SPECTATOR'S LIBRARY.

japan ARCHIEOLOOT,

The Judges of England; with Sketches of their Lives and Miscellaneous Notices con- nected with the Courts at Westminster, from the Time of the Conquest. By Ed- ward Foss, F.S.A.„ of the Inner Temple. Vols. I. and II Lawman and Co. AITTOBIOGRAPHY,

Campaign in France In the Year 1792. Translated from the German of Goethe. By Hobert Farie, Barrister-at-law Chapman and Hall.

FICTION,

percy ; or the Old Love and the New. By the Author of "The Henpecked Hus-

band." In three volumes Newby..

MR. TOSS'S JUDGES OF ENGLAND.

IN a popular point of view the Judges of England are not so favour- able a subject as the Chancellors ; partly, perhaps, because they are in the main a more honest body of men. A Judge mostly rises from his knowledge of law and the respectability of his personal character; un- less when a vacant Chiefship occurs with an Attorney-General whom politics and speech may have advanced to his post. In earlier times, in- deed, such strictness in the selection of the Judges might not obtain ; though we suspect the mass were always chosen with some regard to character and qualification, according to the opinion of the day, except during the sixty or seventy years this country was cursed by the rule of the Stuarts. A Chancellor, on the contrary, was mostly an adven- turer, either by fortune or by nature, rarely if ever rising by law alone : since politics always, and courtier-like arts very often, were essential to the attainment of his office and to the discharge of its functions. The varied career, the versatile arts, the more unscrupulous character of most Chancellors, may make the man less reputable, but they render the biography more interesting. If it be true, that "happy the nation which has no history," we may say "respectable is the man who has no life."

Neither has Mr. Foss the qualities of the popular pleader that have given such attraction to Lord Campbell's Lives of the Chancellors. As a matter of literary conscience, he cannot assert a thing which he does not know or is not in a condition to prove ; still less can he invent a scene or an incident to enliven his narrative, or infuse into it a dramatic air on a foundation as baseless as the superstructure be raises. Mr. Foss carries his conscientiousness further : he is not satisfied with even respectable authorities, when he can get access to the same originals that they drew from ; he does not make use of what he finds reported, to an- swer an instant purpose, but in the absence of evidence weighs it by reason and analogy in order to discover the truth. In literary character Mr. Foss has some resemblance to the late Sir Harris Nicolas. He has legal knowledge, antiquarian skill, and that distinct precision, which, present- ing the truth and nothing but the truth, imparts interest even to the fre- quent dryness of antiquarian facts. Mr. Foss is perhaps inferior to Sir Harris in comprehension and elevation of mind : not that he is devoid of either quality, but he has them not to the same extent as Sir Harris, who, though without imagination, could always sustain himself in the regions of imagination. The Judges of England is not a hasty work, got up from the readiest sources to while away the tedium consequent upon a retirement from active business ; but the result of steady attention during a large part of a life.

"Surrounded with difficulties as a work of this nature must now evidently be, it may be fairly asked upon what inducements, or rather, perhaps, on what pre- sumption, I have ventured to attempt it. I can only say, that very early in my professional career, I felt anxious to know something about the history of the Courts in which I practised; and having been brought up to look with reverence on those who ruled in them, I inquired in vain for some account of their predeces- sors. Finding no regular memorials, it was my amusement to collect all the in- cidents relative to each which any of the various books I read could furnish; and, making allowance for the few opportunities to be found in an active and laborious professional career, a large body of materials was eventually formed, arranged un- der the names to which they applied in alphabetical order. The time of my re- tirement arrived; and, not having been delayed, as is too frequently the case, till the sense of enjoyment is blunted and the powers of the mind are decayed and gone, I found that full employment was necessary to my existence and my happi- ness; and, after devoting a few more years to public duties, which I owed to my professional brethren, I naturally reverted to my biographical collections, with the double view of occupying my leisure and of supplying the deficiency of which others besides myself had complained. "I must confess, however, that on contemplating the plan which it would be necessary to adopt, I was startled by the magnitude of the undertaking. I was soon satisfied that to make the work. I projected really useful, it would be re- quisite to commence at a distant period; and that, as comparatively few of my collected notes referred to the earlier Judges, it would require laborious research before I could supply materials to justify such a publication."

