functions as developed in the star chamber; trative side has become the most subtle force in the constituIts judicial tion. When under the Tudor dynasty the royal prerogative reached its height, the judicial power of the council became the handmaid of tyranny through the famous committee commonly known as the star chamber.1 When in comparatively modern times the true principles of constitutional executive government became firmly established, when it finally became settled that the ministry should consist of statesmen holding the same political principles, and that such ministry should depend for its authority and permanence its adminis- upon a majority of the house of commons, the administradeveloped tive functions of the privy council found their most perfect in the cabi- expression through that mysterious committee, undefined by law, known as the cabinet.2 This inner circle of the privy council, which is for the time being the government of Great Britain, has been aptly styled "a board of control, chosen by the legislature out of the persons whom it trusts and knows, to rule the nation." 3 trative, as net. Effects of the Conquest on izations. 6. Having now defined the outlines of that vigorous system of central administration to which the Norman conquest local organ- gave birth, it will next become necessary to trace the effects of the Conquest on the tenacious substructure of Old-English local freedom upon which the Norman system was superimposed. As the Norman superstructure was strongest in the higher ranges of organization, so the Old-English substructure was strongest in the cohesion of its lower organism, in the local associations of the township, the hundred, and the shire. The growth of these local associations out of the Teutonic polity of the fatherland has already been explained, -the growth of the township out of the mark, the identity The town ship, hundred, and shire. 1 "The original tribunal, the king's ordinary council, retained its undiminished powers throughout, changing at various times and throwing off new off-shoots, such as the court of star chamber, until it has reached our own time in the form of the judicial committee of privy council."-Select Charters, p. 24. 2 The cabinet has been formed out of the privy council by exactly the same process by which the curia regis and the later parliament were formed out of the witenagemot. Certain members of the body are specially summoned; those who are not specially summoned stay away." Freeman, Norm. Cong., vol. v. p. 285. Bagehot, English Constitution, p. 78. The selection is of course formally made by the crown, but really by the house of commons. 4 "The strongest elements of both were brought together." Stubbs, Const. Hist., vol. i. p. 278. manor. of the hundred with the early shire, and the origin of the modern shire in the primitive state. The fact has also been pointed out that the consolidated kingdom was but an aggregation of shires, the shire an aggregation of hundreds, and the hundred an aggregation of townships. With the growth of national unity, and with the advance of the "process of feudalization," each local division and subdivision suffered at certain degree of change which necessarily curtailed its primitive freedom of action, without at all destroying its corporate identity. The greatest amount of change that took place The townwas in the status of the township, which, in the "process of ship as the feudalization," underwent a marked transformation. The evidence seems to justify the conclusion that, before the Norman conquest, all townships had, as a rule, become dependent; that is, the title to the land occupied by the once free community had become vested in a lord, and the dependent townsmen had become his men, or, in the language of later times, his tenants.2 The word "manor "3 is of The word Norman introduction, but the relation of a lord of a manor of Norman and his tenants substantially existed in every case in which a tion, township had become dependent through the substitution of the lord for the community. The manorial system, which but the thus originates in Old-English and not in Norman law, as- system of sumed a more definite form in the hands of the Norman Old-English origin. lawyers and justices, by whom the legal relation between the " lords and the smaller holders within the manor was more exactly defined. By the time of the Domesday Survey, the territorial lordship had become the rule; there were manors everywhere; and "the manor was a landlord's estate, with a township or village-community in villeinage upon it, under the jurisdiction of the lord of the manor." At the date of Number of the Survey, 1,422 manors were in the ancient demesne of the date of the crown, most of which had been royal manors in the days the Survey of King Eadward. After the Conquest some new manors 1 See above, pp. 170-173. "5 4 Digby, Law of Real Property, p. 2 Essays in A. S. Law, pp. 88-90; 45; Seebohm, English Village CommuDigby, Law of Real Property, pp. 43 45: nity, p. 82. 8 The earliest appearance of the Ellis, Introduction to Domesday, p. word is in the reign of Eadward the 225. Confessor. Ellis, Introduction to Domes day, p. 225. 