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• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

CHAPTER 6

THE ELABORATION OF THE JUDICIAL SYSTEM: 1307-1509

The last chapter has briefly told the beginning of a long story. When once the superior courts had come into existence there still remained the question whether they would continue upon the course which they had begun.

THE POSITION OF THE COURTS

Their subsequent history will show that much was to happen which would have astonished the statesmen of Henry II and Edward I. For example, a great characteristic of the early judicial system was its flexibility. Cases could move from court to court as occasion required: the lines of division between the different jurisdictions were not insurmountable; the King was in constant contact, through the council, with the judges, and his intervention was often to the advancement of justice, although at times no doubt it might be used by a weak monarch for personal ends. The judges themselves, closely co-operating with the council, exercised a good deal of discretion, and in many cases tempered law with equitable considerations. As the centuries passed, however, many changes came about. The courts gained some degree of independence of the Crown, but in doing so lost their discretionary powers. Their procedure became rigid and mechanical, unchangeable save by parliamentary statute. Reform, if it came at all, came from without.

THE ISOLATION OF THE JUDGES

We have already noticed the close connection which once existed between the courts and the council, and indeed with the King himself. The result, while it lasted, was that the judges normally exercised a considerable amount of discretion, particularly in procedural matters. It must not be rashly assumed that the further back we go the more rigid was the law. On the contrary, investigation has shown the wide discretion which was allowed to the courts both in the twelfth and thirteenth centuries.1 It is not until the middle of the fourteenth century that this discretion begins to disappear. A great step in this development was the solemn enactment of the Statute of Northampton2 in 1328 which declared that no royal command under the Great or the Smaller Seal shall disturb the course of the common law, and that if such a command is issued, the judges shall ignore it. Slowly but steadily the judges ventured to enforce the plain words of this important act,3 and so to assume the detached position which is typical of most modern judiciaries.

The remarkable political crisis4 of 1340 took matters a stage further by showing the unseemliness of treating judges as though they were politicians, and about the years 1340 to 1350 we find several expressions from the bench and bar which seem to indicate that the position of the courts is changing. In cases where we know that discretion was once exercised we now find it refused. Instead of bending the rules of procedure to the broad requirements of justice, we find the courts declaring that “we will not and cannot change ancient usages”; “statutes are to be taken strictly”; an innocent man might lie indefinitely in prison, or a creditor might be deprived of his remedy through the manipulation of procedural rules, and all the court will say is that “we can do nothing without a statute”.5 In short, the judges attempted to cast upon parliament the responsibility for future legal reform.

Similarly, there were difficult cases where the judges could not make up their minds—to the great delay of litigants. Already, in theory, Fleta had attributed to parliament the duty of resolving judicial doubts,6 and in 1311 the Ordinances, c. 29, required the termination of such cases in parliament—instances occur of the ordinance being applied.7

In the next reign Parliament passed a curious statute in 1340 giving powers to commissioners (evidently non-lawyers) to decide cases which had been delayed because the judges found them too difficult.8 So public an expression of distrust in the judiciary could only have the effect of making the benches retire still more strictly into the seclusion of their courts and the technicalities of their procedure. Moreover, if the five could not agree, the lords at large undertook to settle the matter—and from this date the lords assert their ascendancy, and treat the judges (and the councillors) as merely assistants in their house.1

The common law is therefore beginning to retire to a definite and limited field, resigns its flexibility and declines to be drawn into attempts to remove its own defects: that will henceforth be the province of Parliament. Later still, when Parliament fails to keep pace with the needs of litigants, it will be the Chancellor who will take up the task. This loss is compensated to some extent by the growing independence of the judges. Less and less often do we find them at the council board or giving effect to royal commands from the bench.

COMPETITION BETWEEN COURTS

The formulary system, which once had been a labour-saving device, developed into the system of forms of action which finally stunted and crippled the common law to such an extent that an entirely new system or prerogative courts of equity was needed. Even within the common law itself, the formulaic system was recognised as mischievous, for the common law courts began to compete with one another for business, piling fiction upon fiction in an endeavour to escape from the heavy burden of their history. Most strange of all, the common law courts found themselves champions of the popular cause against the Crown in the seventeenth century, although just a century before they had been loudly condemned by the public for their weakness, their slowness and their costliness.

