted as a kind of arbitrator in settling disputes about matters of a trifling nature; but whether he had actually a court for administering justice does not appear. Next in order came the hundred, (hundrede,) or, as it was called in the north of England, the wapentake, in its original constitution consisting of ten tythings, or a hundred families, associated together by a similar bond of mutual responsibility. Its head man was called the hundred’s elder, (hundredes ealdor,) or simply reeve, (gerefa,) that being the generic term for the officer of any district, or indeed for any officer.1 This gerefa, along with the bishop of the diocese, acted as the presiding officer of the hundred court, which met once at least every month, and had both civil and criminal jurisdiction, and cognizance also of ecclesiastical causes, which were entitled to precedence over every other business.

There was besides a shire or county court (shir-gemot) held twice every year, or oftener if occasion required, convened by the sheriff, (shir-reeve,) or, as he was sometimes also called, the alderman, (ealdor-man,) who presided over it, assisted by the bishop. Here causes were decided and business was transacted which affected the inhabitants of several of the hundreds.

The highest court of all was that of the king, the Wittenagemot, (witan-gemot,) in which he himself was present, attended by his councillors, or witan. This body, which united the functions of a legislative, judicial, and executive council, had no fixed times or place of meeting, but was held as occasion required, wherever the king happened to be. As to its judicial functions, it was in general only a court of extraordinary resort; it being a rule of the Anglo-Saxon law that none should apply for justice to the king unless he had first sought it in vain in the local courts.2

Hence the hundred and county courts occupied by far the most conspicuous position in the Anglo-Saxon judicial polity. The Anglo-Saxon shires, it may be observed, having been originally principalities, nearly, if not altogether, independent, but gradually united into one kingdom, were rather tantamount to our Anglo-American states than to our counties, of which the Saxon hundreds may be taken as the equivalent; the tythings corresponding to our Anglo-American townships; while (to carry out the parallel) the central authority of the king and the wittenagemot may be considered as represented by our federal system generally.

But though the reeve and the bishop presided in the local Anglo-Saxon courts, it was rather in the character of moderators than of judges; that latter function being performed by the freeholders of the county, all of whom, not less than the bishop and the reeve, had the right and were bound to give their attendance at these courts.

“Suits,” says Hume,3 “were determined in a summary manner, without much pleading, formality, or delay, by a majority of voices;4 and the bishop and alderman had no further authority than to keep order among the freeholders, and interpose with their opinion.”

These county courts, though traces of them are to be found in all the old Teutonic states of Europe, became ultimately peculiar to England. None of the feudal governments of continental Europe had any thing like them; and Hume, with his usual sagacity, has remarked that perhaps this institution had greater effects on the political system of England than has yet been distinctly pointed out. By means of this institution, all the freeholders were obliged to take a share in the conduct of affairs. Drawn from that individual and independent state, so distinctive of the feudal system, and so hostile to social order and the authority of law, they were made members of a political combination, and were taught in the most effectual manner the duty and advantages of civic obedience by being themselves admitted to a share of civic authority. Perhaps, indeed, in this Anglo-Saxon institution of hundred and county courts we are to seek the origin of that system of local administration and self-government still more fully carried out in America than in England, by which English and Anglo-American institutions are so strongly distinguished from those of Europe, and in the judicious combination of which with a central administration, for matters of general concern, British and American liberty, as a practical matter, mainly consists.

One of the first procedures of the Norman Conqueror, by way of fixing his yoke upon the shoulders of the English people, was gradually to break down and belittle this local administration of justice. He did not venture, indeed, to abolish institutions so venerable and so popular, but he artfully effected his purpose by other means. He began by separating the civil and ecclesiastical jurisdictions. The bishops, according to a fashion recently introduced on the continent, were authorized to hold special courts of their own. These courts were at first limited to cases in which ecclesiastical questions were involved, or to which clergymen were parties but by the progress of an artful system of usurpations, familiar to the courts of all ages and nations, they gradually extended their authority to many purely lay matters, under pretence that there was something about them of an ecclesiastical character. It was under this pretence that the English ecclesiastical courts assumed jurisdiction of the important matters of marriage and divorce, of wills, and of the distribution of the personal property of intestates – a jurisdiction which they still retain in England, and which, though we never had any ecclesiastical courts in the United States of America, has left deep traces upon our law and its administration as to these subjects.

