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• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

CHAPTER 1

THE COMMUNAL COURTS

THE VILL OR TOWNSHIP

Beginning at the very bottom of the scale, the lowest institution we find is the vill or township.1 It is moreover the most complicated and obscure. Its history was possibly different in different parts of the country and is extremely difficult to disentangle from that of certain other institutions—the ecclesiastical unit of the parish, the social unit of the village, and the economic unit of the manor, which are all the subject of learned controversy. It would seem as if the typical vill (if one can use the term of an institution which varied so greatly) would have looked something like this. There will be a little group of houses, sometimes in a cluster, and sometimes ranged along an ancient road. Nearby there will be the parish church, and in many cases there will be the hall or mansion of the lord of the manor, if it so happens that the vill coincides with a manor, which may or may not be the case; sometimes a manor consists of several vills; on the other hand, a vill may contain several manors. Surrounding it there will be two, or more usually three, large fields. Each of these fields will be divided into a large number of long, narrow strips of about half an acre each, and every household in the village will own a greater or less number of these strips scattered irregularly through the fields. This system of scattered strips is very ancient and lasted long after the middle ages. It has been suggested that the method was imported by the Anglo-Saxons and was not native to England. The prehistoric field seems to have been a small irregular plot; the Celtic field which replaced it in England was apt to be oblong owing to the necessities of ploughing. It seems also to have been a peculiarity of Celtic agriculture to prefer hills or elevated ground, while the Saxons introduced valley settlements. The Saxons, moreover, were accustomed to use the large team of eight1 oxen to draw their ploughs; this, of course, gave more power, but made turning more cumbersome. Consequently it became necessary to plough a much longer furrow in order to secure the advantage of the larger team, and hence the long narrow strips—but why they were scattered, has long been debated. It was never easy to believe that an egalitarian dogma was applied regardless of efficiency and convenience; more probably, those who co-operated in each day’s ploughing took a share each, as the work proceeded from day to day.2 It is not uncommon for fields in England at the present day still to bear traces of these arrangements; on the hillside Celtic divisions may still be found represented by the banks caused by constantly ploughing the same plot, while lower in the valleys the long, narrow strips of the mediaeval field may be discerned. Photographs from an aeroplane are particularly useful in revealing these features.3

THE VILL IN AGRICULTURE

The one bond which holds the vill together is a system of communal agriculture. The machinery necessary was expensive, for the plough of eight oxen was often beyond the means of any individual villager, and so we find that the vill co-operated in the performance of a good many of the more difficult operations of farming. Besides this, after harvest the fields were thrown open and all the villagers turned their cattle into them, as well as on to the field which for that year was remaining fallow (for the general system was to have two or three fields one of which was left fallow each year).

From what has just been said it will be obvious that there were many features of the agricultural life of the vill which would need regulation, and in spite of Maitland’s doubts it seems now fairly clear that there was a moot in the vill which ordered its economic life, made bylaws and enforced their observance. It is tempting to regard the numerous “halimotes” of which we have evidence as being survivals of the earlier vill moot. To the eyes of some historians the co-operative element in the village community appears so strong that they describe it as an agrarian communism; but at this point we again touch upon a difficult and controversial subject upon which we can here say no more than that it is almost as difficult to prove a true agrarian communism as it is to find the modern notion of individual private property in land. There has been a great deal of conjecture as to the probable character of the primitive village community, and much of it has removed the question from the realm of history into that of speculative pre-history.1

Whatever its origin, the mediaeval village community was dissolved in the sixteenth and eighteenth centuries as a result of the great enclosure movements promoted by landowners with two distinct objects—first, to abandon the old system of strips,2 re-survey the land and allot to each holder a compact area instead of his scattered strips, and also to enclose portions of the common land and restrict them to private use, generally of the lord of the manor.

THE VILL AND LOCAL GOVERNMENT

Besides this powerful economic bond which produced a unity from within, as time went on there came constant pressure from without which tended to the same result. Especially after the Conquest and down to the middle of the thirteenth century, the vill was being constantly used by the central authorities as the lowest unit of local government. As the Crown interfered more and more with local questions, so we find more and more reference in public documents to the vill, first one and then another duty being thrust upon it. The middle ages were fond of the very rough-and-ready, but effective, method of imposing a duty upon a group of people and holding them jointly and severally bound to perform it; any arrangement for apportioning the burden among the individual members of the group was their private concern, the Crown refusing to take any notice or to give any assistance to the process. At the close of the twelfth century the Crusades caused a good deal of taxation. The method by which it was assessed was simple; each county was assigned a quota proportionate to its estimated wealth (this estimate is the technical meaning of the word taxatio); the county then divided this quota in a similar manner among the hundreds and the vills, and so a vill would be responsible for raising a particular sum of money—no doubt by negotiation among its members, although often under the eye of royal taxers.