The two volumes of the work now published commence with the Con- quest, and close with the reign of Henry the Third. Although they Contain the names of the Justiciaries, Chancellors, and Keepers, with lists of the Judges, and notices of their lives so far as materials ex- ist, yet these biographical sketches form but a portion of the plan, and as yet not the most interesting portion. In addition to the names and (where possible) the career of the men, The Judges of England con- tains an historical disquisition on or a history of the order, and of the Courts in which they presided, with sketches of the broad history of the law itself. During this early period, and perhaps the same arrange- men. t will be pursued throughout, Mr. Foss considers his subject by reigns. In a general survey he examines the manner in which justice appears to have been administered, first by the King in person, and after- wards by officers that eventually grew into modern Judges; noting the gradual changes that appear to have taken place in the Courts, their place and practice. In like manner, he investigates the appointment Of leading officers, whether Chancellors or Justiciaries, (who, however, Were at first more Regents than Judges, representing the whole power of the Sovereign, and not merely one function); he ascertains their names, fixes the dates of their appointments, and inquires into their powers, and the real nature of the functions they had to discharge : A well-ar- ranged table of these officers being attached to each reig' nt with signs of doubt when (as is often the case) the actual appointment is uncertain or conjectural. As soon as itinerant or errant Judges can be shown to have acted, (though they were rather Commissioners or Magistrates than anything hie our modern Circuit Judges,) lists of them are given from the records in which their names are found. Incidental notices of a genera/ kind, both archeological and legal, also appear in the survey of the reigns. This section is followed by biographical notices of the Judges belonging to the reigna ; as yet, from the absence of materials, confined to the prin- cipal officers, who often united in a singular degree the ecclesiastical, military, and judicial character. Even the notices of them are frequently bare and brief. But they possess more particulars than might fairly be looked for from the rude and remote ages in which they lived, owing to the businesslike character of the nation, which "entred' so many of its transactions, as well as to the industry of chroniclers. The paucity of really biographical materials gives something of an- tiquarian dryness to the sketches ; redeemed, however, by the distinct and specific character we have already spoken of. As particular facts, per- sonal traits, and anecdotes accumulate, the notices may become more interesting as lives. Mr. Foss, however, seems to have a tendency to curtness in biography; which it would be well to guard against, since most readers expect, and very properly, to have a picture of the manners and mind of a man, as well as a mere statement of the chronology and facts of his career. The bareness we speak of is visible in the author's accurate and authoritative little book, The Grandeur of the Law, as well as in his life of Becket in the work before us. It is quite right to reject apocryphal stories, not heard of till two or three centuries after the subject's death ; but all that is contained in contemporary authors, especially where they knew the individual, may rightly be employed, either to illustrate the life, to depict the man or even to exhibit the character of the age. Some native bent, assisted by the precision of legal training and archmological studies, has induced in Mr. Foss a habit of regarding with most liking matters that may be recorded. Hence he is really strongest in legal or historical disquisition, though he does not reject lighter matters that bear upon the case. The following ancient examples of fining, if really "for foolish speaking" on the part of advocates, de- serves to be revived.

"The fine roll of 6 John records an imposition of half a mark on Roger de Muncland, pro stultiloquio '; and, judging from Sir Edward Coke's remarks in his preface to the Book of Entries, that the pleader and not the client was mulc- ted, we may presume that this Roger de Muncland was a blundering lawyer. The great roll of 7 John contains a similar amercement on John Blond, In 7 Henry IL, Henry the Dean was fined five marks for the same offence; and two instances occur on the rolls of Richard I., in which Nicholas FitzLul is charged two marks and a half, and Ernald the Priest one mark, 'pro stulto dicto.' It is not improbable however, that some of these fines were imposed upon jurors for unsatisfactory verdicts."

A barrister assaulting a judge vi et armis is not likely to occur in these measured days ; but we sometimes witness a trespass of the tongue, which might as properly be punished as the more violent offence in ancient times.

"In Bracton, the practitioners of the law are termed counsel, pleaders and advocates; and Matthew Paris in speaking of them says that they were vulgarly called Banci Narratores: "The latter title is used in the memorandum of a complaint made 'on Wed- nesday after the feast of St. Martin,' 52 Henry III, by Robert de Fulham, Justice of the Jews, to the Treasurer and Barons of the Exchequer. He stated, that as he went into Westminster Hall on business relating to his office, Robert de Cole- viii, 'Narrator de Banco,' came and put violent hands upon him, taking him by the breast; and he prayed that amends might be done to him, he and his brother justices being de gremio Scaccarii.' The contumacious Narrator was brought before them; and at the instance of his brotherNarratores ' the matter WAS accommodated by the offender coming 'before the Treasurer and Barons, and before Gilbert de Preston and Roger de Messenden Justices of the Bench then sitting in the Exchequer,' his tunic ungirt, and head uncovered, and placing himself at the will of the insulted Justice, as well in life and limb as in lands tenements, goods, and chattels; whereupon the transgression was remitted, and the offender admitted 'ad osculum,' to the kiss of peace.

A mooted question in legal history is the time when the three Courts of the King's Bench, Common Pleas, and Exchequer, were first separated; or rather, perhaps, when the Curia Regis gave off an offshoot—for the Exchequer must have held separate sittings at a very early period, if not ab origine. This argument is skilfully summed up by Mr. Foss in the following passage. "Looking, then, to the whole evidence, and to the arguments adduced by the partisans on each side of the question, I feel forced to adopt the conclusion to which Lord Bacon arrived, that the Court of Common Pleas was not divided from the principal court until after the charter of John.