In establishing these separate ecclesiastical courts, the Conqueror made a serious departure from his leading idea of centralization; and he thereby greatly contributed to build up a distinct theocratic power, which afterwards, while intrenching on the rights of the laity, intrenched also very seriously on the authority of his successors on the throne. But this was a danger which either he did not foresee – since he possessed, though his next successor relinquished it, the sole power of appointing bishops – or which he overlooked in his anxiety to diminish the importance of the old Saxon tribunals.

Both the civil and criminal authority of the local courts was greatly curtailed. Their jurisdiction in criminal cases was restricted to small matters, and even as to questions of property was limited to cases in which the amount in dispute did not exceed forty shillings; though, considering the superior weight of the shilling at that time, the greater comparative value in those ages of the precious metals, and the poverty of the country, this was still a considerable sum.

The general plan for the administration of justice of the Anglo-Norman government was a court baron in each of the baronies into which the kingdom was now parcelled out, to decide such controversies as arose between the several vassals or subjects of the same barony. Hundred courts and county courts still continued from the Saxon times, though with restricted authority, to judge between the subjects of different baronies; and a court composed of the king’s great officers to give sentence among the barons themselves. Of this court, which ultimately became known as Curia Regis, (King’s Court,) and sometimes as Aula Regis, (King’s Hall,) because it was held in the hall of the king’s palace, and of its instrumentality in extending the royal authority, Hume5 gives the following account: “The king himself often sat in his court, which always attended his person: he there heard causes and pronounced judgment; and though he was assisted by the advice of the other members, it is not to be imagined that a decision could easily be obtained contrary to his inclination or opinion.6 In the king’s absence, the chief justiciary presided, who was the first magistrate of the state, and a kind of viceroy, on whom depended all the civil affairs of the kingdom.7 The other chief officers of the crown, the constable, marshal, seneschal, or steward, chamberlain, treasurer, and chancellor, were members, together with such feudal barons as thought proper to attend, and the barons of the exchequer, who at first were also feudal barons appointed by the king. This court, which was sometimes called the King’s Court, sometimes the Court of Exchequer, judged in all causes, civil and criminal, and comprehended the whole business which is now shared out among four courts – the Chancery, the King’s Bench, the Common Pleas, and the Exchequer.

“Such an accumulation of powers was itself a great source of authority, and rendered the jurisdiction of the court formidable to all the subjects; but the turn which judicial trials took soon after the conquest served still more to increase its authority, and to augment the royal prerogatives. William, among the other violent changes which he attempted and effected, had introduced the Norman law into England, had ordered all the pleadings to be in that tongue, and had interwoven with the English jurisprudence all the maxims and principles which the Normans, more advanced in cultivation, and naturally litigious, were accustomed to observe in the administration of justice.

“Law now became a science,8 which at first fell entirely into the hands of the Normans, and even after it was communicated to the English, required so much study and application that the laity of those ignorant ages were incapable of attaining it, and it was a mystery almost solely confined to the clergy, and chiefly to the monks.

“The great officers of the crown, and the feudal barons who were military men, found themselves unfit to penetrate into these obscurities; and though they were entitled to a seat in the supreme judicature, the business of the court was wholly managed by the chief justiciary and the law barons, who were men appointed by the king, and entirely at his disposal. This natural course of things was forwarded by the multiplicity of business which flowed into that court, and which daily augmented by the appeals from all the subordinate judicatures of the kingdom. For the great power of the Conqueror established at first in England an authority which the monarchs in France were not able to attain till the reign of St. Louis, who lived near two centuries after: he empowered his court to receive appeals both from the courts of barony and the county courts, and by that means brought the administration of justice ultimately into the hands of the sovereign.9

“And lest the expense or trouble of the journey to court should discourage suitors and make them acquiesce in the decision of the inferior judicatures, itinerant judges were afterwards established, who made their circuits through the kingdom and tried all cases that were brought before them. By this expedient the courts of barony were kept in awe, and if they still preserved some influence it was only from the apprehensions which the vassals might entertain of disobliging their superior by appealing from his jurisdiction. But the county courts were much discredited and as the freeholders were found ignorant of the intricate principles and forms of the new law, the lawyers gradually brought all business before the king’s judges, and abandoned that convenient, simple, and popular judicature.”

