Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 97
ОглавлениеTHE CROWN AND LOCAL COURTS
SUMMARY
The unification of England by the Anglo-Saxon kings raised the problem of local institutions. It can hardly be said that they solved it, for throughout the Anglo-Saxon period government was local rather than royal—indeed, the idea of national institutions centring in the Crown is Norman rather than Anglo-Saxon.1
THE RISE OF THE SHERIFF
For all that, the Anglo-Saxon Crown did begin a policy of establishing connections with local institutions, and, as far as circumstances permitted, of exercising some sort of control over them. The shire or county, as we have said, frequently represented an ancient petty kingdom, and its titular head, the alderman, represented the ancient royal family. It is clear, therefore, that the alderman might be expected to uphold local institutions against any attempt at centralisation. This, in fact, seems to have been the case, and the situation was soon met by placing beside him a new official, the King’s reeve, who was answerable to the national King and not to the alderman. The duties of the king’s reeve seem to have been very miscellaneous, including both administration and judicial business.2 It was inevitable that as time went on the King’s reeve should grow in importance at the expense of the alderman, and that finally he should take the alderman’s place and become the principal officer of the shire under the name of “sheriff” or “shire reeve”. The complaints of his extortion and oppression are constant in the later Anglo-Saxon age, and it is clear that the Crown had some difficulty in maintaining control over its own sheriffs. After the Conquest there was a tendency to regard the English sheriff as the equivalent of the Norman vicomte and to develop the office upon those lines. The Norman kings steadily resisted this; they were strong enough to control even the very powerful sheriffs of the late eleventh century, and to use their local influence in the interest of the Crown. They therefore did not hesitate to appoint as sheriffs men of considerable importance. After a long period of political struggle, the Crown finally adopted the policy of limiting the sheriff’s tenure to one year, and of choosing him from the upper middle class of landowners.
The principal factor in controlling the sheriff was the annual accounting at the Exchequer. The severity of the exchequer’s dealings with sheriffs is a remarkable testimony to the power of the Crown, and observers noted with grim satisfaction that their local tyrant entered the exchequer, shaking in his shoes.1 Nor did a sheriff’s troubles cease with his term of office—or even at his death, for the exchequer process remorselessly pursued his heirs for arrears of his account.2 Such ruthlessness left the sheriff no alternative to amassing as big a surplus as possible in order to meet these contingencies. Unusual situations were met, however, by extraordinary means, and more than once large numbers of sheriffs were summarily deposed, while Henry II’s reign has left us some illuminating documents concerning his Inquest of Sheriffs—a general inquiry into the misdeeds of those officers.3 It is not an infrequent occurrence to find a wholesale removal from office of other ministers too, even judges—a famous example was when Edward I removed all the judges—for in the middle ages, as now, the enforcement of political morality was apt to be spasmodic rather than continuous. Into the political history of the sheriff’s office we cannot now enter.4 For our purpose the important aspects are the effect of these devices upon judicial institutions.
At the time of the Norman Conquest the sheriff, as the King’s representative, enjoyed a good deal of judicial power, which caused the Crown considerable anxiety, for there was no effective means of controlling him, except the somewhat desperate remedy of discharging him when popular unrest grew too strong. In the Norman age a number of attempts were made to find some check upon his powers as a royal judge. Sometimes the Crown appointed a permanent justiciar to sit in the county; the office of coroner was developed in order to serve as a check upon the sheriff; by the Great Charter it was finally declared that no sheriff should for the future hold pleas of the Crown. This definitive solution robbed the sheriff of a great deal of his ancient power, but it only became workable because the Crown had been steadily developing other means for disposing of Crown pleas.
ITINERANT JUSTICES
In the first place, recourse was had to an ancient device whereby the Crown sent out travelling officials who should inquire into the conduct of local officers and hold the royal court in the localities they visited. Sometimes their commission was general; at others they were specially delegated for the trial of some particular action or class of actions. We thus have numerous references to royal commissioners sitting in the county court for the transaction of some particularly important business. Henry II systematised some early experiments of his grandfather Henry I, and sent travelling justices on several occasions through the realm.
