Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 36

Chapter 24 contains the famous provision that—

“whensoever from henceforth it shall happen in the Chancery that there is to be found a writ in one case, but not in another case although involving the same law and requiring the same remedy, the clerks of the Chancery shall agree in framing a writ, or else they shall adjourn the plaintiffs to the next Parliament, or else they shall write down the points upon which they cannot agree and refer them to the next Parliament, and so a writ shall be framed by the consent of the learned in the law; to the end that the court from henceforth shall no longer fail those who seek justice.”

Here indeed is laid down a regular procedure for the steady expansion of the law by the enlargement of the available writs in certain narrowly defined circumstances. Its primary object was to authorise the extension of remedies which already existed between parties, so that they would become available between the heirs (or successors in office) of those who would primarily have been entitled to use them. It is clear that the Chancery clerks did not regard this statute as giving them wide powers of creating new forms of action, for where we find the chapter invoked at all (and it is not very often) it is used with great caution. The only serious extension of the law as a result of the statute was the creation of the writ of entry in consimili casu.¹ In fact, the large part assigned to Parliament in the chapter shows that it was the general feeling that matters of legislative importance ought to be handled there. In the fourteenth century, moreover, parliamentary proceedings were often extremely informal, and are by no means always recorded on the rolls; consequently it is most likely that these statutory powers were exercised, if at all, by the little group of administrators and lawyers who formed the kernel of the fourteenth-century Parliaments. Very soon, however, the statute rolls seem regularly to contain express declarations in legislative form as to the extension of old writs to new cases, and it may well be that the form of a statute was chosen because the publicity attaching to it made the reform more quickly effective.²