THE VILL AND CRIMINAL LAW

The vill is most remarkable, however, for its place in the system of police and criminal procedure.

The thirteenth-century statutes systematised the police powers of the vill; watchmen were to be kept throughout the night and the assize of arms enforced; in 1252 constables were to be appointed, and in 1253 vills were ordered to provide at their own cost the necessary weapons, while, as we have already said, the Statute of Winchester in 1285 consolidated these previous enactments for the rest of the middle ages. The vill was further under heavy obligations in the maintenance of roads and bridges and the cleansing and repairing of river-banks. From all this it will be clear that the vill could hardly escape being many times amerced, and it seems that the inhabitants were jointly and severally liable to find the money.

Finally, the vill had very important duties in the system of presentments. When a crime occurred within the vill it was the duty of the reeve and the four best men to report it to the hundred court and if possible to produce the guilty party, while on numerous occasions the King’s Justices would summon the vill where a crime was committed (together with four or more neighbouring vills, all appearing by their reeve and four best men) to pass upon the guilt or innocence of a prisoner accused of crime.

In the later middle ages the vill ceased to be of general legal importance. From the administrative point of view it was gradually replaced by the parish with which in fact it frequently coincided, and ever since Elizabeth’s poor law the parish has tended to become a unit of civil taxation.2 Rules of pleading, however, continued to insist upon places being assigned to a particular vill, and so the vill for centuries survived as a troublesome anachronism. To make matters worse, the boundaries of vills were uncertain, and a good many places were definitely not in any vill at all.1 At length it was enacted that the specification of the county should be enough.2

THE EARLY HUNDRED

The term “hundred” occurs in various parts of Europe as an administrative unit, and great controversy has arisen as to its ultimate origin. Tacitus tells us of Germans organised by groups of hundreds; five centuries later the Frankish kings legislated on the “hundred” as a criminal jurisdiction (595); and the English hundred appears nearly four centuries later still (between 946 and 961). Tempting as it is to see some connection between these phenomena, the hazardous nature of such a speculation is emphasised by modern historians. One recent theory3 would stress the efforts made in the tenth century to enforce order by means of voluntary associations, such as London had set up.4 The members undertook police duties, and the Crown gave them a share in the property of convicted criminals, and powers to find out informally whether suspects were guilty. From this gild it was a short step to the ordinance ascribed to Edgar on the holding of the hundred.5 The principal change was to substitute regular judicial procedure and trial by ordeal for the gild’s informal inquiry. While that theory takes note of the documents, as they have come down to us, it is difficult to resist the suggestion that the hundred must be a good deal older than the texts mentioned. Sometimes a connection can be traced between a hundred and the tax assessment of 100 hides, and it may be that our texts show not the origin, but the re-modelling of an already ancient institution.

King Edgar commanded that the hundred should meet every four weeks; thieves are to be pursued and judgment executed upon them; contempt of the hundred’s decisions is punished by a fine and on the fourth offence by outlawry; in following the trail of stolen cattle one hundred may call upon another to assist; the hundred is ordered to establish fixed terms at which parties are to appear; fines were payable to it by those who disobeyed its commands, and half the property of convicted thieves also went to the hundred. The laws of Cnut (made between 1027 and 1034)6 show even more clearly how important the hundred was in Anglo-Saxon England. No distress was to be levied until the remedies available in the hundred had been exhausted: every freeman over twelve years of age was to be in a hundred; no one was to appeal to the King unless he was unable to get justice in the hundred; and until the famous ordinance1 of William the Conqueror, the bishop used the hundred to transact ecclesiastical business.

