Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 89

Taking first the more ancient aspect of the county, we find that its constitution and procedure resembled those of the hundred and other ancient courts both in England and on the continent. According to the classical theory, it was composed not of judges but suitors who sometimes bear the significant name of “Doomsmen”.² They were not lawyers, nor even officials, but merely lay persons who by custom were bound to attend. In theory the court ought to consist of all the great men of the county, and representatives of the lesser folk from the vills and towns, in a great assembly which almost looks like a county parliament. But attendance at courts (like attendance at parliaments) was a costly and troublesome burden rather than a political or social privilege, and so those who could succeeded in avoiding it. Sometimes they asserted the principle that if they sent a steward or a few villagers their duty was done; stewards certainly became conspicuous in the county court—“they swayed the judgements, and the rest followed like sheep”.³ Sometimes lords enfeoffed a tenant whose service was to consist in doing the suit;⁴ in 1236 they procured a statute⁵ allowing all freemen to do suit by attorney. In the end, suit of court was frequently a burden attached to particular pieces of land. The common result of all these devices was to substitute for the great men of the county a body of lesser suitors whose dignity and numbers were alike bound to decline with the passage of the centuries.⁶ We may associate this withdrawal of the magnates from the county court with the demands which the Crown began to make upon them for attendance at the king’s own court, and it must be remembered that many landowners had property in different counties and that personal suit to all the county courts would be practically impossible.

Over the body of suitors presided the sheriff, but he, too, was not a judge. He spoke for the court and acted as the chairman of the meeting, but decisions were reached by the suitors, the sheriff’s part being merely to announce them. So Hengham explained that if a false judgment was given in the county it is the county and not the sheriff who will be punished, for the suitors gave the judgment,¹ which was normally upon matters of procedure, summons default, etc. As we shall see later on, there was as yet no need for a judge or a jury to decide which party had proved his case, for this was ascertained by the purely mechanical means of ordeal, battle or compurgation. It was, however, necessary to decide which of the parties was to have the privilege of undertaking proof by these means, and here the suitors must often have exercised a truly judicial function.