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

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

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III onwards, are clearly derived from the administrative functions of the office, and can be compared with those of the common law side of the Exchequer with which they were in some cases concurrent. It is a difficult question how far the common law jurisdiction was an origin of the equitable jurisdiction, which may have had, in the main, a different history.2

      The “impoverishment of the jurors” and the “ruin of the country” by jury trial was a real problem. When Henry II instituted the petty assizes he seems to have made the requirement that as far as possible the assize of twelve should meet in the county where the land lay—in the county where the assizemen resided. With the use of the jury in the Court of Common Pleas a similar requirement soon arose for the jury to come from the county where the cause of action lay. While the judges of the Bench were continually touring with the King, there was a fair chance of juries being taken in or near their own counties, but with the tendency for the Bench to stay in one place it was becoming more and more necessary for the jury to come to the court, instead of the court travelling about and taking the juries locally. The Great Charter3 settled the most pressing part of the question by enacting that most of the assizes (which were then the most frequently used of the common law actions) must be taken in the county where the land lay, and as the assizemen had to be neighbours from that same county, they did not have to travel very far. Hence the Crown sent commissioners at regular intervals to take the assizes in the counties.

      Meanwhile, in 1349 came the Black Death, and in 1351 began the Statutes of Labourers, which attempted to regulate the disorganised labour market. This labour legislation set up elaborate machinery for fixing prices and wages and enforcing labour contracts, and established “justices of labourers” for the difficult task of enforcing it. Shortly afterwards the keepers of the peace and the justices of the labourers were merged into one commission with the new title of “justices of the peace”,4 which first appears officially in 1361. For the rest of the middle ages, and indeed ever since, hardly a Parliament passed without adding some new duty to the work of the justices of the peace. At first they received salaries payable out of the fines which they inflicted, but as time went on the change in the value of money made their wage too small to be worth collecting; it has now long been obsolete.5 They were and generally still are laymen and not lawyers,6 but it must be remembered that during the middle ages the average landowner had a fairly good knowledge of elementary law; what further technical assistance they needed was supplied by the clerk of the peace who served as a professional clerk to the justices. The clerk of the justices was frequently appointed also to the office of clerk of the Crown, the duties of which were to act as a permanent local secretary to the travelling justices who came

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