or in his absence out of the realm, the chief justiciar, was to send justices into every county once a year; and these, together with the knights of the county, were to take the assizes there. Such matters as the justices could not determine on the spot, were to be finished in some other part of the circuit; and such as, on account of their difficulty, they could not determine at all, were to be adjourned before the justices of the bench, and there decided (a). This is said to be the first appointment of justices of assize; in consequence of which these writs were ever after made returnable coram justitiarüs nostris ad assisas, cùm in partes illas venerint, etc. Assizes de ultimâ præsentatione,2 which hitherto had been taken in the king's courts, that is coram me vel justitiis meis, were, for the future, to be heard before the justices of the bench only, and there finally determined; a provision which may be thought to be founded in abundant caution, when it had been before declared, that common pleas, of which this was certainly one, should not follow the king's court.

While order was taken for ascertaining and governing the king's courts, some attention was given to the jurisdiction of the sheriff, where matters of less moment were

(a) This expression, says Lord Coke, is to be taken largely and beneficially: for they may not only make adjournment before the same justices on their circuit, but also to Westminster or Sergeant's Inn, or to any place out of the circuit (2 Inst.). This course affords a curious instance of the way in which valuable enactments were extended by construction. And in Lord Coke's time, as any one who has studied his Reports will be aware, it was the constant practice of the judges in court to reserve cases till they came to town, reserving the judgment. Indeed, the practice appears in some degree to have been kept up to the last century, as Leach's Crown Cases Reserved will show. But it appears to have been considered then, not as a legal reservation, but only after judgment, and for the purpose of a recommendation to the crown, in case a point should be resolved for the prisoner, sentence being already passed. This rendered necessary the act for Reservation of Crown Cases (11 and 12 Vict.), which thus, after the lapse of centuries, only carried out Magna Charta.

1 By the charter of John, the knights associated with the justices were to be four, chosen by the county; and the assizes were to be taken on the day, and at the place of the county court. This delegation of four by the county reminds us of the ancient practice, when judgments were given per omnes comitatus probos homines. The latter practice seemed to have been considered as the representative of such ancient tribunal; for in the Capitula Baronum they stipulated, that none else (except the jurors and parties) should be summoned to the taking of such assize. This is probably the origin of the present association in the commission of assize.

2 Ch. 13.

* Vide vol. i., 333.

† Vide Black. Chart., vol. ii., Cap. Bar., 8.

agitated with some solemnity. The county court was to be held' only from month to month, that is, not more frequent than once a month; and in counties where the interval of its sitting had been greater, that was still to continue. The sheriff or his bailiff was not to hold his tourn in the hundred more than twice a year, namely, after Easter and Michaelmas, and that in the usual and accustomed place; and the view of frankpledge was to be held by the sheriff at Michaelmas. This last provision was in order to keep up the old constitution so admirably contrived for preserving the peace, and the due order of the decennaries. It was enjoined, that all men's liberties should be maintained as in the reign of Henry II.; and that the sheriff should take no more for his frankpledge than was allowed in that reign. It is cautioned, in this same chapter, that the sheriff should seek no occasion or pretence either for holding his court oftener than is there directed, or taking any unreasonable fees. These injunctions about the sheriff's court were dictated probably by the jealousy that lords of franchises entertained concerning their own courts, with which the sheriff too much interfered.

Amercements.

The practice of courts was considered, and the usage of the common law in some instances was adjusted and confirmed. It was endeavored, by declaring the law more fully on that subject, to prevent all abuse of the misericordia, or amercement, which we have had such frequent occasion to mention (a). A freeman, says

(a) The word "amercement" is derived from the French, “à merci," and signifies the pecuniary mulct laid on a person who has offended against the prerogative of the sovereign, and therefore lies at his mercy. From the nature of the thing, and the derivation of the term, being so arbitrary in its character, and French in its etymology, there is reason to believe that it came in after the Conquest, and was an abuse. That the Norman sovereigns were extremely anxious to create the offence of contempt for the prerogative, for which this was supposed to be the penalty, and to take advantage of it, appears plainly from the charter and the laws of Henry I. In his charter he recites, that amercements against those who were "in mercy," had been unmerciful; and this, although the laws of William the Conqueror contain specific provisions as to penalties for various ranks of people-the highest being six Saxon pounds. The charter of Henry ran thus: "Si quis baronum vel hominum meorum forisfecerit non dabit vadem in misericordia totius pecuniæ suæ sicut facibat tempore patris mei et fratris mei, sed secundum modum forisfacti ita emendabít sicut emendasset retro a tempore patris mei et fratris mei in tempore aliorum antecessorum meorum." That is, as it had 1 Ch. 35.