66 manor introduc manorial manors at Manorial courts. were no doubt created; some were diminished and others added to; but upon the whole it is probable that there was no great addition to the number of manors.1 As the manor then was nothing but a dependent township under a new name, so the court baron, the principal court of the manor, was primarily the successor of the tun-moot, the ancient assembly of the village or township. To the functions thus inherited by the manorial court from the tun-moot, was added, by an express grant of sac and soc, the jurisdiction of a private hundred court. The criminal side of the jurisdiction thus acquired was the manorial court leet. By every grant of sac and soc terms which are used as well after the Conquest as before-a section of jurisdiction was simply carved out of the hundred and vested in the manorial court.2 In some instances, however, these private jurisdictions were Liberties or organized upon a much larger scale. The greater jurisdictions, which were called liberties or honors, often embraced large districts, which were in some instances completely organized as shires, but as a general rule they were only hundreds in private hands. Jurisdictions of this class which originated before the Conquest, and which were greatly multiplied during the Norman reigns, constantly tended to undermine the ancient local jurisdictions by freeing suitors from all attendance upon the popular courts. And yet 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 a lord or his representative. In either event, justice was administered according to the custom of the manor, and not according to the will of the presiding officer.5 honors. Courts of the shire and hun It seems to have been a leading feature in the policy of William to maintain the ancient usages of the English nation dred kept by keeping up the administration of the customary law in the popular courts of the shire and the hundred. In obedience to up by William. 1 Digby, Law of Real Property, p. 44, 2 See above, pp. 207-210. 4 Stubbs, Const. History, vol. i. p. "The law administered in the ma norial court was hundred law; the procedure was hundred procedure; the jurisdiction, like that of the hundred, was controlled by the shire."-Essays in A. S. Law, p. 54. As to the manorial courts, see Digby, Law of Real Property, pp. 53-56. 3 for fiscal Rufus and this policy he confirmed the laws which had been in use in the days of King Eadward, with such additions as he himself had made for the benefit of the English. From the same source from which we learn this fact, we hear of the continuance by him of the courts of the shire and the hundred.2 The existence of these courts in the succeeding reign of William Rufus is not only proven by the expressive entry in the Chronicle which describes Ranulf Flambard as "driving all the gemots throughout England," but by writs addressed to the shire-moot through the sheriff and other leading members. From the Employed language of the charter in which Henry I. orders the holding purposes of the courts of the shire and hundred, it may be inferred that by William they had been used in the preceding reign for the purpose of Henry I. extraordinary exactions. And in the same charter Henry says, "I will cause those courts to be summoned when I will, for my own sovereign necessities, at my pleasure." The use thus made of the shire-moots to raise money may account for the necessity of imposing penalties, as of old, upon those members who failed to attend." From the issuance of Henry's charter (A. D. 1108-1112) onward, the local courts. are held, "as in King Eadward's day, and not otherwise." From the "Leges Henrici Primi," as they are called a Composi compilation later than his reign-we learn that, after the tion and Conquest as before, the shire-moot was attended by the of shire"thegns of the shire," by the parish priest, and the reeve changed, and four selectmen from each township.9 The full court which met twice a year still possessed both civil and criminal procedure moot un with the exception of trial by battle. jurisdiction, which was exercised according to the old forms of witness, compurgation and ordeal. All transfers of land, as well as the execution of all private documents and charters, were still witnessed in its presence, and the old theory survived that the suitors were the judges. A great innovation in the proceedings of the popular courts now arose out of the introduction by the Normans of trial by battle.2 By Survival of the so-called laws of Henry I. the court of the hundred, no less than that of the shire, was restored as it had been in the days of King Eadward. In these laws the distinction is clearly drawn between the great court of the hundred, held twice a year under the sheriff for the view of frank pledge, and the lesser court held monthly by the bailiff of the hundred chiefly to consider disputes about small debts, which long continued to be its sole employment." the hundred court. Centraliza tion of jus courts. The two great forces which constantly tended to undermine and weaken the courts of the shire and the hundred tice and growth of were the growth of immunities and the centralization of immunities undermine justice, both of which had begun to assert themselves long the popular before the Norman conquest. The growth of immunities having already been explained, the centralization of justice. may next be examined. With the advance of national unity, and with the consequent growth of the royal power, the idea constantly gained ground that the national peace was the king's peace, that the national officers were the king's officers, and that the justice of the shire and the folk was the king's justice. In this way the principle was established that the national king was the supreme judge throughout his dominions. The earliest form, perhaps, in which the assertion of this principle began to interfere in the local administration of justice, appears in a law of Cnut, in which are defined certain pleas of the crown that were specially reserved to be dealt with in the local courts, only in the king's name, by the king's officers, and for the king's profit." This How the king came to be regarded as the source of justice. 1 Stubbs, Const. Hist., vol. i. p. 394; Bigelow, Hist. of Procedure, pp. 131 141. 2 Ibid., p. 326. 8 "The hundred courts. continued after the Conquest with no further constitutional change than was effected by the Conqueror's charter concerning jurisdiction of spiritual causes.” — Bigelow, Hist. of Procedure, p. 141. 4 Leg. Hen. I., vii. 8. 5 Madox, Formulare Anglicanum, p. 40; Stubbs, Const. Hist., vol. i. p. 399. 6 See above, p. 177. 7 Laws of Cnut, ii. § 12; K. Maurer, Krit. Ueberschau, ii. p. 55. |