A Concise History of the Common Law. Theodore F. T. Plucknett. Читать онлайн. Newlib. NEWLIB.NET

Автор: Theodore F. T. Plucknett
Издательство: Ingram
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Жанр произведения: Юриспруденция, право
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isbn: 9781614872474
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Court of Common Pleas permanently at Westminster.4 The second administrative routine to become an institution is therefore largely a judicial one, and, after a period of experiment in the Eyres, it finally developed into the Court of Common Pleas, or “The Bench” as the older books call it.

      There are rolls still in existence, bearing the proceedings of both branches of the Curia Regis, beginning in the year 1194; a separate series of common plea rolls (technically called de banco rolls) begins in the year 1234, and in 1237 a defendant in a plea coram rege is found objecting that the case ought to have been brought in the common pleas.3

      For a long time it was a striking feature of the court before the King himself (Coram Rege) that it was closely associated with the Council. Many magnates might attend its solemn sessions; for less important business a small group of officials was sufficient. Although the two procedures which we have mentioned very soon appear (jurisdiction in error from the Common Pleas, and the trial of the more important pleas in which the Crown was concerned), they are for a long time mingled with the political and administrative duties of the Council. In the end, these two procedures were both entrusted to a small group of professional justices who were specially commissioned “to hold pleas before the King himself”. In other words, the King’s Bench becomes a separate institution, early in the reign of Edward I. For long after that date, however, there still remained a close connection between the King’s Bench and the parent body. Just as in earlier times a piece of private litigation in the King’s Bench, which raised a difficult point as to whether trial by battle lay or not, was adjourned “because there were not enough members of the King’s Council present”,1 so “the recurrence of pleas before the King and his council, Coram Rege et consilio suo, in this manner, can hardly be said to be discontinued until the reign of Edward III”.2 In the reign of Edward I, therefore, although the King’s Bench had its own establishment, working its own procedure, and may therefore be regarded as a separate institution, there nevertheless existed a good deal of intimate contact both then and later between it and the Council.

      These discretionary powers of the Council covered a wide variety of subjects. Some could be settled at the discretion of skilled official councillors, while others demanded the attention of a larger body of magnates; and so their work naturally falls into two groups—matters which could be handled by the Council continually attending the King, and matters upon which they preferred to take the advice of the magnates at large. An important discussion, whether of judicial matters or political might equally be called a parliament, whether it actually took place in the smaller Council or in the larger assembly surrounding it.

      With the reign of Edward I we find a new series of rolls appear for the first time, and these are the Parliament Rolls.1 Much of the business on the early Parliament Rolls is of a judicial character, although not all of it is in the forms of the common law. By this time the King’s Bench had lost much of its early discretionary power and contented itself with working the common law system of writs and its own particular procedure; it was therefore Parliament which now undertook to wield some of the discretionary powers which the King’s Bench had resigned—and herein we see the origin of the appellate jurisdiction of the House of Lords. Indeed, in the fourteenth century a case might move backwards and forwards between the King’s Bench, the Council and a Parliament of the Council with the greatest ease.2 The judges of the King’s Bench were in frequent attendance, both at the continual Council and at Parliaments. But besides this common law business, the Council was continually receiving a large number of petitions from individuals, churches, cities, counties and others, which were of the utmost variety. Some simply prayed for relief which was already to be had in the regular law courts; others, if the Council approved them, were transferred to the law courts, and the Council’s endorsement served to supply any lack of jurisdiction which might otherwise have prevented them from giving a remedy; others merely demanded favours which the administration might grant or withhold, while others might raise very difficult questions upon which the Council would wish to take the advice of the magnates of the realm. Those petitions which the Council did not deal with alone were held over until one of the Parliaments, which were frequently held.

      At the same time a remarkable development was taking place which was to modify profoundly the political aspect of Parliament. The strong, centralised monarchy of the thirteenth century was never tired of devising means for keeping in closer contact with local institutions. The annual visits of the sheriffs to the Exchequer and the