When we get to the Conquest the hundred is treated by the Norman administrators as the most convenient of the smaller units of government. The Dialogue of the Exchequer tells us2 of the rule long observed in that court as a result of the numerous assassinations of Normans, presumably by Englishmen. In order to check this it was ordained that every hundred wherein a Norman was found slain by an unknown hand should be liable to a very heavy murder fine. As time went on the hundred was allowed to relieve itself of the fine by proving that the dead man was not a Norman but an Englishman, but in the end the races had become so mingled that it was impossible to maintain this procedure of “presentment of Englishry” and the murder fine was abolished by Edward III. The principle of making the hundred liable in respect of undetected crimes was not abandoned, however, and the Statute of Winchester (1285) lays down a general rule that the whole of the hundred where a robbery was done shall be answerable for it unless they can produce the offender.3 For the next five hundred years Parliament constantly increased the civil liability of the hundred for crimes committed within its borders, especially by rioters, until in 1827 a long list of such statutes was repealed,4 and the hundred’s liability was restricted to damage done by rioters;5 later still the burden was placed on the county or borough rate-payers by the Riot (Damages) Act, 1886.

All this will serve to illustrate the varied aspects of mediaeval institutions, for besides this police and administrative side of the hundred, its judicial powers continued, although their decline came rather earlier. By the Assize of Clarendon (1166)6 it had been ordained that in every county and in every hundred the twelve most lawful men of each hundred and the four most lawful men of each vill should be sworn to present any man who was suspected of serious crime either to the King’s Justice or to the sheriff. If the hundred or the vill had been successful in capturing a suspect, they were to deliver him over, accompanied by two lawful men “to bear the record of the county or the hundred”—in other words to state verbally the circumstances under which the prisoner was captured. In 1234 a royal ordinance1 declared that hundred courts had been held too frequently and that rich and poor had been equally oppressed thereby; it was therefore ordained that they should meet every three weeks instead of once a fortnight as heretofore—it may be observed in passing that this is not the only complaint we hear during the middle ages of too many courts and too much justice; earlier still Henry II admitted that the country had suffered grievously “by reason of the multitude of justices, for they were eighteen in number”, reducing their number to five (1178).2

THE LATER HUNDRED

The hundred court (or, as it was more usually called, “the hundred” simply) was under the presidency of an official called the hundred man or the reeve, but his importance rapidly declined, for the hundred lost the independence which it seems to have had originally. On the one hand, many hundreds fell into the power of the sheriffs, and when the sheriffs in turn have been subjected to the Crown, those hundreds will become the king’s hundreds. In the Norman period sheriffs frequently purchased their counties, and sublet the hundreds—a sure way of encouraging extortion. On the other hand, many hundreds fell into the hands of neighbouring landowners either by royal grants of varying extent, by purchase from the sheriffs, or by usurpation. By the reign of Edward I more than half were in private hands.3 As in all the communal courts, the judgment proceeded from the whole body of people who constituted the court, and in the case of the hundred these people (“suitors” as they were called) seem to have been usually quite small landowners, and it soon became the practice for the obligation of attending the court to be restricted to the owners of particular pieces of land—another peculiarity which is common in the middle ages.

THE SHERIFF’S TOURN: COURTS LEET

We have already mentioned the success of the sheriff in securing control over the hundred by appointing one of his underlings as bailiff of it; his influence was further increased by means of the “sheriff’s tourn”. Twice a year every hundred held an especially full meeting which was attended by the sheriff or his deputy, at which there came to meet him the reeve and the four best men of each vill in the hundred to undergo a searching examination at his hands. They had to lay before him their suspicions upon the members of their community; those suspected of grave matters were arrested by the sheriff and held for the King’s Justice, while less serious offenders were amerced by the sheriff. For the purposes of these specially important meetings twelve freeholders were appointed to revise the presentments by the vills.1 Upon the occasion of the sheriff’s tourn a thorough investigation was always made of the condition of the frankpledges, of which we shall speak later. By the close of the middle ages the hundred was reduced to insignificance, and the tourn lost its powers to the Justices of the Peace.2 Those hundreds which fell into private hands lasted longer, for their profits were sufficient to interest their owners, especially those who had the valued privilege of holding “courts leet” to replace the sheriff’s tourn. We shall return to the leet in the following chapter when dealing with seignorial jurisdictions.

