in Lincoln's Inn for some time.' The insolence of the modern military despotisms, which have, throughout Europe, risen up on the ruins of the feudal system, changing their old title, "suzerain," into "sovereign," and to establish a despotism similar to which in England was the aim of the Stuarts, has attempted to affix a word of contempt on all men who are not soldiers by profession, that is, soldati, and with that object they have used the word robin, and more recently péquin. Among nations who have not been trampled under the heel of a despot, the greatest men are those who graft the character of a man of the sword upon that of a man of the gown. Such men were the greatest Roman generals, including Julius Cæsar himself; and such men were Cromwell and his best officers. Among the earlier Norman lawyers and judges we find the 1 It is possible that even contemporary writers may have been mistaken; but it appears impossible that the official inscription over the bed of state after his death should have described him as "educated in Cambridge, afterwards of Lincoln's Inn," if he had not actually lived in Lincoln's Inn, although he had not entered his name on the books since there were many persons living at the time, to whom the fact was distinctly known, and who would have had the inscription corrected if it was inaccurate in that particular. The steward of Lincoln's Inn, in showing me the entry of Richard Cromwell on the books of the Inn, observed that if at that time it was customary, as it is now, to describe a member as the son of a member, provided the father had been a member, the absence of such description in the case of Richard Cromwell, who is only described as "filius et heres apparens, Oliv. Cromwell de Ely de insula Ely in com. Cantab. Ar.," would prove that Oliver Cromwell had not been a member of the society. But we found that this proved nothing, as the same omission occurs in the case of the entry of the son of Thurloe, Cromwell's secretary, who was undoubtedly a member of Lincoln's Inn. 2 Every one who knows anything of the constitutional laws of England knows that the word "sovereign" cannot be constitutionally or correctly applied to the king or queen of England. In the debates in Parliament on the Petition of Right, Lord Chief Justice Coke used these memorable words :"Magna Chartas is such a fellow that he will have no sovereign." (Rushworth, vol. i. p. 568. Parl. Hist. vol. ii. p. 357.) Those persons who mislead constitutional princes by teaching them to use words that are at once inaccurate and dangerous are their enemies. The "sovereign" of England consists at present of the queen, lords, and commons. Each of these separately forms only a limb of the sovereignty. names of the most warlike and powerful feudal families. And the union in early times of the civil with the military character in the highest judicial functionary is particularly observable among the Normans and Anglo-Normans. It is to be borne in mind that the Chief Justiciary was an officer whose functions by no means corresponded with those of the modern Chief Justice. In order to comprehend the functions of the Chief Justiciary, it is necessary to know those of the grand seneschall, or Senescallus Angliæ; in modern language the Lord High Steward. This officer was the highest in the State, after the King; executing all the chief offices of the kingdom, as the king's representative; and being thus chief administrator of justice, and leader of the armies in war. This is proved to have been the case in France, by Ducange and other high authorities, as well as by the public records of the kingdom;' and in England by the Dialogus de Seaccario, written in the time of Henry II., and published by Madox, from the black and red books of the Exchequer, and likewise by certain MSS. preserved in Sir Robert Cotton's collection in the 2 1 Ducange, Gloss. ad voc. Dapifer et Senescallus. See also the Grand Coustumier de Normandie, c. X. "Solebat autem antiquitus quidam justiciarius prædictis superior per Normaniam discurrere qui senescallus principis vocabatur." 2 Madox, Hist. Exchequer. See Co. Litt. 61a, for some account of the judi cial part of the office of seneschal or steward, and some attempt at the etymology of the word, not much more successful than such attempts usually are. Madox is in error when he says (Hist. Excheq. p. 28) that, in the reign of William I., William Fitz Osbern was the King's constable, because he is called magister militum ; whereas in the very same passage (of "There fight thine own retainers too, Beneath De Burg, thy steward true." British Museum, particularly an old MS. intituled "Quis sit Senescallus Angliæ, et quid ejus efficium."1 All these concur in the extensive and paramount nature of the authority originally wielded by the Lord High Steward, but none of them explain the anomaly of the co-existence of such an officer as the High or Chief Justiciary. I will shortly state here the substance of an explanation of this, which I had occasion to give elsewhere. By the nature of the feudal system everything had a tendency to be given in fief. Among other things the office of seneschal was given in fief, too, and became hereditary among the Franks, Normans, and AngloNormans. In France, under the Merovingian dynasty, the office was in the family of Charles