Appeals to the Privy Council from the American Plantations 9780231878449

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APPEALS TO THE PRIVY COUNCIL FROM THE AMERICAN PLANTATIONS

A PUBLICATION THE FOUNDATION COLUMBIA

FOR RESEARCH UNIVERSITY

OF IN

LBGAL

SCHOOL O F

HISTORY

LAW

APPEALS TO THE PRIVY COUNCIL FROM THE

AMERICAN PLANTATIONS BY Joseph Henry Smith WITH AN INTRODUCTORY ESSAY BY

Julius GoebeljJr.

COLUMBIA UNIVERSITY PRESS NEW YORK

·

1950

COPYRIGHT

I95O,

COLUMBIA

UNIVERSITY

PRESS

P U B L I S H E D IN G R E A T B R I T A I N , CANADA, AND INDIA B Y G E O F F R E Y OXFORD U N I V E R S I T Y MANUFACTURED

P R E S S , LONDON, TORONTO, AND IN T H E U N I T E D STATES OF

CUMBERLEGE

BOMBAY

AMERICA

FOREWORD an attempt has been made to describe and evaluate at length the Privy Council of England as a judicial body exercising appellate jurisdiction over the courts of the various American plantations during the seventeenth and eighteenth centuries. Prior to this volume no attempt had been made to utilize even a small part of all the available material, largely manuscript, bearing on this subject. Some writers of the local history school confined their attention to certain notable causes, such as Winthrop v. Lechmere, Lcighton v. Frost or the Parsons' Cause. Other writers, concerned with particular colonies or public figures, discussed in passing such cases as Cunningham v. Forsey. Another group, in writing on the Privy Council's jurisdiction in a general manner, relied solely upon printed materials, principally the Acts of the Privy Council, Colonial. Treatises and case books on the constitutional law of the United States have invariably treated the doctrine of judicial review during the American colonial period in a superficial manner. No real effort was made by any of these writers to integrate the various records in the archives on this side of the Atlantic with the Privy Council records in London. Professor Julius Goebel, Jr., was the first to perceive the value to students of Anglo-American legal history of a thorough study of the appellate jurisdiction of the King in Council over the American colonies. The instant project has been carried out under his supervision and guidance. I am deeply indebted to him for the many demands I have made upon his extensive knowledge of English and colonial law and history. Considerable space has been devoted in this book to discussion of the Council's jurisdiction over the Channel Islands, as this constituted the core of all conciliar appellate jurisdiction and is a prerequisite for any consideration of plantation appeals. The insular colonies of the Caribbean have been treated at some length, since in the seventeenth and eighteenth centuries these islands were economically and strategically more important than were the mainland colonies and were regarded as such in English administrative circles. Although it is sometimes exposed to political maneuvering, appellate jurisdiction is a matter of law, not of politics. Consequently, it has been necessary to employ technical language, much of it concerned with problems of procédural, rather than substantive, law. Such usage, while it renders more difficult the task of the lay reader, recognizes that the legal problems incident to hisI N THIS STUDY

vi

FOREWORD

Coricai research must be created as such, noe vaguely dismissed as "technicalities." The sources used have been largely manuscript, assembled from numerous depositories in England, the Channel Islands, the states of the Atlantic seaboard, and Jamaica, British West Indies. These sources have been supplemented with printed material, in part readily accessible, in part rare. Reproduction of manuscript sources has given rise to the usual problems of spelling, capitalization, and punctuation. For the most part the original spelling has been preserved, arbitrary capitalization has been deleted, punctuation supplied or altered where necessary to clarity, and contactions expanded. Certain arbitrary choices were necessary to resolve the vagaries in the spelling of proper names. A bibliography has been omitted as it would swell considerably a volume already of formidable dimensions, but full reference has been made in the footnotes to all the sources utilized. Of the many depositories which placed their facilities at my service, I am particularly indebted to the officers and staff of the Public Record Office, the British Museum, the Bodleian, and Lincoln's Inn, in England, to the Société Jersiaise in St. Hélier, Jersey, and che Priaulx Library in St. Peter Port, Guernsey, C.I.; to Miss Edna L. Jacobsen, Chief of the Manuscripts and History Section of the New York State Library, Miss Mary T. Quinn of the Rhode Island State Archives, Dr. Radoff and the staff of the Maryland Hall of Records at Annapolis, and the respective staffs of the Massachusetts Department of Archives, the Connecticut State Library, the South Carolina and North Carolina Historical Record Commissions; to the respective officers and staffs of the New-York Historical Society, the Historical Society of Pennsylvania, the Connecticut Historical Society, the New Jersey Historical Society, the New Hampshire Historical Society, the Maryland Historical Society, the Massachusetts Historical Society, the New Haven Colony Historical Society, and the American Antiquarian Society; to Mr. St. George L. Sioussat, Chief, and the staff of the Manuscripts Division of the Library of Congress, the staff of the Law Division, Library of Congress, the staffs of the Manuscript Research and Reserve Book Rooms, New York Public Library; to Mrs. Hess of the American Philosophical Society, Mr. George A. Osborn, Rutgers University Librarian, and the staff of the Harvard University Law Library; to Mr. Maxwell Volins, Chief Record Clerk, New York County Clerk's Office, the staff of the Research Room, Suffolk County Court House, Boston, Mass., the staff of the Superior Court, Newport, R.I.; to Langton Haldane-Robertson, Esq., Archivist of the Institute of Jamaica, Kingston, Jamaica, B.W.I. ; to the officials of the Jamaica Record Office, Jamaica, B.W.I. I am also much indebted to Lord Wright of Durley for facilitating my re-

FOREWORD

vii

search in the records remaining at the Privy Council Office in Downing Street. T o Dr. M. A. Thomson and Dr. R. A. Humphreys of the Institute for Historical Research, London, I am grateful for valuable guidance in the use of English sources; to Dr. J. H . Le Patourel of the Institute for Historical Research, Bailiff A. M. Coutanche of Jersey, Ralph Mollet, Esq., and AttorneyGeneral Sherwill of Guernsey, I am indebted for kind assistance in assembling the Channel Islands material. T o }. Bennett Nolan, Esq., and James M. Osborn, Esq., I express gratitude for access to private manuscript collections. T o Professor Dorothy Burne Goebel I am especially indebted for search in the Shelburne MSS at the Clements Library and for critical reading of the entire typescript. T o my wife, Edith Stenberg Smith, I am grateful for a reading of the proof with the practiced eye of an estates lawyer and for compiling the table of cases. Dr. Donald Tilton and the late Lieutenant William C. Evers, U.S.M.C.R., relieved me of many of the chores incident to research, while the library staffs of Columbia University cheerfully submitted to many demands on their time and patience. Finally my thanks are due to Mr. Samuel F . Howard for undertaking the arduous task of compiling the index, and to the Columbia University Press for the care bestowed in bringing this volume to publication. J. H. S. New Yorf( August, 1Ç49

CONTENTS INTRODUCTION: T H E MATRIX OF E M P I R E I.

XIII

T H E R I S E OF THE APPEAL JURISDICTION

3

THE MEDIEVAL STATUS OF THE CHANNEL ISLANDS

5

APPELLATE JURISDICTION UNDER ELIZABETH

12

CHANNEL ISLANDS APPEALS UNDER THE FIRST STUARTS

25

THE INTERREGNUM

38

EARLY CONCILIAR CONTROL OF COLONIAL JUSTICE

4I

T H E RECALCITRANCE OF MASSACHUSETTS BAY

45

LATER ROYAL CHARTERS

51

THE NAVIGATION ACTS

59

THE

RESTORATION

APPELLATE

SYSTEM

FOR

THE

CHANNEL

ISLANDS AND THE COLONIES II.