the statute,' shall not be amerced for a small default but after the manner of the default; and for a greater in pro

been in the times before the Conquest, when fines and penalties were reasonable, whereas, under the Conqueror and his successors, they were arbitrary. Thus Henry II., on an occasion of a pretended contempt by Archbishop Becket, although the archbishop sent four knights to excuse his non-appearance, declared all his possessions forfeited, by way of an amercement, although, • by the law of William, the fine could not have been above forty shillings. So the Mirror says:-"It is an abuse to assess amercements without the affeerment of freemen chosen to it, or to assess them in the absence of those who are to be amerced;" and, again, “it is an abuse to amerce a man by default in an action for outlawry, as loss of land is sufficient punishment" (c. v., s. 1). The Norman sovereigns eagerly availed themselves of any pretence or occasion for declaring a man to be in their mercy, so that he might be amerced without mercy; and they thus sought to attach this penalty to any fault or default, or any offence, civil or criminal. Thus, the laws of Henry I. contained a chapter carefully providing what offences should be deemed to be a misericordia regis, and various enactments as to fines for defaults in civil proceedings. Yet, in the Mirror it is said, that in defaults in actions the consequence of default was, that there was judgment against the party, or that his lands were seized, until satisfaction was made—that is, to the amount of the debt or claim; and this, it is said, was the law until the time of Henry III., and nothing is said as to amercements; whence it is that, in a subsequent passage, no doubt written at a later period, it is said to have been an abuse to amerce those who were sufficiently punished by loss of land. There were, however, cases in which amercements were lawful if reasonable, and the object of the charter was to secure that this should be so. There is a full exposition of the subject in the Mirror, in a chapter on amercements, which affords a further comment on this article. A pecuniary pain is called an amercement, which follows real or mixed offences, and is sometimes certain and sometimes uncertain. An amercement is certain sometimes, according to the dignity of the person, as it is of earls and barons, and then the terms of the article as to the reliefs of earls and barons, fixed at certain sums by another article, are quoted as if affording the measure of their amercements; and sometimes by a single assize in another place, as of escapes of people imprisoned, in which we are to distinguish of the place, whether the king's prison or another; and the cause, whether mortal or venial; and if mortal, then whether adjudged or not; and if not, the keeper was not assenting to the escape, then the assize of punishment is so many shillings, or more, according to the usage of the country, or of the place or person. Common amercements are taxable by the oath and affeerments of the peers (pares) of those who fail in misericordia, according to the constitution of the charter of freedom (i. e., the Great Charter), which willeth that a freeman be assessed, when he falleth into an amercement, according to the quality of his offence-a merchant saving to him his merchandise, and a villein his villenage; and these affeerors are to be chosen by the assent of the parties, if they will; but the king's officers are to be more grievously amerced for the breach of their duty. Many cases there are where corporal punishments are bought off by fines of money; and such are called ransoms, or redemption from personal pains, whereof some fines are common, as for murders; others for personal trespasses of towns and commonalties; which fines King Edward ordained should be assessed in the presence of the justices. (See the Mirror, c. iv., 8. 25, 26.) From this it appears that, so late as the time of the charters, the

1 Ch. 14.

portion thereto, saving to him, in the language of Glanville, his contenement, or countenance (a): with respect to a merchant, saving to him, in like manner, his merchandise; and to a villein, except he was the king's villein, his wainage (b): from which provisions it appears to have Saxon law as to compositions for felonies, even in cases of murder, still remained. The comment in the Mirror upon this clause of the charter is:"The point of amercements is measured by justices, sheriffs, bailiffs, stewards, and others, who amerce the people in certain in this manner: Putting such a one to so much for a contempt or other trespass, without a personal trespass, and without the affeerment of the people sworn to it, and without specifying the manner and the quality of the contempt. Again, where affeerors ought to be chosen with the assent of those who are amerced, and in a common place, the lords make the affeerors to come to their houses to affeer the amercements according to their pleasure" (c. v., s. 2). In other chapters, and from Bracton, it appears that the amercements were assessed by the king's justices in their itinera, or, as regards those who held of the king, in the exchequer.

(a) Daines Barrington, in his Observations upon the Statutes, shows, by several curious quotations, that the word was formerly used as synonymous with entertainment, and that, therefore, this means that a man shall not be so fined, but that he may be able to give his neighbors good entertainment. Lord Coke says, the countenance of a soldier is his armor; the books of a scholar are his countenance; and the like. The meaning is, that by which a man subsists, or which is essential to his maintenance, as, in the instance of a husbandman, his wagon or wain. The sense is illustrated by the rule of the common law, which exempts working-tools, etc., from a distress.

