Law Courts 209
"king in parliament"—curious, because it perpetuated an
idea derived from the primitive relation of the king and his
feudal court, long antedating anything that could properly
be called Parliament.1 But there was also a tribunal
called "king in council/' and this was the Council, the
descendant of the smaller continuous court, acting in its
judicial capacity.2 We have seen that both bodies might,
at the beginning of the fourteenth century, entertain any
civil or criminal case. While the larger, which was to be
the House of Lords, specialised its judicial activity along
the lines just mentioned, and generally followed the rules
of common law, the smaller, the future Council, retained
the earlier and broader competence, and tended to adopt
the methods of equity. During the fourteenth and fif-
teenth centuries, there developed from the latter, in both
the criminal and civil fields, something of great importance
in English judicial history.
The criminal side can be dealt with briefly. The late
fourteenth and the fifteenth centuries were, for England,
a time of degeneration and lawlessness among the nobility.
Starting in the factional strifes and personal hatreds of
Edward II.1 $ time, the lawless tendencies were stimulated
by the endless foreign war. It was the time of livery and
maintenance. In suits to which the great and powerful
were parties, juries were so bribed or intimidated that a
fair trial in the ordinary courts was exceptional. Just
when Englishmen first began to realise what a valuable
and unique thing the jury was, it was being proved a fail-
1 On the earliest use in England of the word parliament, see below,
pp. 362-364.
2 Speaking of "the king in parliament" and "the king in council*" Malt-
land says: "And the two are not so distinct as an historian, for his own
sake and his readers', might wish them to be. On the one hand those of
the king's council who are not peers of the realm, in particular the judges
and the masters of the chancery, are summoned to the lord's house of par-
liament, and only by slow degrees is it made plain to them that, when
they are in that house, they are mere * assistants' of the peers and are only
to speak when spoken to. On the other hand there is a widespread, if not
very practical, belief that all the peers are by rights the king's councillors,
and that any one of them may sit at the council board if he pleases."—
Maitland and Montague, Sketch of English Legal History, pp. 116, 117,