The innovations of the Conqueror and his successors having reduced the old local Anglo-Saxon tribunals to comparative insignificance, the whole judicial authority, except that which had been seized upon by the ecclesiastical courts, remained for a hundred and fifty years after the conquest concentrated in the Aula Regis. But as Norman and Saxon became thoroughly intermixed, with the first faint dawn of modern English liberty the judicial power thus thoroughly centralized became again subdivided and distributed, though in a manner very different from that of the Saxon times.

The Anglo-Norman kings of England were perpetually on the move: the only way of disposing of the products of the landed estates which scattered over England afforded the main part of the royal revenue, was to go thither with the royal household and consume it on the spot. Wherever the king went, the Aula Regis followed, occasioning thereby great inconvenience and delay to suitors. This was complained of as a grievance, and the barons who extorted Magna Charta from their reluctant sovereign insisted, among other things, that Common Pleas, that is, civil suits between man and man, should be held in some certain place. It was in this provision of Magna Charta that originated the English Court of Common Pleas, which became fixed at Westminster Hall, the place of session of the Aula Regis when the king was in the vicinity of London. This Court of Common Pleas, or Common Bench as it was sometimes called, seems to have been at first but a mere committee of the Aula Regis; and the disintegration of that tribunal, thus begun, was, on the accession of Edward I. in 1272, completed by its resolution into three or rather five distinct tribunals.

Of these new courts, that which more immediately represented the Aula Regis was the Court of King’s Bench, which still continued to follow the king and to be held in his presence. In the language of its process, such is still supposed to be the case; but like the other English courts, it has long since been fixed at Westminster Hall, and admits nobody to participate in its proceedings save its own members – a chief justice, who, though of inferior position in point of precedence, may be considered as in some respects the successor of the chief justiciary, which office was now abolished – and three or four puisne judges, the number having varied at different times.

The Court of Common Pleas was now also organized like the King’s Bench, with a chief justice and three or four puisne judges. As this court had exclusive jurisdiction of civil suits, (except those relating to marriage, divorce, wills, tithes, and the distribution of the personal property of intestates, which had been usurped by the ecclesiastical courts,) Pleas of the Crown, that is, the criminal jurisprudence of the realm, (except prosecutions for heresy, of which the ecclesiastical courts claimed jurisdiction,) and also the hardly less important duty of superintending the other tribunals, even the Common Pleas itself, and keeping them within their due limits, was assigned to the King’s Bench.

To a third court, that of Exchequer, of which, besides a chief baron and three or four puisne barons, the treasurer and the chancellor of the exchequer originally formed a part, were assigned all cases touching the king’s revenue, and especially the collection of debts due to him, in which light were regarded not only all fines, forfeitures, and feudal dues, but the imposts and aids occasionally granted by Parliament.

There was also a Court of Chivalry or “Honor Court,” presided over by the constable and marshal, and having jurisdiction of all questions touching rank and precedency; and another, over which the steward of the household presided, to regulate the king’s domestic servants; but these courts, which have long since vanished, could never be considered as having stood on a par with the three others, the judges of which esteemed themselves the grand depositaries of the knowledge of the common or unwritten law of England; that is, of such customs and forms as had obtained the force of law previous to the existence of the regular series of statutes beginning with Magna Charta. Indeed, these judges of England, as they were called, were in the habit of meeting together in the Exchequer Chamber, for the purpose of hearing arguments on law points of importance or difficulty, adjourned thither for their consideration, and which they decided by a majority of their whole number present, thus presenting down to the recent abolition, or rather modification, of the Court of Exchequer Chamber, a shadow, as it were, of the ancient Aula Regis.

