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

not enough; what the Crown particularly desired was an independent check upon the activities of its local officers, and a means of treating directly with the people. Various experiments were therefore made in the course of the thirteenth century with this end in view. They were in fact simply an extension of machinery which had existed for many years. It was a familiar occurrence for every hundred, vill and borough to send representatives to the county court, where a general investigation would be made into local government and apparently even a vote of taxes might occasionally be made.¹ Nothing was more simple than to extend this time-honoured system to the whole nation. Just as hundreds and vills appeared by representatives in the county court (more especially when the King’s Justices in Eyre were present) so it was possible to call upon the county courts (together with the more important boroughs) to send representatives to meet the King himself when he and his Council were holding a Parliament.² Such representatives later on brought with them numerous grievances, which they laid before the Council in the form of petitions, and this accounts for a large number of petitions which appear upon the Parliament Rolls—to say nothing of many more which were never enrolled at all. By Edward I’s reign, therefore, a Parliament of the Council may consist of a number of elements. There may be a greater or less number of magnates and prelates; there may or may not be a collection of representatives of the various communities of the land (who will afterwards be called the Commons, or in French Communes); at the same time it was customary for the lower clergy also to be represented by proctors, and these (together with the prelates, who are also summoned to the parliament) will form the later convocation. But in the centre of all this, controlling and directing all the proceedings, is the King’s Council. It is the King’s Council which is the motive force in the Parliament; the lords, the commons and the clergy merely attend to answer the Council’s questions, to advise it upon points referred to them, and to present humble petitions for the redress of their grievances. It required a powerful monarchy to organise such an institution. It is a constant observation in the middle ages that it is only the strongest kings who can compel their subjects, be they lords or commons, to give them advice, to attend their courts, and to take part in the work of government. Centuries later Parliament will become an instrument, first in the hands of the lords and later of the commons, which can be turned against the King himself and his Council. But this is far in the future; Parliament was not intended to play that rôle when it first took rise. In its earliest days it was a sign of royal strength and not of royal weakness, and this can be seen from the fact that the weaker kings had great difficulty in collecting a Parliament at all.

      The future of Parliament may be political, but its origin was legal and administrative. In its origin and throughout the middle ages it deserved its later title of the “High Court of Parliament”—and in this expression it must be remembered that the word “court” must be taken in the broadest mediaeval sense.

We have insisted that the real centre of Parliament in the middle ages was the King’s Council. Fleta expresses this idea when he says that “the king has his court in his council in his parliaments”,¹ and even as late as the fifteenth century it is abundantly clear that the Council was still the moving force in Parliament; even at so late a date a chronicler will speak of a “Parliament of the Council”, and we constantly find official documents which say that “the King by the advice of his Council in Parliament” has taken certain action. Even at the present day the brilliant ceremonial with which the King opens Parliament bears witness to this fact. The proceedings take place in the House of Lords. The King on his throne is surrounded by the councillors standing on the steps of the throne; immediately in front are the judges (and in former times the law officers of the Crown); this little group of the King and his councillors and judges (who anciently were active members of his Council) is the core of the Parliament. At a greater distance are assembled the peers of the realm and the prelates, and so we see Fleta’s phrase visually expressed, “the King is in his Council in his Parliament”. Right at the bottom of the room is a bar, and outside of the bar are the latest additions to the constitution of Parliament, the Commons. They are always standing—the older pictures show them kneeling—and at their head is the Speaker. He derives his title from the fact that of all the Commons present the Speaker alone has the right of raising his voice in the Parliament. To safeguard both himself and the Commons in case he should speak erroneously on their behalf, he made a sort of protestation or petition at the opening of parliament. At first it is only a prayer that he may have permission to correct his mistakes if he should make any; later, in the reign of Henry VIII, he became more bold, and prayed for the allowance of the Commons’ privileges.¹ This ceremonial faithfully reproduces the appearance of a Parliament of the early fourteenth century. Whatever deliberations the Commons or Lords may make among themselves are merely their private concern; the proceedings in Parliament take place when the Council is present, attended by the lords, and in those proceedings the Council plays a dominant part.

      With the close of the middle ages the position of the judges in Parliament becomes less important. They attend upon ceremonial occasions, and give advice when called upon by the Crown or by the lords, but no longer take a regular part in its general business except for the purpose of handling certain types of petition, and soon this too becomes obsolete.

THE JUDICIAL SYSTEM UNDER EDWARD I

And so by the reign of Edward I we have all the elements, save one,² of the present judicial system of England. There was the Bench, or Court of Common Pleas, where the common law forms of action were developed and where the bulk of the important litigation of the country took place (with the exception of the smaller matters which went before the local courts). Then there was the King’s Bench which had a jurisdiction in error from the Common Pleas, and an original jurisdiction over the pleas of the Crown of unusual importance; it was the proper place for state trials and for matters which closely concern the King. Above the King’s Bench, and working in close harmony with it, was the King’s Council, ready to supply from the reserves of royal discretion at its command any defects of jurisdiction which might occur in the lower courts, and to take the advice of a Parliament, if necessary, to resolve their doubts and remove their difficulties. In the Council, in Parliament, and to some extent in the King’s Bench, there was, therefore, an ample source of equity, discretion and extraordinary power to meet any emergency. At the same time the King’s financial interests were controlled by the Court of Exchequer, and difficult legal questions could be informally discussed in the Exchequer or in Council by a full meeting of all the available legal talent. As for the ordinary criminal jurisdiction, there were many local authorities with summary powers, which were supplemented by numerous visits of commissioners of gaol delivery (who delivered the gaols of prisoners committed for trial), and commissioners of oyer and terminer, who had wide powers of holding pleas of the Crown. Both these classes of commission were in constant use and their activities were recorded upon hundreds of rolls. At the same time certain types of common plea concerning land, called “assizes” which were of very frequent occurrence were also heard locally by travelling commissioners of assize, who only reserved points of special difficulty for discussion at Westminster in the Court of Common Pleas. All these were in existence in Edward I’s reign.

FACTORS IN THE GROWTH OF THE COMMON LAW

      At this point, moreover, it is well to remember the striking passage in Maitland’s Constitutional History where he indicates six principles which combined to increase the jurisdiction of the royal courts. They are briefly these:¹

      (1) Under the Norman kings the Crown by its writ of right supplied the real or imaginary defects of justice in the feudal courts.

      (2) Under Henry II it was established that no man need answer for his freehold without a royal writ unless he cared to.²

      (3) Henry II also ordained that a defendant in certain pleas of land in the King’s Court could have jury trial (grand assize) instead of battle if he chose.

      (4) The possessory assizes established by Henry II deliberately ignored the feudal courts and by their swiftness immediately became very popular.

      (5) The idea of contempt was used very effectively.