CHAPTER TWENTY-FOUR.
Nullus vicecomes, constabularius, coronatores, vel alii ballivi nostri, teneant placita corone nostre.
No sheriff, constable, coroners, or others of our bailiffs, shall hold pleas of our Crown.
The main object of this provision is beyond doubt: men accused of crimes must be tried before the king’s judges and not by local magistrates of whatsoever kind. The innocent looked confidently for justice to the representatives of the central government; while they dreaded the jurisdiction of the less responsible officials resident in the county—local tyrants whose harshness had earned them a hearty and widespread hatred. The sheriffs and castellans thoroughly deserved their bad reputation; for the records of the age overflow with tales of their cruelties and illegal oppressions. It ought not to be forgotten, however, that if this chapter contains a condemnation of the local administration of justice, it testifies, at the same time, to the comparative purity of the justice dispensed by the king’s own judges. So far there is no difficulty; but some differences of opinion exist as to the exact bearing of this provision on certain points of detail.
I. Pleas of the Crown. All litigations tended to be distinguished into two kinds, royal pleas and common pleas, according as the interests of the Crown were or were not specially involved. This classification has already been discussed in connection with chapter 17, which sought to regulate the procedure in common pleas. The present chapter concerns itself only with “pleas of the Crown,” a phrase which had even in 1215 considerably altered its original meaning. In the eleventh century it had denoted all royal business, whether specially relating to legal procedure or not, embracing all matters connected with the king’s household or his estates, with the collection of his revenue, or the administration of his justice, civil as well as criminal. Gradually, however, the usage of the word altered in two respects, contracting in one direction, while expanding in another. It ceased to be applied to financial business and even to non-criminal, judicial business; and it was thereafter reserved for criminal trials held before the king’s judges. This process of contraction had been nearly completed before the accession of John.
Another tendency, however, in an opposite direction had been for some time in progress; the distinction drawn in early reigns between petty trespasses, which were left in the province of the sheriff, and grave offences, which alone were worthy of the king’s attention, was being slowly obliterated.[[631]] The royal courts steadily extended the sphere of their activity over all misdeeds, however trivial, until the whole realm of criminal law fell under the description of “pleas of the Crown.”
In the reign of John this process of expansion was far from complete: the words then, indeed, embraced grave criminal offences tried in the king’s courts, but not the numerous petty offences, which were still disposed of in the sheriffs tourn or elsewhere.[[632]]
North of the Tweed the same phrase has had a completely different history: in modern Scots law its connotation is still a narrow one; and this is a direct result of the slow growth of the Scottish Crown in authority and jurisdiction, in notable contrast to the rapidity with which the English Crown attained the zenith of its power. The kings of Scotland failed to crush their powerful and unruly vassals, and consequently the pleas of the Scottish Crown, exclusively reserved for the High Court of Justiciary, formed a meagre list—the four heinous crimes of murder, robbery, rape, and arson. The feudal courts of the Scottish nobles long preserved their wide jurisdiction over all other offences. When the heritable jurisdictions were at last abolished, in 1748, mainly as a consequence of the rebellion of three years previously, the old distinction, so deeply rooted in Scots law, still remained. The sheriff court had no cognizance, until late in the nineteenth century, over the four crimes specially reserved for the king’s judges.[[633]] Thus in Scotland the historic phrase “pleas of the Crown” is, even at the present day, confined to murder, robbery, rape, and fire-raising, while to an English lawyer it embraces the entire realm of criminal law.
II. Keeping and Trying Criminal Pleas. The machinery for bringing criminals to justice, as organized by Henry II., was somewhat elaborate. For our present purpose, it may be sufficient to emphasize two important stages in the procedure. An interval had always to elapse between the commission of a grave crime and the formal trial of the criminal, since it was necessary to wait for the coming of the itinerant justices, which only took place at intervals of about seven years. Meanwhile, preliminary steps must be taken to collect and record evidence of offences, which might otherwise be lost. The magistrate responsible for these preliminary steps was said to “keep” the pleas (custodire placita)—that is, to watch them or prevent them from passing out of mind while waiting the coming of the justices who would formally “hold” or “try” or “determine” the same pleas (placitare or habere or tenere placita).
