A Concise History of the Common Law. Theodore F. T. Plucknett
Чтение книги онлайн.
Читать онлайн книгу A Concise History of the Common Law - Theodore F. T. Plucknett страница 70
THE NEED FOR DE-CENTRALISATION
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.
THE NISI PRIUS SYSTEM
As for the Bench in the reign of King John, it was sufficiently important for the Charter to enact that it should no longer travel but sit permanently in some fixed place. This was perhaps convenient for suitors, but as the business of the court increased it was a grave hardship to bring jurors from the remoter parts of England to Westminster; indeed, in many cases it was utterly impossible. The solution of the problem was all the more difficult now that the Common Pleas (and for that matter, the Exchequer) were fixed at Westminster.1 The verbal altercation which resulted in the formulation of irrevocable pleadings had to take place (at this date) in court before the judges, who supervised the process and helped the parties to reach a suitable issue. Once the issue was reached, however, it was a simple business to put the issue to the jury and record their verdict. This second process, it was realised, need not take place at Westminster. As early as 1196 parties were given a day at Westminster “nisi justiciarii interim veniant” in Norfolk,2 and in the early years of Henry III justices in eyre would sometimes order juries to be taken locally (instead of before themselves) in order to save trouble to all concerned,3 and would likewise order the verdicts of locally taken inquests to be returned if necessary to Westminster.4 This separation of fact-finding from the rest of legal procedure gave the solution to the problem, and so legislation beginning with Edward I in the Statute of Westminster II, c. 30 (1285) slowly built up the system of nisi prius, whereby actions which began at Westminster in the Court of Common Pleas, when once they had been pleaded to an issue, could be continued by taking the jury’s verdict in the county before justices of nisi prius, instead of compelling the jurymen to undertake a costly journey to Westminster as had formerly been the case. The rise of this system had the result that a great deal of jury work took place in the country and not in Westminster; such proceedings were rarely reported, for the compilers of the Year Books were most concerned with what went on at Westminster Hall, and so the whole procedure of putting evidence before a jury, charging it and taking its verdict is an obscure matter, for neither the reporters nor the rolls give us very much information.5 Of these two sources the rolls are perhaps the more promising for the early history of the law of evidence.
The commissioners of assize need not be justices (although the ywere frequently serjeants, and local knights had to sit with them); the commissioners of nisi prius, on the other hand, had to be sworn justices. At the same time, it was a frequent practice to issue special commissions from time to time to justices and others authorising them to hear and determine (oyer and terminer) all pleas arising in a particular county, or all pleas of a particular type—sometimes to hear and determine one case of special importance. Furthermore, commissions of gaol delivery were a frequent necessity in order to try the persons indicted before various authorities. As a matter of obvious convenience these commissions were eventually issued to the same commissioners. Justices had to be sent at stated intervals to take nisi prius trials; the same justices could also take the assizes, and it was convenient to give them oyer and terminer and gaol delivery1 powers as well. Hence there arose the circuit system whereby the justices of the superior courts made regular tours of the country and thus brought the courts of Westminster into direct contact with local needs. To complete their powers, it was customary to make the judges of assize justices of the peace in the counties they visited.
JUSTICES OF THE PEACE
Besides these travelling commissions, both new and old, which were sent through the country from Westminster, there developed a different type of commission composed of local gentry who were assigned first to keep the peace, and afterwards to be justices of the peace. From the end of the twelfth century local knights and gentry, often described as “keepers of the peace”, were occasionally called upon to co-operate with the sheriff in enforcing law.2 Their duties were principally of an administrative and police character. The Statute of Winchester (1285) laid down the rudiments of a scheme for maintaining order, but created no machinery for carrying it out. It thus became the practice to set up commissioners under varying titles to enforce the statute. From the beginning of Edward III’s reign a stream of legislation begins to enlarge their powers. Nor were their powers entirely statutory, for the Crown frequently increased or diminished the powers of keepers of the peace merely by changes in the terms of their commission, and regardless of the state of the statutory law existing at the moment.3 As before, they were to receive prisoners and to produce them to the justices of gaol delivery—and here it seems that the Crown showed some distrust of the sheriff who ordinarily would have performed these duties; indeed, the justices of gaol delivery were given authority in 1330 to punish the sheriff if he abused his powers of releasing prisoners upon bail.4 Very soon the keepers of the peace were allowed not only to keep prisoners, but to try them; in 1344 it was enacted “that two or three of the best people of each county should be assigned as guardians of the peace by the King’s commission”, and that these keepers should be associated with lawyers in a commission of oyer and terminer for the trial and punishment of felonies and trespasses against the peace.1 There was some hesitation about entrusting wide powers to the keepers of the peace, and legislative policy fluctuated;2 but the keepers (now called “justices”) by themselves, without the association of professional lawyers with them, exercised judicial powers regularly from 1368 onwards.3
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