III.

63

T H E LORDS C O M M I T T E E OF TRADE AND PLANTATIONS

71

THE RIGHT OF APPEAL IN THE CHARTERED COLONIES

74

APPEALS REGULATIONS; CHANNEL ISLANDS; ROYAL PROVINCES

77

VICE-ADMIRALTY APPEALS

88

ORIGINAL JURISDICTION OF THE PRIVY COUNCIL

95

COMMITTEE PROCEDURE; CHANNEL ISLANDS; PLANTATIONS

96

THE MASON LITIGATION IN NEW HAMPSHIRE

II5

INTERCOLONIAL BOUNDARY DISPUTES

121

CONFLICTS BETWEEN ADMIRALTY AND COMMON LAW COURTS

127

THE COMMITTEE APPRAISED

128

T H E SETTLING OF JURISDICTION

132

THE PROBLEM OF THE CHARTERED COLONIES

I38

OPPOSITION IN THE ROYAL COLONIES

I5I

THE PERSISTENCE OF NEW ENGLAND RECALCITRANCE

160

THE NEW CHARTERS

167

ISLE OF MAN APPEALS

I7I

CONTENTS

IV.

V.

APPEALS AND DISALLOWANCE

I74

VICE-ADMIRALTY APPEALS

177

COLONIAL REVIEW OF ADMIRALTY CASES

193

CONFLICTS OF JURISDICTION

200

LIMITATIONS ON THE EXERCISE OF REVIEW JURISDICTION

202

PUBLICISTS AND POLITICAL OPINION

2Θ8

T H E REGULATION OF A P P E A L S

214

THE REVISION OF INSTRUCTIONS

2L6

INSTRUCTIONS FOR NEW ACCESSIONS

235

INTERPRETATION OF THE INSTRUCTIONS

236

CRIMINAL APPEALS

24O

ACTS OF PARLIAMENT AND CONTINENTAL COLONIAL ACTS

244

INSULAR LEGISLATION

256

VIRGINIA LEGISLATION

259

JUDICIAL RULES

262

VICE-ADMIRALTY APPEALS

265

NON-AMERICAN JURISDICTIONS

267

PROCEDURE AT THE COUNCIL BOARD

272

CHANNEL ISLANDS APPEALS

282

THE COMMITTEE HEARING

289

REVIEW AND RECORD IN CRIMINAL CASES—BAYARD AND HUTCHINS

VI.

297

THE PRACTICE IN MISDEMEANOR CASES

306

THE RECORD PROBLEM IN CIVIL APPEALS

309

THE COMMITTEE REPORT

314

THE AWARD OF COSTS

318

COMMITTEE PERSONNEL

323

THE EXECUTION OF THE ORDER IN COUNCIL

328

THE ANCILLARY BODIES

344

T H E SCOPE OF A P P E L L A T E R E V I E W

351

GENERAL AND SPECIAL VERDICTS

352

COLONIAL OPINION ON THE FORM OF VERDICT

359

CONTENTS

VII.

VIII.

IX.

zi

THE NEW ENGLAND RECORD

365

W I L L I A M M U R R A Y AND COUNCIL PRACTICE

366

THE COUNCIL'S N E W ENGLAND PROBLEM

373

T H E CHANCERY APPEAL

378

PROCEDURAL ERROR

379

THE INSTRUCTIONS OF 1 7 5 3

383

THE REACTION I N SOUTH CAROLINA

386

CUNNINGHAM V. FORSEY

39O

T H E AFTERMATH

412

A P P E A L S FROM R O Y A L COMMISSIONS

417

T H E MOHEGAN INDIANS V. CONNECTICUT

422

T H E MASSACHUSETTS-NEW HAMPSHIRE BOUNDARY DISPUTE

442

THE MASSACHUSETTS-RHODE ISLAND BOUNDARIES

449

THE CONTROVERSY BETWEEN NEW YORK AND NEW JERSEY

453

T H E P R I V Y C O U N C I L AND THE EXTENSION OF ENGLISH L A W

464

T H E EXTENSION OF ACTS OF PARLIAMENT

465

T H E PRE-SETTLEMENT STATUTES

487

STATUTES EXPRESSLY EXTENDING TO PLANTATIONS

495

THE INTERPRETATION OF COLONIAL STATUTES

503

STATUTES RELATING TO ADMIRALTY JURISDICTION

514

JUDICIAL AND LEGISLATIVE REVIEW

523

THE FOUNDATIONS OF DOCTRINE AND PRACTICE

523

EARLY LEGISLATIVE REVIEW

53I

WINTHROP V. LECHMERE

537

REACTION TO T H E DECLARATION OF NULLITY

551

T H E RHODE ISLAND PRECEDENT

560

PHILIPS V. SAVAGE

562

CLARK V. TOUSEY

572

N U L L I T Y UPON LEGISLATIVE REVIEW

582

COLONIAL DISCUSSION OF JUDICIAL REVIEW

586

FURTHER NULLIFICATION UPON LEGISLATIVE REVIEW

592

COLONIAL ACTS CONTRARY TO ROYAL INSTRUCTIONS

597

xii

CONTENTS THE PARSONS' CAUSE HALL V. LAING NULLIFICATION IN WESTMINSTER HALL THE MASSACHUSETTS ACT OF PARDON AND INDEMNITY THE STATUS OF JUDICIAL REVIEW SEPARATION OF POWERS AND JUDICIAL REVIEW X.

CONCLUSION

APPENDIXES SOURCES INDEXES TABLE OF CASES GENERAL INDEX

THE MATRIX OF EMPIRE by JULIUS GOEBEL, JR. W E ARE ACCUSTOMED to think of our institutions as grown from the good seed of democracy and to hold of little account what is owed to the strain of prerogative. T h e very word prerogative acquired an odor of repugnancy during the long stretch of one hundred and sixty-nine years of our colonial condition, because it stood for a political reality which was a recurrent point of controversy in the relations with the sovereign. The eighteenth-century Englishman might pride himself that the arbitrary element had been nearly abstracted from the prerogative, but his colonial kinsman, who drew no benefits from the great emancipating statutes of the seventeenth century, must perforce Uve by a constitution in which the medieval components were far from being mere vestiges. It is doubtful if at any juncture even the best-informed lawyers in the plantations were acquainted with more than a piece of the pedigree of the system by which these establishments came to be governed or controlled from Whitehall. 1 A n d despite the many competent explorations of this system as a going concern, present-day knowledge of its origins is not much further advanced. This failure to probe into beginnings may be attributed partly to the fact that study of how our internal polity developed has been largely influenced by what the British call the Whig interpretation of history. In consequence the 1