Before the reign of John, not only had the fundamental distinction between these two stages of procedure been clearly grasped, but the two functions had been entrusted to two distinct types of royal officials. The local magistrates of each district “kept” royal pleas, while only the justices who represented the central government could “hold” them. The process of differentiation was accelerated towards the close of the twelfth century in consequence of the jealousy with which the Crown regarded the increasing independence of the sheriffs. The elaborate instructions issued in 1194 to the justices whom Archbishop Hubert Walter was despatching on a more than usually important visitation of the counties contain two provisions intended to keep the growing pretensions of the sheriffs within due bounds.[[634]]
They were expressly forbidden to act as justices within their own counties, or, indeed, in any counties in which they had acted as sheriffs at any time since Richard’s coronation.[[635]]
It is safe to infer that the “trying” of royal pleas was the province from which in particular the sheriff was thus excluded. Even with regard to the “keeping” or preliminary stages of such pleas the sheriff was by no means left in sole command. The justices received instructions[[636]] to cause three knights and one clerk to be chosen in each county as “custodes placitorum coronae.” It is possible that these new local officers, specially entrusted with the duty of “keeping” royal pleas, were intended rather to co-operate with than to supersede the sheriffs in this function, but in any view the sheriffs had no longer a monopoly of authority in their bailiwicks. Magistrates, to be afterwards known as coroners, were thenceforward associated with them in the administration of the county.[[637]]
The ordinance of 1194 seems to have settled subsequent practice in both respects. Sheriffs, while still free to punish petty offenders on their own authority, in their half-yearly tourns or circuits, allowed the coroners to “keep” royal pleas, and the justices to “try” them.
Public opinion of the day strongly approved both rules, yet John condoned and encouraged irregularities, allowing sheriffs to meddle with pleas of the Crown, even when the coroners were not present to check their arbitrary methods;[[638]] and allowing them to give a final judgment on such pleas, involving, mayhap, loss of life or limb to those found guilty, without waiting the arrival of the Justices.[[639]] Such deviations from the normal course of procedure could be no longer tolerated. Magna Carta accordingly, in this first of a series of chapters directed against the misdeeds of sheriffs and other local magistrates, forbade them to interfere in this province.
III. The Intention of Magna Carta. The barons, in this matter as in so many others, were merely demanding that the Crown should observe strictly and impartially the rules which it had laid down for its own guidance: caprice must give way to law. Sheriffs must not, with or without the king’s connivance, usurp the functions of coroners; nor must sheriffs and coroners together usurp those of the king’s justiciars. The opposition leaders naturally associated these two irregularities together, and may even have assumed that expressly to abolish the one implied, with sufficient clearness, an intention to abolish the other also. Such a supposition would explain a peculiar discrepancy between the Articles and the Charter, in its final form, which it is otherwise difficult to account for. While Article 14 demanded redress of one specific grievance, Magna Carta granted redress of an entirely different one. The earlier document, neglecting the distinction between “keeping” and “trying” pleas, simply requires that coroners (whose comparative popularity is explained by their appointment in the county court) should always be associated with the sheriff when he meddles in any way with pleas of the Crown. The Charter is silent on this subject; but forbids sheriffs and coroners, whether acting separately or together, to “try” or finally determine pleas of this description. These two provisions are the complements of each other. Magna Carta would thus seem to be here incomplete.
