230 The Period of Constitution Making
early to obtain, by any process, a permanent and rational
system of equity. England passed rather rapidly from
"the old oral and traditional formalism" of the Anglo-
Saxon period to this "new written and authoritative
formalism" which "in part supplanted and in part rein-
forced it.'1 But the advance of the new over the old was
very great. That there was any break from the old sys-
tem and a time when new courts exercised an equitable
jurisdiction for all England, a time of legal growth on a
splendid scale, was owing to the Norman Conquest.
And the new formalism was a common formalism, while
the old was not.
The development of the new formalism was not an un-
mked evil. When a man chose an action in the late
thirteenth century, he embarked on a sure course, all was
marked out for Mm; in an unspeakable mass of rules, an
attempt was made to provide for every contingency.
This meant that the discretionary power of the judges was
small. With the judges of the three common-law courts
so fully under royal control as they were for four centuries
after this, the formulary system must be regarded as hav-
ing been an important safeguard of the subject's liberty.
The modem development has been to give the judge more
freedom, to allow him, in many particulars, to suit the
action to the peculiarities of the case; "but discretionary-
powers can only be safely entrusted to judges whose
impartiality is above suspicion and whose every act is
exposed to public and professional criticism/'1
It must not be thought, however, that the judges of the
later middle ages were wholly powerless to initiate; they
were always making some new law when they made their
judgments. But their judgments of law were based upon
the verdicts of jurors drawn from the people, and these
verdicts were increasingly judgments of fact; the judges
applied the law to facts judged by the people. This kept
-J^'-?0^ M-» &, 563- For a Ml discussion of the forms of action, see
*£*&, H., 558-573. "Die Form ist die geschworene Peindin der Willkur
che /iwiilrngschwester der Freiheit."—Ihering, Geistdes romischen Rechts, ii
(2), § 45, quoted in P. and M., ii, 563, note 2.