The lawyers who undertook to deal with problems of imperial relations were led into the medieval background through the precedents used by Coke, Vaughan, and others. The degree to which they treated of historical foundations depended somewhat upon their literary resources. Rymer's Foedera, from which a considerable part of the background can be reconstructed was probably unavailable in most provinces. Rymer is cited by Jefferson in his Notes on Virginia. He apparently did not use it for his pre-Revolutionary Summary View. Examples from pamphlet writings are, Dickinson, Letters from a farmer, Mos. 4 and 10, in 14 Mem. Hist. Soc. Pa. 305; Wilson, On the Legislative Authority of the British Parliament (2 Works of James Wilson [Andrews ed.] 505 et seq.)·, Dulany, Consid-

erations on the Propriety of Imposing Taxes . . . (1765); Otis, Rights of the British Colonies Asserted and Proved (Mullctted., 1929) in 4 Univ. of Missouri Studies 76 et seq. The anonymous Massachusettensis, whom John Adams believed to be the lawyer Jonathan Sewall, confined his history to events after settlement. Nevertheless, his letters provoked the most complete of all historical investigations of the time, the Novanglus of John Adams. Cf. Novanglus and Massachusettensis (reprint of 1819). The historical allusions in parliamentary debates no doubt had some effect in turning colonial attention to the historical arguments; cf. the long and interesting memorial of colony agent Charles Garth 00 a speech of Pitt (So. Carolina Hisr. Soc., Misc. MSS., Box 1700-1784, Jan. 19, 1766).

xiv

T H E M A T R I X O F EMPIRE

story of our first stages has been told in much the same terms as the growth of the English constitution. This approach was from the first as much a matter of convenience as of prejudice. The early investigators into American affairs had enough to cope with on this side of the water without reexamining the premises and conclusions of the nineteenth-century masters who were reconstructing the constitutional history of the mother country. This had been conceived and executed as something restricted to the realm itself. The intricate problems of constitutional relations with the far-flung territories which acknowledged the lordship of England's King during the Middle Ages remained virtually untouched.2 This imperviousness may have been made colorable by acceptance of the ancient distinction between realm and dominions,* but a vast area of English administrative activity was thereby left blank. In consequence, when the subject of imperial relations with the New World establishments came under scientific scrutiny, it was handled as if it had been as much res integra to Stuart administrators as it was to modern scholars themselves. The historical underpinning which lent significance to the continuity and development in America of such matters as local institutions and representative government is nonexistent as to imperial relations. Now the truth of the matter is that when the first expeditions were being outfitted for America, the English were already old hands in the business of empire. Their experience had been accumulating since the time of the Norman conquest, although when the seventeenth century opened only a fragment of once vast holdings remained. The complex of territories in subjection to the The nineteenth-century English constitutional historians, e.g., Stubbs, occasionally use the expression "empire" with reference to crown possessions without the realm, but not in any artful sense. Of the writers of the present century, only Schuyler has seen the problem clearly: "There was an English empire, though it was not known by that name, long before the founding of overseas colonies in the seventeenth century," Parliament and the British Empire ( 1 9 2 9 ) , 6. He has used medieval precedent to found and explain the power of Parliament to legislate for the dominions. T . F. Tout notices the resemblance of the Gascon administration to that of Wales and Chester, 5 Chapters in the Administrative History of Mediaeval England, 300; cf. Lodge, Gascony under English Rule ( 1 9 2 6 ) , 5, where the Gascon administration is compared with that of India. However, in speaking of the "Ordainers' " claim to control Scotland, Ireland, and Gascony, Professor T o u t remarks: " W e need not sec in this either a prophetic vision of an imperial Britain in the 2

future, or a simple suggestion of greediness, though in it there was more of the latter than of the former" (Place of Edward II in English History [2d ed., 1936] 185). This seems to us an implicit disclaimer of any "empire" theory or practice. T h e most recent work in which there is occasion to touch on these problems (Powicke, King Henry 111 and the Lord Edward [ 1 9 4 7 ] ) deals with "conflict of laws" (2 ibid., 618-685) in a manner that equally negates any imperial constitutional ideas. T h e remark that Edward I "did not and could not set up a body like the modern judicial committee of the privy council for the administration of various kinds of l a w " indicates that Powicke has missed the significance of what Edward was doing with King's Bench, and certainly the significance of the triers of dominion petitions in Parliament. 3 Cf. 3 Osgood, The American Colonies in the Seventeenth Century (1926) 8, where it is mistakenly said that "it was more a distinction of fact than of law, of practice than of principle."

T H E MATRIX OF EMPIRE

XV

English King was an empire, not by virtue of English law (which had its own classifications), but by virtue of the custom common to all western Europe. It was, in short, a feudal empire,4 composed of divers honors of which England was but one.8 In each of these, whether acquired by conquest or by descent, the King had lordship, and this was variously and locally defined by ancient usage, by what came to be bargained away, and by the incidence of those pressures which everywhere were bearing down upon feudal pretensions. The English King's medieval empire lacked the one element which characterized and gave unity to the New World empire—the homogeneity of the private law. In so far as the medieval structure was sustained by any legal base, this must be sought in the premises of feudal law, in its rules and practices, on which there was a certain degree of concurrence in the various lands of Europe. Although England was initially not what a feudist would call caput honoris, it becomes so because the royal title is the one of most dignity, because its geographical position makes it the very keep for military operations,® and because in the end it is mostly by English blood and treasure that this empire is held together. But there are reasons for the ascendancy of the realm weightier than those of diplomacy and war, for they derive from the prosaic world of administration. It is in the King's Council that decisions concerning components of this empire will be made; it is from the King's Chancery that mandates will go forth; it is at the King's Exchequer that lieutenants from overseas will account. Matters concerning the realm and places outside the realm alike are transacted here, because this is King's business, and these are instrumentalities of the King. 7 These agencies are initially as footloose as their principal. But a pied à terre becomes an administrative necessity; and it is in the realm that 4 The notion that an empire may be composed of various lordships appears as early as 1279 in a plea of Llewellyn, Prince of Wales (cf. Davies, The Welsh Assize Roll 1277-1284 [ 1 9 4 0 ] , 266) and as late as 1 4 7 1 - 7 6 (cf. Fortescue, The Governance of England [Plummer ed., 1885] c. xvi: "Nowe the lordeshippes of the emperour bith not so gret as be the lordeshippes off some kynge"). For traces of similar ideas in medieval German law cf. Schulte, Lehrbuch der Deutschen Reichs—und Rechtsgeschichte (5 ed.), 207 n. 10, 209 n. I i . 6 See the county and hundred ordinance of Henry I, S 3 (1 Liebermann Gesetze der Angelsachsen [ 1 9 0 3 ] , 524; Jolliffc, Constitutional History of Medieval England [ 1 9 3 7 Ì · '74)· 8 It is so thought of in the Middle Ages (cf. 3 Rot. Pari. 36b [ 1 3 7 8 ] ). In trying to cozen the

Parliament, Gascony and the other fortz of the King are described as "barbicans al roialme d'Engleterre." 7 Cf. Tout, France and England ( 1 9 2 2 ) , 7 0 - 7 1 , regarding Chancery temp. Henry II. With the establishment of dominion offices, e.g., a Chancery in Ireland and later in Gascony, elements, if not of hierarchy, at least of a partition of authority enter into the picture. The boundaries of this have not been adequately studied, but apparendy the range of acts of the central authority superseding acts by local agencies in the King's name was very great. This has a bearing upon the rule to which Coke adverts (Calvin's Case, 7 Co. Rep. 20a) respecting the currency of brevia mandatoria et non remedialia. A similar problem existed with respect to the American royal colonies, and this too awaits a thorough investigation.

