Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 162

Persons who desired such extraordinary relief addressed themselves to the King and his Council. As the ultimate source of jurisdiction the King had long been accustomed to receive complaints from persons who alleged that they were unable, in law or in fact, to obtain redress in the usual courts. It has been suggested¹ that Edward I was glad to encourage these approaches, but was compelled by their numbers, and by the need of checking the handling of them by his subordinates, to insist that they be presented in writing, as petitions. In doing this, he was following papal practice, and like the popes, soon found it necessary to devise a procedure by which the easy cases were dispatched to the departments and dealt with by officials, while difficult matters came before him and the Council, in order to prevent the work of Parliament being obstructed by their number.¹ It soon became normal for large panels of “receivers” and “triers” of petitions to be set up at the beginning of every parliament. When Parliaments were less frequent, it seems that these applications (which continued to increase rapidly during the later fourteenth century), finally constituted a large and steady charge upon the Council’s time.

Just as one part of the local enforcement problem was attacked by setting up the new institution of justices of the peace for local matters, so the deficiencies of the central courts were being supplied by the King’s Council. For a time, Parliament had occasionally served as a court of royal discretion,² but by the middle of the fourteenth century Parliament itself had become an institution which to some extent could be regarded as separate from the Council.³ The Council nevertheless remained in its ancient position of a small group of officials, household officers, clerks and advisers, continually attendant upon the King, and therefore exercising in his name that residuum of discretion and equity which was inseparable from the royal person. As Parliament became more settled in its powers, petitioners who sought extraordinary relief addressed themselves to the Council; and in any case, even if their petitions had been presented in Parliament, it was most likely that it would be the Council which actually passed upon them.

Indeed, a variety of addresses occur in the petitions of the middle and later fourteenth century. Sometimes they are sent to the King, sometimes to the Council or the Parliament, and sometimes to the Chancellor or some household official. In any case it was the Council which generally took action, irrespective of the address upon the petition. The administrative and political duties of the Council were already exceedingly heavy, and the mass of petitions which streamed in every day immensely increased its task. Then, too, besides petitions, the Council itself would sometimes initiate proceedings of a semi-judicial character by calling upon some local magnate who was too powerful to be reached by the ordinary courts, to appear before the Council under the penalty (sub poena) of a sum of money to answer for his misdeeds—which were usually some form of oppression or disorder. The Council therefore found itself burdened with a growing mass of semi-judicial business; some of it could be transferred to the courts of common law, but some of it had to be considered by the Council itself, either because unusual relief was necessary, or because the parties were too influential to be amenable to the ordinary process of the courts. The problem arose of how to deal with this business. The same solution was found as in previous cases. A routine was established and officials were assigned for its working, only in this case an already existing institution, the Chancery, was used to carry out these new duties.