and the or After the church had introduced the use of documents, Documents they were employed as a means of proof of the same charac- deal. ter as the proof of witnesses. When no decision could be reached by the use of ordinary means, a final appeal was made through the ordeal to the judgment of God. an equita the repre The law which was administered according to these clumsy Absence of forms of procedure was strict law, whose severity went un- ble jurisdic tempered by any kind of equitable jurisdiction whatsoever. tion. The only way in which the strictness of the common law could be avoided was by compromise, which seems to have been effected wherever it was possible.2 Beyond these archaic forms legal procedure did not advance during the period which precedes the Norman conquest. In this procedure, and in the organization of the local courts, the representative principle clearly appears. By the reeve and four selectmen Promieach township was distinctly represented in the courts of the nence of shire and hundred; by the judicial committees of twelve or sentative principle. some multiple of that number were represented the whole body of the popular court whose powers they for the time represented; the twelve senior thegns appeared as a representative body in the courts of both the shire and hundred; the community witnesses spake as the representatives of the neighborhood as to the particular fact in question. Beyond these embryonic forms the representative principle did not advance until it developed and widened, under the influence of Norman administrative ideas, first, into the jury system, and then into the system of representative government. The several stages in the history of this development will be indicated hereafter. risdictions: sacu and 7. In the preceding examination of the origin and struc- Private juture of the courts of the shire and hundred, no reference has been made to the growth of a feudal innovation through sôcn. which large sections of jurisdiction which had been national or royal were withdrawn from the king or state and vested in the hands of private individuals. Originally all jurisdiction 1 Essays in A. S. Law, p. 188. The document could be drawn up by a notary, or before the court.-K. Mau. rer, Krit. Uebersch., v. p. 196. 2 "One result followed from this absence of equitable powers, which was, perhaps, not without an ultimate influ ence on the fate of the whole judicial Private law courts certainly existed be Conquest; fore the belonged to the people in their collective capacity; the peace was the national peace, and justice was the justice of the shire and the folk in whose courts it was administered.1 Such was the condition of things before the archaic judicial constitution was torn in pieces by the growth of the aristocratic and feudal element represented by the thegnhood, at whose head stood the king. It is admitted on all hands that, certainly before the Norman conquest, jurisdiction was granted to private individuals without stint; that private law courts did exist by virtue of royal grants made with or without the consent of the witan; and that by virtue of such grants jurisdiction ceased to be exclusively a public trust, and often became a private right accompanying the possession of land. In some instances these private jurisdictions embraced large districts, but usually only the jurisdiction of a hundred. As a general rule the law court created by royal grant was simply a hundred court in private hands. How product of this radical departure from primitive constitutional ideas was cess of feu- brought about can only be explained by reference to that dalization." "process of feudalization" through which the king becomes the lord and patron of his people, through which the national peace becomes the king's peace, the folkland the king's land, the justice of the shire and the folk the king's justice, the national officers the king's officers, and the national assembly the witan more and more the king's council. As this process advanced, the conception of sovereignty as originally embodied in the peoplę passed out of view, the sovereignty of the nation becomes merged in the king. The theory that the justice of the shire and the hundred was the king's justice must have preceded any attempt on the part of the crown to bestow its administration upon private indiThe profits viduals. The earliest royal grants touching the adminisof jurisdic- tration of justice seem to have been of a fiscal character first only, and were confined to the granting of such interest in the profits of justice as were immemorially due to the the " "pro tion (sôcn) granted; tion of a hundred court." - Essays in crown.1 The effect of such grants was to transfer from the king to the landlord all the fines and profits of jurisdiction which accrued to the royal fisc, or to the ealdorman, from persons embraced within the exempted territory, without removing such persons from the jurisdiction of the hundred court. The position of offenders within the immunity thus created remained unchanged; the amount of their fines remained the same; but that portion of the fine now passed to the lord which had previously accrued to the king. The word used in the charters to convey fiscal rights of this character was sôcn, a term which in its early technical meaning seems to have expressed the right only to the profits of jurisdiction, and not to jurisdiction itself. The technical word which next, jurisexpressed the idea of jurisdiction was sacu or saca, meaning (sacu) lawsuit, litigation. When these terms sacu and sôcn (abbre- itself. viated into sac and soc) were used together in a royal grant, the intention to convey to the grantee, not only the profits of jurisdiction but jurisdiction itself, was clearly expressed.