Page:English Historical Review Volume 35.djvu/48

 40 THE END OF THE NORMAN January precedents, doubtless, as pointed out by Maitland,^ of French origin ; nor did they know if the Roman law might not affect the issues.^ There must be an adjournment, the court must be afforced, and the matter fully argued out.^ Ultimately the case was heard and decided at Westminster by a body practically equivalent to a parliament. There were present the king, the legate Otho, the archbishops, five bishops (Lincoln, Norwich, Carlisle, Worcester, and Chichester), WiUiam de Ferrers earl of Derby, Humphrey de Bohun earl of Hereford, Stephen de Segrave, John Biset, Herbert fitz Matthew, Peter fitz Herbert, John fitz Geoffrey, Peter de Mauley, William de Cantilupe, Gilbert Basset, Bertram de Curiel, John de Neville, and many other (unnamed) magnates. As the roll recording the main proceedings is not extant, the notes of the case by Bracton are the source of informa- tion for the arguments of the various parties. Bracton's extracts were made from the roll, then available and in his possession, and so are reliable, but they are not so full as could have been wished ; and it is not always easy to know to which party to attribute the arguments which he recorded for legal and not historical purposes, but on the whole what was said is tolerably clear. The text may be read in the Note Book, and the following is a close summary of the pleas and arguments. The original question put before the council seems to have been, in terms, a simple one, namely whether, if the county (comitatus), the lands, of Chester, were divided between parceners (the co-heirs), they ought to hold their respective shares of the king in chief or of William de Forz as the holder of the aesnecia (and he of the king). He was entitled to be earl, as both he alleged and they admitted. There was no dispute whatever over the right to the title, not even by the king (who intervened in the plea as we shall see). The matter was too plain for argument in those days. De Forz represented the eldest daughter of the eldest sister. Through his wife he held the aesnecia which carried the title, and the court appear to have so decided.* Here we must interrupt the argument to point out that, very shortly before the Chester case, the law of England on the subject ' This (with the appeal by the earl to cases concerning other palatine earb) is regarded by Pollock and Maitland as one of the rare instances in early law cases where specific precedents (exeinpla) may have been quoted to the court {ibid. L 183-4, 188, 208 n.). approach to an admission that Roman law may be employed to eke out English law. of equity, of substantial justice, in unprecedented cases (Pollock and Maitland, loc. cil. i. 183 n., 190. Cf. Bracton, fo. 16: ponantur iudicia in reapectum usque ad magnav* curiam ut ibi per consilium curiae lerminentur). eadem canecia tiobia in curia ipaiua domini regis Juit adiudicata.
 * Pollock and Maitland (i. 208 n.) note this reference to the ius acriptum as an
 * The record refers to a iudicium de consilio curie, an early reference to the doing
 * This decision appears in the quitclaim of 16 October 1241, post, p. 54 : «icw/