The Restoration opened a long period of comparative quiescence during which the common law courts remained unchanged until the nineteenth century, thanks to the restoration of equity, which alone made tolerable so archaic a system.

THE EXCHEQUER OF PLEAS

Perhaps the earliest example of competition between common law courts comes from the Exchequer. We have already mentioned the rise of this institution as an accounting organisation, and as an assembly of high officials who combined the audit of the royal accounts with the discussion of related problems as they arose.2 The development of a law court out of this purely administrative procedure can be clearly traced in the various series of rolls produced in the Exchequer.3 In its early days the Exchequer kept but one roll, the great roll of the pipe which contained detailed accounts. In the course of business there arose many matters which could not be immediately settled, and so such matters were removed from the pipe roll and reserved for further consideration, being entered on a new series of Memoranda Rolls created for the purpose. There are hints of such rolls under Henry II;1 they are known to have existed under Richard I, and one has survived for the first year of John (1199-1200).2 Some of the matters on these rolls called for judicial treatment, and so in time we find a further specialisation in the rolls. In 1220 we have a separate roll of pleas concerning the King’s Jews,3 and in 1236 we have the first roll of the Exchequer of Pleas.4 The revenue department had become a revenue court. This court, moreover, was essentially a common law court; it used the common law procedure, although in a more stringent form, and apart from revenue cases which formed the bulk of its work, it did useful service in permitting subjects to bring proceedings against officials (especially sheriffs) who had acted irregularly. Such a court was likely to win public sympathy, and although its rolls are not very bulky it seems to have been active.

In 1300 we find a statutory provision that no common pleas shall be heard in the Exchequer,5 and this is the first great attempt by one common law court to prevent another from competing with it. The Exchequer was in a position to offer substantial advantages to plaintiffs who resorted to it, since Exchequer process extended to Wales and the palatinates (where king’s bench and common pleas had no jurisdiction)6 , simple contract debts could be recovered from executors,7 and wager of law did not lie. This latter rule raised protests in some quarters, and in 1376 wager of law was authorised by parliament (save where the King was party) in the Exchequer, on the ground that jury trial was to the great damage of the people and the impoverishment of the jurors, and caused much delay.8

There were several grounds upon which the Exchequer could hear “common pleas”—meaning thereby non-revenue cases. In the first place, the officials of the Exchequer and their servants were privileged: as plaintiffs they could compel their adversaries to answer in the Exchequer court, and as defendants they could refuse to answer save in the Exchequer. Secondly, merchants are frequent litigants in the Exchequer,1 and in some cases at least, the affairs of merchants, friars and other favoured persons were treated there because the King had so ordered.2 Furthermore, parties could voluntarily enrol recognisances of debt in the Exchequer records, and if they did so, then any resulting litigation would take place in the Exchequer. Then, too, many decedents died in debt to the Crown, with the result that executors and administrators were constantly before the court. Finally, any Crown debtor could invoke the Crown’s very effective machinery against his own debtors, by means of the allegation that by their remissness he was less able to discharge his own debt to the King. This principle is as old as the Dialogue of the Exchequer.3 The earliest cases show the King as co-plaintiff with his debtor against the debtor’s debtor;4 forms vary somewhat, but when the action succeeded, the debt was paid to the Exchequer and not to the plaintiff. There is no trace of the famous writ of Quominus under Henry III or Edward I,5 and the first example so far known is said to be in 1326.6

According to Blackstone7 the allegation of indebtedness to the King contained in the writ of Quominus was treated in his day as a fiction; curiously enough Coke and Hale are silent on this development, and so is Burton (writing in 1791). It is impossible to say when this fiction began.8