“ At what period private law courts were first established in England is a matter difficult to determine from the existing evidence. It is maintained by some very eminent authori- Controties that these private jurisdictions existed in law from a very the time of early period, earlier in fact than that to which they can be the origin of private traced in laws and charters; "that they were so inherent in jurisdicthe land as not to require particularization "6 in legal docu 1 As examples, see Cod. Dipl., Nos. 116, 227, 236, 250, 313, 1084. "The royal grants, so far as they affected the ordinary course of justice, seem to have been double in their nature. They were, in the first place, grants of the fines and pecuniary profits of jurisdiction, which, by the old system, fell to the crown. This is entirely a fiscal arrangement, which only indirectly concerns the subject of jurisdiction." Essays in A. S. Law, p. 29. Professor Stubbs seems to think that in early times the proprietor would "as a rule satisfy himself with the profits of jurisdiction, and transact the business of it through the ordinary courts.". - Const. Hist., vol. i. p. 185. 2 Essays in A. S. Law, p. 31. 8 "Sôcn" has generally been held to mean "jurisdiction." See Schmid, Gesetze, p. 654; Ellis, Introd., p. 273; Stubbs, Const. Hist., vol. i. p. 184, note 2. But Mr. Henry Adams, after an diction versy as to tions. ments. It has generally been conceded, however, that there is no conclusive evidence of their existence before the reign of Cnut. But this conclusion has been assailed by a brilliant critic, who maintains that the earliest positive evidence of the existence of a private law court is contained in the charters of Eadward the Confessor, by whose sweeping grants of jurisdiction to the church they became a recognized and potent element in English judicature. However revolutionary the existence of these private jurisdictions, which could hardly have been established before the latter part of the Old-English period, may appear to be, it seems to be certain that they did not represent any serious departure from primitive ideas in respect either to their organization or procedure. The usual effect of a grant of sac and soc was to confer upon the lord the right to hold a private hundred court within his own territory, in which hundred law was administered accordhold a pri- ing to the usual forms of archaic procedure, and subject, like dred court. all other hundred courts, to the controlling jurisdiction of the shire. The leading difference in practice between a royal or national and a private hundred court was, that in the one the freemen met together to declare the law under the presidency of a royal official; in the other, under the presidency of the lord or his representative.1 In either event justice was administered according to the custom of the manor, and not according to the arbitrary will of the presiding officer.5 A grant of sac and soc usually con ferred right to vate hun Origin of All the elements have now been examined which enter the manorial system. into the constitution of the manorial system which originates in Old-English and not in Norman law. The word "manor "1 is of Norman introduction, but the relation of the lord of a manor and his tenants substantially existed from the time the title to the lands of the once free community passed from the community itself and became vested in a lord.2 The tie which bound the manorial group together was the manorial court (a general name which embraced the court baron and customary court) and the court leet, which in legal theory are separate and distinct. In these courts of the manor were blended two kinds of jurisdiction. As the manor was only a dependent township under a new name, the court baron, which was the principal court of the manor, Court inherited from the old tun-moot all of its functions, with the exception of those that had passed to the parish vestry. To the administrative functions, thus inherited by the manorial court from the tun-moot, was added the jurisdiction of a private hundred court, received by the lord of the manor through the usual royal grant of sac and soc. The civil hundred-jurisdiction passed to the court baron, the criminal hundred-jurisdiction to the court leet. After the copyhold Court leet. or customary tenure had become established, the court baron assumes a new form in dealing with tenants of that class, baron. and in this new relation is called the customary court baron, Customary or customary court.7 1 The word manerium, or manor, first appears in England in the reign of Eadward the Confessor.-Ellis, General Introd. to Domesday, p. 225. 2 "It has already been seen that, although the word manor' is of Norman introduction, substantially the relation of lord of a manor and his tenants existed before the Conquest." - Digby, Real Property, p. 45. See also as to the substitution of the lord for the community, Essays in A. S. Law, pp. 88-91 and 54. 8 Maine, Village-Communities. 4 "The court baron is primarily the successor of the ancient assembly of the village or township." - Digby, Real Property, p. 53; Stubbs, Const. Hist., vol. i. p. 91. 5 "Thus, either by the creation of a franchise exempt from the jurisdiction of the hundred court, or by the amalgamation of the hundred with the manorial courts, the jurisdiction civil and criminal exercised by the court of the hundred comes to be exercised in the 6 "The court baron exercised civil 7 Digby, Real Property, p. 256. court. |