to hold the pleas of the Crown. The clerk of the peace was technically the deputy appointed by the Custos Rotulorum, a mysterious official of whose history very little is known.7
The justices of the peace, like most other mediaeval bodies, held two sorts of meetings, large and small. The large meetings held four times a year are called quarter sessions. In the fourteenth century they must have looked something like the older Eyre, although on a smaller scale. Grand juries were charged, made presentments, and the persons so indicted were forthwith tried. Until the eighteenth century, quarter sessions tried capital cases, which after that date they reserved for the Justices of Assize. Quarter sessions also possessed an appellate jurisdiction from petty sessions. Petty sessions on the other hand consisted of two or more justices acting in the most informal manner for minor business and the lesser offences entrusted to them for summary trial without a jury, by virtue of numerous statutes in Tudor times and later.1 Both quarter and petty sessions were ultimately subject to the Court of King’s Bench, which by a writ of certiorari could remove and review their proceedings.
THE FATE OF THE LOCAL COURTS
The establishment of the justices of the peace marks the end of the practical importance of the old communal jurisdictions which we described in chapter I. Even in boroughs, where such jurisdictions as the court leet survived longest, the competition of the justices of the peace was severe, and ultimately successful. Whether the justices of the peace were deliberately designed to take the place of the local jurisdictions, which had already declined, or whether, on the other hand, they were part of a conscious policy whereby the Crown attempted to supplant local jurisdictions (dependent as they usually were upon the sheriff), it is impossible to say; there may be some truth in both views.2 It is certainly significant that the justices of the peace were fairly closely supervised by the central courts and ultimately by the Council; in this way they became not merely the local representatives of the royal jurisdiction, but also to a large extent the administrative and political agents of the King and Council. During the later Stuart period the government tried to exploit to the utmost the political influence of the justices of the peace.
This state of affairs, however, is not to be found in the fourteenth century when the institution was for the first time rapidly developing; in the critical reign of Edward III it is beyond doubt that the demand for the expansion of powers of justices of the peace came from the commons in parliament, and that the opposition to the demand came from the council and the Crown lawyers. It is presumably the Tudors who inaugurated the new policy of making the justices of the peace their instruments in local government.
Politics apart, the justices of the peace were a notable essay in decentralisation in criminal jurisdiction, and the development of the nisi prius system contributed to the same result in matters of civil litigation. The justices from Westminster came down into the county, bringing with them the advantages of metropolitan law administered in every county town. The problem of over-centralisation created at the end of the twelfth century was thus satisfactorily solved—at least for a moment.
THE TUDORS AND THE COMMON LAW COURTS
SUMMARY
As the last chapter has shown, the fourteenth and fifteenth centuries were devoted to consolidating the monopoly enjoyed by the common law courts. In criminal justice alone did they allow developments to take place outside the system, and no doubt the reason was that the profession as a whole was not particularly interested in this arduous and unremunerative branch of law. The justices of the peace were therefore given a fairly free hand at the instance of the House of Commons, which seems to have felt in a dim sort of way that here was a field in which local self-government could be developed.1
The next chapter will discuss the darker side of this picture, and the emergency measures which the prerogative courts resorted to in restoring tranquillity after the Wars of the Roses. But although (as that chapter will show) the great contribution of the Tudors lay in the field of prerogative courts, nevertheless they did carry out some notable reforms in the common law courts as well.
THE COURT OF EXCHEQUER
We have already noticed the growth of the Exchequer of Plea, and its pretensions to become more than a purely revenue court.2 During the middle ages it seems to have held common pleas from time to times but certainly not in any great number. During the sixteenth century it is said to have claimed a general jurisdiction over many sorts of common pleas by means of the fiction that one of the parties was a Crown debtor,3 and this claim was admitted. For a long time the judges of the court (technically called Barons1) had been lawyers (although not necessarily serjeants). The history of this has never been explored, but it is clear that, by means unknown, the barons of the exchequer steadily raised their position until, in 1579, Queen Elizabeth, in making a new appointment, expressly gave the new baron an equal status with the judges of the other common law courts, and for the future the barons of the Exchequer shared with the justices of the King’s Bench and the Common Pleas the duties of going on circuit. Henceforth there were to be three common law courts of first instance.
THE EXCHEQUER CHAMBER, 1585
Late in the reign of Elizabeth still further confusion2 was created by the erection of yet a third court in the Exchequer chamber. The Court of King’s Bench had succeeded in acquiring a good deal of jurisdiction which once was peculiar to the Court of Common Pleas, and so acted as a court of first instance in these matters. If such actions had been brought in the Common Pleas, error would have lain to the King’s Bench; but when they were now brought in the King’s Bench in the first instance, error lay only to Parliament. Here the difficulty arose. Parliaments were originally held several times a year; Elizabeth summoned but ten in a reign of forty-five years, and so for long periods there was no court in existence which could hear the errors of the King’s Bench. To meet this situation two statutes3 erected a new court to hear errors from the King’s Bench. This court was to consist of all the judges of the other two common law courts—the Common Pleas, and those Barons of the Exchequer who were also serjeants—sitting together in the Exchequer chamber, and at least six were necessary before judgment could be given. Their decision was subject to further proceedings in error in Parliament, and the second statute explained that a party could still go directly from King’s Bench to Parliament if he chose.4 There was thus the disadvantage of an intermediate court of appeal, together with the anomaly that the use of that court was optional. A still further defect was that it was very difficult to assemble six of the justices and barons. The statutory body was not a court with fixed meetings every term, but