THE EXCHEQUER CHAMBER, 1357

There was one issue, however, upon which the Exchequer won a clear victory. The Court of King’s Bench, which from its earliest days had jurisdiction in error from the Court of Common Pleas, in 1338 claimed the right to hear errors from the Court of Exchequer. To this the barons strongly objected and showed from their records that the only jurisdiction in error above them was in the King, who might issue a special commission ad hoc. It was becoming evident, however, that this traditional method was unsatisfactory, and the commons in parliament in 1348 urged the claims of the King’s Bench, but the king would only agree to a commission of errors, composed of the Chancellor, Treasurer and two Justices.1 Eventually, in 1357, a statute2 erected a new court to hear errors in the Exchequer, which was to sit in “any council room nigh the exchequer”—hence its name, “Exchequer Chamber”. It was composed of two great officers of state, the Chancellor and the Treasurer, who alone were the judges, but they could call upon the justices of the common law courts as assessors, and could put questions to the barons of the Exchequer. Such a system was clearly unworkable, for as a matter of practical politics it was rarely possible to get two such great men together at any stated date. The commons again prayed for legislation which would give the King’s Bench the right to hear error from the Exchequer, but in vain.3 The barons stood on their statute and let their court decline rather than submit to the King’s Bench. Three hundred years later attempts were still being made to render this old statutory court more useful in an age when the Chancellor was too busy and when there was frequently no Treasurer at all.4

THE EXCHEQUER CHAMBER FOR DEBATE

At all times judges of the common law courts have discussed important and difficult cases in meetings consisting of all the judges of both Benches, and sometimes the Lord Chancellor and the barons of the Exchequer.5 Sometimes the Council is also mentioned, and the judgment proceeded from this impressive assembly as a whole.6 The several benches might sit together on other occasions to debate legal points referred to them by the Crown. At the beginning of the fifteenth century such meetings were often in the “Exchequer Chamber” and the courts slowly developed the practice of themselves referring difficult cases to the Exchequer chamber. On such occasions a decision was reached by the judges and serjeants together,7 but the judgment was formally pronounced in the court where the case originated. Moreover, an argument in the Exchequer chamber could take place only at the instance of the judges hearing the case; it could not be demanded by either party. There might be less formal meetings at Serjeants’ Inn, where the judges and serjeants lodged together during term time, and obviously such talks are simply the usual professional conversation of men engaged in a common task; they are not in any sense the proceedings of a court.

The system had merits which unfortunately were not conserved. While it lasted it did much to take the place of a system of appellate courts. Instead of burdening litigants with the expense and delay of taking a case through several courts, in each of which a few judges gave perhaps hurried decisions, under this system the case went at once for discussion by all the judges of all the courts sitting together in order to reach a definitive ruling, which very naturally was accepted with the greatest respect as settling the point.

KING’S BENCH AND TRESPASS

Defeated in its attempt to assert a jurisdiction in error over the Exchequer, the King’s Bench next engaged in a conflict with the Court of Common Pleas. Although the King’s Bench had always tried aggravated trespasses, and those where royal interests were involved, yet the ordinary run of trespass cases had always been in the Common Pleas. In 1372 the commons complained that the clerks of the King’s Bench (apparently by arrangement with the Chancery) had contrived to prevent writs of trespass being made returnable in the Common Pleas, and procured them to be directed instead to the King’s Bench. This caused hardship, as men of wealth already had to keep standing attorneys in the Common Pleas for their general affairs, and the King’s Bench was still a perambulating body. The reply to the complaint seems to indicate that once again the King’s Bench was defeated.1

THE COMMON LAW SIDE OF CHANCERY

We have said nothing so far of the Chancery.2 Its functions were in fact almost entirely secretarial in its early days, and it is not until about 1307 that we can say that it has become an independent office free from household control.3 Indeed, “office” was thought to be the most suitable word for the Chancery, as we can see from Fleta (c. 1290) who refrains from using the word “court” in this connection.4

