Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 155

Late in the reign of Elizabeth still further confusion² was created by the erection of yet a third court in the Exchequer chamber. The Court of King’s Bench had succeeded in acquiring a good deal of jurisdiction which once was peculiar to the Court of Common Pleas, and so acted as a court of first instance in these matters. If such actions had been brought in the Common Pleas, error would have lain to the King’s Bench; but when they were now brought in the King’s Bench in the first instance, error lay only to Parliament. Here the difficulty arose. Parliaments were originally held several times a year; Elizabeth summoned but ten in a reign of forty-five years, and so for long periods there was no court in existence which could hear the errors of the King’s Bench. To meet this situation two statutes³ erected a new court to hear errors from the King’s Bench. This court was to consist of all the judges of the other two common law courts—the Common Pleas, and those Barons of the Exchequer who were also serjeants—sitting together in the Exchequer chamber, and at least six were necessary before judgment could be given. Their decision was subject to further proceedings in error in Parliament, and the second statute explained that a party could still go directly from King’s Bench to Parliament if he chose.⁴ There was thus the disadvantage of an intermediate court of appeal, together with the anomaly that the use of that court was optional. A still further defect was that it was very difficult to assemble six of the justices and barons. The statutory body was not a court with fixed meetings every term, but a special assembly which might or might not meet—and it seems to have depended upon the influence of the litigants whether it met or not. If it did not meet at the date to which the case had been adjourned, then the record was discontinued. True, the second statute remedied this by saying that the absence of the judges shall not discontinue the process, but no effective means were ever provided for getting the court together within a reasonable period.

The same inadequate concession was made in respect of the other Exchequer chamber body to hear errors from the Exchequer of Pleas,¹ and with the same disappointing results.