THE COUNTY COURT

We now come to the county court, or “county” as it was more simply called, for it must be remembered that in the early Norman period administration and adjudication were still not separated, and there was hardly need for the word “court”—even when the word does occur it does not necessarily bear the modern meaning of an organ of justice. The shire is the most ancient of English institutions. Many of the individual counties are directly descended from the ancient Anglo-Saxon kingdoms of the age when the land was divided into numerous petty realms. In such cases as this the shire moot was the direct representative of the national assembly of a once independent kingdom, and for a time was presided over by an alderman, who was sometimes a member of the ancient royal family. It seems that some other counties, however, are of later origin and were deliberately erected as units of provincial government in imitation of the place which the ancient county now occupied in a united England. The history of the county falls into two periods; in the first the Crown is endeavouring to secure complete control over the county organisation; in the second, that control having been acquired, we see the steady decline of the county in practical importance.3 The original jurisdiction of the county was once limitless both in kind and in degree. The county was the greater and more solemn body, but it was not “superior” to the hundred in the modern sense of the word: decisions of the hundred, for example, were not subject to review in the county, and the county, like the hundred, was a court of first instance. In Anglo-Saxon times the shire-moot was an impressive assembly of all the greatest people of the shire who met in order to transact all the functions of government. There are surviving charters which testify to the fact that some of that business was judicial, but both before and after the conquest all sorts of administrative duties were performed in the shire or county, as well as those more distinctly judicial functions which entitle it to be described as a court.1

The county came to exercise two jurisdictions, and the method appropriate to each is well worth study, for it illustrates the difference between ancient courts and modern ones.

THE SUITORS IN THE COUNTY COURT

Taking first the more ancient aspect of the county, we find that its constitution and procedure resembled those of the hundred and other ancient courts both in England and on the continent. According to the classical theory, it was composed not of judges but suitors who sometimes bear the significant name of “Doomsmen”.2 They were not lawyers, nor even officials, but merely lay persons who by custom were bound to attend. In theory the court ought to consist of all the great men of the county, and representatives of the lesser folk from the vills and towns, in a great assembly which almost looks like a county parliament. But attendance at courts (like attendance at parliaments) was a costly and troublesome burden rather than a political or social privilege, and so those who could succeeded in avoiding it. Sometimes they asserted the principle that if they sent a steward or a few villagers their duty was done; stewards certainly became conspicuous in the county court—“they swayed the judgements, and the rest followed like sheep”.3 Sometimes lords enfeoffed a tenant whose service was to consist in doing the suit;4 in 1236 they procured a statute5 allowing all freemen to do suit by attorney. In the end, suit of court was frequently a burden attached to particular pieces of land. The common result of all these devices was to substitute for the great men of the county a body of lesser suitors whose dignity and numbers were alike bound to decline with the passage of the centuries.6 We may associate this withdrawal of the magnates from the county court with the demands which the Crown began to make upon them for attendance at the king’s own court, and it must be remembered that many landowners had property in different counties and that personal suit to all the county courts would be practically impossible.

Over the body of suitors presided the sheriff, but he, too, was not a judge. He spoke for the court and acted as the chairman of the meeting, but decisions were reached by the suitors, the sheriff’s part being merely to announce them. So Hengham explained that if a false judgment was given in the county it is the county and not the sheriff who will be punished, for the suitors gave the judgment,1 which was normally upon matters of procedure, summons default, etc. As we shall see later on, there was as yet no need for a judge or a jury to decide which party had proved his case, for this was ascertained by the purely mechanical means of ordeal, battle or compurgation. It was, however, necessary to decide which of the parties was to have the privilege of undertaking proof by these means, and here the suitors must often have exercised a truly judicial function.

THE SHERIFF AS JUDGE: VISCONTIAL WRITS

To this jurisdiction whereby the county court administered justice, was added another jurisdiction exercised by the sheriff in the county court in virtue of a royal writ addressed to him, beginning with the word iusticies, “do justice upon” the defendant “so that rightly and without delay he render” to the plaintiff, e.g. a debt which he owes. The old view that these writs of justicies were an attempt to revive the county so as to relieve congestion at Westminster is no longer tenable, for it is now known that our earliest registers of writs contain many such writs, and that the more familiar forms returnable at Westminster are a later development. Certain other writs were also “viscontial”, giving the sheriff jurisdiction, although not drawn in the form justicies. The implication seems clearly that down to the middle of the thirteenth century a large part of the nation’s litigation was in the county court.2 In this type of proceeding the sheriff was a judge in the modern sense, and the county court was merely the occasion upon which he exercised his jurisdiction. So complicated a situation could only result in confusion, and in fact it is very difficult to disentangle the two branches; Fleta3 was able to assert the existence of the difference, but after his day the boundaries became obscured (partly as the result of legislation), until the classical doctrine as described by Coke4 makes the suitors judges of the court in almost all cases. Thus was fulfilled the ancient policy of the crown in reducing the judicial importance of the sheriff at every possible opportunity.