The Chancellor was often the King’s principal adviser in political matters, but his staff was a highly specialised body of clerks. The duties of many of them were partly mechanical—copies of all important documents which passed the Great Seal were prepared upon the voluminous rolls which survive in thousands in the Public Records Office. They had also the duty of drafting and writing the original writs which were so vital to the conduct of litigation. In the early thirteenth century it would seem that they had a part to play in the formation of the common law, for it was they who sanctioned the numerous variants upon traditional forms which applicants urged them to make, and thus indirectly extended the scope of the common law. Such powers, however, were peculiar to the early formative period of the century. By its close it was already well established that the issue of a writ from the Chancery was no guarantee that the writ was valid at common law, for the judges asserted their right to quash writs which they considered unsuitable. Hence the real control over the issue of writs soon passed to the common law courts, for it was they who had the last word in sustaining or quashing the writs brought before them in litigation. The Chancery therefore exerted little influence over the creation of new writs after the thirteenth century, and the “register of writs” never became an official Chancery collection.1 It soon becomes evident that the parties themselves, or their legal advisers, draft the writs they desire, get them engrossed and sealed in the Chancery, and then support them by such arguments as they can when the time comes to plead them in the common law courts. One thing seems certain, and that is that the business of issuing writs was not the origin of either the common law or the equity jurisdiction of the Chancellor.2

Of much greater importance were the powers connected with the feudal rights of the Crown. When a tenant-in-chief died, a writ issued from Chancery to inquire by means of a jury into the lands of the late tenant and to ascertain the Crown’s rights to primer seisin, relief, the wardship of his heir if an infant, and to arrange for the dower (and sometimes the re-marriage) of his widow. Interested parties could intervene, and so a good deal of litigation arose under the head of “traverses of offices”, as these proceedings were called. Similarly, when the Crown made grants of lands or offices by letters patent, persons whose rights were affected could bring proceedings to repeal them.3 It also had important jurisdiction in petitions of right and monstrans de droit. The judges were so frequently engaged upon business of this sort in the Chancery that the Commons complained in Parliament that the courts of common law suffered considerable delays.1 These powers, which are in frequent use from the reign of Edward III onwards, are clearly derived from the administrative functions of the office, and can be compared with those of the common law side of the Exchequer with which they were in some cases concurrent. It is a difficult question how far the common law jurisdiction was an origin of the equitable jurisdiction, which may have had, in the main, a different history.2

THE NEED FOR DE-CENTRALISATION

The “impoverishment of the jurors” and the “ruin of the country” by jury trial was a real problem. When Henry II instituted the petty assizes he seems to have made the requirement that as far as possible the assize of twelve should meet in the county where the land lay—in the county where the assizemen resided. With the use of the jury in the Court of Common Pleas a similar requirement soon arose for the jury to come from the county where the cause of action lay. While the judges of the Bench were continually touring with the King, there was a fair chance of juries being taken in or near their own counties, but with the tendency for the Bench to stay in one place it was becoming more and more necessary for the jury to come to the court, instead of the court travelling about and taking the juries locally. The Great Charter3 settled the most pressing part of the question by enacting that most of the assizes (which were then the most frequently used of the common law actions) must be taken in the county where the land lay, and as the assizemen had to be neighbours from that same county, they did not have to travel very far. Hence the Crown sent commissioners at regular intervals to take the assizes in the counties.

THE NISI PRIUS SYSTEM

As for the Bench in the reign of King John, it was sufficiently important for the Charter to enact that it should no longer travel but sit permanently in some fixed place. This was perhaps convenient for suitors, but as the business of the court increased it was a grave hardship to bring jurors from the remoter parts of England to Westminster; indeed, in many cases it was utterly impossible. The solution of the problem was all the more difficult now that the Common Pleas (and for that matter, the Exchequer) were fixed at Westminster.1 The verbal altercation which resulted in the formulation of irrevocable pleadings had to take place (at this date) in court before the judges, who supervised the process and helped the parties to reach a suitable issue. Once the issue was reached, however, it was a simple business to put the issue to the jury and record their verdict. This second process, it was realised, need not take place at Westminster. As early as 1196 parties were given a day at Westminster “nisi justiciarii interim veniant” in Norfolk,2 and in the early years of Henry III justices in eyre would sometimes order juries to be taken locally (instead of before themselves) in order to save trouble to all concerned,3 and would likewise order the verdicts of locally taken inquests to be returned if necessary to Westminster.4 This separation of fact-finding from the rest of legal procedure gave the solution to the problem, and so legislation beginning with Edward I in the Statute of Westminster II, c. 30 (1285) slowly built up the system of nisi prius, whereby actions which began at Westminster in the Court of Common Pleas, when once they had been pleaded to an issue, could be continued by taking the jury’s verdict in the county before justices of nisi prius, instead of compelling the jurymen to undertake a costly journey to Westminster as had formerly been the case. The rise of this system had the result that a great deal of jury work took place in the country and not in Westminster; such proceedings were rarely reported, for the compilers of the Year Books were most concerned with what went on at Westminster Hall, and so the whole procedure of putting evidence before a jury, charging it and taking its verdict is an obscure matter, for neither the reporters nor the rolls give us very much information.5 Of these two sources the rolls are perhaps the more promising for the early history of the law of evidence.

