he is a King, certainly a just act ought not to be traversed, nor an act by which 
judgment is made be recalled by anyone if it be just. But if an act be unjust, 
it will not be the act of the King. And since it be not the act of the King because 
it is unjust, hence it can be traversed and the act judged, but it cannot be 
amended or reversed without him. 90 
It is by such rationalization, we think, that the burden of the unimpeachable 
record is off-loaded. For the King's record is his factum no less than a command 
to proceed to judgment. Since an unjust act cannot be attributed to him, no 
more can a record which recites an unjust judgment be armored with a harness 
of unimpeachability. 
It was natural that the clerics in the English administration who, in the 
psalmist's words, had walked in the same law with the canonists, should peacefully 
take over such legal-ethical concepts as would serve their king. Of these 
the common law had been seised before there was appropriation from the 
grubby nether regions of procedure. That the canon law arrangements for 
the review of causes should ultimately exercise a dominion over professional 
thinking was inevitable, for the ordinary remedy, the appeal, had been the 
subject of juristic writing, and in the course of the latter twelfth century the 
practice had been greatly perfected. There were, however, reasons of political 
expediency which imposed restraint upon overt procedural borrowings by the 
common law courts, and an intellectual barrier existed in the premises upon 
which the practice of the two bodies of law were conducted. 
We have seen that the English courts at first had no device for a direct 
attack upon an allegedly defective judgment. In the law of the church, however, 
since the judicial structure was hierarchical, it was permitted as a matter 
of course to attack a sentence by way of appeal from a lower to a higher instance 
97 provided this was done within ten days after sentence or notice 
thereof. 98 The appeal was consequently a continuation of the controversy 
inter partes at a superior level. The reviewing court had before it the written 
96 Bracton has no discussion of error jurisdiction 
at large. The passage {ibid., f. 108), 
where he speaks of the judges a latere regis 
whose job it is to correct the errors of other 
justices, is written, we think, with the certification 
procedure in mind. The character of the 
cases in his Notebook, seems to bear this out, 
for there are a number of certifications, but only 
two which by any stretch of imagination can 
be called cases of "error" in the later technical 
sense. 
97 Cf. the twelfth century Incerti auctoris ordo 
iudiciarius (Gross ed., 1870), c. XIX "Appellatio 
est a minore iudice ad majorem facta 
pronuntiatio rel vocatio. Semper enim ad 
majorem debet fieri appellatio") ; Ricardus 
Anglicus, Summa de ordine iudiciarii, c. 
XXXVII; Tancred, Ordo iudiciarius (Bergmann 
ed., 1842), de appellationibus § 4; Laspeyres, 
Bernardi Papiensis Summa Decretalium (1861), 
lib. 2, tit. 20, 23. 
ss Decretum, Causa 11, q. VI, c. 27-28; Deer. 
Greg., lib. 11, tit. XVII, c. 5; Summa Rolandi, 
17; Tancred, Ordo iudiciarius, tit. 5 § 7. The 
formulae for written appeal are in Decretum, 
Causa 11, q. VI, c. 31, diet. Grat. The form of 
litterae dimissoriae or apostles is also there given 
{cf. also Tancred, Ordo iudiciarius, tit. 5, § 11). 
If the inferior judge refuses apostles, appellant 
may turn to the superior {ibid., § 10).