certain that much injustice and oppression were practised by his Norman followers, who knowing nothing of these laws, were disposed to trample upon the Anglo-Saxons as a conquered race; and we can easily conceive how often, in the insolence of successful invasion, might must have triumphed over right, and caused an apprehension on the part of the English, that they would soon lose their dearly-cherished customs, and be subject in all things to the (to them) unknown laws and caprice of their Norman tyrants. They therefore fondly looked back to the time of Edward the Confessor, the last of their legitimate sovereigns, as that when they enjoyed their natural rights and customs without foreign interference, and were loud in their clamours to William to restore to them the laws of that king-meaning thereby, as I conceive, not any particular code enacted by himbut the laws which prevailed in his reign, and which had been handed down for generations from their forefathers, and were the inheritance of every AngloSaxon freeman.

This view agrees with the expressions used by William in the proclamation or charter addressed by him in 1070, to William, Bishop, and Godfrey, Portreeve, and all the burgers in London, French and English,' in which he says, that his will is that they all should have the laws which they possessed in the days of king Edward.

And the statutes which he afterwards promulgated, and which are known by the name of Leges Gulielmi Conquestoris, are headed by the following preface,

or title, Cez sont les leis e les custumes que li reis Will grantad al pople de Engleterre apres le cunquest de la terre: iceles meimes que li reis Edward, sun cusin, tint devant lui.

Accordingly, we find the distinguishing features of Anglo-Saxon jurisprudence retained by the Norman king. Of these we may mention the wergild, or manbot, for bodily injuries; the system of mutual suretyship (fri borh, improperly rendered frankpledge); the prohibition of suits before the king, unless there was first a failure of justice in the hundred, or county court; the necessity of purchases and sales being made in the presence of legal witnesses; and the use of compurgation and the ordeal'.

The most important changes in our judicial system made by the Conqueror were, 1, the separation of the spiritual and temporal courts; 2, the introduction of the combat, or duel, as a means of determining civil suits and questions of guilt or innocence; and, 3, the appointment of justiciars, to administer justice throughout the realm.

With regard to the second of these, however, Sir Francis Palgrave thinks, that notwithstanding the silence of Anglo-Saxon laws and records on the subject, trial by battle may have existed in England before the Conquest. He says, 'It must be admitted that an Anglo-Saxon duel cannot be adduced; but the argument which rests upon the absence of trial by

1 In proof of this see the Leges Gul. Conq. in the Ancient Laws and Institutes, published by the Record Commissioners.

2 English Commonw. 1. 224.

battle in the courts of Anglo-Saxon origin, is not entirely correct. Immediately after the Conquest, the "witnesses" of the church of Worcester offered to become the champions of St. Mary, and to defend the rights of Bishop Wulstan by combat against the claims of the abbot of Evesham. It was in regular course, according to the common law, to join battle in the county court, when the cause was not removed into a superior tribunal. If we reject the subtleties, the distinctions, and, above all, the technical expressions which unquestionably were due to the AngloNorman lawyers, and invented, or perfected, under the Anglo-Norman sovereigns, the principles which govern the proceedings of judicial battle are so nearly identified with those which are to be collected from the Teutonic codes, as to afford a probability that they were parts of the Anglo-Saxon law, preserved by the usage and traditions of the people.'

With respect to the justiciars, it has been generally supposed that justices in eyre (justitiarii itinerantes) were first established in 1176, by Henry II., for we find it recorded that in that year, in a great council held at Northampton, the king divided the realm into six parts, and appointed three travelling justices to go each circuit, so that the number was eighteen in all'. Three years afterwards, in 1179, a fresh arrangement was made, and the six circuits were reduced to four, which were distributed amongst fifteen judges. But although the formal division of the kingdom into separate circuits may have been first made by Henry

T. J.

1 Spelman, Codex.

2 Ibid.

H

II., yet there is no doubt that single justiciars were appointed by William I., a few years after the Conquest, who visited the different shires to administer justice in the king's name, and thus represented the curia regis as distinct from the hundred and county

courts1.

SECTION II. Modes of Trial in civil Suits in the

Anglo-Norman Times.

THE same remark which has already been made, with reference to the absence of all mention of the form of jury trial in the Anglo-Saxon laws, applies equally to the first hundred years after the Conquest. It is incredible that so important a feature of our jurisprudence, if it had been known, would not have been alluded to in the various compilations of law which were made in the reigns of the early Norman kings. These consist of the Leges Gulielmi Conquestoris, Leges Henrici Primi, and Leges Edwardi Confessoris, and in none of them is a hint given of the existence of the jury.

But although the jury, properly so called, does not yet seem to have been in existence, we find in the narratives of several suits, which came before the

1 Misit autem dehinc rex potentissimus justitiarios per unamquamque scyram. Hen. Hunting. 18, Will. I.

2 With respect to these last, we must not be misled by the name into a supposition that they were laws enacted by the Saxon Edward. They were a collection of such as existed in his time, compiled most probably in the reign of Henry II., in order that the English might possess a record of their old laws, and a guarantee for their continuance. See Phillips, Eng. Reichs u. Rechtsgeschichte.

courts in those reigns, distinct traces of a mode of trial which easily paved the way for the introduction of that system. In order to satisfy ourselves on this important point it will be necessary to notice each of these briefly in chronological order.

First then we find a writ directed by William the Conqueror to Archbishop Lanfranc, Roger Earl of Moreton, and bishop Galfrid, requiring them to summon all the shires which were present at the plea of lands of the church of Ely held before the last departure of the Queen to Normandy. To these were to be added such of the barons as could conveniently appear who held lands of the same church, and who had been present at the trial. And when the assembly met, several (plures) Englishmen were to be chosen out of those who knew in whose tenure and possession the lands lay at the time of the death of Edward the Confessor, and they were to confirm their statements by an oath (jurando testentur1). The register of Domesday Book was, in fact, compiled from evidence of this kind given upon the inquests held under the general survey ordered by the Conqueror.

In the famous placitum held on Pennenden heath in the same reign, when Lanfranc archbishop of Canterbury reclaimed the lands belonging to his see which had been seized by Otho the Bishop of Bayeux, William's natural brother, during the vacancy that intervened after the deposition of Stigand, the matters

1 Dugdale's Monasticon, 1. 478, cited in Palgrave's Proofs and Illustrations, English Commonwealth.