Magna Carta: A Commentary on the Great Charter of King John: With an Historical IntroductionMcKechnie, William Sharp
History
Magna Carta: A Commentary on the Great Charter of King John: With an Historical Introduction
McKechnie, William Sharp
Constitutional history -- England -- Sources; Law -- England -- History; Law -- England -- Sources; Magna Carta
This account of the relations of the two sets of courts would receive
the support of recent writers, such as Maitland and Round, as well as
of the older generation, such as Stubbs and Freeman. Mr. Frederic
Seebohm may be mentioned as perhaps the most weighty upholder of the
opposite view, which regards the manorial courts as of equally early
or earlier origin than those of hundred and shire.
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Practically every holder of land in England came to be also the holder
of a court for the inhabitants of that land. The double meaning of the
word “_dominus_” illustrates the double position of the man who was thus
both owner and lord.[141] In the struggle between two schemes of
justice, the tribunals of the feudal magnates easily triumphed, but
never absolutely abolished their rivals. The earlier popular courts
still lived on; but the system of district justice which had once
embraced the whole of England was completely honeycombed by the growth
of the feudal courts. As each once-free village passed under the
domination of a lord, and gradually became a manor or embryo-manor, the
village-moot (with such rudimentary authority as it may originally have
possessed) gave way before a new manorial court endowed with much wider
powers and with more effective sanction for enforcing them. Further, as
complete hundreds fell under the control of specially powerful magnates,
the entire courts of these hundreds were replaced by or transformed into
feudal courts; franchises thus took the place of many of the old popular
moots. Still, the older system retained possession of part of the
disputed ground, thanks to the protection given it in its hour of need
by the Crown. A great majority of the hundreds never bowed to the
exclusive domination of any one lord, and the courts of the shires were
jealously guarded by the Norman Kings against the encroachment of even
the most powerful of barons. It is true that they only escaped
subjection to a local landowner in order to fall under the more powerful
domination of the Crown. Yet the mere fact that they continued in
existence acted at least as a check on the growth of the rival system of
seignorial tribunals.
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Footnote 141:
Cf. “landlord.”
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Although it was the policy of the Norman Kings to prevent their barons
from gaining excessive powers of jurisdiction, it was by no means their
policy to oppose these jurisdictions altogether. On the contrary, the
Conqueror and his sons were glad that order should be enforced and
justice administered, even in a rough-and-ready manner, in those
districts of England whither the Crown’s arm was not long enough to
reach, and where the popular courts were likely to prove inefficient.
Thus, the old system and the new existed side by side; it was to the
interest of the central government to play off the one against the
other.
Public-domain text, read in full here on John Shaqi.
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