svi

T H E MATRIX O F EMPIRE

they become domiciled, so that even when a voyaging sovereign finds personal attendance of officers or councilors indispensable, 8 the English headquarters will be maintained. T h e employment in imperial affairs of these agencies, which through the King were part of the ordinary machinery of the realm, and to that extent involved in domestic constitutional struggles, was to prove significant in many ways. In the first place, a certain community of procedure at the top level became inevitable. In the second place, a considerable degree of continuity of administrative tradition was assured. And finally, some definition of relationships had to be made as a matter of English law. It is impossible to examine Gascon rolls, the mass of documents relating to Ireland, or the slimmer bulk bearing on the Channel Islands, without an appreciation of the chains which can be forged by the use of nearly identical forms for the dispatch of affairs circumstanced as differently as those of Dublin, Bordeaux, and Jersey. All these far places felt the impress of what we have come to regard as distinctively English instruments. T h e effect of these inanimate things is enhanced by the employment throughout generations of a floating bureaucracy. 9 One who serves as warden of the Channel Islands may later be seneschal in Gascony. Such a seneschal may be moved to serve in Wales, and may live his last days as constable of some English castle. O n less exalted levels, functionaries will move from the Exchequer to the constableship of Bordeaux and next serve on commission for the Channel Islands, and some s

Thus, on one Gascon expedition Edward I took along his Chancellor, half the Chancery, and half his council, Lodge, Gascony under English Rule, 56. Henry IV took some of his officers and part of his council on campaigns, Baldwin, The King's Council in England during the Middle Ages, 1 5 1 . See further, Stamp, Some Notes on the Court and Chancery of Henry 111, in Historical Essays in Honour of James Tait ( 1 9 3 3 ) , 305; Broome, Exchequer Migrations to Yorl( in the Thirteenth and Fourteenth Centuries, in Essays Presented to T . F. Tout ( 1 9 2 5 ) , 291. • F o r example, Drogo de Bareotin ( + 1 2 6 5 ? ) was three times Seneschal of Gascony, he was Warden and Sub-warden of the Channel Islands, proctor at the papal curia, and finally Keeper of Windsor Castle (cf. 1 Bémont, Rôles Gascons [Collection des documents inédits sur l'histoire de France], Suppl., exiv; Le Patourel, Medieval Administration of the Channel Islands [ 1 9 3 7 ] 1 2 3 ; Close Rolls 1 2 3 7 - 4 2 , 1 6 5 Calendar of Patent Rolls 1258-66, 300). John de Grey was Justice of Chester, Seneschal of Gascony,

Warden of the Marches of Wales, Constable of Hereford, and Sheriff of Hereford (Bémont, op. cit. cxix, Calendar of Patent Rolls 1232-47, 467-68; ibid., 1247-58. 553, 638; ibid., 125866, 163. John Havering was Sheriff of Southampton, Deputy justice of North Wales, Seneschal of Gascony, back as Justice of all Wales, again Seneschal of Gascony (Carte, Catalogue des Rolles Gascons [ 1 7 4 3 ] , 27, Calendar of Patent Rolls 1272—81, 284, ibid., 1292—1301, 146, 502 Tout, Place of Edward II, 349). Oliver d'Ingham ( + 1344) was governor of Ellesmere Castle, Justice of Chester, Warden of castles of Marlborough and Devizes, Seneschal of Gascony (Dictionary of National Biography, s.n.). The tendency to use experienced administrators is still seen at the end of the fourteenth century, as in the case of John Stanley who served in his youth in Aquitaine, was Deputy in Ireland, later Lieutenant, served in the Welsh Marches, was Constable of Windsor Castle, and later again Lieutenant of Ireland (cf. Dictionary of National Biography, s.n. Thomas Stanley).

T H E M A T R I X OF E M P I R E

rvii

may make the rarer shift from Bordeaux to Dublin. 1 0 In the final analysis it is to the muniments of administration and to the men who learn their uses in different climes and circumstances that one must look for the elements of cohesion without which no concept of empire can be said to exist. W e can here conveniently refer to but one type of instrument to make at once the points of cohesion and of continuity in dominion administration, and what we shall have to say must of necessity be largely by way of suggestion, since every form used in imperial administration still awaits exhaustive study. As the American colonists quickly learned, the governor's commission was a document of great significance for their affairs—indeed, it came to be viewed on both sides of the water as possessing a basic constitutional force. The eminent Sir Bartholomew Shower might argue scornfully before the House of Lords in 1693 1 1 that the common law knew no such office as governor; but under such aliases as seneschal, king's lieutenant, warden, or lord deputy, the Chancery had been familiar with it for centuries. In general, and by whatever name this type of agency was known, it comprehended certain basic functions. Whether it was exercised in Gascony, Ireland, or the Channel Islands, the office involved the duty of captain general, 12 precisely as it later did in the royal colonies of America. It involved a certain responsibility for material royal rights, specifically lands. It involved certain jurisdictional authority. It involved certain fiscal obligations, as well as rights. We do not mean to imply that a full and complete definition of all these functions can be demonstrated by early records, as they can be by the commissions of the late seventeenth century. On the contrary, the particulars of a deputy's powers underwent a process of development and accretion not yet terminated when James Stuart succeeded to the English throne. The point of departure appears to have been a simple and terse appointment to an office. 13 This was quite in accord with the English practice pursued with respect to certain governmental jobs, such as a commission to the Common Bench, where the precise functions were a matter of usage. Such a form is used, for example, with respect to the seneschalry of Gascony, 14 where the duties, in so far as they were not traditional, would be assumed pursuant to subsequent explicit warrants. The English combination of a commission for 10

Lodge, Constables of Bordeaux under Edward III, 50 EHR 225 et seq., has an account of the careers of various such officials; cf. esp. John Travers (ibid., 232 η. i8), and Robert Wykford (ibid., 236). 11 Dutton v. Howell, Shower PC. 24. 12 ι Bémont, Râles Gascons (Supp.) exx; Lodge, Gascony under English Rule, 137-38; Le Patourel, The Medieval Administration of the

Channel Islands (1935), 40; Wood, The Office of Chief Governor of Ireland 1272-1 joç, in 36 Proceedings Royal Irish Academy, No. 12. 13 E.g., Seneschal of Gascony, Bémont, Riles Gascons, no. 1704; Warden of the Channel Islands, Patent Rolls 1225-1232, 350. 14 ι Bémont, op. cit. (Suppl.) exx ("Ses pouvoirs n'étaient pas encore nettement définis").

xviii

T H E M A T R I X OF EMPIRE

an eyre and the accompanying highly detailed capitula ittnerìs that put us in mind of the later colonial combination of commission and instructions was not apparendy adapted to places without the realm. However, resort might be had to the practice of issuing the simple commission and simultaneously a series of other instruments with respect to particular powers. Thus, when John de Havering was made seneschal of Gascony, in 1305, six such documents were forthcoming: 15 the appointment, one dealing with salary, one conveying powers in litigation touching the crown, one granting authority over subordinates, and one directing the constable of Bordeaux to supply funds. Five of these could have been combined, and one suspects some small matter of fees was involved. In any event, this piecemeal method of delegation was not yet utterly obsolete in Edward VI's time, for it was used to outfit a Lord Deputy in Ireland. 16 It is our opinion that contract also had something to do with the enlargement of particular commissions and that resort to this eventually had its effects upon common form. The circumstances that might lead to this were either the importance of the nominee or the toughness of the job ahead, or both. An early and famous example is the grant by Henry III to Simon de Montfort when he was made the King's lieutenant in Gascony (1248), an instrument that M. Bémont supposes was the result of Earl Simon's demands.17 The mechanics of chaffering are disclosed by a document many years later—a series of propositions put by John Darcy to the Council that set out the conditions upon which he was willing to go to Ireland as justiciar.18 These conditions include such matter as the power of pardon, later to be a usual clause in commissions. The responses to these articles are preserved (some a mere "fiat"), and although none of this appears in Darcy's commission, the creation of a contractual obligation is obvious.19 The reduction of mutual engagements to more formal terms comes about, we think, from the extensive employment of indentures for the supply of troops in the fourteenth and fifteenth centuries.20 In these times the military 15