THE DECLINE OF THE COUNTY

In early times there seems to have been no limit to the jurisdiction of the county court; civil and criminal cases, pleas common and royal, were alike within its power. The Crown (and apparently the public also) so thoroughly distrusted the sheriffs, however, that constant reductions of their jurisdiction were made. Henry II’s criminal reforms were briefly confirmed by Magna Carta1 which removed pleas of the Crown from the sheriff (and the county). When later on it was found that criminal justice would have to be decentralised, it is significant that the old powers of the sheriff were not restored to him, but a new jurisdiction was set up in the justices of the peace. On the civil side another principle at least as old as Henry II made it unnecessary for a man to answer an action for land unless it was brought by the king’s writ.2 The statute of Marlborough reserved all writs of false judgment for the king’s court3 and so the county was prevented from becoming a court of review over the lesser local jurisdictions. No trespass alleging contra pacem regis could be tried in the county, for it was technically a plea of the Crown;4 and no trespass, debt or detinue could be brought where more than forty shillings were involved—a rule which is stated in the reign of Edward I, although its origin is uncertain.5 It came to be held (as we have seen) that the suitors were still the judges, even in actions brought under a writ with the justicies clause, a collection of archaic rules and procedure had to be observed, with the result that justicies could not compete with another reform more in accordance with the trend of legal development—that is to say, the system of trials at nisi prius.6

The county was never a “court of record” in the eyes of the superior courts at Westminster,7 and its rolls (when rolls were kept) were not admissible in evidence on the same basis as “solemn” records; instead, when a plea was removed from the county to the Court of Common Pleas, four knights came up to Westminster and recounted what had happened—and on some occasions we even find them ready to wage battle by a champion in support of the truth of their unwritten “record”.1

[1]Maitland suggested that it would be a convenient practice to use “vill” to mean the territory, and “township” to mean the inhabitants; Pollock and Maitland, i. 563.

[1]Historical doubts have been expressed by H. G. Richardson, The Medieval Plough Team, History, xxvi. 287 ff., who argues for a normal team of four. A working team of eight oxen, however, is clearly indicated in Pleas before the King (Selden Society, vol. 68), ii. no. 273 (1201).

[2]C. S. Orwin, Open Fields (Oxford, 1938); Economic Hist. Rev., viii. 125.

[3]See some remarkable photographs in E. C. Curwen, Air-Photography and Economic History the Evolution of the Corn-Field (Economic History Society).

[1]Vinogradoff, Growth of the Manor (1911), 194, 273 (but see Pollock and Maitland, i. 567, and Maitland, Collected Papers, ii. 363-364). For by-laws, cf. Vinogradoff, op. cit. 185-189, and the Littleport rolls mentioned below, p. 98. Sir Paul Vinogradoff’s article “Village Communities” in the Encyclopaedia Britannica (11th edn.) is a good introduction to the literature of the subject. The works of Maitland, Domesday Book and Beyond and Township and Borough, and the writings of Seebohm and Vinogradoff, treat it more technically. The Cambridge Economic History, vol. i., contains a general survey of English and European agrarian history during the middle ages. Of especial legal interest is H. M. Cam, The Community of the vill, Mediaeval Studies presented to Rose Graham (1950), 1-14.

[2]The lord’s land also might frequently lie in scattered strips, mingled with those of his tenants. Both economic and legal aspects are discussed in W. H. R. Curtler, Enclosure and Redistribution of our Land (Oxford, 1938).

[1]Pollock and Maitland, i. 564-565.

[2]The parish first appears in this connection in the poor law of 1536 (27 Hen. VIII, c. 25; extracts in Tanner, Tudor Documents, 479-481); the acts of Elizabeth I may be seen in Prothero, Documents, 96-105.

[1]Examples in Y.B. 1 Hen. VI (ed. Williams, Selden Society, vol. 50), 49, 114.

[2]16 & 17 Car. II, c. 8 (1664).

[3]J. E. A. Jolliffe, Constitutional History (1937), 116-120. See, however, the review by H. M. Cam in English Historical Review, liv. 485, and F. M. Stenton, Anglo-Saxon England, 295; and see the Calendar of Plea and Memoranda Rolls, 1413-1437 (ed. A. H. Thomas), xxxi. ff. for the problem of the London wards.

[4]vi Aethelstan. (The date is between 925 and 946.)

[5]i Edgar. (Between 946 and 961.)

[6]ii Canute 17, 19, 20.

