Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/166

 152 //. FROM THE llOO'S TO THE 1800'S as a precedent in that Register of Writs, which was one of the most precious possessions of the royal chancery. If an intending Htigant could bring his case within the terms of a registered writ, well and good. If not, the King's courts could do nothing for him. He might have the best case in the world from a moral, or even from a legal point of view. But his remedy, if any, lay elsewhere. With sorrowful hearts, for they disliked " turning away business," the chancery officials regretted that they could not supply the desired article. The officials knew that their path was beset with dangers. The bold assertion of Henry II., that no lawsuit touching the title to freehold could be commenced without a royal writ,^ had played no mean part in stirring the baronial rising under John ; and the claim had been solemnly renounced in the Great Charter.^ Now, perhaps, we are in a position to under- stand something of the audacity of the consimilis casus clause of the Statute of Westminster the Second, which, if acted upon to its full extent, would have left it open to ingenious chancery officials to discover analogies of existing precedents in the case of every intending litigant. But its comparative failure is another signal proof, that sound legislation is little more than the official consecration of enlightened public opin- ion, and that " fancy " or premature reforms are mere waste of words. The opposition to the full use of the clause came, not merely from feudal and clerical tribunals, but from the King's own judges, who refused to recognise as valid writs which, in their view, departed too widely from precedent, no less than from the Parliaments of the fourteenth century, profoundly jealous of a power which, under the form of mere official documents, was really a power to declare the law of the land. The final victory of the royal juris- diction was won, by the skilful use of fictions, by the rise of the Court of Chancery, and, finally, by the Reforma- tion, which crushed the independence of the Church courts. royal court. But this was, of course, what he desired; and the barons knew it quite well. one concerning any tenement, to the loss by any freeman of his jurisdiction."
 * Even Henry did not dare to say that it could only be tried in a
 * " The writ, which is called praecipe, shall no longer be issued to any