The commissioners of assize need not be justices (although the ywere frequently serjeants, and local knights had to sit with them); the commissioners of nisi prius, on the other hand, had to be sworn justices. At the same time, it was a frequent practice to issue special commissions from time to time to justices and others authorising them to hear and determine (oyer and terminer) all pleas arising in a particular county, or all pleas of a particular type—sometimes to hear and determine one case of special importance. Furthermore, commissions of gaol delivery were a frequent necessity in order to try the persons indicted before various authorities. As a matter of obvious convenience these commissions were eventually issued to the same commissioners. Justices had to be sent at stated intervals to take nisi prius trials; the same justices could also take the assizes, and it was convenient to give them oyer and terminer and gaol delivery1 powers as well. Hence there arose the circuit system whereby the justices of the superior courts made regular tours of the country and thus brought the courts of Westminster into direct contact with local needs. To complete their powers, it was customary to make the judges of assize justices of the peace in the counties they visited.

JUSTICES OF THE PEACE

Besides these travelling commissions, both new and old, which were sent through the country from Westminster, there developed a different type of commission composed of local gentry who were assigned first to keep the peace, and afterwards to be justices of the peace. From the end of the twelfth century local knights and gentry, often described as “keepers of the peace”, were occasionally called upon to co-operate with the sheriff in enforcing law.2 Their duties were principally of an administrative and police character. The Statute of Winchester (1285) laid down the rudiments of a scheme for maintaining order, but created no machinery for carrying it out. It thus became the practice to set up commissioners under varying titles to enforce the statute. From the beginning of Edward III’s reign a stream of legislation begins to enlarge their powers. Nor were their powers entirely statutory, for the Crown frequently increased or diminished the powers of keepers of the peace merely by changes in the terms of their commission, and regardless of the state of the statutory law existing at the moment.3 As before, they were to receive prisoners and to produce them to the justices of gaol delivery—and here it seems that the Crown showed some distrust of the sheriff who ordinarily would have performed these duties; indeed, the justices of gaol delivery were given authority in 1330 to punish the sheriff if he abused his powers of releasing prisoners upon bail.4 Very soon the keepers of the peace were allowed not only to keep prisoners, but to try them; in 1344 it was enacted “that two or three of the best people of each county should be assigned as guardians of the peace by the King’s commission”, and that these keepers should be associated with lawyers in a commission of oyer and terminer for the trial and punishment of felonies and trespasses against the peace.1 There was some hesitation about entrusting wide powers to the keepers of the peace, and legislative policy fluctuated;2 but the keepers (now called “justices”) by themselves, without the association of professional lawyers with them, exercised judicial powers regularly from 1368 onwards.3

Meanwhile, in 1349 came the Black Death, and in 1351 began the Statutes of Labourers, which attempted to regulate the disorganised labour market. This labour legislation set up elaborate machinery for fixing prices and wages and enforcing labour contracts, and established “justices of labourers” for the difficult task of enforcing it. Shortly afterwards the keepers of the peace and the justices of the labourers were merged into one commission with the new title of “justices of the peace”,4 which first appears officially in 1361. For the rest of the middle ages, and indeed ever since, hardly a Parliament passed without adding some new duty to the work of the justices of the peace. At first they received salaries payable out of the fines which they inflicted, but as time went on the change in the value of money made their wage too small to be worth collecting; it has now long been obsolete.5 They were and generally still are laymen and not lawyers,6 but it must be remembered that during the middle ages the average landowner had a fairly good knowledge of elementary law; what further technical assistance they needed was supplied by the clerk of the peace who served as a professional clerk to the justices. The clerk of the justices was frequently appointed also to the office of clerk of the Crown, the duties of which were to act as a permanent local secretary to the travelling justices who came down from Westminster to hold the pleas of the Crown. The clerk of the peace was technically the deputy appointed by the Custos Rotulorum, a mysterious official of whose history very little is known.7