The prohibition against sheriffs trying pleas of the Crown was repeated in all reissues of the Charter; and, although not perhaps strictly enforced in Henry’s reign, soon became absolute. Under Edward I. it was interpreted to mean that no one could determine such pleas unless armed with a royal commission to that effect;[[640]] and the commission would take the form either of gaol delivery, of trailbaston, or of oyer and terminer.[[641]]
IV. An Erroneous View. Hallam seems to have misunderstood the object aimed at by this provision. Commenting on the corresponding chapter of Henry’s Charter of 1225, he declares that the “criminal jurisdiction of the Sheriff is entirely taken away by Magna Charta, c. 17.”[[642]] This is a complete mistake: both before and after the granting of the Charter, the sheriff exercised criminal jurisdiction, and that of two distinct kinds. Along with the coroners, he conducted preliminary enquiries even into pleas of the Crown; while in his tourn (which was specially authorized to be held twice a year by chapter 42 of the very Charter quoted by Hallam) he was completely responsible for every stage of procedure in regard to trivial offences. He heard indictments and then tried and punished petty offenders in a summary manner.[[643]] Several statutes of later reigns confirmed, even while regulating, the authority of the sheriff to take indictments at his tourns,[[644]] until this jurisdiction was transferred, by an act of the fifteenth century, to the justices of peace assembled in Quarter Sessions.[[645]]
All that Magna Carta did was to insist that no sheriff or local magistrate should encroach on the province reserved for the royal justices, namely the final “trying” of such grave crimes as had now come to be recognized as “pleas of the Crown.”[[646]] The Charter did not even attempt to define what these were, leaving the boundary between great and small offences to be settled by use and wont. In all this, it was simply declaratory of existing practice, making no attempt to draw the line in a new place.[[647]]
V. Local Magistrates under John. The urgent need of preventing the petty tyrants who controlled the administration of the various districts from exercising jurisdiction over the lives and limbs of freemen can be abundantly illustrated from the details furnished by contemporary records of the ingenious and cruel oppressions they constantly resorted to. Ineffectual attempts had indeed been made more than once to restrain their evil practices, as in August, 1213, when directions were issued from the Council of St. Alban’s commanding the sheriffs, foresters, and others, to abstain from unjust dealing,[[648]] and, again, some two months later, when John, at the instance of Nicholas of Tusculum, the papal legate, promised to restrain their violence and illegal exactions.[[649]] Little or nothing, however, was effected in the way of reform; and Magna Carta, in addition to condemning certain specified evils, contained two general provisions, namely, chapter 45, which indicated what type of men should be appointed as Crown officials, and the present chapter, which forbade local magistrates to encroach on the province of the king’s justices. These local magistrates are comprehensively described under four different names.[[650]]
(1) The sheriff. No royal officer was better or more justly hated than the sheriff. The chapter under discussion affords strong evidence alike of his importance and of the jealousy with which his power was viewed. The very briefest sketch of the origin and growth of the office is all that is here possible. Long before the Conquest, in each shire of England, the interests, financial and otherwise, of the kings of the royal house of Wessex had been entrusted to an agent or man of business of their own appointing, known as a scir-gerefa (or shire-reeve). These officers were continued by the Norman monarchs with increased powers under the new name of vice comites.[[651]] It is an illustration of the tenacity of the Anglo-Saxon customs and names that this Latin title never took root, whereas the old title of sheriff continues to the present day.
It is true that in England during the Anglo-Saxon period the chief power over each shire or group of shires had been shared among three officers—the bishop, the earl, and the sheriff. The bishop, by the natural differentiation of functions, soon confined his labours to the spiritual affairs of his diocese; while the deliberate policy of the Conqueror and his successors relegated the earl to a position of dignity altogether severed from the possession of real power. Thus the sheriff was left without a rival within his shire. For a period of at least one hundred years after the Norman Conquest he wielded an excessive local authority as the sole tyrant of the county. He was not indeed irresponsible, but it was difficult for his victims to obtain the ear of the distant king, who alone was strong enough to punish him. The zenith of the sheriff’s power, however, was passed in the twelfth century, and before its close changes had been introduced with the view of checking his abuses. Henry II. frequently punished his sheriffs for their misdeeds, and removed them from office.