Maitland, Memoranda de Parliamento ( 1893), 329 et seq. Cf. the batch issued in 1 3 1 8 to William de Montecute (3 Rymcr, Foedera, 162 et seq.). References arc to the original edition of Rymcr unless otherwise indicated as coming from the Rolls edition. 16 ι Calendar of Patent Rolls Edward VI, 1 1 7 , 1 3 3 - 3 6 ; cf. 2 ibid., 56-57. The additional warrants of authority here appear to have been used because certain functions were to be exercised in concert with other persons. 17 Bémont, Simon de Montfort ( 1 8 8 4 ) , 22. The appointment is printed at 264.

18 Baldwin, The King's Council in England during the Middle Ages, 473. 19 We have elsewhere considered the contractual quality of so-called statutes, such as the Confirmatio cartarum, where proposition and assent are involved (Goebel, Cases and Materials on the Development of Legal Institutions [1946 ed.], 166-67). Darcy's commission ( 1 3 2 9 ) is in 2 Rymer, Foedera (Rolls ed.), pt. ii, 756 (1328/9). 20 On this, Lewis, Organization of Indentured Retinues in 14th Century England, in 27 Trans. Royal Hist. Soc., 4 ser., 29 et seq.; Prince, The

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aspect of the gubernatorial office was the most significant and, in keeping with current practice, the obligations with respect to a governor's military establishment were reduced to terms of formal agreement. To incorporate other and nonmilitary matter was but a step. Two pairs of documents suggest the nexus between the use of indentures for military needs and their use for the specification of governmental powers. Robert de Herle, in June, 1351, entered into an indenture with the King with respect to the garrisoning of Calais, and ten days later was commissioned Captain of Calais.21 A few years later, in 1355, the Black Prince and the King settled by indenture the details of the military establishment for Gascony as well as the particulars of governmental authority; e.g., ordinance power, capacity to make grants, jurisdiction over rebels to be exercised by the Prince as lieutenant in Gascony. The commission of the same day embodies the recital of such powers.22 In 1376, when the Earl of Ormond was commissioned justiciar of Ireland, the familiar terse form is used, but this is accompanied by a royal declaration respecting the powers of the office.23 Similarly, in 1378 John Neville was given a short form commission as lieutenant of Gascony and received an explanatory document issued with consent of the Council.24 It seems plausible that these declarations in each case embodied the purport of underlying indentures, for no English King was likely at this stage to confer broad authority ex mero motu. These declarations, moreover, appear to be an intermediate step to the ultimate absorption of their contents into the patent of appointment. This was probably first done by resorting to an incorporation by reference. Thus, John Stanley was appointed Lieutenant of Ireland on December 10, 1399, by King and Council, with a specification of authority recited to be according to the form of a certain indenture, and his reappointment in 1413 was in similar terms.25 The virtue of this expedient was this, that the commission formula itself was left virtually intact, but the fact of reference lent to a private contract the vigor of a public instrument. This is not the place for an exhaustive inquiry into the role of the indenture, nor arc the resources presently at our disposal sufficient thereto. Enough has been sketched, perhaps, to suggest the part which bargain played in securing a definition of office. In the shifting subject matter of such contracts it is Indenture System under Edward III, in Historical Essays in Honour of James Tait (1933) 283. 21 The indenture is in 3 Rymer, Foedera (Rolls ed.), pt. i, 222; the commission in ibid., 226. Cf. the combination in the appointment of John Beauchamp (ibid. 316, 324 [1356]). * 2 The indenture is in Register of the Black, Prince (1933), Part iv, 143-45; the commission

is in 3 Rymer Foedera (Rolls ed.), pt. i, 307. 23 The commission is in 3 Rymer, Foedera (Rolls ed.), 1058; the declaration in ibid., 1060. 24 Notification of the commission is in 4 ibid., 43; the declaration in ibid., 44. 25 Cf. Calendar of Patent Rolls 1309-1401, 92; Calendar of Patent Rolls 1413-16, 53.

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possible to fix upon certain constants. Repetition was bound to give them a life independent of agreement, adding thus a further example to the list of rules and legal institutions which have emerged from consistent use of contract. That the limits of an office should have depended on compact, the modern mind finds strange indeed, but in those times an office was a species of property and so quite properly the subject of contract. There were sound fiscal reasons, too, to say nothing of the expedience of being safeguarded against the whims of prerogative. The sources dealing with various dominions disclose a constant intervention by the crown that must often have driven a prudent administrator to distraction. The example of Henry III overriding the mandates of his son in Ireland is well known, 2 ® and likewise the efforts of Edward III to draw to himself the appeals from Gascony after its incorporation into Edward of Windsor's principality. 27 Covenant furnished the only means of placing a few barriers against the antic exercise of royal pleasure. Patent rolls and council records both show the bargaining process continuing in the fifteenth century. 28 In the course of these eventually disastrous years the content of commissions is pretty well stabilized, a result which was partly due to the occasional practice of commissioning by the formula of mere reference to a predecessor's patent. 29 A comparison of the commissions to the seneschal of Gascony of 1415 3 0 with those used for Ireland in 1423, 3 1 1428, 32 1462, 33 and finally in 1495 3 4 suggests that certain basic constituents of the governor's office are settled. The latter instruments are particularly important, because after the loss of Gascony a few decades before Columbus' first voyage, Ireland remained the only considerable possession of the crown and administratively the significant link between old and new policies. What Henry V I I grants to Prince Henry and Edward Poyning, his deputy, is destined to be the core of what James I later grants to Lord Mountjoy 3 5 (1603) —a document which anticipates matter later to appear in royal commissions to American colonial governors. The threads of historical continuity are here —they want only the tying. 26

3 Orpen, Ireland under the Normans ( 1920), 270-72. 27 5 Tout, Chapters in the Administrative History of Mediaeval England (1930), 3 1 3 ; cf. infra, p. xlvii. 28 E.g., 10 Rymer, Foedera 282 (Ireland, 1423) ; Calendar of Patent Rolls 1429-36, 69 (Gascony, 1430); Calendar of Patent Rolls 1436-41, 140 (Ireland, 1438); Calendar of Patent Rolls 1476-85,90 (Ireland, 1478); 2 Proceedings and Ordinances of the Privy Council of England, 130; 3 ibid., 6, 8; 4 ibid., 53, 79, 92; 5 ibid., 206.

