The foregoing may appear strong language. But the essential truth must be admitted. It will not do to contend in opposition to this truth, that certain powers of the American executive are common to the executives of many nationalities, for the American has developed from its original through distinctly traceable channels. Nor will it be sufficient to insist upon the many differences between the English and American executives, for the points of agreement are none the less real. Though the President lacks the distinguishing heredity and pageantry of royalty, yet the characteristic powers he holds were held before him by the executive of the colonies, and of the home land. "Assuming that there was to be such a magistrate, the statesmen of the Convention, like the solid, practical men they were, did not try to construct him out of their own brains, but looked to some existing models. They therefore made an enlarged copy of the State governor, or, to put the same thing differently, a reduced and improved copy of the English king."

1

real power than was possessed even then by that dreaded original. The elective principle, it is true, was substituted for hereditary right, a definite term of office was prescribed, and all the pomp and pageantry of power was sternly cut off, and yet the real resemblance which remained between the two national chiefs was too close to escape the enemies of the Constitution, who bitterly assailed it on that ground."-Taylor, Origin and Growth of English Constitution, 69.

1 Bryce, American Commonwealth, I. 36.

THE

CHAPTER VII.

THE JUDICIARY.

HE English sovereign anciently exercised judicial functions which, by an evolutionary process, have gradually come to be separated from his executive functions, and deputed to a permanent body of judges, appointed by him, but independent of his direction. During the Saxon period, the kings decided cases which otherwise had failed in obtaining settlement, and after the Norman Conquest they continued to administer justice in person.1 William the Conqueror, whenever present in England, held great courts of justice at Christmas, Easter, and Whitsuntide. To William Rufus, the barons recommended mercy in the sentence of minor criminals in 1096. Henry I. summoned Robert of Beleseme before his court, charged with treason under forty-five articles; and other cases, criminal and civil, are recorded of him. Some of the sayings of Henry II.

1 Even queens sat in court in early Norman times. Queen Matilda, consort of the Conqueror, Queen Maud, consort of Henry I., and the queen consort of Henry III., are recorded as having done so. Heming, 512; Hist. Mon. Abingd., II. 116, Rolls Ser.; Biglow, Placita Anglo-Normannica, 99; Spence, Equit. Jurisdiction, IOI, n.

In

on the seat of judgment have come down to us.1 stances of personal decisions are narrated of John, Henry III., Edward I., and Edward II. But royal hearings, always and necessarily rare, gradually ceased. Edward IV. visited the Court of King's Bench in person to observe its procedure; in which, however, he did not share. When James I. attended a trial, and desired to take part, he was informed by the judges, that he could not deliver an opinion. And the constitutional principle has long since been recognized, that the sovereign, even though present, is not entitled to "determine any case, but by the mouths of his judges, to whom he has committed the whole of his judicial authority."

1 A defendant alleged, in a case tried before him in 1454, soon after his obtaining the crown, that a charter of Henry I., placed in evidence, had been improperly gotten. "Per oculos Dei," exclaimed the king, taking the charter into his own hands," si cartam hanc falsam comprobare possess, lucrum mille librarum mihi in Anglia conferres." Walter, Abbott of St. Martin of Battle v. Gilbert de Balliol: Chron. Monasterii de Bello, 106; Biglow, Placita Anglo-Normannica, 175. In a case over a land franchise between Baldwin, Archbishop of Canterbury, and the Abbot of St. Edmund, conflicting charters were presented; upon which the puzzled monarch exclaimed, "Nescio quid dicam: nisi ut cartae ad invicem pugnent." The abbot offering to submit the contention to the verdict of the counties of Norfolk and Suffolk, and the archbishop declining the offer, the king arose in indignation, and left the court, with the words: " Qui potest capere capiat." Archbishop of Canterbury v. Abbot of St. Edmund, circ. 1186; Chron. Jocelin de Brakelonda, 37, pub. Camden Soc.; Biglow, Placita Anglo-Normanica, 238.

2 Stow, Chronicles, 416.

3 Blackstone, Commentaries, III. 41.

4 Coke, 4th Inst., 73,

The national legislature of England also, as we have seen, possessed judicial powers. And by the changes of centuries it has come to share these with a variety of courts, though preserving the supreme jurisdiction pertaining to the House of Lords. The Witenagemot transmitted its judicial functions to the Norman Great Council, the Curia Regis. But at least from the time of Henry I., an inner body - an offshoot from the larger, yet taking to itself the name Curia Regis 2-administered judicial and financial affairs, under the king or his deputy, the chief justiciar. Judges made circuits

1 The Codex Diplomaticus prints a very extended list of charters recording the results of trials by the Witenagemot. The documents give very minute information as to the nature, process, parties, and causes, with place and date of the gemot at which each trial was held and the names of those who presided.

2 Hallam (Middle Ages, II. 423) refers to the confusing application of the term Curia Regis. It was used to designate (1) The Commune Concilium, or National Council of the realm, the Witenagemot in a feudalized form. (2) The Ordinarium Concilium, the perpetual or select council for judicial and administrative purposes. (3) The Court of King's Bench, growing out of the limited tribunal separated from this last by Henry II., in 1178, and soon after acquiring exclusively the denomination "Curia Regis."

8"As the highest judicial tribunal in the realm, the Curia Regis consisted of the king, sitting to administer justice in person, with the advice and counsel of those vassals who were members of the royal household and of such others as were, on account of their knowledge of law, specially appointed as judges. In the absence of the king his court was presided over by the justiciar, who was at all times the supreme administrator of law and finance. . . By virtue of special writs, and as a special favour, the king could at his pleasure

of the kingdom, principally for fiscal, but also for judicial, purposes; and the local courts of each county-themselves outgrowths of the old folkmoots were thus brought into connection with the national tribunals.1

call up causes from the local courts to be heard in his own court according to such new methods as his advisers might invent. Through the issuance of these special writs, the king became practically the fountain of justice; and through their agency the new system of royal law, which finds its source in the person of the king, was brought in to remedy the defects of the old, unelastic system of customary law which prevailed in the provincial courts of the people." Origin and Growth of English Constitution, 245, 246. See Biglow, History of Procedure in England; Reeves, History of English Law, etc.

1 Taylor has admirably condensed the facts. "In the course of the assessment and collection of the revenue, which was the chief work of the Curia as a financial body, local disputes so constantly arose that it became necessary to send detachments of justices to adjust the business of the exchequer in each shire. As early as the reign of Henry I., officers of the exchequer were frequently sent through the country to assess the revenue; and in the reign of his grandson, Henry II., this custom was enforced with systematic regularity. The justices while thus engaged in provincial business sat in the shiremoots, where judicial work soon followed in the path of their fiscal duties. In 1176 the kingdom was divided into six circuits, to each of which were assigned three justices, who are now for the first time given in the Pipe Rolls the name of Justitiarii Itinerantes. After several intermediate changes in the number of the circuits, it was at last provided by Magna Charta that two justices should be sent four times each year into each shire to take the assizes of novel disseisin, mort d'ancester, and darrien presentment. The provincial visitations of the justices from the exchequer, whose primary object was financial, thus led to the establishment of those judicial visitations which have ever remained an abiding feature in English judicature. Through these visitations was established that