It has already been explained how in 1194 the sheriff’s powers were further restricted, while new officers were appointed in each county to share the authority still left to him. To the very next year (1195) is usually traced the origin of the justices of the peace, who gradually took over the chief duties of the sheriff until they had practically superseded him as the ruling power in the county. In Tudor days a new rival appeared in the Lord Lieutenant, then first appointed in each shire to represent the Crown in its military capacity, and particularly to take over command of the militia of the county. The fall of the sheriff from his former high estate was thus gradual, although finally most complete. From presiding, as he did in his golden age, over all the business of the district—financial, administrative, military, and judicial—the sheriff has become, in England at the present day, a mere honorary figure-head of the county executive. A high sheriff is still chosen annually by King Edward for each county by picking[picking] at random one name out of a list of three leading land-owners presented to him for that purpose by the judges. The gentleman on whom this sometimes unwelcome dignity is thrust is still nominally responsible during his year of office for the execution of all writs of the superior Courts within his county, for returning the names of those elected to serve in the House of Commons, and for many other purposes; but his responsibility is chiefly theoretical. All the real duties of his office are now performed in practice by subordinates. What really remains to him is an empty and expensive honour, usually shunned rather than courted. In Scotland and America the sheriff also exists at the present day, but his position and functions have in these countries developed in very different directions. In Scotland, in opposition to what has happened in England and America, the sheriff has remained emphatically a judicial officer, the judge of an inferior court, namely, the local court of his shire, known as “the Sheriff Court.” He has thus retained intact his judicial functions, to which such nominal administrative duties as still remain to him are entirely subordinate. In the United States of America, on the contrary, the sheriff is a purely executive official, possessing perhaps more real power, but notably less honour and social distinction than fall to the lot of the English high sheriff. The duties of his office are sometimes performed by him in person; he may even set out at the head of the posse comitatus in pursuit of criminals. Three completely different offices have thus sprung from the same constitutional root, and all three are still known by one name in England, Scotland, and America respectively.
(2) The constable. Portions of certain counties were exempted, partially or entirely, from the sheriff’s bailiwick, and placed under the authority of specially appointed magistrates. Thus districts afforested were administered by forest wardens assisted by verderers who excluded the sheriffs and coroners; while royal fortresses, together with the land immediately surrounding them, were under the sole command of officers known indifferently as castellans or constables.[[652]] The offices of warden of a particular forest and warden of an adjacent royal castle were frequently conferred on the same individual. Indeed, chapter 16 of the Forest Charter of Henry III. seems to use the term “castellans” as the recognized name of forest wardens, whom it forbids to hold “pleas of the forest,” although they may attach or “keep” them (with the co-operation of the verderers), and present them for trial before the king’s emissaries when next sent to hold a forest eyre—thus offering a complete parallel between procedure at “forest pleas” and that prescribed by the present chapter for ordinary pleas of the Crown.[[653]]
The name constable is an ambiguous one, since it has at different periods of history been applied to officers of extremely different types. The king’s High Constable, a descendant of the horse-thegn of the Anglo-Saxon kings, was originally that member of the royal household who was specially responsible for the king’s stables. At a later date, he shared with the Earl Marshal the duties of Commander-in-chief of the king’s armies. The name of constable was also used in a wider sense to designate other and subordinate royal ministers. It came to be applied to commanders of small bodies of troops, whether in castles or elsewhere. At a later date the word lost its warlike associations, and was used in connection with the duties of watch and ward. A constable was a person specially entrusted with enforcing order in his own locality. Thus each hundred had its high constable and each village its petty constable in the fourteenth and fifteenth centuries.[[654]] These various officials were thus, at different dates, all designated by a name usually, at the present day, confined to ordinary members of the police force.
