Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

We see how this power given to the Masters was limited: it must be exercised only in cases parallel to such as there was a remedy already provided for; all the Masters must agree in the form of the new writ; and the remedy must be the same as was in the similar case in the Register. To illustrate this by the example of the first writ formed by the Masters upon this statute, and which therefore, by way of eminence, is called a writ, in consimili casu. The statute of Glocester ordered the Chancery to form a writ for the relief of the person in reversion, where a tenant in power had aliened her dower. The writ was accordingly framed, and inserted in the Register. Now, by virtue of this statute of Westminster, the Masters framed the writ in casu consimili, in favour of the person in reversion, where a tenant by the courtesy, or tenant for life, had aliened, he being equally damaged as the former case. But though this was particularly called a writ, in casu consimili, there were many others formed by virtue of this statute, such as for various kinds of trespasses unknown in former ages, and actions upon the case, so frequent in these our days, and so called, because the writ is formed according to the circumstances of the case, and not upon the old forms continued in the Register.

This new employment of Masters in Chancery, and the business of the court encreasing, created a necessity of erecting new officers, to make out the brevia de cursu, namely, those in the Register, who were therefore called Curritors. The chief of the Masters is Keeper of the Rolls of this court, which was formerly a part of the chancellor’s business; and he is therefore called Master of the Rolls. For ages past, since the Equity business multiplied in England, this officer has been there, in matters of equity, an assistant judge to the chancellor, but his decrees are liable to a rehearing, and to be reversed by the chancellor. But in this kingdom, the office hath not had any judicial authority annexed to it.

LECTURE XXXIV.

The court of Common Bench or Common Pleas—The jurisdiction of this court—Actions real, personal, or mixt—The court of Exchequer—The jurisdiction of this court—Exchequer chamber—The judicature of Parliament.

The next of the superior courts, is the Common Bench, or Common Pleas, as it is more commonly called, being the proper court for the determining suits between subjects, wherein the king is not concerned; and upon the multiplication of business in the curia regis, it was separated from it, for the more speedy and easy dispatching the affairs of the people. As in the very old times the king often sat in person in the curia regis, and that he might have an opportunity of so doing when he pleased, that court always followed the king wherever he went within the kingdom of England; and in those days it was customary for the kings to take progresses; and reside in the different seasons of the year in different parts of the kingdom, as we see, by the variety of places where the parliaments were held in old times. The same practice of the courts and the records following the person of the king continued in France longer than in England. For when king John was taken by the black prince at the battle of Poictiers, the antient records of that kingdom were lost, and there are scarce any now remaining there, of what had passed previous to that time, except enrolments made since, of the antient charters that were in the hands of the subjects.

But in England the constant removal of the courts was found very burdensome to the people, who had suits much earlier. For their ease, therefore, it was enacted in Magna Charta, that communia placita non sequantur curiam nostram, sed teneantur in aliquo certo loco; that the Court of Common Pleas should no longer be ambulatory, but held in one certain place. Westminster was the place fixed upon, and there, if we except some occasional removals, on account of epidemical sicknesses, hath it been held ever since. And in long space of time after, the other courts became, though not in pursuance of any positive law, fixed there also. By their becoming settled in a certain place, one great inconvenience, besides the hardships on the suitors, was avoided, namely, the loss and imbezzlement of the records by these frequent removals. For it is very remarkable, that there is not a record remaining of the times previous to the fixing of the courts, not even the enrolments of the acts of parliament themselves, except a few, and a very few, of the courts of Exchequer, which, concerning the king’s revenue, were more carefully preserved[372].

But the greatest advantage that attended this change was the improvement of the law, and, what was a consequence thereof, the preservation of the liberty of the subject. For now it became much more convenient for persons to apply to that study, when they were no longer under a necessity of removing. And we therefore, soon after, find the practitioners of the law settled together, something in a collegiate manner; and after the dissolution of the order of Knights Templars, the habitation of these latter, called the Temple, was granted to them for their residence and improvement. Here, they continued to confer the degrees of Apprentices, or Barristers at law, and Sergeants at law, which they had began before, in imitation of the bachelors and doctors degrees in universities.

The preservation of the liberty of the subject was, as I said before, another happy consequence that resulted from the fixing the courts, and the uniting the professors of the law into one body. For as, about this time the study of the civil and canon laws was eagerly pursued by the clergy in the universities, and the English customs as much depreciated by them as possible, and as those two laws were founded on maxims of despotism, and, as such, encouraged and supported to the utmost by the popes, and all kings that aimed at arbitrary power, the common lawyers were necessitated, for the support of their profession, to take the popular side of the question, and to stickle for the old Saxon freedom, and limited form of government.

Hence the steady opposition they made, even in those early times, to the king’s dispensing. Nay, they carried their zeal for liberty so far, as (since they could not directly, in those days, oppose the weight of the civil law) to quote the very passages of it that were in favour of absolute power, and by their glosses make it speak the language of liberty. Thus Bracton quotes that text: Quod principi placet, legis habet vigorem; that is, in its true meaning, the monarch is sole legislator: but Bracton’s comment is, id est, non quicquid de voluntate regis temere presumptum fuerit, sed quod concilio magistratuum suorum, rege auctoritatem præstante, habita super hoc deliberatione & tractatu, recte fuerit definitum; that is, the king is not sole legislator; directly contrary to the sense of the very text he quotes. And it must be allowed, to the honour of the common lawyers, that, with the exception of a few venal time-serving individuals, they have, for a succession of ages, proved themselves true friends to a rational civil liberty in the subject, and to reasonable power and prerogative in the king[373].