2i6 The Period of Constitution Making-
could buy or intimidate the jury and to whom delay was
indifferent. On the same plenary conception of his ju-
dicial power, which authorised the king to pardon the
criminal condemned by the common-law courts,x he could
entertain in his Council the cases of these poor petitioners,2
Thus, in the fourteenth century, the Council exercised
more and more, what it had never fully ceased to exercise,
a justice concurrent with, and supplementary to, that of
the common-law courts.
But the Council was a large, unprofessional body, and
if this line of activity were to increase and become regular,
some specialisation must take place within it. The king
could not attend to it personally, and the whole Council
could not. For two main reasons, the Chancellor was the
member of the Council to whom it was increasingly in-
trusted. He had become the king's chief minister by the
end of the thirteenth century, and presided over the
Council in the king's absence.3 If petitions were not
1 Speaking of the bearing of the royal prerogative upon England's whole
judicial development, Professor Adams says: "The essential fact is the
existence of the king's prerogative; that is, of a power recognised as above
the ordinary everyday machinery of the state, whatever that may be at
any given time, and free therefore from the rules and regulations which
condition the running of that machinery. For this reason it is at liberty to
act as above the law to secure any sufficiently important object, the fur-
nishing of justice to all, the enforcement of the rule of conscience, the es-
tablishment of a system of criminal equity, the suspension of a statute for
a special purpose, the creation of a new offence by proclamation, or the
pardoning of a convicted criminal." The Continuity of English Equity,
Yale Law Journal, xxvi., 550-563.
2 "Odd though this may seem to us, that court which was to become a
byword for costly delay started business as an expeditious and a poor
man's court."—Maitland and Montague, Sketch of English Legal History,
p. 122.
3 The Chancellor was taking the place of the Justiciar, who, from the
Norman Conquest, had been the greatest official and had represented the
king in the latter's frequent and long absences on the continent. Henry
III, tried to be his own Justiciar. He finally was forced to appoint one,
but after the office became vacant in 1268 there was never another ap-
pointed. This led to the rise of the Chancellor and marked progress in
the separation of the judicial and executive departments. Edward L's
Chancellor, Robert Burnell, was his leading adviser. "The Chancellor
first appears in England under Edward the Confessor. He was the chief
secretary, head of the king's chaplains, and keeper of the royal seal. The
name was derived from the cancelli or screen behind which he worked.
Owing to the literary qualifications of the office, in the early days it ^ was
always in the hands of an ecclesiastic." Medley, English Constitutional