History of the English People, Volume II: The Charter, 1216-1307; The Parliament, 1307-1400Green, John Richard
History
History of the English People, Volume II: The Charter, 1216-1307; The Parliament, 1307-1400
Green, John Richard
Great Britain -- History
Of yet greater importance than this change, which was in effect but the
completion of a process of severance that had long been going on, was the
establishment of an equitable jurisdiction side by side with that of the
common law. In his reform of 1178 Henry the Second broke up the older
King's Court, which had till then served as the final Court of Appeal, by
the severance of the purely legal judges who had been gradually added to it
from the general body of his councillors. The judges thus severed from the
Council retained the name and the ordinary jurisdiction of "the King's
Court," but the mere fact of their severance changed in an essential way
the character of the justice they dispensed. The King in Council wielded a
power which was not only judicial but executive; his decisions though based
upon custom were not fettered by it, they wore the expressions of his will,
and it was as his will that they were carried out by officers of the Crown.
But the separate bench of judges had no longer this unlimited power at
their command. They had not the king's right as representative of the
community to make the law for the redress of a wrong. They professed simply
to declare what the existing law was, even if it was insufficient for the
full purpose of redress. The authority of their decision rested mainly on
their adhesion to ancient custom or as it was styled the "common law" which
had grown up in the past. They could enforce their decisions only by
directions to an independent officer, the sheriff, and here again their
right was soon rigidly bounded by set form and custom. These bonds in fact
became tighter every day, for their decisions were now beginning to be
reported, and the cases decided by one bench of judges became authorities
for their successors. It is plain that such a state of things has the
utmost value in many ways, whether in creating in men's minds that
impersonal notion of a sovereign law which exercises its imaginative force
on human action, or in furnishing by the accumulation and sacredness of
precedents a barrier against the invasion of arbitrary power. But it threw
a terrible obstacle in the way of the actual redress of wrong. The
increasing complexity of human action as civilization advanced outstripped
the efforts of the law. Sometimes ancient custom furnished no redress for a
wrong which sprang from modern circumstances. Sometimes the very pedantry
and inflexibility of the law itself became in individual cases the highest
injustice.
[Sidenote: Equitable Jurisdiction]
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account