Изображения страниц

From the LEGES EDWARDI CONFESSORIS (1043-1066. But these so-called laws of Edward the Confessor were "ascertained" in the next century).

12. The peace of the king is of many kinds. One given by his own hand, which the English call kinges hand sealde grith. Another of the day on which first he was crowned. This last eight days. At the birth of our Lord, eight days, and eight at Easter. and eight at Whitsunday. Another is given by its special writ. Another which the four highways have; namely, Watlingstrete, Fosse, Hikenildstrete, Ermingstrete, of which two stretch out in the length of the kingdom and two in the breadth. Another which the waters have, by the navigation on which, from various places, food is brought to the cities and boroughs. This peace, however, of his own hand, of the days of his coronation, and of the writ, is under the law of one penalty. In like manner the four highways and the great waters in regard to attack. But if any work be built let it be destroyed and a half be given as a recompense. Whoever has broken the peace in the eighteen hundreds of the Danelag, his body also is at the mercy of the king, by the law of England his wer, that is his price, and the recompense for the slaying of those slain he shall pay to the lords of those slain. The recompense for slaying a serf or bondman in the Danelag is twelve ora; in the case of freemen, three marks. By the English law to the king or archbishop, three marks for their men; to a bishop of the shire, to a nobleman of the shire, or to the steward of the king, twenty solidarii; to the other barons, ten solidarii. Let him make restitution to the parents or prepare for war. Whence the English had a saying: Biege spere of side other bere, which means, either buy from them that the spear be covered up, or bear it. But let the peace of the four highways and of the great waters, placed in the greater judgment of penalties which we have above mentioned, be held for assault. And if mills, fisheries or any other things whatever be prepared for destroying the freedom of them, let these things be destroyed, the roads and waterways repaired and a recompense to the king shall not be forgotten. Other roads from city to city, from borough to borough, by which men travel for selling their wares or other business of their own, are under the law of the shire. And if anything be built for their disturbance, let it be pulled down. to the ground and the ways repaired, and according to the law of the shire, to the sheriff and his lieutenant let restitution be made.

In like manner in regard to smaller navigable streams with those things that are necessary to cities and boroughs, namely, woods and the rest. They shall be under the law of the smaller roads in regard to penalties.

From the STATUTES OF WILLIAM THE CONQUEROR. (Henderson's translation.)

3. And I will moreover that all men whom I have brought with me, or who have come after me, shall be in my peace and quiet. And if one of them shall be slain, the lord of the murderer shall seize him within five days if he can; but if not, he shall begin to pay me forty six marks of silver so long as his possessions shall hold out. But when the possessions of the lord of that man are at an end, the whole hundred in which the slaying took place shall pay in common what remains.

Extracts from POLLOCK, THE KING'S PEACE, Oxford Lectures, 65.

First, only the four roads are the king's; then every common road which leads to the king's city, borough, castle or haven; and as most roads of any importance must, sooner or later, answer this description if followed far enough, the king's highway came to be, as it now is, merely a formal or picturesque name for any public road whatever. As late as the fourteenth century, however, it was an opinion still held by some that not every common road was royal, insomuch that the soil and freehold of a common road could be vested in an individual owner only if it was not via regia. The very survival of the term "the king's highway" shows that the idea of peculiar legal sanctity clung about highways in popular imagination long after they had ceased to be more under the king's peace than any other English ground.

[ocr errors]

After the Conquest, then, the various forms in which the king's special protection had been given disappear, or rather merge in his general protection and authority, for the details that occur in the compilations bearing the names of Henry the First and Edward the Confessor, welcome as they are by way of supplement to earlier documents, are mere echoes of traditions no longer living.. The king's peace is proclaimed in general terms at his accession. But, though generalized in its application, it still was subject to a strange and inconvenient limit in time. The fiction that the king is everywhere present, though not formulated, was tacitly adopted; the

protection once confined to his household was extended to the whole kingdom. The fiction that the King never dies was yet to come. It was not the peace of the Crown, and authority having continuous and perpetual succession, that was proclaimed, but the peace of William or Henry. When William or Henry died, all authorities derived from him were determined or suspended; and among other consequences, his peace died with him. What this abeyance of the king's peace practically meant is best told in the words of the Chronicle, which says upon the death of Henry I (anno 1135): "Then there was tribulation soon in the land, for every man that could forthwith robbed another." Order was taken in this matter (as our English fashion is) only when the inconvenience became flagrant in a particular case. At the time of Henry III's death his son Edward was in Palestine. It was intolerable that there should be no way of enforcing the king's peace till the king had come back to be crowned: and the great men of the realm, by a wise audacity, took upon them to issue a proclamation of the new king's name forthwith. This good precedent being once made, the doctrine of the king's peace being in suspense was never afterwards heard of.