29 E.g., Calendar of Paient Rollt 1467-77, 205 ; ibid., 1477-84, 153, ibid., 1485-94, 84. 80 9 Rymer, Foedera 239 to John Tiptoft. 81 10 ibid., 282 to The Earl of March. 32 Calendar of Patent Rolls 1422-29, 475, to John Sutton. 83 Calendar of Patent Rolls 1461-67, 142, to the Duke of Clarence. 84 Calendar of Patent Rolls 1494-1509, 12. 35 1 Repertory of Inrolments on the Patent Rolls of Chancery in Ireland (1846), 17.

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There are other muniments of medieval administration, some of which will be considered later, that contribute details to the framework of what may be called an imperial constitution. This is a designation we use with some reserve. It is essentially a mere political description, for whatever may be the probative impact of a body of precedent on the manner and form of dispatching business, this alone cannot supply the catalyzing force of a coherent and pliable legal doctrine. This was not forthcoming, because the ultimate word rested in the King, who, although universally admitted to be the source of all law, was equally the source of final political decision. In other words, the point where conclusions of principle had to be reached was also the most tender to considerations of expediency. Nevertheless, the fact that in one way or another Council, Parliament, and common law courts had to cope with matters connected with places outside the realm produced, if not a theory, at least certain materials for one. We shall consider first what the common law courts had to contribute. By the time of Edward I, when it was apparent that England had become the center of a congeries of royal possessions, the limits of competence and jurisdiction of the courts at Westminster were fixed both geographically and in the broader national sense. Although they were King's courts, they were preeminently courts for the realm. The heart and viscera of their law was the corpus of original writs, devised primarily for the assertion or defense of private rights. The ambit of these writs was limited; the arm of English justice would reach no further than they could go. In consequence the common law which polarizes about these mandates is a law principally for the realm. It is manifest that for practical reasons the central courts could not ignore, nor could the law be impervious to, aspects of royal authority outside the realm. After all, this was King's business as much as the duties they were discharging for England itself. Although they cannot speak law for places where the King's writs are not current, they must define the posture of their own law if someone in Ireland is vouched to warranty,36 if a protection for service in Gascony is interposed in an action,37 or if some question about Welsh lands is involved in a personal action.38 In so far as the common law arrived at any generalization regarding the outlands, it was embodied in the conception "dominions of the King," although sometimes these are referred to as places without the realm, but within the ligeance of the King. The word dominium, from which this derived, came into the law with the Normans and is one of those protean terms of eleventh-century feudalism. It is definitive not merely of proprietary or »· Cf. YB 21-22 Edw. I [R.S.], 308. " Fitzherbert, Abridgment, Protection, 55 (YB 17 Hen. VI).

38

Fitzhcrbert, Abridgment, (YB 6 Hen. V).

Jurisdiction,

34

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possessory rights in land but also of the governmental and contractual incidents of tenure. As long as all these elements are present lordship is synonymous with dominium. Lordship comes to mean something different during the fourteenth century as respects relations of the King's subjects.39 But when lordship is attributed to the King, the original feudal sense of the term remains unaltered. The mutations of the term dominium at the hands of the common law courts were manifold. 40 In the ordinary causes of meum et tuum, it becomes preeminently a word of property law, and irresistibly this mode of thought infects judicial thinking when the territorial aspects of the dominion of the King are involved. Even Bracton, who in other connections found it convenient to resort to Roman distinctions between public and private law, is using the vulgar language of English real property law when he says that Ireland and Wales are in the power and dominion of the King. 4 1 The application of property law concepts to relationships which were essentially matters of state, and of no direct connection with the law of the realm itself, is characteristic of the way the courts at Westminster made their contribution to constitutional development.42 In this particular instance the process was facilitated by the fact that within the realm itself the courts were continually dealing with a problem of royal rights that inevitably suggested analogies. We refer to the ancient demesne—the lands which had belonged to the crown on the day the Confessor was quick and dead. 43 These estates are conceived to be annexed to the crown,44 and to them a peculiar quality of immunity attaches : that is to say, they are not parcel of the normal system of justice, police, or finance; barring personal actions, the ordinary writs do not run here; justice, although administered in the King's name, is essentially seignorial, for it is done on the manor and it is the manorial custom which is enforced. The common law courts have to deal with ancient demesne chiefly by way of review, or collaterally when by plea the matter of status is presented, for the franchise pursues the soil and remains even if such lands have come into private hands. So far as the tenants are concerned, they are not bound to attend the county court or to serve on juries, they are exempt from the sheriff, and they are not taxed with the county at large, for they are originally not represented in Parliament. On the ancient demesne the aphorism that "the King 39

Cf. Jolliffe, op. cit., 424. 2 Pollock and Maitland, History of English Law (1911). 4. 33. "441 Bracton, De legibus, f. 380b. 42 Aspects of this are discussed in Goebel, Constitutional History and Constitutional Law, 38 Columbia Law Review, 555. 40

43

On this, Coke, Fourth Institute, 269 et seq.; Vinogradov, Villeinage in England, 89 et seq.; ι Pollock and Maitland, op. cit., 383 et seq. 44 Fleta, lib. i, c. 8: "Antiqua maneria vel jura Coronae annexa Regi, non licebit alienare . . ."

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is so prerogative in his lands that he will have no one over him" 4 5 means what it says. The existence of particular rules of law for the King's demesne within the realm could hardly fail to affect judicial thinking with respect to demesnes that lay without, especially since the courts were faced with nearly identical limitations on their authority as to all—viz., that original writs were not current, that peculiar "customs" applied, and that royal prerogative, if it was at all confined, was so by virtue of rules beyond the control of the central courts. Their use of the artful dominium to describe the King's control of his properties irrespective of situs is suggestive enough of a singleness of thought. Unquestionably the crown contributed to this first, by declarations respecting both Ireland and Gascony 48 as jurisdictions never to be severed from the crown, and subsequently, in reference to Wales, when Edward I announced that although hitherto held iure fcodaiis, this land was henceforward in proprietatis nostrae dominium annexed and united to the crown. 47 Since the common law had already some rules, if not a theory, about lands annexed to the crown, it is not surprising to find the judges occasionally bracketing dominions outside the realm with the ancient demesne. While fully conscious of practical diversities, they would find procedural parallels,48 they were disposed to conjoin them in the elaboration of their analysis of franchises,49 and ultimately to explain the nonextension of Acts of Parliament on the ground of nonrepresentation.80 Analogy can be a potent artifice to advance the bounds of the law, but in the instance before us the choice of the ancient demesne was not a particularly happy one. A body of rules which was concerned primarily with the proprietary rights of the King and in which the element of immunity was so emphatic was hardly susceptible of contributing to the growth of doctrine about a political relationship. It is true that in the era of American settlement the crown derived material advantage from the point of view embodied in these old precedents, but so far as English law was concerned their immediate effect was to hold captive the rudimentary feudal notions of empire, so that the close of the Middle Ages saw the common law judges not far from the point at 45

YB 33-35 Edw. I (R.S.), 406. ι Bémont, Rôles Gascons, No. 2374 ("Ita tamen quod preiicte terre et castra omnia numquam separentur a corona Anglie . . . ted integre remaneant regibus Anglie in perpetuum"). Cf. 1 Calendar of Irish Documents, no. 844. 47 ι Statutes of the Realm, 55. 48 Fitzherbert, Abridgment, Errour 83 (33 Edw. ΠΙ) I. The distinction is drawn between error from Common Bench to King's Bench, where the whole record is sent, and error from 48

Ireland or ancicnt demesne, where a transcript is sufficient. 48 YB 36 Hen. VI, 33 (pi. 34); cf. also YB 32 Hen. VI, 25 (pi. 13). 50 Brooke, Abridgment, Parlement & Statutes, 101. Certain Yearbook cases appear to have been compounded for the generalization: 22 Lib. Ass. pi. 45; YB 7 Hen. VI p. 39; 20 Hen. VI, 8 (pi. 17). Brooke's analysis is discussed in Thorne, A Discourse upon . . . Statutes (1942), 23 et seq.

