Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 171

In the middle ages, as now, the appearance of new institutions, making light of the solemnities of dogma and procedure which were dear to practitioners before the older courts, aroused some fear and more resentment. Then, as now, conservatives were persuaded that the constitution (or the common law) was in danger, and the first impulse was not to reform the old, but to attack the new order of courts.

The rolls of the mediaeval English parliaments contain numerous petitions and acts directed against the Council and the Chancery. The promise of justice in the Great Charter³ was regarded as a declaration that the common law courts, and they alone, had jurisdiction over the lives, persons and property of Englishmen. In 1331 its provisions were pointedly re-enacted;⁴ in 1352 it was again recited and the King had to promise that the Council would not proceed without indictment or common law process on an original writ;⁵ although this was confirmed several times, we find in 1363 another attempt to enforce this construction of the charter—the Council must take security from complainants, and even then proceed only by common law.⁶ In 1368 the Commons once more tried to insist upon indictment or original writ as the sole foundation for legal proceedings.⁷ All these statutes denouncing the council were obviously ineffective, despite the show of assent given to them by the Crown. In 1389 the Chancellor is coupled with the Council in a petition to which Richard II only replied with a saving of the royal prerogative.⁸ The tide was on the turn. A statute of 1394 tried a different policy by allowing the Chancellor to award damages to a defendant when the plaintiff’s suit appeared founded upon falsehood,¹ but the fall of Richard II brought back the older type of remonstrance. In 1415 the writ sub poena was denounced as a subtlety invented in the previous reign by John Waltham, and the examination of parties and witnesses without lawyers and without records and the use of civil and canon law forms were again vigorously denounced. The petition was bluntly rejected by the King.² Another in 1421 which alleged that a sub poena was not “due process” was likewise refused.³ Clearly the Council and the Chancery were now solidly established. Indeed, for the future, legislation took the opposite course of increasing the powers of the Chancellor and the Council by a series of acts⁴ of which the act pro camera stellata⁵ is only one example.

The petition of 1389 was therefore the first to which the Crown ventured a refusal, and that of 1394 begins a line of statutes which accept and even enlarge the jurisdiction of the Chancellor and Council. We may therefore conclude that during the fifteenth century the Commons were gradually reconciling themselves to the existence of a jurisdiction which the country at large seems to have welcomed, and their protests can be largely ascribed to the professional common lawyers who largely directed its proceedings.