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

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.

THE SHERIFF AS JUDGE: VISCONTIAL WRITS

To this jurisdiction whereby the county court administered justice, was added another jurisdiction exercised by the sheriff in the county court in virtue of a royal writ addressed to him, beginning with the word iusticies, “do justice upon” the defendant “so that rightly and without delay he render” to the plaintiff, e.g. a debt which he owes. The old view that these writs of justicies were an attempt to revive the county so as to relieve congestion at Westminster is no longer tenable, for it is now known that our earliest registers of writs contain many such writs, and that the more familiar forms returnable at Westminster are a later development. Certain other writs were also “viscontial”, giving the sheriff jurisdiction, although not drawn in the form justicies. The implication seems clearly that down to the middle of the thirteenth century a large part of the nation’s litigation was in the county court.² In this type of proceeding the sheriff was a judge in the modern sense, and the county court was merely the occasion upon which he exercised his jurisdiction. So complicated a situation could only result in confusion, and in fact it is very difficult to disentangle the two branches; Fleta³ was able to assert the existence of the difference, but after his day the boundaries became obscured (partly as the result of legislation), until the classical doctrine as described by Coke⁴ makes the suitors judges of the court in almost all cases. Thus was fulfilled the ancient policy of the crown in reducing the judicial importance of the sheriff at every possible opportunity.

THE DECLINE OF THE COUNTY

      In early times there seems to have been no limit to the jurisdiction of the county court; civil and criminal cases, pleas common and royal, were alike within its power. The Crown (and apparently the public also) so thoroughly distrusted the sheriffs, however, that constant reductions of their jurisdiction were made. Henry II’s criminal reforms were briefly confirmed by Magna Carta¹ which removed pleas of the Crown from the sheriff (and the county). When later on it was found that criminal justice would have to be decentralised, it is significant that the old powers of the sheriff were not restored to him, but a new jurisdiction was set up in the justices of the peace. On the civil side another principle at least as old as Henry II made it unnecessary for a man to answer an action for land unless it was brought by the king’s writ.² The statute of Marlborough reserved all writs of false judgment for the king’s court³ and so the county was prevented from becoming a court of review over the lesser local jurisdictions. No trespass alleging contra pacem regis could be tried in the county, for it was technically a plea of the Crown;⁴ and no trespass, debt or detinue could be brought where more than forty shillings were involved—a rule which is stated in the reign of Edward I, although its origin is uncertain.⁵ It came to be held (as we have seen) that the suitors were still the judges, even in actions brought under a writ with the justicies clause, a collection of archaic rules and procedure had to be observed, with the result that justicies could not compete with another reform more in accordance with the trend of legal development—that is to say, the system of trials at nisi prius.⁶

The county was never a “court of record” in the eyes of the superior courts at Westminster,⁷ and its rolls (when rolls were kept) were not admissible in evidence on the same basis as “solemn” records; instead, when a plea was removed from the county to the Court of Common Pleas, four knights came up to Westminster and recounted what had happened—and on some occasions we even find them ready to wage battle by a champion in support of the truth of their unwritten “record”.¹

CHAPTER 2

      SEIGNORIAL JURISDICTION

      SUMMARY

       The Manor

       Frankpledge

       A Manorial Court at Work

       Counties, Palatinates, Honours

      Besides all this there is the second aspect of the courts we have just described, namely, the effect upon them of the local territorial magnate. Here we come to an extremely obscure and difficult subject. The sources of the authority of a great lord or baron can usually be traced with some confidence, but the rise of numerous petty lordships all over the country and their effect upon the existing communal organisation are matters of greater complexity.¹ It is even difficult to classify the different sorts of power which a local lord could exercise at various times. In some cases the lord’s jurisdiction was personal; in others it was territorial; and in many cases it is impossible to draw the line. On the one hand we have the development of the manor, and, closely connected with it, of the view of frankpledge; on the other it is clear that in many cases the whole organisation of the hundred court fell into private hands, and it is even fairly common to find that besides owning the hundred court the lord will even exclude the sheriff entirely, and instead of the sheriff’s turn the lord’s steward will hold a “court leet”.

THE MANOR

      The manor as it existed in its typical form in the England of the thirteenth century is the product of a large number of different lines of development, some of them of very ancient date, which gradually converged to form one institution. One of its most striking features is the fact that all the tenants hold dependently of the lord of the manor. The origins of this may