[1]Wl. ep. (c. 1072); above, p. 12.

[2]I. 10. A passage in Hic Intimatur, 3, seems to suggest that at first it was the lord who was responsible; if so, we have one more example of a lord shifting a liability from his own shoulders to those of his hundred. This change already appears in Leis Willelme 22 (a compilation made between 1090 and 1135). For another instance see below, p. 97. See the note in A. J. Robertson, Laws of the Kings of England, Cambridge, 1925, 362-363; below, p. 445.

[3]When Henry III in 1253 tried, unsuccessfully, to introduce this rule, it was denounced as a novelty from Savoy; it had certainly been recently enacted in Provence. See Pollock and Maitland, i. 181.

[4]7 & 8 Geo. IV, c. 27.

[5]7 & 8 Geo. IV, c. 31.

[6]The text is in Stubbs, Select Charters; for an extract, see below, pp. 112-113.

[1]Statutes of the Realm, i. 118.

[2]As to this, see below, p. 148.

[3]See the map in H. M. Cam, The Hundred and the Hundred Rolls (London, 1930), and ibid., 180 ff., for the civil jurisdiction of some hundreds (the origin of which is obscure).

[1]See below, p. 108 n. 1.

[2]i Edward IV, c. 2; Select Cases in Council (Selden Society, vol. 35), lxxxvii.

[3]Below, p. 102.

[1]There is no evidence of shire courts before the reign of Edgar (Tait, Medieval English Borough, 35) when the shire reasserted its supremacy (Jolliffe, Constitutional History, 126).

[2]The word is rare, but perhaps authentic; in Latin a suitor is a sectator or a judicator, while a judge (in the modern sense) is a justiciarius. The word judex is generally used only of judges in ecclesiastical courts, or by ecclesiastical writers. (There are difficulties in the theory of “Doomsmen” which cannot be examined here.)

[3]Fleta, II, 67.

[4]For a villein who held by such a service in 1221 see Eyre Rolls of Gloucestershire &c. (Selden Society, vol. 59), no. 227.

[5]Statute of Merton (20 Hen. III), c. 10. For the bishop in the county court, see above, p. 12 n. 1. The bishop of Bath bought exemption from shires and hundreds: Pipe Roll II John (Pipe Roll Society), 97, and exemption from suit seems to have meant exemption from amercements: Close Rolls (1227-31), 31, 315; (1247-51), 267.

[6]For some attractive speculations on the later fate of the county suitors, see G. T. Lapsley, Buzones, in English Historical Review, xlvii. at 565-566.

[1]Hengbam Magna (ed. Dunham), 13-14.

[2]This is the main theme of the late G. J. Turner’s introduction to Brevia Placitata (Selden Society, vol. 66).

[3]Fleta, ii. 43 (p. 94) and ii. 53 (p. 115); cf. Pollock and Maitland, ii. 577.

[4]Jentleman’s Case, 6 Rep. 11 (1583); the stages have been described by Professor Thorne, Courts of Record in England, West Virginia Law Quarterly, xl. at 355.

[1]Magna Carta (1215), c. 24; (1225), c. 17.

[2]See below, pp. 156 n. 2; 357.

[3]Statute of Marlborough, 52 Hen. III (1267), c. 20. This principle is as old as Leges Henrici Primi, x. 1; see Plucknett, Legislation of Edward I, 24-25 (this rule limited seignorial courts also). Below, p. 156 n. 2.

[4]For a full statement of the rule, see Brevia Placitata (Selden Society, vol. 66), lxiv n. 1; but a breach of “the peace of God and the sheriff” was within the county’s jurisdiction. Allegations of wounds, imprisonment and vi et armis made it a plea of the Crown.

[5]As to this, see Pollock and Maitland, i. 553. The Statute of Gloucester (1278), c. 8, enacted that the royal courts should not entertain claims for less than 40s.; this apparently was regarded as implying that the county should not hear cases involving more than 40s. Fleta and Britton both mention this limit.

[6]Below, p. 616.

[7]Except for outlawry proceedings. On the county see W. A. Morris, The Early English County Court (1926), and Plucknett, New Light on the Old County Court, Harvard Law Review, xlii. 639-675, xliii. 1083-1118. For a careful and critical review of this controversy, see Lapsley, The County Record and Roll of the County in the Thirteenth Century, Law Quarterly Review, li. 299-325.

[1]Bracton’s Note Book, 243 (1227); cf. below, p. 122.