But since

supreme court of the King. But even among our Saxon ancestors the King was regarded as the authority by whom the judges were supported and upheld; to the King the injured subject who could find no justice elsewhere might carry his complaint; and to the King naturally belonged the power and the duty to punish all misconduct in the administration of justice by his officers.* Thus the Crown is and always has been the fountain of justice. the King does not now personally hear and determine the multitude of cases that come before his courts, it is necessary to inquire into the manner in which the pure waters of this sacred fount are made available for public use. The spring may be itself inaccessible, but there are channels and conduits to receive and conduct its supplies, and to distribute them to the remotest parts of the realm.

Justice formerly administered by King in person.

§2. There can be little doubt that the King once exercised in person his judicial will, as he exercises his other Royal functions. If in the time of Henry the Fourth special legislation were required to enable the two Houses of Parliament to transact business in the absence of the King, it may well be supposed that, in his High Court of Parliament when it was actually engaged in the transaction of judicial business, the King was actually, as he still is theoretically, present. The personal exercise by the monarch of his judicial authority seems universal in the earlier stages of political development. The practice has from time immemorial prevailed in the East. Augustus and his successors constantly performed the duties of the judicial offices with which they were invested. Among the northern nations before whom the authority of the Imperial Prætor and

Kemble, Saxons in England, ii. 41.

Consul fell, the union of the functions of King and of judge

The precedents given in the evidently contemplate the Early writers insist upon

was still more conspicuous.* forms preserved by Marculfus personal action of the King. some amount of clerkly knowledge as essential for the due performance of the Royal duties; and the kingly skill in undoing legal knots was no unacceptable theme for the laureates of the Merovingians.+ As we approach the feudal times, we find that the practice which we thus attribute to the Kings of England prevailed in sister countries and in inferior jurisdictions. The great French monarchs seemed to have exercised judgment with an almost patriarchal simplicity. Eginhard relates how Charlemagne would hear causes while he was dressing or pulling on his boots. Joinville, writing of his Royal master St. Louis, tells us how on a summer's day, beneath the umbrageous oaks of Vincennes, the good saint, after hearing mass, would call around him his attendants, and then giving the freest access to all who sought his presence, would ask if any person had any suit; and if any complaint were made, would direct two of his officers then and there to determine it according to the extent of their jurisdiction. The feudal lords, too, presided personally in their respective courts. Especial mention is made of the activity of a Count of Flanders who visited every part of his dominions and dealt speedy and summary justice to all offenders. In Poland the King, until late in the sixteenth century, was the sole judge of important cases, as well criminal as civil, and went round his kingdom attended by a numerous retinue at stated periods to exercise this high office.§ Even so late as the

* See on this subject, Madox, Hist. Exch., i. 88, et seq.; Barrington's Ancient Statutes, 429.

+ See Barrington, ubi supra.

See Hallam, Middle Ages, i. 243.

§ Lord Brougham's Political Philosophy, ii. 82.

last century, in the year 1766, the King of Denmark* presided in the Supreme Court of his kingdom; and, although from his extreme youth his personal action can hardly have been more than nominal, is said to have actually decided a suit then pending. In Scotland, during the feudal period, the King passed no small part of his time in proceeding as supreme judge through the country from shire to shire. For these Royal progresses careful provision was made in the early Scottish laws. Even in the thirteenth century, "To judge his people," says a recent writer," was still the ordinary employment of a Scottish sovereign in time of peace; and he seems to have generally made an annual circuit through the sheriffdoms of Scotia and of southern Scotland." We read of the zeal and the impartiality which some of the Scottish Kings, such as David and Alexander II., showed in the administration of justice. Even towards the close of the thirteenth century, although the practice of the King sitting personally in Court was becoming infrequent, his right to take part in the proceedings seems undisputed, and was probably exercised on any important occasion. ‡

Several passages in our earlier books may be cited in support of the direct exercise by English Kings of this prerogative. In the Dialogue of the Exchequer§ it is asserted that in the court of the Exchequer, as well as in the Curia Regis, the King in propriâ personâ makes decrees. Bracton declares that the King in person, if he be competent for the purpose, and no other, has jurisdiction. Britton says, "that although the King has divided the burthen of judicial duty into many parts, yet his jurisdiction is above all jurisdictions in the kingdom, so that in all

* Barrington's Ancient Statutes, 429.

+ Robertson, Scotland under her Early Kings, ii. 130.

manner of felonies trespasses and strifes and in all manner of actions real and personal he had power to give judgment and cause the same to be given without other process when he knew the right truth as judge." And at a later period, Lord Chief Justice Hobart, in speaking of the King, cites the significant maxim, “si cessat judicare cessat regnare.” These expressions, or some of them, refer, or at least may be construed to refer, to the extent of the prerogative, and not to its personal exercise. But apart from historical analogies and the dicta of text writers, there is distinct evidence of the personal attendance in judicial business of some of the earlier Kings. The first Plantagenet used frequently to transact business both in the Curia Regis and the Exchequer. The presence of Richard the First is specially noticed on the record at the sitting of the court, both at Westminster and in other places. John seems to have almost habitually presided in his court. It is note

worthy that, while the incessant change of the Royal residence, and, consequently, of the court which followed the Royal person, moving as it did on an average every month, and sometimes even twice in the month,* was felt to be an intolerable grievance and was specially dealt with in Magna Charta, no complaint is made in that great remedial instrument of the personal interference of the King in judicial business. Henry the Third,† and during his absence in France, the Queen, as Custos Regni, frequently sat in court, and especially in the Exchequer. We read of his hearing a case concerning a royal fish that was found on the land of an infant ward of the Bishop of Norwich; of his addressing the sheriffs on their duties, and fining some of them for their transgressions, and of his dealings on various occasions with amercements and other

* Foss's Judges, ii. 4.

+ Madox, Hist. Exch., ii. 10.

matters affecting the Royal revenue. Even in the latter part of the fifteenth century Edward the Fourth* sat for three days in the Court of King's Bench to observe the administration of justice. The same King, at a time when on the disbanding of the troops which had been employed in France crime was, even for those troubled times, unusually rife, is said to have gone with the judges on circuit, not as a mere spectator, but as an active and impartial administrator of the law.

through

§ 3. Most, however, of the cases thus mentioned, if not all, were probably rather of an executive than of a judicial nature. The King seems to have generally Justice now attended the Exchequer; and in the earlier administered periods of our history the Exchequer was rather judges. a department than a court. In the list of cases given by Madox, in which Henry the Third sat in the Exchequer, all the business, except perhaps a dispute between two Crown tenants as to which of them was entitled to the benefit of certain duties performed by an ancestor, has reference to the mere proprietary rights of the Crown. It is even recorded of this King † that on one occasion he left Winchester because Roger de Seyton and his companions were about to hold their circuit there. The language, too, of Gascoigne in the time of Henry the Fifth, and still more that of Fortescue in the following reign, show that the personal interference of the King must even then have been long obsolete. If, therefore, the proposition be limited to cases between party and party, the assertion of Sir Edward Coke and the other judges that no judgment had been given by any King since the Conquest may not be incorrect. But now at + Foss's Judges, ii. 135.

* Barrington, Anc. Stat., 419, 429.

See 2 Inst., 186.