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CHAPTER 6 THE ELABORATION OF THE JUDICIAL SYSTEM: 1307-1509 SUMMARY The POIition oj the Courts The Isolation of the Judges Competition between Courlr The ExchefjUer ojPleaJ The ExchefjUer Chamber, 1J57 The Exchequer Chamberfor Debatt Kingl Bench and TmpaiJ The Common Law Side ofChancery The Needfor De-cenfralisation The Nisi Prius System Jllltim oj the Peace The Fate ofthe LocalCourilPAGE 157 157 159 159 161 162 163 163 165 165 167 169 The last chapter has briefly told the beginning of a long story. When once the superior courts had come into existence there still remained the question whether they would continue upon the course which they had begun. THE POSITION OF THE COURTS Their subsequent history will show that much was to happen which would have astonished the statesmen of Henry II and Edward I. For example, a great characteristic ofthe early judicial system was its flexibility. Cases could move from court to court as occasion required: the lines of division between the different jurisdictions were not insurmountable; the King was in constant contact, through the council, with the judges, and his intervention was often to the advancement of justice, although at times no doubt it might be used by a weak monarch for personal ends. The judges themselves, closely co-operating with the council, exercised a good deal of discretion, and in many cases tempered law with equitable considerations. As the centuries passed, however, many changes came about. The courts gained some degree of independence of the Crown, but in doing so lost their discretionary powers. Their procedure became rigid and mechanical, unchangeable save by parliamentary statute. Reform, ifit came at all, came from without. THE ISOLATION OF THE JUDGES We have already noticed the dose connection which once existed between the courts and the council, and indeed with the King himself. The result. while it lasted, was that the judges normally exercised a 157 158 THE COURTS AND THE PROFESSION considerable amount of discretion, particularly in procedural matters. It must not be rashly assumed that the further back we go the more rigid was the law. On the contrary, investigation has shown the wide discretion which was allowed to the courts both in the twelfth and thirteenth centuries.1 It is not until the middle of the fourteenth century that this discretion begins to disappear. A great step in this development was the solemn enactment of the Statute of Northampton2 in 1328 which declared that no royal command under the Great or the Smaller Seal shall disturb the course of the common law, and that if such a command is issued, the judges shall ignore it. Slowly but steadily the judges ventured to enforce the plain words of this important act,3 and so to assume the detached position which is typical of most modern judiciaries. The remarkable political crisis" of 1340 took matters a stage further by showing the unseemliness of treating judges as though they were politicians, and about the years 1340 to 1350 we find several expressions from the bench and bar which seem to indicate that the position of the courts is changing. In cases where we know that discretion was once exercised we now find it refused. Instead of bending the rules of procedure to the broad requirements of justice, we find the courts declaring that "we will not and cannot change ancient usages "; .. statutes are to be taken strictly"; an innocent man might lie indefinitely in prison, or a creditor might be deprived of his remedy through the manipulation of procedural rules, and all the court will say is that « we can do nothing without a statute ",5 In short, the judges attempted to cast upon parliament the responsibility for future legal reform. Similarly, there were difficult cases where the judges could not make up their minds-to the great delay of litigants. Already, in theory, Fleta had attributed to parliament the duty of resolving judicial doubts,e and in 1311 the Ordinances, c. 29, required the termination of such cases in parliament-instances occur ofthe ordinance being applied.' In the next reign Parliament passed a curious statute in 1340 giving powers to commissioners (evidently non-lawyers) to decide cases which had been delayed because the judges found them too difficult.8 So 1 Hazeltine, Jlldido/ DismtiO!l ;n Eng/ilh Procedllr, (Festschrift Otto Gierke), lOSS; Earl.! English Equity (Essays in Legal History, ed. Vinogradoff), 262. • 2 Edw. III, Co 8. While the Ordinances (1311) c. 32 were in effect, their...

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