The justices of the peace, like most other mediaeval bodies, held two sorts of meetings, large and small. The large meetings held four times a year are called quarter sessions. In the fourteenth century they must have looked something like the older Eyre, although on a smaller scale. Grand juries were charged, made presentments, and the persons so indicted were forthwith tried. Until the eighteenth century, quarter sessions tried capital cases, which after that date they reserved for the Justices of Assize. Quarter sessions also possessed an appellate jurisdiction from petty sessions. Petty sessions on the other hand consisted of two or more justices acting in the most informal manner for minor business and the lesser offences entrusted to them for summary trial without a jury, by virtue of numerous statutes in Tudor times and later.1 Both quarter and petty sessions were ultimately subject to the Court of King’s Bench, which by a writ of certiorari could remove and review their proceedings.

THE FATE OF THE LOCAL COURTS

The establishment of the justices of the peace marks the end of the practical importance of the old communal jurisdictions which we described in chapter I. Even in boroughs, where such jurisdictions as the court leet survived longest, the competition of the justices of the peace was severe, and ultimately successful. Whether the justices of the peace were deliberately designed to take the place of the local jurisdictions, which had already declined, or whether, on the other hand, they were part of a conscious policy whereby the Crown attempted to supplant local jurisdictions (dependent as they usually were upon the sheriff), it is impossible to say; there may be some truth in both views.2 It is certainly significant that the justices of the peace were fairly closely supervised by the central courts and ultimately by the Council; in this way they became not merely the local representatives of the royal jurisdiction, but also to a large extent the administrative and political agents of the King and Council. During the later Stuart period the government tried to exploit to the utmost the political influence of the justices of the peace.

This state of affairs, however, is not to be found in the fourteenth century when the institution was for the first time rapidly developing; in the critical reign of Edward III it is beyond doubt that the demand for the expansion of powers of justices of the peace came from the commons in parliament, and that the opposition to the demand came from the council and the Crown lawyers. It is presumably the Tudors who inaugurated the new policy of making the justices of the peace their instruments in local government.

Politics apart, the justices of the peace were a notable essay in decentralisation in criminal jurisdiction, and the development of the nisi prius system contributed to the same result in matters of civil litigation. The justices from Westminster came down into the county, bringing with them the advantages of metropolitan law administered in every county town. The problem of over-centralisation created at the end of the twelfth century was thus satisfactorily solved—at least for a moment.

[1]Hazeltine, Judicial Discretion in English Procedure (Festschrift Otto Glerke), 1055; Early English Equity (Essays in Legal History, ed. Vinogradoff), 262.

[2]2 Edw. III, c. 8. While the Ordinances (1311) c. 32 were in effect, their prohibition of royal interference with litigation was sometimes enforced, as in Y.BB. Edward II (Selden Society), xxii. 315. Three centuries later attempts were made to use royal letters of privy seal to enable infants to suffer common recoveries: Holdsworth, iii. 518.

[3]For some cases on this statute, see Plucknett, Statutes and their Interpretation, 142-143.

[4]Below, p. 240.

[5]Plucknett, op. cit., 121-127.

[6]Fleta,ii. c. 2 § 1.

[7]Y.BB. Edward II (Selden Society), x. 171 (1311).

[8]14 Edw. III, stat. 1, c. 5. The commission was to one prelate, two earls and two barons; the judges were to be re-sworn, to refresh their memories. Cf. Hemmant, Cases in Exchequer Chamber (Selden Society), i. intro. xlv. For attempts in 1348 to make the statute work, see Rot. Parl., ii. 172 no. 60, 195 no. 82 and 222 no. 64.

[1]Hemmant, loc. cit. At this moment, moreover, the judges cease generally to be sworn of the council: J. F. Baldwin, The King’s Council, 76.

[2]Above, p. 147.

[3]The history is traced in detail in Sir Hilary Jenkinson’s introduction to Select Cases in the Exchequer of Pleas (Selden Society). Cf. Baldwin, King’s Council, ch. ix.

