to give its general verdict. Some difficulty arose, however, in trials of a political character, for here the jury retained its old representative character to a marked degree, and there has been a natural feeling that here if anywhere the jury’s independence ought to be most jealously guarded. A remarkable illustration of the feeling that a jury is likely to be more independent (or at least more representative of national feeling) than a judge is to be seen in Fox’s Libel Act2 of 1792, which reduced the position of the bench in libel cases (which were frequently apt to have a political character) to a minimum by allowing the jury not only to find the facts but also to declare whether those facts in law amounted to a libel.3
THE ORIGINS OF THE CENTRAL COURTS
SUMMARY
The Meaning of the word “Court”
The Travelling Court: Justices in Eyre
The Oldest Off-shoot: the Exchequer
The Next Off-shoot: the Court of Common Pleas
The Connection between King’s Bench and the Council
The Judicial System under Edward I
Factors in the Growth of the Common Law
So far we have discussed the local courts, both communal and seignorial, and the contacts which took place between them and the royal authority, and particularly the most important of these contacts, the jury. It now remains to sketch the rise of the central courts at Westminster.
THE ROYAL HOUSEHOLD
During the Anglo-Saxon age there was nothing which could be described as a central royal court of law, although there were certainly central royal institutions. Their formation is the product of two elements, the one being the royal household and the other the national assembly. It is to the royal household that we must look for the origins of the administrative machinery of the Anglo-Saxon monarchy. The principal household officers inevitably acquired political influence and took a part in public affairs. Similarly the group of clergy attached to the King’s chapel naturally formed the nucleus of a secretariat which in time will be called the Chancery. It was only natural that the King should surround himself with men whose advice he valued, frequently placing them in high positions in the household. The household therefore consisted not merely of the King’s domestic servants but also of men of an official class whose assistance was useful in the daily task of government.1 When there was added to them the body of King’s clerks there was all that was required for the day-to-day business of government. This system of household government survived long after the Anglo-Saxon times. The Norman kings systematised it; in the thirteenth century portions of it became separated from the household, and in the fourteenth century developed into independent offices of State closely resembling the modern civil service. But this machinery was still controlled by the household, and bitter constitutional struggles were constantly occurring as the nobility at large endeavoured to curb the activities of the household officials. The Exchequer, for example, at a very early date, had achieved a completely independent existence, and yet to the end of the fifteenth century the effective control of finance was in the hands of the household, working through the offices of the Wardrobe and the Chamber. So, too, the Chancery very soon became an independent office for the management of the Great Seal, and yet its policies were controlled either by the Council working through the Privy Seal office, or else by an inner group of household officials (especially the chamberlain of the household) working through the office of the Signet.1 The effective power wielded by the holders of the signet can be seen by the rapid rise to importance of the Secretary who was its official custodian. In the sixteenth century he becomes a “Secretary of State”, and at the present day English secretaries of state are created by the delivery of the signets, which are handed to them by the King himself as symbols of their office. The household, therefore, is not merely the original germ of our central institutions, but has continued all through the middle ages to occupy a central position of effective political control, even over those departments of state which in former times had separated from it.
THE NATIONAL ASSEMBLY
The second element in the growth of these institutions may be described as that of the national assembly. The household was adequate enough for the ordinary daily business, but from time to time questions arose which required the advice of a larger number of people representing more varied interests. The effective political public for a long time coincided with the small class of great nobles and great ecclesiastics. Matters of grave importance would naturally be discussed at a somewhat large meeting of the most notable men of the nation. There is no need to apply precise terms and definitions to such assemblies, or to seek for exact rules as to their competence. Still less is it appropriate to ask questions as to what matters must be done with the concurrence of such an assembly and what matters could be done without it. There was nothing in the Anglo-Saxon age, or for a long time afterwards, which could be described as a body of public law. Conferring with the magnates of the realm was not a legal necessity, but a dictate of political prudence. It was only natural that the Crown should take counsel upon grave matters with those magnates whose co-operation was necessary if a policy was to be carried out. When we speak, therefore, of the national assembly under the Anglo-Saxon kings—“Witan” as they called it—we must not expect to describe its composition and powers as if it were a modern congress or parliament. There were some persons who certainly expected to be summoned when important matters were on the table; the position
