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

Factors in the Growth of the Common Law

      So far we have discussed the local courts, both communal and seignorial, and the contacts which took place between them and the royal authority, and particularly the most important of these contacts, the jury. It now remains to sketch the rise of the central courts at Westminster.

THE ROYAL HOUSEHOLD

      During the Anglo-Saxon age there was nothing which could be described as a central royal court of law, although there were certainly central royal institutions. Their formation is the product of two elements, the one being the royal household and the other the national assembly. It is to the royal household that we must look for the origins of the administrative machinery of the Anglo-Saxon monarchy. The principal household officers inevitably acquired political influence and took a part in public affairs. Similarly the group of clergy attached to the King’s chapel naturally formed the nucleus of a secretariat which in time will be called the Chancery. It was only natural that the King should surround himself with men whose advice he valued, frequently placing them in high positions in the household. The household therefore consisted not merely of the King’s domestic servants but also of men of an official class whose assistance was useful in the daily task of government.¹ When there was added to them the body of King’s clerks there was all that was required for the day-to-day business of government. This system of household government survived long after the Anglo-Saxon times. The Norman kings systematised it; in the thirteenth century portions of it became separated from the household, and in the fourteenth century developed into independent offices of State closely resembling the modern civil service. But this machinery was still controlled by the household, and bitter constitutional struggles were constantly occurring as the nobility at large endeavoured to curb the activities of the household officials. The Exchequer, for example, at a very early date, had achieved a completely independent existence, and yet to the end of the fifteenth century the effective control of finance was in the hands of the household, working through the offices of the Wardrobe and the Chamber. So, too, the Chancery very soon became an independent office for the management of the Great Seal, and yet its policies were controlled either by the Council working through the Privy Seal office, or else by an inner group of household officials (especially the chamberlain of the household) working through the office of the Signet.¹ The effective power wielded by the holders of the signet can be seen by the rapid rise to importance of the Secretary who was its official custodian. In the sixteenth century he becomes a “Secretary of State”, and at the present day English secretaries of state are created by the delivery of the signets, which are handed to them by the King himself as symbols of their office. The household, therefore, is not merely the original germ of our central institutions, but has continued all through the middle ages to occupy a central position of effective political control, even over those departments of state which in former times had separated from it.

THE NATIONAL ASSEMBLY

      The second element in the growth of these institutions may be described as that of the national assembly. The household was adequate enough for the ordinary daily business, but from time to time questions arose which required the advice of a larger number of people representing more varied interests. The effective political public for a long time coincided with the small class of great nobles and great ecclesiastics. Matters of grave importance would naturally be discussed at a somewhat large meeting of the most notable men of the nation. There is no need to apply precise terms and definitions to such assemblies, or to seek for exact rules as to their competence. Still less is it appropriate to ask questions as to what matters must be done with the concurrence of such an assembly and what matters could be done without it. There was nothing in the Anglo-Saxon age, or for a long time afterwards, which could be described as a body of public law. Conferring with the magnates of the realm was not a legal necessity, but a dictate of political prudence. It was only natural that the Crown should take counsel upon grave matters with those magnates whose co-operation was necessary if a policy was to be carried out. When we speak, therefore, of the national assembly under the Anglo-Saxon kings—“Witan” as they called it—we must not expect to describe its composition and powers as if it were a modern congress or parliament. There were some persons who certainly expected to be summoned when important matters were on the table; the position of others was less definite and varied with circumstances; but in any case it would be misleading to speak of anyone having a right to attend. On the contrary, for many centuries attendance at assemblies and Parliaments was a burden rather than a privilege, and people considered themselves lucky if they could obtain the royal privilege of not being summoned to Parliaments. The national assembly, therefore, was not a body of fixed composition or definite powers. Sometimes it seems hardly larger than the household itself, while at others we find a very imposing array of nobles and prelates.

THE RESULT OF THE CONQUEST

      It is after the Norman Conquest that these institutions take a more definite form. The household continues to be the real political centre, and beside it, or perhaps within it, there develops a small council consisting of clerks and minor officials who are continually at hand for the transaction of daily business. The national assembly, on the other hand, begins to take a different complexion. It was one of the main features of feudalism that a lord could demand counsel from his tenants, and that those tenants were legally bound to attend their lord upon demand and to sit as a court in order to give him advice, to pass legal judgment upon fellow tenants, and to grant financial and moral support to the lord. The old national assembly therefore became a court with comparatively definite powers, and a well-defined obligation of attendance. For the time being it is true that its business was principally what we may describe as feudal. But in the eleventh and twelfth centuries feudal matters were of first-rate importance. Feudal custom regulated the position of the Crown with respect to the great nobles, and therefore supplied the place of a body of public law. The King’s Court, therefore, is not merely the Anglo-Saxon consultative assembly, but also a body entrusted with the power of applying such constitutional law as then existed.

      It was also a peculiarity of feudalism that these matters of public law—the prerogative of the Crown, the rights and duties of the baronage, the means of extraordinary taxation and so on—were intimately connected with land. From this it resulted, first, that the King’s Court had to pay special attention to the law of land upon which these public rights and duties were based, and secondly, that these matters of essentially public law came to be regarded from the point of view of private property law. Political rights and privileges, the powers of particular officers and the like were treated as if they were land—or at least incorporeal hereditaments, which mediaeval law hardly distinguished from land. In this way there grew up the habit of regarding political and constitutional rights as sharing the specially sacred character of private property. As long as the common law controlled political thought, this attitude of mind persisted. No doubt there were grave disadvantages in the feudal view which treated governmental powers as private property—for one thing, they were apt to be regarded as private resources to be exploited to the limit; yet, on the other hand, the English constitution and the common law itself owed a good deal of their stability and continuity to the fact that all the sanctity which attached to private property could be invoked to protect the liberty of the subject. It is only when the modern theory of the State appears after the Reformation and the Renaissance that this point of view is theoretically attacked. This does not mean to say, of course, that the Crown never violated the rights of private liberty and property; as we shall see, more than once encroachments were made upon privileges which were the property rights of local magnates. Nevertheless, the theory was universally admitted, and in times of stress played an important rôle. As late as the fifteenth century many important questions of public law, such as the relations of Crown and Parliament, the theory of taxation, and so on, were discussed entirely from the point of view of a real property lawyer.¹ All this, therefore, was the direct result of the feudal character of the King’s Court as it appears after the Conquest.

THE MEANING OF THE WORD “COURT”

Before we discuss further