A.D. 1292. Decided against him. When Edward I. determined in favour of Baliol, influenced probably less by the arguments in his favour than by the consideration that from the weakness of his character he was likely to be a more submissive vassal, Robert de Brus complained bitterly that he was wronged, and resolutely refused to acknowledge the title of his rival. He retired in disgust to his castle of Lochmaben, where he died in November, 1295, in the seventy-second year of his age. His death. ants. While resident in England he had married Isabel, His descend- daughter of Gilbert de Clare, Earl of Gloucester, by whom he had several sons. Robert, the son of Robert the eldest, became Robert I., and one of the greatest of heroes. The descent of the crown through him to the Stuarts is, of course, universally known. The family of the Chief Justice is still kept up in the male line by the descendants of his younger son, John, among whom are numbered the Earl of Elgin, the Earl of Cardigan, and the Marquess of Aylesbury.* *See Dug. Chr. Ser. Rot. Fin. ii. 79. 545; Dug. Bar. Coll. Peerage. CHAPTER II. THE LIVES OF THE CHIEF JUSTICES FROM THE ACCESSION OF EDWARD I. TO THE APPOINTMENT OF CHIEF JUSTICE TRESILIAN. A.D. 1272. Although the We now arrive at the æra when our judicial institutions were firmly established on the basis on which, with very little alteration, they have remained to the present day. AULA REGIS had existed down to the conclusion of the reign of Henry III., and cases of peculiar importance or difficulty were decided before the Chief Justiciar, assisted by the great officers of state,* it had gradually ceased to be a court of original jurisdiction and it had been separating into distinct tribunals to which different classes of causes were assigned. Edward I., our JUSTINIAN, now not only systematised and reformed the principles of English juris- institutions prudence, but finally framed the courts for the administration of justice as they have subsisted for six centuries. "In his time the law did receive so sudden a perfection, that Sir Matthew Hale does not scruple to affirm that more was done in the first thirteen years of his reign to settle and establish the distributive justice of the kingdom, than in all the ages * A remnant of the Aula Regis subsisted to our own time in the "Exchequer Chamber" into which cases of great importance and difficulty continued to be adjourned, to be argued before all the judges. The practice of judges reserving points of criminal law-arising before them on the circuit, I consider as having had a similar origin. The rule which Judicial of Edw. I. prevailed-that both in civil and criminal cases the opinions of the majority of the judges in the Exchequer Chamber should over-rule the opinions of the majority of the judges of the court in which the cases originated, and in which formal judgment was to be givenadmits of no other solution. or The AULA REGIS he since that time put together." utterly abolished as a court of justice; and he decreed that there should no longer be a Justiciar with military and political as well as judicial functions. "The Court of our Lord the King before the King himself," Here "Court of King's Bench," was constituted. the King was supposed personally to preside, assisted by the first common law judge, denominated "Chief Justice, assigned to hold pleas in the Court of our Lord the King before the King himself," and by other justices or "puisne judges." This was the supreme court of criminal jurisdiction, and was invested with a general superintendence over inferior tribunals. MAGNA CHARTA had enacted that civil actions should be tried before judges always sitting in the same place, so that the suitors might not be compelled to follow the King in his migrations to the different cities in his dominions; and the section of the AULA REGIS which had subsequently sat at Westminster now became the "Court of Common Pleas," having a Chief Justice and Puisnies, with an exclusive jurisdiction which it still preserves over "real actions," although, by ingenious fictions, other courts stripped it of much of its business in the trial of " personal actions." The management of the estates and revenues of the Crown had been early intrusted to certain members of the AULA REGIS, who were called "Barons of the Exchequer." They now formed an entirely separate tribunal called the "Court of Exchequer," with the Lord Treasurer and the Chancellor of the Exchequer to preside over them—being in strictness confined merely to fiscal matters in which the Crown was concerned, but gradually usurping both legal and equitable jurisdiction between subject and subject, by countenancing the fiction that the suitors were the King's debtors, or the King's ac * 4 Bl. Com. 425; Hale's Hist. C. L. p. 162. countants. The Chancellor, from being the sixth in precedence of the great officers of state, was now advanced to be the first, and he was intrusted with the power of doing justice to the subject where no remedy was provided by the common law. The appellate jurisdiction of the AULA REGIS was vested in the great council of the nation now called the Parliament, and, on the division of the legislature into two chambers which soon followed, remained with the Lords Spiritual and Temporal, who had the Judges as their assessors. Ralph de Chief Justice of King's Hengham of the Court Bench. All juridical knowledge was long monopolized by the clergy; but while the civil and common law continued to be cultivated by them exclusively, a school of municipal or common law had been established for laymen, who gradually formed themselves into societies called "Inns of Court," devoting their lives to legal pursuits. From the body of professional men thus trained, Edward resolved to select his Judges; and he appointed RALPH DE HENGHAM Chief Justice of the King's Bench, and THOMAS DE WEYLAND Chief Justice of the Common Pleas, allowing them a salary of only sixty marks a year, but adding a small pittance to purchase robes, and stimulating their industry by fees on the causes they tried. The De Henghams had long been settled at Thetford in Norfolk; and the head of the family, His origin. towards the end of the reign of Henry III., had gained distinction as a knight in several passages of arms, had been a Judge in the AULA REGIS, and had acted as a Justice in Eyre. Ralph, a younger son of his, having a greater taste for law than for military exercises, was, while yet a boy, placed in the office of a prothonotary in London, and not only made himself master of the procedure of the His progress in the law. courts, but took delight in perusing Glanville, Bracton, and Fleta, which, in those simple and happy times, composed a complete law library. Without the clerical tonsure, he became a candidate for business at the bar; but such was the belief, that the characters of causidicus and clericus must be united, that, to further his success, he was obliged to take holy orders, and he was made a canon of St. Paul's.* His reputation in Westminster Hall was now greater than that of any man of his time; and while he was little more than thirty years of age, on the pinciple of detur digniori he was made Chief Justice of the Court of King's Bench, and received the honour of knighthood. Law books him. He fully answered the expectation which had been formed of him for industry, learning, and composed by ability. His great object was to establish a regular procedure in his court calculated to expedite suits and to prevent fraud. He began with publishing a collection of writs which he had carefully made and revised, known by the name of REGISTRUM BREVIUM, and pronounced by Lord Coke to be "the most ancient book on the law."t Next, he composed an original work, which is still extant, and quoted in Westminster Hall as the “Summæ of Lord Chief Justice Hengham." It is written in Latin, and divided into two books, called "Hengham Magna" and "Hengham Parva," giving instructions with regard to the mode of conducting actions, particularly writs of right, of dower, and of assize, from the præcipe to the execution of the judgment. It continued in MS. till the reign of James I., when it A.D. 12781286. *It was to conceal the want of clerical tonsure, that the serjeants-at-law, who soon monopolized the practice of the Court of Common Pleas, adopted the coif, or black velvet cap, which became the badge of their order. +4 Inst. 140; 3 Rep. Preface, vii. He means, of permanent authority in the common law; which earlier treatises could not be considered. |