In the thirteenth and fourteenth centuries these justices sometimes received the very ample civil, criminal and administrative jurisdiction which modern historians call the General Eyre,1 and their session in the county court was an impressive demonstration of the royal power over all sorts and conditions of men, from the baronial owners of great franchises and the sheriffs down to the meanest villein. A thorough investigation took place of all the judicial and administrative business which had arisen in the county since the last eyre. The sheriff’s records (and those of his predecessors) were checked from those of the coroners; oral presentments of long-past occurrences were checked from the rolls, and the slightest discrepancy entailed a fine. Presenting juries were empanelled and provided with a list of “chapters of the eyre” reminding them of over a hundred matters of which they were to inquire. Besides its administrative powers and criminal jurisdiction, the justices in eyre also had the jurisdiction of the court of common pleas and so all civil business affecting the county was also theirs, for the entry of the eyre into a county automatically transferred to it all pleas then in progress concerning the county before the court of common pleas. Indeed, this was inevitable on those occasions when all the justices of the common pleas were commissioned to travel in eyre, for then the court of common pleas at Westminster ceased to sit.2 By the opening of the fourteenth century the general eyre had become something of an anachronism, albeit a source of great financial profit to the Crown and correspondingly oppressive to the subject. A rule was established that an eyre should not visit a county within seven years of a previous eyre,3 and several times the commons petitioned against them. It is believed that eyres ceased to be commissioned after the middle of the fourteenth century.4
The eyre was too ponderous and too intermittent a machine to deal with the ever-present problem of bringing royal justice to the shires. For practical purposes the Crown relied on a variety of travelling justices (some of whom were not professional lawyers) with limited commissions. Thus Magna Carta provided for frequent justices to take the assizes of novel disseisin and mort d’ancestor;1 frequent commissions were issued to “deliver the gaols”, i.e. to try the prisoners; a single case, or a group of cases, might be tried before special justices of oyer and terminer; and in the middle of the fourteenth century it looked as if the King’s bench might become a sort of eyre court, for it was frequently sent on hasty tour through several counties.2
The process was carried even further. Just as the King’s justices in eyre went around the country sitting in each county court, as it were, for the transaction of all sorts of business and a general inquiry into abuses, so the sheriff himself travelled around his county sitting in each hundred court twice a year. Here he acted strictly as a royal deputy, serving merely as a liaison between the central authority and local institutions, for since the Great Charter he could no longer “hold” pleas of the Crown, but only “keep” them, that is to say, guard the prisoners and make memoranda of the circumstances, which were to be laid before the king’s commissioners at their next visitation; and by the time of Bracton and Fleta it came to be the accepted theory that not only the sheriff’s turn, but also its equivalent, the “court leet”, are royal courts held in virtue of a presumed delegation of power from the Crown. In short, the Crown, for most practical purposes, is the fountain of justice.
THE REMOVAL OF PLEAS
The royal supremacy was asserted in yet other ways. Early in the twelfth century it was already a principle that “false judgment” (i.e. proceedings to review a judgment in an inferior court) was a royal plea, and over a century later it was embodied in a statute.3 Hence a judgment of a county court could be examined in the court of common pleas by means of a writ of recordari facias loquelam, and a judgment in a seignorial court by the very similar accedas ad curiam.4 Nor was it necessary to await judgment before invoking the royal jurisdiction, for a plea pending in a seignorial court could be removed into the county court by a procedure called tolt, and from the county into the common pleas by a writ of pone.
THE RESULTS OF CENTRALISATION
The removal of pleas of the Crown from the sheriff, accompanied by the transfer of that jurisdiction to the Justices in Eyre and to other commissioners or travelling justices as the Eyre became obsolete, and the centralisation of pleas concerning land in the hands of royal justices sitting by royal writ, mark the permanent subjection of the county and all its officers to the Crown. A unitary state was no doubt an advantage in the middle ages when so many nations were divided into feudal subdivisions; but the cost was heavy. The very fact of several bodies of law and custom existing in one nation sometimes had fruitful results for legal science. In France the multiplicity of jurisdictions led to a comparative study of legal rules which was a valuable incentive to criticism and improvement, just as in America to-day the numerous state systems invite and indeed compel a critical appraisal of their respective merits. In England, on the other hand, our too early unification left the common law without an effective competitor, and bred up a profession which was only just sufficiently aware of the existence of other systems to glory in its isolation. That state of mind is not altogether past, and its results are indelible.
A more specific consequence of the dominance of Westminster is the fact that England had to wait until 1846 for a co-ordinated system of local courts. The Crown’s incurable fear of the sheriff is largely responsible for this. How great an opportunity was missed can be seen by looking at the vigorous and useful institution of the sheriff in Scotland, where the office was allowed to develop along natural lines.1
