In his learned observations on the "obscurities" of the style "justitia or justitiarius," Dr. Stubbs writes that "the capitalis justitia seems to be the only one of the body to whom a determinate position as the king's representative is assigned in formal documents" (i. 389). It was probably the object of Geoffrey, when he secured this particular style, to obtain for himself all the powers vested in "the king's representative," and so to provide against his supersession by a justiciar claiming in that capacity.
Let us now examine the witness of the charter to the differentiation of the sheriff (vicecomes) and the justice (justitia), for that is the development which its terms involve.
Dr. Stubbs points out that, under the Norman kings, "the authority of the sheriff, when he was relieved from the company of the ealdorman, ... would have no check except the direct control of the king" (i. 272); and Gneist similarly observed that "After the withdrawal of the eorl, the Anglo-Saxon shir-gerefa became the regular governor of the county, who was henceforth no longer dependent upon the eorl, but upon the personal orders of the king, and upon the organs of the Norman central administration" (i. 140). And for a period of transition between the two systems, the Anglo-Saxon and the late Norman, the sheriff not only presided, in his court, as its sole lay head, but also in a dual capacity. Dr. Stubbs, it is true, with his wonted caution, does but suggest it as "probable that whilst the sheriff in his character of sheriff was competent to direct the customary business of the court, it was in that of justitia that he transacted special business under the king's writ."[341] But Gneist treats of him, under a separate heading, in his capacity of "royal justiciary" (i. 142). It is from this dual position that there developed, by specialization of function, two distinct officers, the sheriff (vicecomes) and the justice (justicia). This is the development which, as yet, has been somewhat imperfectly apprehended.
The centralizing policy of Henry I., operating through the Curia Regis, has, I need hardly observe, been admirably explained by Dr. Stubbs. He has shown how two methods were employed to attain the end in view: the one, to call up certain pleas from the local courts to the curia; the other, to send down the officers of the curia to sit in the local courts.[342] In the latter case, the royal officer ("justicia") appeared as the representative of the central power of which the Curia Regis was the exponent. Thus, there were, again, for the county court two lay presidents, but they were now the sheriff, as local authority, and the justice, who represented the central. Such an arrangement was, of course, a step in advance for the Crown, which had thus secured for itself, through its justice, a footing in the local courts.[343] But with this arrangement neither side was able to rest satisfied. Broadly speaking, if I may be allowed the expression, the Crown sought to centralize the sheriff, and to exclude the local element; the feudatories would fain have localized the justice, and so have excluded the central. Thus, before the close of Henry's reign, he had actually employed on a large scale the officers of his curia as sheriffs of counties, and "by these means," as Dr. Stubbs observes, "the king and justiciar kept in their hands the reins of the entire judicial administration" (i. 392).[344] The same policy was faithfully followed by his grandson, a generation later, on the occasion of the inquest of sheriffs (1170), when, says Dr. Stubbs, "the sheriffs removed from their offices were most of them local magnates, whose chances of oppression and whose inclination towards a feudal administration of justice were too great. In their place Henry instituted officers of the Exchequer, less closely connected with the counties by property, and more amenable to royal influence, as well as more skilled administrators—another step towards the concentration of the provincial jurisdiction under the Curia Regis."[345]
This passage enables us to see how essentially contrary to the policy of the Crown were the provisions of Geoffrey's charter. It not only feudalized the local shrievalty by placing it in the hands of a feudal magnate, and, further still, making it hereditary, but it seized upon the centralizing office of justice, and made it as purely local, nay, as feudal as the other.
But let us return to the point from which we started, namely, the witness of Geoffrey's charter to the differentiation of the sheriff and the justice. It proves that the sheriff could no longer discharge the functions of "a royal justiciary," without a separate appointment to that distinct office. When we thus learn how Geoffrey became both sheriff and justice of Essex, we can approach in the light of that appointment the writ addressed "Ricardo de Luci Justic' et Vicecomiti de Essexa," on which Madox relies for Richard's tenure of the post of chief justiciary.[346] It may be that Richard's appointment corresponded with that of Geoffrey. But whatever uncertainty there may be on this point, there can be none on the parallel between Geoffrey's charter and that which Henry I. granted to the citizens of London. Indeed, in all municipal charters of the fullest and best type, we find the functions of the sheriff and the justice dealt with in the same successive order. The striking thought to be drawn from this is that the feudatories and the towns, though their interests were opposed inter se, presented to the Crown the same attitude and sought from it the same exemptions. In proof of this I here adduce three typical charters, arranged in chronological order. The first is an extract from that important charter which London obtained from Henry I., the second is taken from Geoffrey's charter, and the third from that of Richard I. to Colchester, which I quote because it contains the same word "justicia," and also because it is, probably, little, if at all, known.
| Charter of Henry I. to London. | Charter of the Empress to Geoffrey. | Charter of Richard I. to Colchester. |
|---|---|---|
| "Ipsi cives ponent vicecomitem qualem voluerint de se ipsis, et justitiarium qualem voluerint de se ipsis ad custodiendum placita coronæ meæ et eadem placitanda; et nullus alius erit Justitiarius super ipsos homines Londoniarum." | "Concedo ei et heredibus suis ... vicecomitatum Essexie. Et ut sit Capitalis Justicia ... de placitis et forisfactis que pertinuerint ad coronam meam, ita quod non mittam aliam Justiciam super eum in comitatu illo," etc. | "Ipsi ponant de se ipsis Ballivos quoscunque voluerint et Justiciam ad servanda placita Coronæ nostræ et ad placitanda eadem placita infra Burgum suum et quod nullus alius sit inde Justicia nisi quem elegerint." |
Here we have the two offices similarly distinct throughout. We have also the ballivi, representing to the town what the vicecomes represents to the shire, a point which it is necessary to bear in mind. The "bailiff," so far as the town was concerned, stood in the sheriff's shoes. So also did the "coroner" (or "coroners") in those of the justice. Indeed, at Colchester, two "coroners" represented the "justice" of the charter. I cannot find that Dr. Stubbs calls attention to the fact of this twin privilege, the fact that exemption from the sheriff and from the justice went, in these charters, hand in hand.
Lastly, we should observe that though, in these charters, the clause relating to the sheriff precedes that which relates to the justice, yet, conversely, in the enumeration of those to whom a charter is directed, "justices" are invariably, I believe, given the precedence of "sheriffs." This, which would seem to have passed unnoticed, may have an important bearing. Ordericus, in a famous passage (xi. 2) describing Henry's ministers, tells us how the king
"favorabiliter illi obsequentes de ignobili stirpe illustravit, de pulvere, ut ita dicam, extulit, dataque multiplici facultate super consules et illustres oppidanos exaltavit.... Illos ... rex, cum de infimo genere essent, nobilitavit, regali auctoritate de imo erexit, in fastigio potestatum constituit, ipsis etiam spectabilibus regni principibus formidabiles effecit."