The word as used in Magna Carta had not yet lost its military character, but denoted the castellan who commanded the troops which garrisoned a royal castle.[[655]] Such an office was one of great trust; and correspondingly wide powers were conferred upon its holder. The warden of a castle held an important military command, and acted as gaoler of the prisoners confided to the safe-keeping of his dungeons. He had authority, under certain ill-defined restrictions, to take whatever he thought necessary for provisioning the garrison—a privilege, the exercise of which frequently led to abuses, guarded against by chapters 28 and 29 of Magna Carta, where they are discussed under the head of purveyance. He had also, to a limited extent, judicial authority. Not only did he try pleas for small debts to which Jews were parties, but he enjoyed a jurisdiction over all petty offences committed within the precincts of the castle, analogous to that of the sheriff within the rest of the county. This power of trying and punishing misdemeanours was not taken away by the Great Charter, and was confirmed by implication in 1300 by a statute which directed that the constable of Dover Castle should not hold within the castle gate “foreign” pleas of the county which did not affect “the guard of the castle.”[[656]] It is not known at what date the judicial powers of constables fell into disuse; but they still acted as gaolers at a much later period. In the reign of Henry IV. complaint was made that constables of castles were appointed justices of the peace, and imprisoned in one capacity the victims whom they had unjustly condemned in another. This practice was put down by statute in 1403.[[657]]
It would seem that at an earlier period the constable sometimes acted as a deputy-sheriff. Chapter 12 of the Assize of Northampton provided that when the sheriff was absent the nearest castellanus might take his place in dealing with a thief who had been arrested. His interference outside his own precincts must, however, have been regarded with great jealousy, and the coroners, after their appointment in 1194, would naturally act as substitutes during the sheriff’s absence.
(3) The coroners. The coroners of each county, after their institution in 1194, seem to have shared with the sheriff most of the powers of which the latter had previously enjoyed a monopoly. The nature of their duties is explained by the oath of office sworn in the same words for many centuries, “ad custodienda ea quae pertinent ad coronam.” Their duty was to guard royal interests generally; and their “keeping” of royal pleas was merely one aspect of this wider function. Besides “attaching” those suspected of crimes—that is, receiving formal accusations and taking such sureties as might be necessary, it was their duty to make all such preliminary investigations as might throw light on the case when the formal trial was afterwards held; they had, for example, to examine the size and nature of the victim’s wounds in a charge of mayhem.[[658]] They were required, in particular, to keep a watchful eye on all royal property, being responsible for the safe-keeping of deodands, wrecks, and treasure trove. They had also to appraise the value of all chattels of criminals forfeited to the king. When felons took refuge in sanctuary, it was the coroner who arranged for their leaving the country on forfeiting all that they had. They also kept a record of those who had been outlawed, and received “appeals” or private accusations of criminal charges.[[659]]
Magna Carta forbade the coroner to determine the pleas of the Crown; but, even after 1215, he sometimes did justice upon felons caught red-handed, whose guilt was self-evident without trial. An act of Edward I.[[660]] accurately defined his duties, empowering him to attach pleas of the Crown and to present criminals to the justices for trial, but forbidding him to proceed further alone.
The coroner’s functions, originally so wide and varied, have been gradually narrowed down, until now there is practically only one duty commonly associated with his office, namely, the holding of an inquest on a dead body where there are suspicious circumstances.[[661]] In addition to this, however, he is still responsible for treasure-trove or valuables found buried in the ground, and he is also competent to act generally as the substitute of the sheriff in case of the latter’s illness or absence during his year of office.
(4) The bailiffs. The mention by name of three classes of local officers is supplemented by the addition of an indefinite word sufficiently wide to cover all grades of Crown officials. The term “bailiff” may be correctly applied to every individual to whom authority of any sort has been delegated by another. It would, in the present instance, include the assistants of sheriffs and constables, the men who actually served writs, or distrained the goods of debtors; and also generally all local officials of every description holding authority directly or indirectly from the Crown. The district over which his office extended was called his “bailiwick,” a term often applied to the county considered as the sphere of the sheriff’s labours.
[631]. Traces of it may be found as late as the reign of Henry II. See Glanvill, I. c. 1.
[632]. The gradual triumph of royal justice over all rivals in the sphere of criminal law is thus symbolized by the extension of the phrase “pleas of the Crown,” which can be traced through a series of documents—e.g. (a) the laws of Cnut; (b) Glanvill, I. cc. I, 2, and 3; (c) the Assizes of Clarendon and Northampton; (d) the ordinance of 1194; and (e) the present chapter of Magna Carta.
[633]. The Criminal Procedure (Scotland) Act, 1887 (50 and 51 Victoria, c. 35) gave him jurisdiction over three of them.