[1]Dialogus de Scaccario, lib. ii. c. 15.

[2]Memoranda Roll, 1 John (ed. H. G. Richardson, Pipe Roll Society, 1943).

[3]Printed in Select Pleas of the Jewish Exchequer (ed. Hilary Jenkinson, Selden Society).

[4]Printed in Select Cases in the Exchequer of Pleas (ed. Hilary Jenkinson, Selden Society).

[5]Articuli super Cartas (28 Edw. I), c. 4. (For some earlier such restrictions, see Holdsworth, i. 235.) Contrast Westminster II, c. 11 (below, p. 449).

[6]P. Burton, Exchequer Practice, i. 105, ii. 474. Process into Wales, Vaughan 395 is a long historical note on the subject.

[7]Cf. below, pp. 647, 741.

[8]Rot. Parl., ii. 337 no. 92.

[1]Jenkinson, Exchequer of Pleas (Selden Society), xcix.

[2]For the text of a “writ of aid” in 1336, see A. Beardwood, Alien Merchants, 110. For some earlier examples, see J. C. Davies, Baronial Opposition to Edward II, 549 no. 9, 551 no. 14.

[3]Dialogus de Scaccario, lib. II, c. 16.

[4]Jenkinson, op. cit., c-ci, who remarks that the practice “is strongly reminiscent of the crown’s attitude in the matter of Jewish debts”.

[5]Jenkinson, loc. cit. The phrase does occur, however, in writs of distress about 1230, apparently unconnected with judicial proceedings: H. Wurzel, Origin of Quo Minus, in Yale Law Journal, xlix. 45.

[6]P. Burton, Exchequer Practice, i. 105 (reading 20 Edw. II instead of Burton’s impossible date of “22 Edw. II”).

[7]Blackstone, Commentaries, iii. 286.

[8]The allegation was traversable in early times: Jenkinson, loc. cit. The statement in Holdsworth i. 240 that the fiction existed in 1345 seems unsupported by the case mentioned: Y.B. 20 Edw. III, i. 16-20. The Exchequer promised not to take jurisdiction by regarding parties as fictitiously the servants of exchequer officials: Ordinances (1311), c. 25, and Exchequer Rules (1323), c. 1 (H. Hall, Red Book of the Exchequer (Rolls Series), iii. 848). See generally, H. Wurzel, Origin of Quo Minus, Yale Law Journal, xlix. 39.

[1]Rot. Parl., ii. 168 no. 26; they renewed their petition without result in the next parliament: ibid., 203 no. 25.

[2]31 Edw. III, stat. 1, c. 12 (1357). For the texts of documents in the controversy, see Y.B. 14 Edward III, xvii ff., and cf. Baldwin, The King’s Council, 233.

[3]Rot. Parl., iii. 24 no. 105.

[4]Below, p. 171.

[5]For such a meeting as early as 1324, see C. Johnson, The Exchequer Chamber under Edward II, English Historical Review, xxi. 726-727. For an earlier and clearer case, see Y.BB. Edward II (Selden Society), xxiv. 8 (1319).

[6]See examples in Sayles, King’s Bench, i. 148 (1285) and further examples, ibid., ii, intro, lxvii n. 9.

[7]Indeed, in 1478, although all the justices of both benches had concurred on a point, yet it was referred to the Exchequer Chamber where “all the justices and the serjeants” reconsidered it; 18 Edw. IV, Pasch. 18, Trin. 8. See Hemmant, Select Cases in the Exchequer Chamber (Selden Society), ii. intro. xvi; the choice of the Exchequer as the meeting-place is simply due to the fact that the Exchequer had ample office accommodation.

[1]Rot. Parl., ii. 311 no. 21.

[2]On the difficult point of origins, see V. H. Galbraith, Public Records, 36 ff.; F. E. Harmer, Anglo-Saxon Writs, 57 ff.

[3]Tout, Place of Edward II, 60; Collected Papers, ii. 143; Sayles, Household of the Chancery, Scottish Historical Review, xxv. 109.

