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

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.

CHAPTER 1

      THE COMMUNAL COURTS

      SUMMARY

       The Vill or Township

       The Vill in Agriculture

       The Vill and Local Government

       The Vill and Criminal Law

       The Early Hundred

       The Later Hundred

       The Sheriff’s Tourn: Courts Leet

       The County Court

       The Suitors in the County Court

       The Sheriff as Judge: Viscontial Writs

       The Decline of the County

THE VILL OR TOWNSHIP

      Beginning at the very bottom of the scale, the lowest institution we find is the vill or township.¹ It is moreover the most complicated and obscure. Its history was possibly different in different parts of the country and is extremely difficult to disentangle from that of certain other institutions—the ecclesiastical unit of the parish, the social unit of the village, and the economic unit of the manor, which are all the subject of learned controversy. It would seem as if the typical vill (if one can use the term of an institution which varied so greatly) would have looked something like this. There will be a little group of houses, sometimes in a cluster, and sometimes ranged along an ancient road. Nearby there will be the parish church, and in many cases there will be the hall or mansion of the lord of the manor, if it so happens that the vill coincides with a manor, which may or may not be the case; sometimes a manor consists of several vills; on the other hand, a vill may contain several manors. Surrounding it there will be two, or more usually three, large fields. Each of these fields will be divided into a large number of long, narrow strips of about half an acre each, and every household in the village will own a greater or less number of these strips scattered irregularly through the fields. This system of scattered strips is very ancient and lasted long after the middle ages. It has been suggested that the method was imported by the Anglo-Saxons and was not native to England. The prehistoric field seems to have been a small irregular plot; the Celtic field which replaced it in England was apt to be oblong owing to the necessities of ploughing. It seems also to have been a peculiarity of Celtic agriculture to prefer hills or elevated ground, while the Saxons introduced valley settlements. The Saxons, moreover, were accustomed to use the large team of eight¹ oxen to draw their ploughs; this, of course, gave more power, but made turning more cumbersome. Consequently it became necessary to plough a much longer furrow in order to secure the advantage of the larger team, and hence the long narrow strips—but why they were scattered, has long been debated. It was never easy to believe that an egalitarian dogma was applied regardless of efficiency and convenience; more probably, those who co-operated in each day’s ploughing took a share each, as the work proceeded from day to day.² It is not uncommon for fields in England at the