was kept by the treasurer, which was called the great roll of the Pipe; another was kept by the chancellor, which was called the roll of the Chancery; while the third, in which were registered matters of special importance, was kept by an officer specially nominated by royal authority.1

the itiner

ture.

curia sit in

In the course of the assessment and collection of the reve- Origin of nue, which was the chief work of the curia as a financial ant judicabody, local disputes so constantly arose that it became necessary to send detachments of justices to adjust the business of the exchequer in each shire. As early as the reign of Henry I. officers of the exchequer were frequently sent through the country to assess the revenue; and in the reign of his grandson, Henry II., this custom was enforced with systematic regularity.3 The justices while thus engaged in Justices provincial business sat in the shire-moots, where judicial work from the soon followed in the path of their fiscal duties. In 1176+ 4 the shirethe kingdom was divided into six circuits, to each of which were assigned three justices, who are now for the first time given in the Pipe Rolls the name of Justitiarii Itinerantes. After several intermediate changes in the number of the circuits, it was at last provided by Magna Carta that two justices should be sent four times each year into each shire to take the assizes of novel disseisin, mort d'ancester, and darrien presentment. The provincial visitations of the justices from Financial the exchequer, whose primary object was financial, thus led to followed by the establishment of those judicial visitations which have judicial.

1 Dialogus de Scaccario, i. 5, 6. The great sources of authority for the early history of the exchequer are the Pipe Rolls and the Dialogus de Scaccario, a treatise written by the treasurer, Richard, Bishop of London, from which we derive an accurate idea of the administration of the exchequer as it stood in 1177. The Pipe Rolls are complete from the second year of Henry II. For the preceding period there is but one Roll extant, and that is of the thirty-first year of Henry I. The Dialogue was for the first time printed in Madox's History of the Exchequer.

2 The single Pipe Roll of the thirtyfirst year of Henry I. exhibits a system of iters by the royal officers in regular working order. See, also, Dialogus, i. c. 7.

3 "It simply needed to be organized in a more systematic shape by Henry the Second." - Freeman, Norm. Cong., vol. v. p. 300.

It was not until 1166 that the judicial eyres became annual and general. 2 Benedictus, pref. 64; Bigelow, Legal Procedure, p. 14. The division into circuits was provided for in the Assize of Northampton. For a list of the circuits, see Reeves, Hist. of Eng. Law, vol. i. p. 273. See, also, Placita AngNorm., p. 216.

5 "Mittemus duos justiciarios per unumquemque comitatum per quatuor vices in anno, qui, cum quatuor militibus cujuslibet comitatus electis per comitatum, capiant in comitatu et in die et loco comitatus assisas prædictas." — C. 18.

moots.

visitations

Fusion of

Norman and OldEnglish judicature.

The breaking up of the curia regis.

ever remained an abiding feature in English judicature.1 Through these visitations was established that vitally important connection between the strong central system of administration embodied in the Norman curia and the ancient system of local freedom embodied in the Old-English shiremoots. "The visits of the itinerant justices form the link between the curia regis and the shire-moot, between royal and popular justice, between the old system and the new. The courts in which they preside are the ancient county courts, under new conditions, but substantially identical with those of the Anglo-Saxon times." 2

During the progressive reign of Henry II. the curia regis, as a supreme court of justice, underwent such a rapid development, and the volume of judicial work which then came. before it became so great, that the king and his regular ministers were no longer able to dispatch it. The reasonable inference is that this great increase of judicial work, which grew out of Henry's legislative reforms, finally brought about the large increase in the number of judges who are found acting in 1178.3 In that year, however, the staff of the curia was reduced to five justices, and then it was increased in the next year to six, and "these six are justices constituted in the curia regis to hear the complaints of the peoBeginnings ple." These specially selected justices, who from the year 1179 hold regular sessions "in banco," 5 probably represent the beginnings of the king's bench as a distinct tribunal. Their sessions are still held nominally but not actually "coram rege;" and before them is brought all of the business which came at a later period before the courts of king's bench, exchequer, and common pleas. Although the business of the court is no longer conducted in the king's pres

of the

king's bench as a distinct tribunal.

