the constitution of Parliament, the Commons. They are always standing—the older pictures show them kneeling—and at their head is the Speaker. He derives his title from the fact that of all the Commons present the Speaker alone has the right of raising his voice in the Parliament. To safeguard both himself and the Commons in case he should speak erroneously on their behalf, he made a sort of protestation or petition at the opening of parliament. At first it is only a prayer that he may have permission to correct his mistakes if he should make any; later, in the reign of Henry VIII, he became more bold, and prayed for the allowance of the Commons’ privileges.1 This ceremonial faithfully reproduces the appearance of a Parliament of the early fourteenth century. Whatever deliberations the Commons or Lords may make among themselves are merely their private concern; the proceedings in Parliament take place when the Council is present, attended by the lords, and in those proceedings the Council plays a dominant part.
With the close of the middle ages the position of the judges in Parliament becomes less important. They attend upon ceremonial occasions, and give advice when called upon by the Crown or by the lords, but no longer take a regular part in its general business except for the purpose of handling certain types of petition, and soon this too becomes obsolete.
THE JUDICIAL SYSTEM UNDER EDWARD I
And so by the reign of Edward I we have all the elements, save one,2 of the present judicial system of England. There was the Bench, or Court of Common Pleas, where the common law forms of action were developed and where the bulk of the important litigation of the country took place (with the exception of the smaller matters which went before the local courts). Then there was the King’s Bench which had a jurisdiction in error from the Common Pleas, and an original jurisdiction over the pleas of the Crown of unusual importance; it was the proper place for state trials and for matters which closely concern the King. Above the King’s Bench, and working in close harmony with it, was the King’s Council, ready to supply from the reserves of royal discretion at its command any defects of jurisdiction which might occur in the lower courts, and to take the advice of a Parliament, if necessary, to resolve their doubts and remove their difficulties. In the Council, in Parliament, and to some extent in the King’s Bench, there was, therefore, an ample source of equity, discretion and extraordinary power to meet any emergency. At the same time the King’s financial interests were controlled by the Court of Exchequer, and difficult legal questions could be informally discussed in the Exchequer or in Council by a full meeting of all the available legal talent. As for the ordinary criminal jurisdiction, there were many local authorities with summary powers, which were supplemented by numerous visits of commissioners of gaol delivery (who delivered the gaols of prisoners committed for trial), and commissioners of oyer and terminer, who had wide powers of holding pleas of the Crown. Both these classes of commission were in constant use and their activities were recorded upon hundreds of rolls. At the same time certain types of common plea concerning land, called “assizes” which were of very frequent occurrence were also heard locally by travelling commissioners of assize, who only reserved points of special difficulty for discussion at Westminster in the Court of Common Pleas. All these were in existence in Edward I’s reign.
FACTORS IN THE GROWTH OF THE COMMON LAW
At this point, moreover, it is well to remember the striking passage in Maitland’s Constitutional History where he indicates six principles which combined to increase the jurisdiction of the royal courts. They are briefly these:1
(1) Under the Norman kings the Crown by its writ of right supplied the real or imaginary defects of justice in the feudal courts.
(2) Under Henry II it was established that no man need answer for his freehold without a royal writ unless he cared to.2
(3) Henry II also ordained that a defendant in certain pleas of land in the King’s Court could have jury trial (grand assize) instead of battle if he chose.
(4) The possessory assizes established by Henry II deliberately ignored the feudal courts and by their swiftness immediately became very popular.
(5) The idea of contempt was used very effectively. The King would issue a writ ordering a subject to do right and justice, and if he refused, he was guilty of contempt of the King’s writ. The defendant in a writ of debt, for example, not only denies his liability, but also denies tort and force in resisting the King’s command.
(6) The idea of the King’s peace was not only the basis of criminal jurisdiction, but could also be used to enlarge the civil jurisdiction of the King’s Court. This was effected through the action of trespass, which although criminal in form was constantly becoming more and more a civil action.
THE ELABORATION OF THE JUDICIAL SYSTEM: 1307-1509
SUMMARY
The Exchequer Chamber for Debate
The Common Law Side of Chancery
The Need for De-centralisation
The last chapter has briefly told the beginning of a long story. When once the superior courts had come into existence there still remained the question whether they would continue upon the course which they had begun.
THE POSITION OF THE COURTS
Their subsequent history will show that much was to happen which would have astonished the statesmen of Henry II and Edward I. For example, a great characteristic of the early judicial system was its flexibility. Cases could move from court to court as occasion