"The progress with regard to civil suits seems to have been this. At the time of the Conquest, the ordinary and regular place for their trial was the Sheriff's Court. They were then allowed, on the payment of a fine, to be removed into the Curia Regis: but this was a privilege which at first would only be claimed by a few. Gradually, however, the advantage of having Judges who had no local pre- judices was felt, and the practice became common. The business of the Curia Regis consequently increased so much that, in the first place, itinera or circuits were appointed to relieve it, to try common pleas as well as pleas of the Crown, in the coun- ties where the differences arose; and next, it was found necessary to nominate legally educated men to take those duties at the principal Court, which, from other oc- cupations and the increased complexity of the proceedings, the Barons, who were the original administrators of the law in the Curia Regis, were no longer com- petent to perform. The immense accession of business which was thus occasioned would necessarily make the sittings of the Court more frequent, and would often compel the Judges to divide themselves, so as to sit probably in two different chambers. The Exchequer seems to have been the place where common pleas were usually heard when the Court sat at Westminster. But it is evident, from a comparison of Mr. Hunter's list of the Justices before whom fines were levied, (and they were essentially of a private character,) that no. particular Judges were devoted to this duty, but that all the Judges of the Carta Regis took thew turns in its performance. No complaint of this system occurred before the reign of John, up to which time the Court generally sat at Westminster; but then, whether arising from the great increase of business or more probably, from the practice which that Ring introduced of travelling ;bout with his Judges at his heels, and holding his court at twenty different and distant places in a year, the inconvenience to the parties both rich and poor, who had causes in the court became intolerable, and required the remedy which the Charter professed to give;

which was that they should no longer follow the King's Court, but be tried in a certain assigned place, known to all, and to which all men could resort without inconvenience."

From the time of John, or about the year 1200, the different classes of rolls exist in regular order, and other authorities begin to be more frequent. For the previous period Mr. Foss points out a source of in- formation for the names of the Chancellors, to which he has carefully referred, although it seems to have been overlooked by his predecessors.

"Ample means exist of making some approach to correctness; for though with regard to most of the 'five reigns to which thee observations refer very few re- cords remain for the guidance of the historian, it is to be noted, that during the period over which they extend, theMonasticon alone contains very nearly one hun- dred and fifty charters to which the names of Chancellors are attached. Some of these are dated; and the dates of the others may be discovered with sufficient nearness from the witnesses who attest them: so that a diligent inquirer, even without other aid, may make a considerable advance in ascertaining the order of their succession, and, in connexion with other known facts, almost the dates of their appointments. If my attempt to effect this has not been entirely successful, I hope that at least it will have produced a nearer approximation to the truth than has yet been offered."

The error to which this oversight or neglect has extended may be illustrated by a reference to the mistakes respecting the names of the Chancellors, or the order of their occurrence, during the first five reigns —William to Henry the Second. These errors have existed for a long time in different lists, and have been retained by Lord Campbell.

"The five reigns in question give no less than thirteen examples of Chancellors incorrectly, or, at all events, inconsiderately introduced. In the reign of Wil- liam L, two Chancellors are named, for one of whom no authority whatever is cited by the compiler of any previous list; and the other (misnamed by Dugdale and Lord Campbell) did not hold the seal till the following reign. In William IL's short reign, one Chancellor is brought forward of whom there is no proof and scarcely any presumption that he held the office. In the reign of Henry I. there are four who ought to be omitted: one for whom the authority given is only 'an anonymal pamphlet '; another was clearly only Chancellor to the Queen; the third is inserted upon no other ground than a loose expression (a sort of obiter dictum) of Leland; and the fourth from the erroneous appropriation of a charter of the next reign. Under Stephen there are two who have no claim to be there; one being mistaken for his cousin, and the other having only the anonymous authority before alluded to. Lastly, in the reign of the second Henry, four Chancellors are named: for the first of whom Mr. Thynne, the original compiler, from whom all the rest have copied, gives not the slightest authority; another was only Vice- Chancellor; the third, introduced for the first time in Mr. Hardy's Catalogue, fol- lowed by Lord Campbell, was dead long before the appointment of the Chancellor who is named as his predecessor in office, and has no other foundation for his name being inserted in any place than the evident miscopying of a charter; and though the fourth certainly held the office of Chancellor, it was to the Scottish and not to the English King.

"There is an omission also of one Chancellor in the reign of William I., besides the other in that of William IL, who was incorrectly inserted, as already men- tioned, under his predecessor; and there are various amendments in the order of the succession under the Conqueror and Henry I., which it will be more con- venient to particularise_ in the pages which treat of those reigns."

In the sense of research this work may be said to be original; for our older antiquaries had not the same facilities as are possessed by inquirers of the present day, owing to the late Record Reform ; and even where they have examined the original documents, Mr. Foss is not satisfied with their decision, but subjects it to a "rehearing." If completed in the same manner in which it is begun, the Lives of the Judges will form a work of great value for its legal and antiquarian learning and the number and accuracy of its facts. More of literary skill would be desirable to ren- der the matter, accumulated with so much research, popularly attractive ; and probably when the age of settled practice arrives, it will be well to exclude Chancellors and Lord Keepers from the work even when they have been Judges. The biography of some of the most attractive names that ever filled the woolsack deserves separate volumes, whether they became Chancellor through political interest or legal reputation. The full lives of such men would overlay the work; a mere abridgment would be disappointing if not useless.