A Constitutional and Legal History of England

By Goldwin Smith | Go to book overview

CHAPTER VI
Henry the Second: the making of law

THE ORIGINAL WRITS

IN Chapter V we discussed the way in which the itinerant justices carried with them on their circuits the mobilized powers of the curia regis. They were, indeed, "the curia regis on the march." By their presence they turned the local courts into royal courts. They, and they alone, used the jury, a royal judicial instrument.

At first the jury system of inquiry was used only in administrative and criminal cases. But it was obvious that there was, and could be, no legal barrier in the land to prevent the royal justices, as a part of the curia regis, from investigating other men and other causes. The jury system offered a reasonably impartial method of settling every case, including what we call today civil cases, or common pleas. It was quite natural that many suitors wanted to make use of the king's court rather than the communal courts of the hundred and shire. In the king's court they could get the facts of the case before a jury. To be able to do this, in their opinion, was manifestly advantageous. Justice is always a desirable commodity.

These suitors obtained the necessary permission to use the royal court, the king's justice, and the jury, by purchasing from the Chancellor's office--to be called the Chancery from the reign of Richard I-- a document called a writ. The writ, a royal command based upon the king's authority, opened up frontiers undreamed of in the past. It described the case and authorized the royal justices to try it. Here began the common law principle, of paramount importance, that every case must open with a writ, the original writ. Here also began a profitable source of income for the crown. Justitia est magnum emolumentum.

-105-

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