4

1 For a more detailed account of the history of the courts of assize, see Sir James F. Stephen's Hist. Crim. Law of Eng., vol. i. pp. 97-111; Bigelow, Hist. of Procedure, pp. 92-103 and 138-141.

2 Stubbs, Const. Hist., vol. i. p. 605. As to the distinction between the courts held in the counties by the royal justices and the ordinary county courts, see Bigelow, Hist. of Procedure, pp. 136-141.

8 "It is then to these years, from 1166 to 1176, that we must refer the

creation or development of the large staff of judges in the curia regis which we find acting in 1178.". Stubbs, Const. Hist., vol. i. p. 600.

"Isti sex sunt justitiæ in curia regis constituti ad audiendum clamores populi."- Benedictus, vol. i. p. 239.

As to the "justiciarii sedentes in banco," see Glanville, lib. 2, c. 6, lib. 8, c. 1, and lib. 11, c. 1; Benedictus, vol. ii. pref. 75, Rolls Series.

6 Stubbs, Const. Hist., vol. i. p. 602, vol. ii. p. 266.

pleas fixed

minster,

ence, it still follows his person, or the justiciar in his absence, until it was provided by Magna Carta that "common pleas shall not follow our court, but shall be holden in some certain place." This provision led to the fixing of the com- Common mon pleas at Westminster, which broke up the unity of the at Westcuria. But not until the end of the reign of Henry III. was and the the general staff permanently divided into three distinct final divicourts, each exclusively devoted to the hearing of a different three disclass of causes, the exchequer to the hearing of cases touching the king's revenue, the common pleas to the hearing of private suits of subjects, and the king's bench to the hearing of all other suits that might fall under the general head of placita coram rege.2

sion into

tinct courts.

premacy of

The three law courts to which the curia regis thus gave Judicial su birth were not, however, the last resort of suitors. "The ju- the king in dicial supremacy of the king is not limited or fettered by the council. new rule; it has thrown off an offshoot, or, as the astronomical theorists would say, a nebulous envelope, which has rolled up into a compact body, but the oid nucleus of light remains unimpaired." The decision of all extraordinary or difficult causes of a judicial nature was still reserved to the king in council. The bulk of the business which thus devolved upon the council came before it in the form of petitions, which were divided into classes or bundles, and then severally Classification of peassigned to the consideration of the different members, ac- titions. cording to their special knowledge of them.5 High among the members of the council stood the chancellor, whose con

1 "Communia placita non sequantur curiam nostram sed teneantur in aliquo loco certo.' -Art. 17. As to the inconvenience to suitors which this provision was designed to remedy, see the history of the plea of D'Anesty, whose suit lasted from 1158 to 1163. Palgrave, Commonwealth, ii., ix-xxvii.

2 "The final separation of the three courts originated in the direction of the seventeenth chapter of Magna Carta, but it does not appear that even then a distinct staff of judges was appointed to each tribunal. Probably until late in the reign of Henry III. the same persons continued as before to sit in the three different courts in distinct capacities."- Benedictus, vol. ii. pref. 76, R. S.

3 Stubbs, Const. Hist., vol. i. p. 603.

4 "Si aliqua quæstio inter eos veniret quæ per eos ad finem duci non posset, auditui regio præsentaretur et sicut ei et sapientioribus regni placeret terminaretur.". Benedictus, vol. i. p. 207. As to the general character of the causes reserved for the king, see Dialo gus de Scaccario, i. c. 8.

5 Ryley, Pleadings, etc., pp. 442, 459. "Those which could not be answered without reference to the king formed a special branch of business, and it was from the share taken by the chancellor in examining and reporting on the bills of grace and favor that his equitable jurisdiction in the fourteenth century grew up."- Stubbs, Const. Hist., vol. ii. p. 263. See Hardy's Preface to the Close Rolls, i. p. xxviii, cited.

cellor ;

law jurisdiction;

his equitable juris

diction.

