Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 160
CHAPTER 8 THE RISE OF THE PREROGATIVE COURTS SUMMARY
ОглавлениеThe Need for Newer Institutions
The Origin of Chancery Jurisdiction
The Origin of the Star Chamber
Relations of the Old Courts to the New
Common Law and Equity in the Fifteenth Century
The previous chapter has told only half the story of Tudor reform in the sphere of law, for besides the common law courts the Tudors also inherited a group of institutions which modern historians describe as prerogative courts. The ancient common law courts had been consecrated by the centuries; the Tudor financial courts had been solemnly established by parliamentary statutes; but the courts to be considered in this chapter could claim neither antiquity nor legislative sanction. Some of them had grown up imperceptibly in various departments of government or around some officer of state; others were erected by royal commission. There was nothing irregular or “unconstitutional” in this, and the legitimacy of these institutions was undoubted. We have already seen, even in the fourteenth century, that the powers of Justices of the Peace owed as much to their royal commissions as to the statutes of Parliament.
The principal characteristic of prerogative courts, apart from their peculiar origins, was that they did not use the ancient system of common law writs, forms of action, or procedure. Instead, they used various forms of bill or petition between party and party, while crown proceedings could be begun by information, citation and like. The fundamental limitation on their jurisdiction came from the common law rule that a man could not lose his land, save by a royal (which was interpreted as a common-law) writ. Legal estates in real property were thus beyond their reach.1 It likewise followed that prerogative courts could not try treason or felony, for the forfeiture or escheat of land would be involved. During the Tudor age these courts nevertheless elaborated important bodies of law such as equity in the Chancery, maritime and commercial law in the Admiralty2 and Court of Requests, libel and slander and much criminal law in the Star Chamber, and so on.
