Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 170

A remarkable and illuminating parallel to the development of equity beside the common law courts of the Crown is to be found in the history of certain great seignorial estates, especially those of the abbey of St Albans, many of whose archives have survived. The abbot had courts in the several manors, and also a central court which supervised the estates as a whole. These may be called his “common law” jurisdictions. Already in 1308, however, we find that the abbot had a council,² and in 1338 we find that council legislating on the rules of succession governing the abbey’s tenants,³ and towards the end of the century this council had a civilian and canonical element: in 1381 the insurgent villeins chased away the doctors of both laws, saying that they would not henceforth submit to the civil or the canon law.⁴ The movement and the antipathy towards it were not confined to St Albans, for a few years later a royal statute recited

“the grievous complaint of the commons made in full parliament for that many of the king’s subjects are made to come before the councils of divers lords and ladies, to answer there concerning their freeholds and many other things real and personal which ought to be conducted according to the law of the land; against the estate of our lord the king and his crown, and in defeasance of the common law.”⁵

The need for newer institutions was therefore felt both in royal and in seignorial judicial systems, and in both it was the conciliar form which was tried. Moreover, in both systems there was a tendency to turn to civilians and canonists. In England, the seignorial council of civilians had much less influence than on the continent, where the influence of civilians is said to have done much to depress the position of the peasantry and to prevent their gradual rise in status.¹ The growth of copyhold and its recognition as a “customary” freehold in England had the result of gradually and almost imperceptibly enfranchising the villeins, but this would hardly have been possible if the civilians had succeeded in imposing their distrust of custom.²