[4]Fleta, ii. 13; cf. Pollock and Maitland, i. 193-197. As late as 1339 the common law side of Chancery was open to the objection of being merely an “office”: Y.B. 12 & 13 Edward III (Rolls Series), 98.

[1]Plucknett, Case and the Statute of Westminster II, Columbia Law Review, xxxi. at 792 ff. For the text of the statute, see above, p. 28. For valuable light on how writs were obtained, see Sayles, King’s Bench, ii, intro. lxxxvi.

[2]The oft-repeated statement that these clerks were always civilians or canonists seems to have originated in nothing more substantial than a guess by the seventeenth-century civilian Dr Duck, Use and Authority of the Civil Law (p. xxix of the 1724 translation). This may have been the case, however, in the reign of Elizabeth (Spence, Equity Jurisdiction, i. 363 e). Cf. Maitland, English Law and the Renaissance, 85-86, and Register of Writs, Select Essays in Anglo-American Legal History, ii. 558.

[3]The matter is well debated in Y.B. 16 Edward III, i. 108.

[1]Rot. Parl., iii. 474 no. 95 (1401).

[2]See below, pp. 180 ff. and the important and original paper by A. D. Hargreaves, Equity and the Latin side of Chancery, Law Quarterly Review, lxviii. 481. Pike had taken a somewhat similar view: Y.B. 12 & 13 Edward III, intro., cv-cxi.

[3]Magna Carta (1215), c. 18; (1225), c. 12.

[1]Magna Carta (1215), c. 17; (1225), c. 11.

[2]Curia Regis Rolls, vii. 332.

[3]Evre Rolls of Gloucestershire, &c. (Selden Society, vol. 59), nos. 715, 1184; cf. Lady Stenton’s introduction, lvi ff. Both cases were in 1221.

[4]Ibid., no. 1458 (the date is 1222).

[5]The problem is fully discussed in Turner’s introduction to Y.BB. Edward II (Selden Society), ix.

[1]The exact power conferred by each of these commissions has never been exactly determined, and a convenient theory was propounded that it was unnecessary to distinguish between the different commissions. The principal statutes are De finibus Levatis, 27 Edw. I, c. 3 (1299); 2 Edw. III, c. 2 (1328); 4 Edw. III, c. 2 (1330).

[2]An order of 1195 in Stubbs, Select Charters, 257-258, is generally cited in this connection as foreshadowing the “conservators” or “keepers” of the peace. It has been suggested that developments in London influenced government policy: A. H. Thomas, Plea and Memoranda Rolls, 1323-1364, xi. ff. In the north and west of England an ancient system survived which long served instead of justices of the peace in those parts: R. Stewart-Brown, The Serjeants of the Peace (1936).

[3]On this and other matters in this paragraph, see the massive study by B. H. Putnam. Proceedings before Justices of the Peace (Ames Foundation, 1938).

[4]4 Edw. III, c. 2.

[1]18 Edw. III, stat. 2, c. 2.

[2]Details in B. H. Putnam, Transactions of the Royal Historical Society (1929), 19 ff.

[3]42 Edw. III, c. 6. The keepers frequently received powers of trial by commissions of 1350 and onwards (Putnam, op. cit., 43), and in 1361 by 34 Edw. III, c. 1, they were given powers of trial by statute (in Lodge and Thornton, Constitutional Documents, 331-332); nevertheless trial powers were withheld in commissions issued in 1364 (Putnam, op. cit., 46), in spite of the statute.

[4]Putnam, Proceedings before Justices of the Peace (Ames Foundation, 1938), and Transactions of the Royal Historical Society (1929), 19-48.

[5]By the eighteenth century a system of fees had come into existence, apparently without authority, and a “trading justice” could do very well out of his office: J. F. Stephen, History of Criminal Law, i. 230.

[6]The chairman and deputy chairman of quarter sessions are generally lawyers of standing.

[7]See Putnam, Early Treatises on Justices of the Peace, 102-104.

[1]The earliest is 11 Hen. VII, c. 3. Much material is collected by Frankfurter and Corcoran, Petty Federal Offenses and Trial by Jury, Harvard Law Review xxxix. 917 at 924 ff.

[2]See the suggestions by Miss Putnam, Proceedings (Ames Foundation), xxxvi.