feudal idea of a court of tenants-in-chief was sufficient to supply the model of a supreme royal court, and it was from that model that the judicial system of the common law later developed.
THE TRAVELLING COURT: JUSTICES IN EYRE
It was a feature of mediaeval life that the King and his court were constantly travelling through the length and breadth of the kingdom, and that in the course of these journeys a general supervision would be effected over the conduct of royal officers, the working of local institutions, the collection of revenue and the redress of grievances. It was only natural that the idea should be extended, and that kings should send out some trusted officer to conduct similar progresses through the country for the same general purposes. Charlemagne in the early ninth century had developed a regular system of such missi dominici,1 and very soon after the Conquest, as we have already seen,2 a similar device is found in England. At the head of this travelling group of officials were the Justiciars—and it must be remembered that their title does not imply that their duties were primarily judicial, but merely that they were the direct personal representatives of the King.3 The King’s Court was thus enabled to be in several places at once; besides the principal body, which was always in the presence of the King himself, there might be several groups of officials touring the country as Justices in Eyre, as they soon came to be called. In this way the custom and practice of the King’s Court was made more familiar by being spread over the country, and by being brought into contact with local institutions. During the reign of Henry II these Eyres are very frequent, and Bracton and his successors treat them as a separate judicial jurisdiction.1 The experiment was so successful that Philip Augustus soon set up a similar system in France.2 There can be no doubt that there was much important legislation effected (which is now largely lost) by means of instructions to the justices as they set out upon their Eyre.
Their jurisdiction varied; in the early years of Henry III they might be commissioned “ad omnia placita”, and then their impressive “general eyre” (as Maitland called it3) became in effect the court of common pleas on circuit, instead of at Westminster. These justices with their “roll of secrets” and their “book of death”4 undoubtedly struck terror into the country,5 but as their organisation became more refined they became more and more an engine of oppression. Technical errors in legal and administrative procedure, slight inaccuracies in matters of detail were made the excuse for fines upon the whole vill or county. In the thirteenth century Eyres were frequent6 and the financial yield considerable: in 1227 a judge reckoned a profit of 40 marks a day for the king, and in 1301 Edward I “caused justice to be done on malefactors” in order to recoup the expenses of twenty years of war, and thereby “amassed great treasure”.7 In the early fourteenth century we have a full report of an Eyre which visited Kent in 1313 from which every detail of its work can be traced.8 Already protests against general Eyres appear in Parliament and after the middle of the century Eyres ceased to be commissioned. For a time it seemed as if the new device of constant tours by the King’s Bench from the middle of the fourteenth century onwards might serve the same purposes as an eyre,9 but in the end it was seen that they were in fact no longer necessary, for (as we shall see in the next chapter) newer means were being developed which put local institutions under an even more effective control, while the rise of parliamentary taxation provided a more satisfactory source of revenue.
THE LINES OF SEPARATION
The King’s Court, however, still remained constantly at work in his presence, and the development of the jurisdiction of the Eyre did not seriously diminish the powers exercisable in the King’s Court proper. It soon became evident, however, that convenience required a certain amount of specialisation within the Curia Regis.1 It is curious to remark, however, that the divisions were not made along strictly functional lines; in the end a rough allocation of duties was made whereby finance went to the Exchequer, legislation to Parliament, judicature to the courts and executive duties to the Council, but this classification of powers was never very strictly carried out. Parliament and Exchequer both had considerable judicial business. The courts did a certain amount of administrative work, and the Council had a large share in judicature as well as in legislation. The development of these different bodies, therefore, was not dictated primarily by any idea of the classification, and still less of the separation, of powers. It seems rather that the growth of these new institutions was determined along lines of administrative procedure. Types of business of frequent occurrence would necessarily encourage the development of a routine, which would enable subordinate officials (if properly instructed in a well-planned procedure) to do the work in a regular, though somewhat mechanical way. The bulk of their duties consisted in following a preordained mode of practice, and it is only in exceptional cases that they would find it necessary to invoke the discretion of the whole of the King’s Court. We therefore find very soon the development of certain courses of administrative practice, and around these practices there naturally gathered a group of officials who were skilled in the conduct of them. It is such a group of officials, adept in a particular body of procedural rules, which forms the first beginnings of new departments or institutions. The reason for their existence and the key to their activities is therefore a body of administrative procedure rather than a theoretical analysis of the powers of government. In the course of time a number of such procedures appear, gather around them a little group of officials, and finally give rise to new institutions.
THE OLDEST OFF-SHOOT: THE EXCHEQUER
The first of these was the Exchequer, which represents the oldest routine of government. Its beginnings had been primitive.
“Edward the Confessor kept his treasure in his bedroom so that the thief, who aspired to rob the national treasury, had to wait until the king took an after dinner nap before he could venture into the royal chamber, and extract from the king’s treasure chest some portion of its precious contents.”1
Within a century there was a well-organised department, and in the reign of Henry II the Exchequer, with its formal departmental seal, had become the first separate government department in Europe.2 About the year 1179 it was possible to write a very substantial treatise upon Exchequer procedure.3 That procedure was primarily designed to do the King’s book-keeping and to watch his financial interests, but it was inevitable that many other matters should also arise. In the Exchequer twice a year all the great officials of the realm sat together to supervise the whole of the financial machinery. At its head sat the Justiciar, and when that office became extinct he was replaced by the Treasurer; the Chancellor also attended and brought with him some of his clerks who issued process “from the Chancery in the Exchequer”. At the close of the twelfth century the Chancellor’s office had become so important in other directions that for the future he is only represented in the Exchequer by a deputy, the Chancellor of the Exchequer. With such a great array of high officials at the solemn meeting of the Exchequer, it was natural that any great difficulty could be immediately settled, for the highest authorities in the land were sitting around the table. In this way, a good deal of important government business of a general character was apt to take place on the occasion of a great Exchequer meeting, especially at Michaelmas term, when besides all the high officials there were also in attendance all the sheriffs who were present for the examination of their accounts.
In the first of these administrative routines, therefore, we see that a variety of functions were performed whose single bond of union was the fact that they arose in the course of one procedure, that of the Exchequer.
THE NEXT OFF-SHOOT: THE COURT OF COMMON PLEAS
We have already mentioned the very numerous Eyres which took place during Henry II’s reign. Indeed the popular complaint was that there were too many of them, and in 1178 we find a remarkable passage in a chronicler4 which tells us that—
“While