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which they had started. They did nothing to explore the content of the King's lordship in his dominions, and consequently there was here nothing to match the accretions of constitutional doctrine with respect to his capacities within the realm. The resort to the principle of personal ligeance to setde the status in English law of the King's non-English subjects shows clearly how he remained in the judicial imagination a pristine feudal suzerain as to his outlying possessions. It is in this guise that he is clothed when America is discovered, and from the moment that the first colonizing charters are sealed, the struggle commences to maintain as to the New World establishments the capacities and powers conceded by the common law to inhere in the King as to his possessions outside the kingdom. If issues relating to the dominions had arisen more frequently and less collaterally, it is conceivable the English courts would have extricated themselves from the strange corner into which they had been driven by the imperative of their property-mindedness. But the limitations upon their jurisdiction were such that they never had to grapple with the problem as something fundamental and of the first order. The early acceptance of the rule respecting the restricted ambit of writs initiating litigation excluded original jurisdiction over causes extra regnum. The opportunities for direct exposition of the law were therefore confined to the causes that might come by way of transfer or by way of review. What we describe as transfer is the familiar removal of cases coram rege because of franchise to be so heard, because of particular royal interest, or as a result of special petition. This is initially an aspect of conciliar jurisdiction which, along with other judicial business, came to be centered in King's Bench in the period when it was still a limb of Curia Regis and which remained there after the assumption of a distinct identity as a court for the realm. The removal of inland causes played an important part in the expansion of King's Bench's supervisory powers and was rapidly integrated into the common law system, because it was exercised in accordance with the postulates of common law practice. Such conditions did not obtain in the dominions (except in Ireland) and consequently transfer jurisdiction here retains its original quality of special reference. Circumstances therefore favored neither judicial expressions of policy respecting the law overseas nor the building of any body of precedent. Furthermore, after 1289 transfers from Ireland were discouraged,51 and in the course of the fourteenth century the Channel Islanders resisted the practice, until it was at last relinquished.52 Perhaps the most significant contribution of this jurisdiction was the formulation and promotion of a policy that SI 2 Sayles, Select Cases in the Court of King's Bench (Seiden Soc. 1 9 3 8 ) , lx.

52

LePatourel, op. at.,

112-13.

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although an original writ was not current out of the realm, a royal mandate was nevertheless effective if King's business was involved." This amounted to no more than a generalized assertion of prerogative, but within a few decades the matter was more precisely grounded as a rule of law, when it was judicially laid down that even in places where originals did not run, if such places were in the King's power a royal mandate must be obeyed.54 The political and administrative implications of this are obvious. The contemporaneous use of devices for review of judgments no doubt contributed toward settling the ubiquity of certain types of royal process, since the review jurisdiction was a species of evoking pleas coram rege, although after judgment. It is distinguished further by the fact that the practice of review was developed from theories peculiar to itself. The theory which touched the dominions was in point of jurisdiction derived from feudal law which vested in an overlord appeals for default of justice, and which conceived as possible progressive recourse up the feudal ladder to the suzerain himself.5" The successful planting in England of this conception of progressive appeal was frustrated by the royal claim to an immediate prerogative over all cases of unjust judgment or default of justice.58 In consequence, the appeal per saltum had become the norm before the twelfth century was out,5T although it was not until the Statute of Marlborough that the principle was irrevocably settled.88 The appeal procedure for unjust judgment which the Normans had brought to England was neither a procedure for the correction of errors nor a review of the merits of a controversy inter partes. As the word appeal in its medieval connotation suggests, it was an accusatory proceeding at the instance of a party aggrieved by a judgment, against the courtkeeper or body of judgment finders.59 It had this in common with appeals of felony, that an issue of perjury 5 3 3 Sayles, op. cit., xlvi et seq. " YB 19 E d w . ΙΠ (R.S.), 337· M O n this, cf. Mitteis, Lehnrecht und Staatsgewalt (1933) 298, 316, 538 et seq.; Fournier, Essai sur l'histoire du droit d'appel (I88I),I40 et seq.; A d a m s , Council and Courts in AngloNorman England (1926), 161 et seq. se Leges Henri ci, 10.1; 59, 19. Cf. ibid., 33, la, a n d Glanville, De legibus xii, 7. T h e false or u n j u s t j u d g m e n t is broadly a species of default of justice, but Leges Henrici appears to distinguish between t h e m (cf. 33, 2; 33, 3a) not because the difference was vital to f o u n d jurisdiction, but chiefly because different procedures were involved, and the sanction falls in the first case on t h e body of j u d g m e n t finders and in the latter m a y be confined to the court keeper (ibid., 7, 6).

97 A d a m s , op. cit., 164 η. 2o. Γη Italy in t h e eleventh century a similar rule of i m m e d i a t e appeal t o the E m p e r o r obtained (Mitteis, Der Staat des Hohen Mittelalters [1940],

>63)· c. 19, ι Statutes of the Realm ( R . C . ) , 24. T h e N o r m a n s appear to have taken over the Frankish procedure for impeaching j u d g m e n t s (cf. 2 B r u n n e r , Deutsche Rechts geschickte [2d e d . ] , 473 et seq.). Certain incidents, such as battle, w e r e embroidery put upon it by feudal society. It is to be noted that the Anglo-Saxons used a procedure for impeaching j u d g m e n t s which bore certain resemblances to t h e original Frankish institution (2 Liebermann, Gesetze der Angelsachsen [1906],/.«'. Urteilschelte). 58

59

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was involved, that trial was by battle, and that sanctions awaited the loser. 60 Since the chief features of a proceeding for falsifying a judgment obtained in all places where French feudalism had spread, 61 the rudiments of a legal mechanism for the exercise of imperial authority were present, although the limitations as a device for controlling the law of any dominion are manifest. As this procedure developed within the realm, it underwent modifications which not only changed the scope of the jurisdiction, but led to a new conception of the review process. In the main this was part and parcel of common law growth, but some features emerged from the control of dominion cases during the period when common law forms were in the course of being settled. It is consequently desirable to make some inquiry into the evolution of the English procedures themselves. These have received only the most fugitive attention of historians: a neglect which needs to be repaired, in view of the great political significance of review jurisdiction both within the realm and without. N o one, moreover, will dispute that whatever will or will not be done with respect to errors and defaults in outlying dominions is necessarily conditioned by the practices and prevailing ideas at the center of the imperial administration. T h e most notable of the changes in English law had to do with manipulations of the record concept which so reconstituted the appeal of feudal law that a correction of error could be effected. Record was a Norman importation. It had originally nothing to do with writings, signifying only a remembrance of transactions, and in a society generally unlettered the manner of remembrance was necessarily oral. 62 So far as judicial proceedings were concerned, the duty of remembrance was laid upon those who participated in judgment. Both English and French sources indicate that the suitor who functioned as judgment finder according to the old law was equally charged with bearing record. 63 T h e Anglo-Norman sources of the early twelfth century make a significant addition: that record of the King's court cannot be impeached, but record of other courts may be traversed. 64 One source confines the rule of unimpeachability to the court where the King is personally present, 65 but if this was once true, the privilege was presently extended to 60 Brunner, Wort und Form im altfranzösischen Prozess, in Forschungen, 346 et seq. 61 Gebauer, Studien zur Geschichte der Urteilschelte, in 17 Zeitschrift der Savigny Stiftung für Rechtsgeschichte (Germ. Abt.), 33. 62 Brunner, Entstehung der Schwurgerichte (1872), 189 et seq. 63 For France, see Brunner, Das Gerichtszeugnis und die fränkische Königsurkunde, in 1 Abhandlungen, 417, 422; Mitteis, Beaumanoir

