the writ
Effect of the writ, Later history of the writ, Mainprise and bail, Sanctuary and abjuration, Civil process, Forbearance of medieval law, Process in real actions, Process in personal actions, Outlawry as civil process, No judgment against the absent, Specific relief, Final process, Costs
§ 4. Pleading and Proof
Ancient modes of proof, The ordeal, Proof by battle, Proof by oath, Oaths of witnesses, Allotment of proof, Proof in the thirteenth century
The plaintiff’s count, The offer of proof, The suit, Function of the suitors, Number of the suitors, The defence, Thwert-ut-nay, Examination of the plaintiff’s suit, The defendant’s offer of proof, Special pleading, The exception, Exceptions in assizes, Spread of the exception, Laxity of pleading, The exception and the jury, Proof of exceptions, Assize and jury, The jury and the appeal, Exception and denial, The jury and the general issue
Composition of the jury, The jurors as witnesses, Arbitral element in the jury, Communal element in the jury, Quasi-judicial element, Unanimity of the jury, Verdict and evidence, Fact and law, Special verdicts, Justices and jurors, Popularity of the jury, Fate of the older proofs, Trial by battle, Wager of law, The decisory oath, Trial by witnesses, Other trials, Questions of law, Victory of the jury
The presenting jury, Fama publica, Composition of the jury, The coroner’s inquest, Presentments and ordeal, Practice of the eyres, Indictments for felony, The second jury, Refusal of trial, Peine forte et dure, Presentments of minor offences, The trial, The collection of evidence, The canonical inquisition, English and foreign inquisitions, Torture and the law of evidence
Miscellaneous points, The king in litigation, Criminal informations, Voucher to warranty, Appellate proceedings, Attaint, Certification, Prohibition, Removal of actions, False judgment, Error, Records and courts of record, Function of the judges, Considérants of judgments, Last words
Index
Notes
In this edition the first chapter, by Prof. Maitland, is new. In Book II, c. ii. § 12, on “Corporations and Churches” (formerly “Fictitious Persons”), and c. iii. § 8, on “The Borough,” have been recast. There are no other important alterations: but we have to thank our learned critics, and especially Dr. Brunner of Berlin, for various observations by which we have endeavoured to profit. We have thought it convenient to note the paging of the first edition in the margin.
F. P.
F. W. M.
The present work has filled much of our time and thoughts for some years. We send it forth, however, well knowing that in many parts of our field we have accomplished, at most, a preliminary exploration. Oftentimes our business has been rather to quarry and hew for some builder of the future than to leave a finished building. But we have endeavoured to make sure, so far as our will and power can go, that when his day comes he shall have facts and not fictions to build with. How near we may have come to fulfilling our purpose is not for us to judge. The only merit we claim is that we have given scholars the means of verifying our work throughout.
We are indebted to many learned friends for more or less frequent help, and must specially mention the unfailing care and attention of Mr. R. T. Wright, the Secretary of the University Press.
Portions of the book have appeared, in the same words or in substance, in the Contemporary Review, the English Historical Review and the Harvard Law Review, to whose editors and proprietors we offer our acknowledgments and thanks.
F. P.
F. W. M.
Note. It is proper for me to add for myself that, although the book was planned in common and has been revised by both of us, by far the greater share of the execution belongs to Mr. Maitland, both as to the actual writing and as to the detailed research which was constantly required.
F. P.
21 Feb. 1895.
| A.-S. | Anglo-Saxon. |
| Bl. Com. | Blackstone’s Commentaries. |
| Co. | Coke. |
| Co. Lit. | Coke upon Littleton. |
| D. B. | Domesday Book. |
| D. G. R. | Deutsches Genossenschaftsrecht. |
| D. R. G. | Deutsche Rechtsgeschichte.1 |
| E. H. R. | English Historical Review. |
| Fitz. Abr. | Fitzherbert’s Abridgement. |
| Fitz. Nat. Brev. | Fitzherbert’s Natura Brevium. |
| Harv. L. R. | Harvard Law Review. |
| Lit. | Littleton’s Tenures. |
| L. Q. R. | Law Quarterly Review. |
| Mon. Germ. | Monumenta Germaniae. |
| P. C. | Pleas of the Crown. |
| P. Q. W. | Placita de Quo Warranto. |
| Reg. Brev. | Registrum Brevium. |
| Rep. | Coke’s Reports. |
| R. H. | Hundred Rolls. |
| Rot. Cart. | Charter Rolls. |
| Rot. Cl. | Close Rolls. |
| Rot. Parl. | Parliament Rolls. |
| Rot. Pat. | Patent Rolls. |
| Sec. Inst. | Coke’s Second Institute. |
| Sel. Chart. | Stubbs’s Select Charters. |
| X. | Decretales Gregorii IX. |
| Y. B. | Year Book. |
[R = Rolls Series. Rec. Com. = Record Commission.
Seld. = Selden Society. Camd. = Camden Society.
Surt. = Surtees Society.]
Collections of ancient laws and documents.Die Gesetze der Angelsachsen, ed. F. Liebermann, in progress.
Die Gesetze der Angelsachsen, ed. Reinhold Schmid, 2nd ed., Leipzig, 1858.
Ancient Laws and Institutes of England, 8vo ed. (Rec. Com.).
Councils and Ecclesiastical Documents, ed. Haddan and Stubbs, vol. iii. Oxford, 1871.
Quadripartitus, ed. F. Liebermann, Halle, 1892.
Consiliatio Cnuti, ed. F. Liebermann, Halle, 1893.
Leges Edwardi Confessoris, ed. F. Liebermann, Halle, 1894.
Instituta Cnuti, ed. F. Liebermann, Transactions of Royal Hist. Soc. N. S. vol. vii. p. 77.
Codex Diplomaticus Ævi Saxonici, ed. J. M. Kemble (Eng. Hist. Soc.).
Diplomatarium Anglicum Ævi Saxonici, ed. B. Thorpe, London, 1865.
Cartularium Saxonicum, ed. W. de G. Birch, 1885 ff.
Placita Anglo-Normannica, ed. M. M. Bigelow, London, 1879.
Select Charters, ed. W. Stubbs, Oxford, 1881.
Chartes