Martel, from whom sprung the Carlovingian dynasty. Afterwards the Plantagenets, Counts of Anjou were hereditary seneschals of France." In England this high office was granted by William the Conqueror to the Grantmesnils, and thence came by marriage to the Earls of Leicester. After the attainder of the family of Montfort, Earls of Leicester, the office was given to Edmund, the second son of King Henry III. It then remained in the royal family till its abolition; Thomas Plantagenet, second son of King Henry IV., being the last permanent high steward,3 and the office being conferred afterwards only pro unicá vice.. 1 Cotton MSS., Vespasian, b. vii. fo. 99b. It will also be found in the Harl. MSS. 305, fo. 48, transcribed in a modern hand by D'Ewes, who supposed it to be of the age of Edward II. See also Cotton MSS., Titus C. passim. There is also, tract intituled "Summus Angliæ Senescallus," in Somers' Tracts, vol. viii. Barrington says (Observations on the Statutes, p. 286, note b, 5th edition, London, 1796), "Mr. Petyt hath copied a treatise upon the office of the High Steward of England from a manuscript in the Cotton Library (Vespasian, b. vii. fo. 99b), which he says is dangerous to be printed." Pet. MSS. vol. xix. p. 293. 2 The eldest son of Henry II. is said to have actually performed the duties of the office to the French king. 3 For a list of the High Stewards, see Harl. MSS. 2194. In France, when the office became hereditary in the family of the Counts of Anjou, it became necessary to have another seneschal or dapifer besides the hereditary one; and this officer, as the representative of the hereditary seneschal, still took precedence-as appears from the charters of the French kings-of all the other great officers of state. In England, also, something of the same kind took place, but with this difference: that the various functions of the original grand seneschal, or senescallus Anglia, were divided into two parts, and committed to two distinct officers as his representatives; the judicial functions being committed to an officer styled the chief justiciary; the administrative functions to an officer styled, not the seneschallus or dapifer Angliæ, but the seneschallus or dapifer regis. This view of the subject would, if it needed it, be corroborated by the high powers of the officer created in later times, pro hac vice, to preside in the House of Lords at state trials, which officer is not styled "high justiciary," but "lord high steward," that is, seneschallus Angliæ. This explanation also removes the difficulty of accounting for the extraordinary powers of the lord high steward's court, which some English lawyers have attempted to get over by assuming that the lord high steward succeeded to some of the powers of the high or chief justiciary, whereas he merely exercises powers which had been delegated to the high justiciary.1 The chief justiciary, even in those times when a special 1 Mr. Amos, in a disquisition on the office of Lord High Steward in Phillips's State Trials, Appendix, vol. ii., falls into the usual error of supposing that the judicial authority of the Lord High Steward grew out of that which appertained to the chief justiciary at the period when the latter office was abolished. Madox, whom Blackstone and others, both lawyers and historians, follow on this subject, has fallen into strange confusion, although even the documentary evidence contained in his own book furnished the means of extricating himself. education was not considered absolutely necessary to fit a man for the judicial office, was usually a person who had given particular attention to the study of jurisprudence. As the representative of the judicial portion of the grand seneschal's powers, his authority extended over every court in the kingdom, except the court of the lord steward of the king's household. What Blackstone says of the court of the marshalsea, that is, the court of the lord steward of the king's household, having never been subject to the jurisdiction of the chief justiciary, and no writ of error lying from it to the King's Bench, confirms what has been said, and merely amounts to this: that the court of the steward was, in fact, originally the court of the lord high steward, and in that court that one of his representatives, who was called the lord steward, presided. That the functions of the senescallus, or dapifer regis, as the representative of the administrative portion of the grand seneschal's authority, were political, and not merely, like those of the present lord steward of the household, confined to matters connected with the king's household, is proved by the constant appearance of his name in the charters and other important public documents of the time. His relative position with regard to the earl marshal appears from the following passage of Britton :"We ordain also that the Earl of Norfolk (marshal) shall, either by himself or his deputy (being a knight), be attendant upon us and our steward, to execute our commands, and the attachments and executions of our judgments, and those of our steward throughout the verge of our palace, so long as he shall hold his office of marshal." 2 The chief justiciary not only presided in the king's court and the exchequer, but was, by virtue of his office, regent 2 Britton, fo. 1. b. 13 Bl. Com. 76. |