We said that the king's peace and protection had become the established right of every peaceable subject. Nevertheless a trace of the archaic ideas persisted as long as the art of common law pleading itself. The right was to be enjoyed only on condition of being formally demanded. In order to give the king's courts jurisdiction of a plea of trespass it was needful to insert in the writ the words vi et armis, which imported a breach of the peace; and it was usual, if not necessary, also to add expressly the words contra pacem nostram. Without the allegation of force and arms the writ was merely "vicountiel," that is, the sheriff did not return it to the Superior Court but had to determine the matter in the County Court. By so many steps and transformations did it become possible for Lambarde and Blackstone after him, to say, with unconscious inversion of the historical order of development, and as if the matter were in itself too obvious to need explanation: “The king's majesty is, by his office and dignity royal, the principal conservator of the peace within all his dominions; and may give authority to any other to see the peace kept, and to punish such as break it; hence it is usually called the king's peace."

(b) The King's Writ.

When the king was applied to for justice, or desired to vindicate his authority, he issued his writ to the sheriff or some other suitable person directing what was to be done. In ancient times executive and judicial functions were not distinguished. The king's writ was used for all purposes connected with the business of administration, the writs in judicial proceedings originally being in no way different from those in purely administrative affairs. Gradually a regular set of writs for judicial proceedings grew up, which in time became fixed in form and determined the scope and course of relief in the king's courts.

ABBOT OF ST. EDMUND V. ABBOT OF PETERBOROUGH (reign of William I). (Translated from Bigelow, Placita Anglo-Normannica, 32.)

William King of England to the Abbot of Peterborough, Greeting: I command and require you that you permit the abbot of St. Edmund to receive sufficient stone for his church, as he has had hitherto, and that you cause him no more hindrance in drawing stone to the water, as you have heretofore done. Witness the Bishop of Durham.

THE ABBOT OF ABINGDON V. MEN OF STANTON (1105 or 1107). (Translated from Bigelow, Placita Anglo-Normannica, 89.)

Henry, King of England, to Nigel of Oilly and William Sheriff of Oxford, Greeting. I command you that you do full right to the Abbot of Abingdon concerning his sluice which the men of Stanton broke, and so that I hear no more complaint thereof for defect of right, and this under penalty of ten pounds. Witness Ralph the Chancellor, at Westminster.

ABBOT FARITIUS V. JORDAN DE SACKVILLE (about 1108). (Translated from Bigelow, Placita Anglo-Normannica, 99.)

Henry King of England to Jordan de Sackville, Greeting. I command you to do full right to Abbot Faritius and the church of Abingdon concerning the land which you took from them, which Ralph of Cainesham gave to the church in alms; and unless you do this without delay, I command that Walter Giffard do it, and if he shall not have done it, that Hugh of Bocheland do it, that I may hear no complaint thereof for defect of right.



Book I, chap. V. When any one complains to the king, or his justices, concerning his Fee, or his Freehold, if the complaint be

such as be proper for the determination of the King's Court, or the King is pleased that it should be decided there, then the party complaining shall have the following writ of summons.

Chap. VI. The King to the Sheriff, Health. Command A that, without delay, he render to B one hyde of land, in such a vill, of which the said B complains that the aforesaid A hath deforced him; and unless he does so, summon him by good summoners, that he be there, before me or my Justices, in crastino post octabas clausi Paschae at such a place, to show wherefore he has failed; and have there the summoners and this writ.

[He then sets forth and explains some twelve other writs issued in the king's name, marking various stages in the litigation, ending with the following:]

Chap. XX. The King to the Sheriff, Health. I command you that without delay, you deliver possession to N of one hyde of land, in such a vill, which he claims against R of which the said R put himself upon my assise, because the said N has recovered that land in my Court by a recognition.


First, then, of the original, or original writ: which is the beginning or foundation of the suit. When a person hath received an injury, and thinks it worth his while to demand a satisfaction for it, he is to consider with himself, or take advice, what redress the law has given for that injury; and thereupon is to make application or suit to the crown, the fountain of all justice, for that particular specific remedy which he is determined or advised to pursue. As, for money due on bond, an action of debt; for goods detained without force, an action of detinue or trover; or, if taken with force, an action of trespass vi et armis; or to try the title of lands, a writ of entry, or action of trespass in ejectment; or for any consequential injury received, a special action on the case. To this end he is to sue out, or purchase by paying the stated fees, an original, or original writ, from the court of chancery, which is the officina justitiae, the shop or mint of justice, wherein all the king's writs are framed. It is a mandatory letter from the king, on parchment, sealed with his great seal, and directed to the sheriff of the county where injury is committed, or supposed to be committed, requiring him to command the wrong-doer or party accused either to do

« ПредыдущаяПродолжить »