The Period of Constitution Making
birth to special courts of law, but they were all king's
courts. The king was less closely identified with them,
however, than with their parent, his Council, and there
were no definite boundaries to the judicial powers remain-
ing in it. * Such boundaries would have been paradoxical
for the king's prerogative power was as yet but slightly
limited and the Council was the king in action. As such,
it could exercise a concurrent, a supervisory, or a supple-
mentary jurisdiction. We are next to examine the condi-
tions in the fourteenth century which made it necessary
for the Council to develop a new line of activity in civil
cases.
The system of writs, by which the common-law courts
gained their civil justice, and which laid the foundation
of the common law itself, has been described; as also the
rapidity with which new writs were created and the gen-
eral adaptability of the new civil jurisdiction.2 This
condition lasted till about the middle of the thirteenth
century. Prom that time, new forces began to limit the
creation of writs; that is, they limited the creation of
new actions, and hence tended to fix and stereotype the
common law. The writ-making power had been in the
hands of the Chancellor, always a learned ecclesiastic of
the king's Council. In his increasing business, he had
gathered around him a staff of assistants, known as Masters,
1 It was but slowly, however, and well into the fourteenth century before
Exchequer and King's Bench had lost this larger and vaguer competence
and had become clearly differentiated from the Council. See above, pp.
176, note 3, 178, 179.
2 Ibid., pp. 142-144,151, 152, The common law, that is, the law com-
mon to all the country which the king was developing through his courts,
was equity to start with; it sprang from the royal prerogative, sought the
ends of justice irrespective of existing forms, and gave remedy where the
old courts (communal and private) failed. The original writs before they
became stereotyped are quite analogous to orders and actions of the
fourteenth-century Council in reply to petitions for grace or remedy against
the rigours of^a common law now become stiff and formal. In some^of
the earliest original writs (as prcecipe) we even get a hint of the wording
of an old petition. Equity was no new thing in the fourteenth century;
its essence dates back to 1066. For a discussion of this matter and an ex-
cellent summary of its literature, see G. B. Adams, The Origin of English
Equity, Columbia Law Review, xvi, 87-98; and The Continuity of English
, Yale Law Journal, xxvL, 550-563,