Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 136

In the thirteenth century this central group of officials and advisers who remained constantly in the King’s presence was described by a variety of names; a chronicler will usually call it “the Council”; a law-writer such as Bracton, who is mainly interested in its judicial duties, will call it the King’s Court or Curia Regis. As for those occasional meetings when this body is enlarged by the addition of numerous magnates, the chroniclers will usually call them a “colloquy”, and such is at first the usual official term. In common speech, however, such meetings were often referred to as “parliaments”. For a time this word was popular rather than official; it could be used of any sort of conference or meeting; even a disorderly assembly could be called a parliament, and in 1267 Henry III forbade the assembly of parliaments or other meetings in breach of the peace. In early days, therefore, the word “parliament” does not mean an institution but an event.³ Any unusually large meeting of the King’s Council will be popularly described as a parliament. A variety of influences began to work in the direction of giving more definite shape to these occasional parliaments. As time goes on, the King’s Bench will become as closely confined within the common law forms of procedure as the Court of Common Pleas itself, and it will be necessary to provide some other means for the exercise of equity and discretion and for the handling of cases which fall outside of those limits. This task naturally fell to the Council, whose mission during a great part of the middle ages was to act as an extraordinary court of unlimited jurisdiction, both original and appellate.

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.