una die geistliche Gerichtsbarkeit, in 35 Zeitschrift der Sav. Stift, für Rechtsgeschichte (Kanonistische Abt.), 335. The English practice is indicated in the early twelfth-century compilation Leges Edwardi Confessoris, 36, 3. It is still operative in the fourteenth century; cf. YB 45 Edw. Ill, Hil. pi. 2. 64 Leges Henrici, 3 1 , 4; 48, 6. 65 Leis Willeime, 24.

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the several manifestations of Curia Regis. 66 We shall have something more to say about this in a moment, but we must first consider how the record notion was applied to the English local courts, where the old forms of judgment prevailed, because the review jurisdiction was first exercised with respect to these bodies. Where complaint is made against the judgment of a county court, a royal writ commands the sheriff to have a record made (recordari facias) of the suit, and four knights who participated in making it are to bear it and appear in the King's court. 67 In the case of a feudal court, the sheriff is to associate with himself four knights and proceed to have a record made which four lawful men of the court baron are to bear to Westminster. 68 The record thus borne is clearly an ad hoc memorial after the event, and in the subsequent proceedings before the King's court the procedure is a contention between the complainant and the record bearers, although the winning litigant below, being present, may be asked to confirm or deny the record. 69 The pleading revolves about the truth or untruth of the account proffered by the record bearers, and about its completeness.70 Usually the record is a relation of the several stages of the litigation in terms of process, pleading, and trial procedure. This is propounded and traversed as matter in pais. But the facts in controversy, being ordinarily on points of procedure, are peculiarly within the cognizance of the reviewing tribunal. Here, as in appeals of felony, the King's courts in the early thirteenth century on the basis of a distinction between facts which were substantively material and those which concerned procedural irregularity were arrogating to themselves the determination of the latter. Since only the judgment itself, not the record, had to be defended by duel, 71 joinder on the ultimate issue of perjury and consequent wager of battle could be sidestepped. The reviewing court, having heard out complainant and record bearers, could specify what it deemed to be error in the proceedings below and by its judgment set matters aright. 72 The persistence of the original penal characteristics of the action are observable in the retention of sanctions.73 ββ Dialogus de Scoccarlo (Hughes Crump & Johnson eds.), 67; Glanville De legibus (Woodbine ed.), viii, 9. 87 The writ is in Fitzherbert, Natura Brevium, 18B. Glanville speaks of this ad hoc recording as per assisam de concilio inde factam, suggesting an ordinance of some recency. On the procedure, see 2 Pollock & Maitland, History of English Law, 666 et seq., and Woodbine's notes in his edition of Glanville, 240 et seq. 68 The writ, accedas ad curiam, is in Fitzherbert, Natura Brevium, 18D. " Cf. 2 Curia Regis Rolls (hereafter cited CRR),

260; 8 CRR 389; Bracton's Notebook., pi. 1436. Cf. ι CRR 277 (whole record false); 6 CRR 2 3 0 - 3 1 (part recorded "wilfully"); Bracton's Notebook pi. 40; pi. 243, pi. 1 1 3 8 (part good, part bad). 71 Glanville, De legibus, viii, 9. 72 For example, 6 CRR 230, Bracton's Notebook,, pi. 40, pi. 824; pi. 1436. 73 Glanville, op. cit., viii, 1 1 , avers that a lord may lose his court. The normal practice is amercement of a county for a false judgment in the county court. 70

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It was a considerable achievement of the English King's courts to convert the old false judgment, essentially a vindictive proceeding, into something resembling an administrative inquiry into complaints against local courts, directed toward the determination of whether or not any material ingredient of due process in the original suit was missing. The record and the pleading upon it were merely a means of getting such issues before the supervisory tribunal in a way which would have been closed had the proffered record been invulnerable. Even by the middle of the thirteenth century this review by the King's court had not reached the state of a continuation of the litigation inter partes at a higher instance in a judicial hierarchy, but by indulging the use of the technique of common law controversy to displace the older formal procedure, an advance toward a true error jurisdiction was effected. How far the recordari facias procedure, developed in the atmosphere of the new remedial law of the English courts, could be adapted to false judgments from the various dominions where the King had lordship must have been questionable. By any test the traditional false judgment procedure was illadapted to the ends of a centralized imperial administration. It had developed and was workable within confined geographic limits. A journey from Bayonne to Westminster to engage in personal combat with the representative of a local court over a lost action was hardly an attractive prospect. There was, furthermore, enormous inconvenience connected with the transport of the human record bearers, whose physical presence even the reformed English practice required. The obvious solution was to preserve the jurisdictional prerogative over false judgments, but to remake the procedure itself. A first and obvious step was to follow in the path of the canon law (of which more in a moment) and permit a written record to substitute for an oral statement. In the then state of secular procedure this was a prospect of mountainous difficulty, for it involved a break with traditional ways which ran back into AngloSaxon and Frankish times, and so were as indurated as compurgation or trial by battle. The most serious legal obstacle, since the sanction was penal, was the. restriction that would be put upon the defense if the testimony of the accused court was confined to a written instrument. By the same token the supervisory function would be limited to the faults disclosed by such writing and to this extent fall short of the results achievable by a personal examination of record bearers. The thirteenth century was better than half over before the written remembrance finally established itself as the record in the King's courts. These had ever shown a strong predilection for human testimony, even if merely formal. This pervaded their handling of documents generally, and consequently, although they early reduced their own proceedings to writing, they delayed

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reaching the conclusion that such writings could be endowed with thè quality of record and so dispense with reliance upon personal recollection. W e have indicated in the margin the successive stages in the process of substitution. 74 This involved not only an eventual recognition that tradition should give way to convenience in determining a question of res iudicata but also arriving at the more difficult conclusion when a judgment was under attack to dispense with the judge as a necessary participant. In this last particular developments were retarded by the fact that within the system of royal judicature the 7 4 The conversion had progressed so far in the early thirteenth century that litigants will vouch both rolls and the justices themselves—an indication that it is not yet clear what is the record (e.g., ι CRR 57; 2 CRR 201; 3 CRR 168; 4 CRR 36; 6 CRR 260. In 4 CRR 210 the justices wish to inspect the rolls and "certificari super recordo"). The triumph of the written account, moreover, was delayed by the fact that various rolls were kept of the same proceedings, and the problem of unsnarling divergencies had not yet been completely solved at the time Bracton wrote (see the cases in 3 CRR 301, 334 where a diversity in rolls is involved; in 8 CRR 98 the roll of Pateshull is inspected and the clerk thinks it worth noting that Fauconberg's roll is in accord and cf., ibid., 114; Bracton's discussion of settling discrepancies is in De legibus, 352b). T