A Concise History of the Common Law. Theodore F. T. Plucknett

In the first place, recourse was had to an ancient device whereby the Crown sent out travelling officials who should inquire into the conduct of local officers and hold the royal court in the localities they visited. Sometimes their commission was general; at others they were specially delegated for the trial of some particular action or class of actions. We thus have numerous references to royal commissioners sitting in the county court for the transaction of some particularly important business. Henry II systematised some early experiments of his grandfather Henry I, and sent travelling justices on several occasions through the realm.

      In the thirteenth and fourteenth centuries these justices sometimes received the very ample civil, criminal and administrative jurisdiction which modern historians call the General Eyre,¹ and their session in the county court was an impressive demonstration of the royal power over all sorts and conditions of men, from the baronial owners of great franchises and the sheriffs down to the meanest villein. A thorough investigation took place of all the judicial and administrative business which had arisen in the county since the last eyre. The sheriff’s records (and those of his predecessors) were checked from those of the coroners; oral presentments of long-past occurrences were checked from the rolls, and the slightest discrepancy entailed a fine. Presenting juries were empanelled and provided with a list of “chapters of the eyre” reminding them of over a hundred matters of which they were to inquire. Besides its administrative powers and criminal jurisdiction, the justices in eyre also had the jurisdiction of the court of common pleas and so all civil business affecting the county was also theirs, for the entry of the eyre into a county automatically transferred to it all pleas then in progress concerning the county before the court of common pleas. Indeed, this was inevitable on those occasions when all the justices of the common pleas were commissioned to travel in eyre, for then the court of common pleas at Westminster ceased to sit.² By the opening of the fourteenth century the general eyre had become something of an anachronism, albeit a source of great financial profit to the Crown and correspondingly oppressive to the subject. A rule was established that an eyre should not visit a county within seven years of a previous eyre,³ and several times the commons petitioned against them. It is believed that eyres ceased to be commissioned after the middle of the fourteenth century.⁴

The eyre was too ponderous and too intermittent a machine to deal with the ever-present problem of bringing royal justice to the shires. For practical purposes the Crown relied on a variety of travelling justices (some of whom were not professional lawyers) with limited commissions. Thus Magna Carta provided for frequent justices to take the assizes of novel disseisin and mort d’ancestor;¹ frequent commissions were issued to “deliver the gaols”, i.e. to try the prisoners; a single case, or a group of cases, might be tried before special justices of oyer and terminer; and in the middle of the fourteenth century it looked as if the King’s bench might become a sort of eyre court, for it was frequently sent on hasty tour through several counties.²

      The process was carried even further. Just as the King’s justices in eyre went around the country sitting in each county court, as it were, for the transaction of all sorts of business and a general inquiry into abuses, so the sheriff himself travelled around his county sitting in each hundred court twice a year. Here he acted strictly as a royal deputy, serving merely as a liaison between the central authority and local institutions, for since the Great Charter he could no longer “hold” pleas of the Crown, but only “keep” them, that is to say, guard the prisoners and make memoranda of the circumstances, which were to be laid before the king’s commissioners at their next visitation; and by the time of Bracton and Fleta it came to be the accepted theory that not only the sheriff’s turn, but also its equivalent, the “court leet”, are royal courts held in virtue of a presumed delegation of power from the Crown. In short, the Crown, for most practical purposes, is the fountain of justice.

THE REMOVAL OF PLEAS

      The royal supremacy was asserted in yet other ways. Early in the twelfth century it was already a principle that “false judgment” (i.e. proceedings to review a judgment in an inferior court) was a royal plea, and over a century later it was embodied in a statute.³ Hence a judgment of a county court could be examined in the court of common pleas by means of a writ of recordari facias loquelam, and a judgment in a seignorial court by the very similar accedas ad curiam.⁴ Nor was it necessary to await judgment before invoking the royal jurisdiction, for a plea pending in a seignorial court could be removed into the county court by a procedure called tolt, and from the county into the common pleas by a writ of pone.

THE RESULTS OF CENTRALISATION

      The removal of pleas of the Crown from the sheriff, accompanied by the transfer of that jurisdiction to the Justices in Eyre and to other commissioners or travelling justices as the Eyre became obsolete, and the centralisation of pleas concerning land in the hands of royal justices sitting by royal writ, mark the permanent subjection of the county and all its officers to the Crown. A unitary state was no doubt an advantage in the middle ages when so many nations were divided into feudal subdivisions; but the cost was heavy. The very fact of several bodies of law and custom existing in one nation sometimes had fruitful results for legal science. In France the multiplicity of jurisdictions led to a comparative study of legal rules which was a valuable incentive to criticism and improvement, just as in America to-day the numerous state systems invite and indeed compel a critical appraisal of their respective merits. In England, on the other hand, our too early unification left the common law without an effective competitor, and bred up a profession which was only just sufficiently aware of the existence of other systems to glory in its isolation. That state of mind is not altogether past, and its results are indelible.

      A more specific consequence of the dominance of Westminster is the fact that England had to wait until 1846 for a co-ordinated system of local courts. The Crown’s incurable fear of the sheriff is largely responsible for this. How great an opportunity was missed can be seen by looking at the vigorous and useful institution of the sheriff in Scotland, where the office was allowed to develop along natural lines.¹

CHAPTER 4

      THE JURY

      SUMMARY

       1. Early prototypes of the jury

       Supposed Anglo-Saxon Origins

       English and Scandinavian Juries

       2. The jury for royal administrative inquiry

       Frankish Juries

       3. The jury for the trial of property cases

       Norman Juries and Assizes

       Inquisitions in England

       Assizes in England

       4. The jury for royal criminal inquiry

       Criminal Law: The Grand Jury

       5. Ancient modes