[634]. See Forma procedendi in placitis coronae regis, cc. 20 and 21, cited in Sel. Charters, 260.
[635]. Ibid., c. 21.
[636]. Ibid., c. 20.
[637]. The Forma procedendi of 1194 is usually considered the earliest distinct reference to the office of coroner. Dr. Gross, however (History of Office of Coroner, 1892, and Select Cases from Coroners’ Rolls, 1896), claims to have found traces of their existence at a much earlier date. Prof. Maitland remains unconvinced (Eng. Hist. Rev., VIII. 758, and Pollock and Maitland, I. 519).
[638]. This is the inference to be drawn from the 14th of the Articles of the Barons.
[639]. This is the inference to be drawn from c. 24 of Magna Carta.
[640]. See Coke, Second Institute, 30, and authorities there cited.
[641]. For explanation of these terms, see supra, c. 18.
[642]. See Middle Ages, II. 482, n.
[643]. Cf. Stephen, History of Criminal Law, I. 83. The mistake made by Hallam and others may have been in part the result of their neglecting the important modification undergone by the phrase “pleas of the Crown” between 1215, when it was still confined to a few specific crimes of special gravity, and the present day, when it has become synonymous with the whole field of criminal law.
[644]. E.g. 13 Edward I. c. 13, and 1 Edward III., stat. 2, c. 17.
[645]. 1 Edward IV. c. 2.
[646]. Contrast Coke, Second Institute, 32, who seems to suggest that one effect of Magna Carta was to take from the sheriff a jurisdiction over thefts previously enjoyed by him.
[647]. Dr. Stubbs, Const. Hist., I. 650, thinks that the proposals of the Articles and Charter indicated a tendency towards judicial absolutism, only curbed by the growth of trial by jury. Yet the barons in providing against the sheriff’s irregularities had certainly no intention to enhance the royal power. The attitude of the insurgents in 1215 suggests rather that the sheriffs had now become instruments of royal absolutism to a greater extent than the king’s justices themselves. The problem of local government had thus assumed a new form (cf. supra, p. 20). Edward I., indeed, deftly turned this chapter to his own advantage, arguing that it cancelled all private jurisdiction over criminal pleas previously claimed by boroughs or individuals. See Coke, Second Institute, 31, and cases there cited.
[649]. See W. Coventry, II. 214-5.
[650]. Abuses by sheriffs and other bailiffs continued to be rife after 1215 as before it. Many later statutes afford graphic illustrations of the oppressive conduct they sought to control. In 1275 Edward found it necessary to provide “that the sheriffs from henceforth shall not lodge with any person, with more than five or six horses; and that they shall not grieve religious men nor others, by often coming and lodging, neither at their houses nor at their manors.” See Statute of Westminster, c. 1, confirmed by 28 Edward I., stat. 3, c. 13.
[651]. Cf. supra, pp. [17-20].
[652]. These localities were completely independent of the ordinary executive authorities of the county; in addition, partial exemption from the sheriff’s control was enjoyed by (a) chartered boroughs and (b) holders of franchises.
[653]. Cf. infra, c. 48.
[654]. See H. B. Simpson in English Historical Review, X. 625, and authorities there cited.
[655]. The evidence collected by Coke, Second Institute, 31, conclusively proves the identity of these two offices. See also Round, Ancient Charters No. 55, where Richard I. in 1159 speaks of “constabularia castelli Lincolniae.”
[656]. See Articuli super cartas, 28 Edward I. c. 7.
[657]. See 5 Henry IV. c. 10. Coke, Second Institute, 30, relates, as an indication of the authority and pretensions of these constables, that they had seals of their own “with their portraiture on horseback.”
[658]. See Bracton, f. 122 b.
[659]. In 1197, Richard’s Assize of Measures appointed six custodientes in each county and town. These were coroners over a limited class of offences, viz., the use of false weights and measures. Cf. infra, under c. 35.
[660]. Statute of Westminster, I. c. 10.
[661]. Cf. Coke, Second Institute, 31, “In case when any man come to violent or untimely death, super visum corporis.”