The chan- nection with judicial business begins with the issuance of the writs which proceed from the king as the fountain of justice.1 This ministerial duty was not, however, his only occupation. As a baron of the exchequer,2 and as a leading member of the curia, the chancellor had long been in possession of judicial functions, and so to him, as to the other justices, were reis common ferred a definite class of petitions. In this way the chancellor was called upon to decide a distinct class of suits as a judge, according to the rules and maxims of the common law, and hence the origin of what is called his "common law jurisdiction." The "equitable jurisdiction" of the chancellor, which has become of infinitely greater importance, must be traced to a higher source. One of the leading objects of dividing the petitions which came before the council into distinct classes was to sever from the general mass of business those special "matters of grace and favor" which could only be answered after reference to the king in person. The examination of this peculiar class of petitions, which constituted a special branch of business, devolved in such a great degree upon the chancellor that finally they began to be addressed to him in the first instance, instead of being referred The chan- to him by the king. When early in the reign of Eadward III. the chancellor ceased to follow the court as one of the royal retinue, his tribunal began to acquire a more distinct and substantive character. And from the twenty-second year of that reign, in which all petitions of grace and favor were recognized as his province, his separate and independent equitable jurisdiction began to grow in power and importance.5 By equitable jurisdiction must be understood "the extraorEquity one dinary interference of the chancellor, without common law process, or regard to common law rules of proceeding, upon which strict the petition of the party grieved, who was without adequate adapted to remedy in a court of common law."6 The "equitable jurisdicthe expanding wants of tion" of the chancellor thus became one of the three great society. agencies which have adapted

cellor's

court becomes a

distinct tribunal.

of the agen

cies by

law is

the old, unelastic code of cus

p. 8; Campbell's Lives of the Chancel lors, vol. i. pp. 5, 6.

4 Ryley, Pleadings, etc., p. 442. 5 Rot. Claus., 38 Edw. III.; Hardy, Close Rolls, i. pref. xxviii.; Stubbs, Const. Hist., vol. ii. p. 269.

6 Campbell's Lives, vol. i. p. 7.

tomary law to the expanding wants of a progressive society. In order to give complete expression to this idea resort must be had to the weighty words of one who, in our own time, has made perhaps the largest and most invaluable contributions to the early history of jurisprudence: "A general prop- Maine's osition of some value may be advanced with respect to the view. agencies by which law is brought into harmony with society. These instrumentalities seem to me to be three in number, legal fictions, equity, and legislation. Their historical order is that in which I have placed them. . . . I employ the word Legal 'fiction' in a sense considerably wider than that in which fictions. English lawyers are accustomed to use it, and with a meaning much more extensive than that which belonged to the Roman 'fictiones.' . . . I now employ the expression 'legal fiction' to signify any assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified. . . . The next instrumentality by which the adaptation of law to social wants is carried on I call 'equity,' meaning by Equity. that word any body of rules existing by the side of the original civil law founded on distinct principles, and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles. The equity, whether of the Roman prætors or of the English chancellors, differs from the fictions which in each case preceded it, in that the interference with law is open and avowed. On the other hand, it differs from legislation, the agent of legal improve- Legislament which comes after it, in that its claim to authority is grounded, not on the prerogative of any external person or body, not even on that of the magistrate who enunciates it, but on the special nature of its principles, to which it is alleged that all law ought to conform." 1

tion.

council.

After giving birth to the system of itinerant judicature, The privy and to the four great courts of king's bench, common pleas, exchequer, and chancery, the curia regis survived as the privy council, which has ever retained an almost indefinable reserve of administrative and judicial functions. At one period in the history of the privy council its judicial side reached an abnormal development; at another its adminis1 Sir Henry Maine, Ancient Law, pp. 23-27.