190 The Period of Constitution Making "
of the field of our immediate consideration; but it may be
added that it survived the middle ages, still in a quite
vigorous condition, and, though more and more limited by
a new and better local machinery, the justice of the peace
system, some traces of it are to be seen at the present day,
While the Leet was, in theory, a jurisdiction quite sepa-
rate from that which the lord possessed in his own right,
it was customary to exercise both in the same manor
court. It now remains to ask what was this residuum of
truly private jurisdiction and what was its fate. It is
heard of under the name of Court Baron,1 a name that
came into common use at the same time as Leet. It
follows from what has been said of the Leet that the
Court Baron had a civil jurisdiction. Now the typical
manor contained both freemen and villeins, the freemen
usually being in a marked minority. Thus the Court
Baron, as had always been the case with manor courts, was
made up of these two classes. A distinction between
them had appeared in the procedure; it seems to have done
no violence to the idea of judgment by peers for inferior
to be judged by superior, but superior could not be judged
by inferior—villeins were judged by freemen and villeins,
freemen only by freemen. But now something had arisen
which farther distinguished the classes in these courts;
it was the increasing use of the jury there. The lord
could, by his own authority, make his villeins take oath
as jurors; but the jury was a royal institution, and by the
accepted theory of this period, no one could do the same
by freemen without a royal commission.2 This split in
the personnel and procedure of the Court Baron was soon
1 The significance of the word bar on in this connection is not at all clear.
The terms by which private jurisdictions were ordinarily known in earlier
times were Libera Curia and Halimote. The former usually indicated
the higher judicial authority of a lord, but did not signify a court of free-
men as opposed to unfree. The latter, lasting on from Anglo-Saxon
times, probably meant hall-court, thus distinguishing the court held in
the hall of the manor from the old open-air courts of hundred and shire.
a This was laid down as law in article 18 of the Provisions of Westminster,
1259 (see A. and S., p. 66), and was embodied in the confirmation of these
Provisions known as the Statute of Marlborough, 1267.