Already, previous to this fracture of the Aula Regis into the various courts above named, the legal profession, so far as practice in the lay courts was concerned, had begun to separate itself from the clerical; and places for the education and residence of a class of laymen who began to devote themselves to the study of the common law were established in the vicinity of Westminster Hall. Of these, Lincoln’s Inn, founded at the commencement of the reign of Edward II., (about A. D. 1307,) under the patronage of William Earl of Lincoln, who gave up his own hostel or town residence for that purpose, was the earliest, and has always remained the principal. On this model were established before long the Inner and Middle Temple, (so called because a residence of the Knights Templars, forfeited by the dissolution of that order, had been devoted to this purpose,) Gray’s Inn, Serjeant’s Inn, and the Inns of Chancery.

Such was the origin of the profession of law as it still exists in England and America; of that body of lawyers whence all our judges are taken, arrogating to itself, after the example of the churchmen, of which it originally consisted, a certain mystical enlightenment and superiority, scouting the idea that the laity, as the lawyers too affect to distinguish all persons not of their cloth, – in plain English, the people, – should presume to express or to entertain any independent opinion upon matters of law, or that any body not a professional lawyer can possibly be qualified for the comprehension, and much less for the administration, of justice.

In the Anglo-Saxon courts the parties had appeared personally, and pleadings had been oral. The Anglo-Norman practice gave rise to appearance by attorney in all civil cases, and to that system of special written pleadings, prepared by counsel learned in the law, of which the operation was to give the victory to ingenuity and learning rather than to right, and which, after undergoing many modifications, has at length been abolished in many of our Anglo-American states, as an impediment to justice and an intolerable nuisance. Even in conservative England itself, though the system of special pleadings, greatly modified by modern changes, still exists, the recent return, by the examination of the parties, to the old popular system of oral pleading has been attended by the happiest results.

The preparation of these written pleadings, by which we are here to understand not arguments, but allegations of facts relied upon by the respective parties, was engrossed by the serjeants at law, whose distinguishing badge was a coif or velvet cap – wigs being a comparatively modern invention. To obtain admittance into this order, by which the entire practice of the Court of Common Pleas was engrossed, (that is, originally, the entire practice in civil suits,) and from which the judges were exclusively selected, sixteen years’ study was required. The degree of barrister, or, as it was called, of apprentice, might be obtained by seven years’ study; and it was to these two classes of serjeants and apprentices that the practice in the courts of Westminster Hall was originally confined.10 But subsequently there sprang up a third inferior and still more numerous class, called attorneys, a sort of middle-men between the client and his counsel, not permitted to speak in court, for which purpose they must retain a serjeant or barrister, but upon whom was shifted off all the drudgery and responsibility of preparing the case, in which, however, no step of consequence could be taken without the advice of counsel learned in the law, i. e., a serjeant or barrister.11

As the law and its practice thus became more and more a mystery, only to be learned by frequenting the courts of Westminster Hall, and by the study of the obscure and ill-prepared reports of their proceedings, which began now to be compiled by official reporters, and published under the name of Year Books, the old local Anglo-Saxon courts fell still more into contempt. Already in the reign of Henry III. the freeholders had been released from their obligation of attendance upon them, and another blow was given to these ancient tribunals when, in the reign of Edward II., the appointment of sheriffs, hitherto chosen by the freeholders, was assumed by the crown; and still another when, in the following reign, the election of conservators of the peace was also taken from the people and assumed by the king. To the magistrates thus appointed by the king the new name of Justices of the Peace was soon afterwards given, and the criminal jurisdiction conferred upon them, whether acting singly as examining and committing magistrates, or met together at the courts of Quarter Sessions, gradually superseded the small remains of criminal authority hitherto left to the old popular tribunals.

Two circumstances, however, combined to transfuse a certain portion of the spirit of these old tribunals into the newly established courts, thus standing in the way of the entire monopoly of the administration of justice at which the lawyers aimed, and securing to the body of the people a certain participation in the most important function of the government, to wit, the administration of justice; which participation, derived from the old Anglo-Saxon customs, and transmitted to our times, constitutes to-day the main pillar of both British and American liberty.

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