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]]