Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 79
ОглавлениеTHE COURTS AND THE PROFESSION
SUMMARY
We now come to the history of the law courts and the legal profession. Few matters are more obscure than the early history of our courts, especially of the inferior or local jurisdictions.
THE DIFFERENT SORTS OF COURT
Compared with the courts of Westminster the local tribunals of the county and the hundred are centuries more ancient, and have a past stretching back to pre-Conquest days. Into the great questions of the ultimate origin of the county and the hundred courts, which in the opinion of some writers extends back into Teutonic pre-history, it would be impossible to enter without examining a great deal of technical controversy. Questions equally grave and controversial also obscure the history of those jurisdictions which are commonly called feudal—jurisdictions which competed with, and in one or two cases supplanted, the older institutions. Last of all there came the royal power and the erection of a hierarchy of courts acting in the King’s name, and applying the common law, which in the end superseded all the other jurisdictions. We therefore have, roughly speaking, three main types of courts: the oldest is the communal system represented principally by the county and the hundred; next we have the feudal or seignorial tribunals, of which the court leet is the best-known example; while finally we have the royal courts at Westminster gradually overshadowing all the rest. Within each of these classes there exists the utmost variety, and the further back we trace the history of these courts the more difficult it becomes to make a general statement which shall be approximately true about any of them. The Anglo-Saxon age in particular shows us countless examples of local variance, although it is significant that soon after the Norman Conquest faint signs of order begin to appear.
The remarks that follow, therefore, are only very general observations which will have to be taken subject to a good deal of modification if they are to be fitted into any particular case. Very broadly speaking the threefold division which we have indicated comprises three different classes of courts, each with its own separate type of history; but it is an essential part of that history that each type existed side by side with the others, and therefore was constantly influenced by them. The communal courts are characterised by a territorial jurisdiction coinciding with some administrative district within whose limits their authority extends. The seignorial courts are less definitely territorial in their character; there are occasions when their jurisdiction seems rather to depend upon a personal relationship between lord and tenant. This statement, however, is subject to some reservations since a purely personal jurisdiction of a lord over particular men is very apt, during the middle ages, to become gradually transformed into a jurisdiction over the land of those men. A jurisdiction which was originally personal will therefore become in time territorial, and it is characteristic of this process that such a territory often is of extremely irregular outline; indeed, it is quite common to find that there will be small islands of one jurisdiction scattered at some distance away from the main body. The most plausible explanation of this seems to be that these outlying portions were originally the property of a tenant under a personal jurisdiction, and that in the course of time this personal jurisdiction became territorial.1 Still further confusion between the two types is caused by the constant tendency for old communal jurisdictions (especially the smaller ones) to fall under the domination of some great man and to become in the end his private “franchise”.
ROYAL JURISDICTIONS
Both of these classes of courts, however, differ fundamentally from the third class, the royal jurisdiction. Both of the former were in flourishing condition and apparently equal to the requirements of the nation before the Crown began to intervene. One thing at least is very clear, namely, that the royal courts were intruders upon ground which had been occupied for centuries by older jurisdictions, and that the authority of these older jurisdictions was original and in no way derived from the Crown. This undoubted historical fact begins to be obscured by legal theory in the twelfth, and still more in the thirteenth centuries. By that date the royal courts at Westminster were in a period of active expansion and were prepared to make wide claims on their own behalf and on that of the King. Already, between 1109 and 1111, Henry I had spoken of “my counties and hundreds”,2 and a century and a half later Bracton lays down a general principle that strictly speaking the King is the proper judge for all temporal causes, and that it is only the great mass of business that has compelled him to delegate judicial power to a number of judges, sheriffs, bailiffs and ministers.3 About the year 1256, therefore, a royal justice like Bracton is already considering the Crown as the sole fountain of justice. A generation later another royal official, whom we only know under the disguise of “Fleta”, presses this doctrine to its extreme limit.4 In an extraordinary chapter Fleta discusses all the courts of the land, and introduces each one of them with the significant formula that “the King has his court....” Although Fleta may have known the historical falseness of this, nevertheless he insists that the King now has his court not only in Parliament, the King’s Bench, the Common Pleas and the Exchequer, but also in the county, in boroughs, in hundreds, and in manors, even although he has no judge there, the decisions being made by suitors. With Fleta, therefore (about the year 1290), we come to the complete dogma that all judicial power is derived from the Crown.
Clearly it is only the fact of the Norman Conquest, seconded by the organisation of the Norman kings, that enabled England to be so centralised as this. In the course of two hundred years not only had the central courts at Westminster been erected and furnished with royal law and procedure where previously there had been little or none, but in addition the idea of royal supremacy and of the centralisation of justice had so firmly taken root that it was possible to assert that all judicial power, whether it be in royal courts, seignorial courts or the ancient communal courts, was exercised by delegation from the Crown. From this point onwards the character of the local courts was gradually being transformed in order to make them fit in with this theory. In the end, they were either to be abolished or virtually superseded by new institutions which would be in fact as well as in theory created by the Crown.
THE CROWN AND THE JURY
The ultimate supremacy of the central courts of the Crown was only achieved slowly. There was little direct attack, save perhaps a few words in the Statute of Gloucester (1278), c. 8, and the important rule in the Statute of Marlborough (1267), c. 20;1 for the most part, the change was effected by peaceful penetration and skilful competition in offering better remedies, notably, trial by jury. The points of contact between central and local courts thus become particularly significant. On the one hand, there is the Crown’s determined endeavour to tame the sheriff; on the other, there is the Crown’s use of the jury. It had long been the practice for royal emissaries to summon juries when the central government wished to make contact with the men of the county, hundred or vill. When, in later times, the jury was given the new function of trying issues of fact reached in litigation, the Crown claimed to have the monopoly of what had now become a desirable procedure, and thereby achieved an overwhelming superiority over those jurisdictions whose powers did not extend that far.
Such, then, is the general trend of institutional history in the course of a thousand years. It now remains to consider in a little more detail the rise and fall of local institutions, and their gradual subjection to the central authority. First of all we shall treat of the communal courts; secondly, of seignorial jurisdiction and its relations with them; then of the Crown’s contact with the local courts, and of the jury which grew up at that point of contact; and finally, of the royal courts at Westminster which were destined to overshadow and destroy both the seignorial and communal courts.