(b) The charter here speaks of villeins, and not merely tenants in villenage, who might be freemen (as the Mirror points out), because freemen might hold lands in villenage, and they were already provided for by the previous part of the clause; on the other hand, this clause shows that the villeins as the Mirror also points out in a passage already quoted, supra —were not slaves; for if so, they could have nothing of their own. Of villeins mention is made in the great charter of liberties, where it is said that a villein be not so grievously amerced that his tillage be not secured to him; but the statute maketh no mention of slaves, because they have nothing of their own to lose” (c. ii., s. 128). The Mirror, it will be observed, quotes the charter as speaking of the "tillage" of the villeins, whereas the term used is his "wainagium," i. e., wain or wagon. But that was his means of tillage or service, and the effect is the same. Lord Coke says that "wainagium" signifieth a cart or wain, wherewith a villein was to render his service, or to convey the manure of the lord out of the gate of the manor into the great lord's lands, and casting it upon the same and the like (according to Littleton's definition of villeins' tenure, as something vile and base, such as conveying manure). "And it was great reason to save his wainage, for otherwise the wretched creature was to carry it on his back" (2 Inst.). But there is here the confusion so often made between villeins and slaves, and the contemporary exposition of the Mirror shows that Lord Coke took much too mean a view of the class here alluded to, and the clause in the quotation. In the Mirror it is said that all villeins were not slaves, but were "regardant," that is, attached to the manor, and thus are distinguished from slaves, of whom it is said that they could purchase nothing but for their lord's use, and that they may not fly from their lords so long as their lords find them wherewith VOL. II.-4

been the intention, that these amercements should not be the complete ruin of a man. For the same reason also it was declared, that none of the said amercements should be assessed but by the oaths of honest and lawful men of the vicinage (a). Earls and barons, however, were not to be amerced but by their peers (which was done either by the barons of the exchequer, or in the court coram rege), in both which the pares regni were constitutionally judges,' and according to their default; nor was a clerk to be amerced in proportion to his spiritual benefice, but after his lay-tenement, and, in like manner, only according to his default. All these provisions were only to affirm and give a sanction to ancient usages, some of which have been before mentioned: upon this chapter, however, was afterwards framed the writ de moderatâ misericordia, for giving remedy to a party who was excessively amerced.

The form of trial was intended to be adjusted by the following regulation, though the precise meaning of it has occasioned some doubt (b): Nullus ballivus de cætero

to live (c. ii., s. 28). And elsewhere it is said that it was an abuse to hold villeins as slaves (c. v., s. 1, art. 93); or to say that a villein and a slave are all one (Ibid., art. 72). It is manifest that the condition of the villeins was improving at this time.

(a) It may be of interest to point out the manner in which this clause in the charter was practically carried out. Bracton states, in describing the jurisdiction of the itinerant justices as to amercements, that they were to observe this provision of the Great Charter: "De illis qui sunt in misericordia domini Regis, et non sunt amerciati, ad quod videndum qualiter sit quis sit amerciandus. Et secundum quod miles et liber homo non amerciabitur nisi secundum modum delicti, et salvo contentemento suo. Mercator veri non nisi salvo merchandisa sua. Et villanus autem non nisi salvo wainagio suo, et hoc per judicium proborum hominum de visneto, qui affidabunt simul cum serviente" (lib. iii., c. i., p. 117). It is impossible not to see from this how entirely the observance of the charter depended practically upon the manner in which it was carried out by the judges.

(b) It is explained thus in the Mirror: "The point which forbiddeth that no bailiff put a freeman to his oath without suit, is to be understood in this manner, that no justice, no minister of the king, nor other officer nor bailiff have power to make a freeman make oath without the king's command, nor receive any plaint without witnesses present, who testify the plaint to be true." Before a man could be put to his law or his oath, which meant the same thing (wager or gager of law being the proceeding by which a defendant waged or gaged, i. e., pledged his oath), the accuser had to produce his secta, or suit of followers or witnesses, a practice which became obsolete in the time of Edward III., when the names of John Doe and Richard Roe, as a mere form, make their appearance. Wager of law was a relic of the old Saxon practice of "compurgators,” and so Coke said there were to be eleven besides the defendant, because the wager of law was "to countervail a jury.” 1 Bract., fol. 116, b. 2 Delicti. 3 Ibid. ♦ Vide vol. i., 209 (note).