be sentenced to fine, imprisonment or death, according to the nature of the crime which he has committed. Civil proceedings are heard in the following courts :— The Borough Courts (e.g., the Mayor's Court, London). The Court of Appeal. The House of Lords. Before taking civil proceedings a man should satisfy himself that he has a good cause of action. He should next inquire who are the proper parties to be joined as plaintiffs or defendants respectively. He should also inquire which is the right court in which to sue in order to obtain the relief which he desires. Different kinds of relief granted by our Courts.1 Among those which most frequently occur are: (i.) An order for payment of a debt, with or without interest. (ii.) Damages by way of compensation. (iii.) An injunction to restrain any repetition of the offence. (iv.) A declaration as to the right or title of the plaintiff. (v.) Possession of land. (vi.) Delivery of a chattel. (vii.) An account. (viii.) A receiver. (ix.) Specific performance of a contract. (x.) A mandamus to compel the defendant to perform his statutory or other public legal duty. In civil courts the proceedings commence with a writ, summons or plaint, which is served on the defendant, so that he may know he is being sued. This document also tells him in general terms the nature of the claim which is made against him. But it is usually followed by particulars or some other pleading which gives him the details of the plaintiff's cause of action. In some cases the defendant must then state what his defence is; in other cases he need 1 See post, p. 1151 et seq. not disclose this till the trial. In actions of much intricacy there are also other interlocutory proceedings before the trial, such as disclosure of documents and answers to interrogatories. Civil actions are tried by a judge either with or without a jury. In many cases either party, if he applies in time, can obtain a jury-special or common. the trial one party or the other obtains a judgment, which he may enforce by execution against the property of his opponent. At The judge at any trial, civil or criminal, directs the jury as to all points of law, but leaves them to decide all questions of fact. In his summing up he advises them as to the bearing and value of the evidence brought forward by either side. It is the duty of the judge to declare the common law and construe the written law; he must state to the jury in general terms the law applicable to the case before them; he may accompany this statement by any observations or explanations which he deems material. But on the trial of an indictment, only the jury can find the prisoner guilty. It is they who have to say, on the facts proved before them and on the law laid down by the learned judge, whether the prisoner is "Guilty" or "Not guilty." So in a civil action, if there be conflicting evidence, on which the jury might reasonably find a verdict for either the plaintiff or defendant, the judge must leave the issue to them; he cannot decide it himself. He may, if he thinks fit, state to them his opinion. on the matter. But the jury are not bound to adopt his view as to any question of fact. They are bound to accept the law as laid down by him; but it is for them to determine the issues of fact according to their own opinion of the evidence given before them, even though it may be contrary to the opinion which the judge has just expressed. These and many other matters connected with procedure both criminal and civil will be found discussed in Book V. under the head of Adjective Law. It is as true now as it was in the time of Sir Edward Coke that "every subject of this realme, for injury done to him in bonis, terris, vel persona, by any other subject, be he ecclesiasticall or temporall, free B.C.L. 4 or bond, man or woman, old or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay." 1 Coke's Institutes, Part II., c. 29, p. 55. 1 CHAPTER VIII. THE SOURCES OF THE LAW OF ENGLAND. THE amount of English law is something appalling. It is a megatherion of colossal bulk. More than fifty different systems of law are administered in the British Empire, very few of which have any pretence to a code. It would be interesting to trace the history of each of these systems and to contrast its provisions with those of the others. In this work, however, we must confine our attention to the law which is in force in England and Wales. From what sources is this law derived? The law of England is largely derived from antecedent custom. We have already defined customary law as that portion of the law of any State which happens to have been custom before it was made law. Whether these ancient customs could properly be styled "laws" before they were accepted as law in our Law Courts is a moot point on which theorists differ. But to us in the present day no custom (or at all events no general custom') has the force of law, unless we can find some record of it in some statute or ordinance, or in the decisions of our tribunals, or in some standard textbook of long-established authority. When the Angles, Jutes and Saxons landed on our shores, there was no doubt in England a mass of British customs, still with a veneer of Roman law. These disappeared before the advance of the heathen invaders; the Britons were gradually driven into Wales and Damnonia and carried their law and customs with them. The place of these was taken by a variety of Teutonic usages, which were supplemented by others of a somewhat different character at a later date when 1 As to local customs, see post, pp. 76 --86. the Danes settled in our eastern counties. A large portion of these diverse customs-probably the larger portion embodied in the Dooms of Aethelbert, King of Kent (circa A.D. 600), in the Dooms of Ine, King of Wessex (circa A.D. 690), in the Ordinances of King Alfred the Great (circa A.D. 900), and in the English Dooms of Cnut, who died in A.D. 1035. They thus became laws; for the King at this time was the only lawmaker in England. No Celtic element can be found in these primitive Anglo-Saxon and Danish Codes; nor any trace of Roman law, except in the few portions which deal with ecclesiastical affairs. After the Norman Conquest the Saxon system of land tenure was crushed beneath an alien feudalism; the methods of trial and the punishments were altered in the case of the more serious crimes; but in most other respects our Norman Kings permitted their Saxon subjects to retain their Saxon laws and customs. In the reign of Henry I., and even in that of his grandson Henry II., there still flourished in England four different kinds of law. The Wessex law, the Mercian law, and the Dane law still survived in their own shires and shaded off into each other; but, apart from and above these local systems, stood paramount the law and practice of the King's own Court, the Aula vel Curia Regis. Glanville, the first of the long series of our great text-book writers, wrote in the last year of King Henry II. a tractate concerning the "Laws and Customs of the Kingdom of England," in which he tells us nothing of the law administered in the local Courts, but confines himself to the justice administered in the King's Court and by the King's justices when on circuit. And before the reign of Edward I., though local customs still lingered here and there, the four systems were welded into one "Common Law," which was in force all over England. 2 Already, too, English law had shown a tendency to become. case law. We still have transcripts from the parchment rolls 1 See an excellent article in the Encyclopædia Britannica (volume 28) by the late Professor Maitland, called the History of English Law. 2 Ralph de Glanville, born before 1135; Chief Justiciar 1180; killed at the siege of Acre, 1190; see Lord Campbell's Lives of the Chief Justices, Vol. I. at p. 25, |