Front Page Titles (by Subject) CHAPTER 7: THE TUDORS AND THE COMMON LAW COURTS - A Concise History of the Common Law
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CHAPTER 7: THE TUDORS AND THE COMMON LAW COURTS - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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THE TUDORS AND THE COMMON LAW COURTS
As the last chapter has shown, the fourteenth and fifteenth centuries were devoted to consolidating the monopoly enjoyed by the common law courts. In criminal justice alone did they allow developments to take place outside the system, and no doubt the reason was that the profession as a whole was not particularly interested in this arduous and unremunerative branch of law. The justices of the peace were therefore given a fairly free hand at the instance of the House of Commons, which seems to have felt in a dim sort of way that here was a field in which local self-government could be developed.1
The next chapter will discuss the darker side of this picture, and the emergency measures which the prerogative courts resorted to in restoring tranquillity after the Wars of the Roses. But although (as that chapter will show) the great contribution of the Tudors lay in the field of prerogative courts, nevertheless they did carry out some notable reforms in the common law courts as well.
THE COURT OF EXCHEQUER
We have already noticed the growth of the Exchequer of Plea, and its pretensions to become more than a purely revenue court.2 During the middle ages it seems to have held common pleas from time to times but certainly not in any great number. During the sixteenth century it is said to have claimed a general jurisdiction over many sorts of common pleas by means of the fiction that one of the parties was a Crown debtor,3 and this claim was admitted. For a long time the judges of the court (technically called Barons1 ) had been lawyers (although not necessarily serjeants). The history of this has never been explored, but it is clear that, by means unknown, the barons of the exchequer steadily raised their position until, in 1579, Queen Elizabeth, in making a new appointment, expressly gave the new baron an equal status with the judges of the other common law courts, and for the future the barons of the Exchequer shared with the justices of the King’s Bench and the Common Pleas the duties of going on circuit. Henceforth there were to be three common law courts of first instance.
THE EXCHEQUER CHAMBER, 1585
Late in the reign of Elizabeth still further confusion2 was created by the erection of yet a third court in the Exchequer chamber. The Court of King’s Bench had succeeded in acquiring a good deal of jurisdiction which once was peculiar to the Court of Common Pleas, and so acted as a court of first instance in these matters. If such actions had been brought in the Common Pleas, error would have lain to the King’s Bench; but when they were now brought in the King’s Bench in the first instance, error lay only to Parliament. Here the difficulty arose. Parliaments were originally held several times a year; Elizabeth summoned but ten in a reign of forty-five years, and so for long periods there was no court in existence which could hear the errors of the King’s Bench. To meet this situation two statutes3 erected a new court to hear errors from the King’s Bench. This court was to consist of all the judges of the other two common law courts—the Common Pleas, and those Barons of the Exchequer who were also serjeants—sitting together in the Exchequer chamber, and at least six were necessary before judgment could be given. Their decision was subject to further proceedings in error in Parliament, and the second statute explained that a party could still go directly from King’s Bench to Parliament if he chose.4 There was thus the disadvantage of an intermediate court of appeal, together with the anomaly that the use of that court was optional. A still further defect was that it was very difficult to assemble six of the justices and barons. The statutory body was not a court with fixed meetings every term, but a special assembly which might or might not meet—and it seems to have depended upon the influence of the litigants whether it met or not. If it did not meet at the date to which the case had been adjourned, then the record was discontinued. True, the second statute remedied this by saying that the absence of the judges shall not discontinue the process, but no effective means were ever provided for getting the court together within a reasonable period.
The same inadequate concession was made in respect of the other Exchequer chamber body to hear errors from the Exchequer of Pleas,1 and with the same disappointing results.
THE KING’S BENCH
The fact that these special arrangements had to be made for the review of judgments given in the King’s Bench will show that that court was enjoying unusually good business during the sixteenth century. The preamble to the earlier of the two statutes cited explains that the new court shall hear writs of error brought on “actions or suits of debt, detinue, covenant, account, action on the case, ejectione firmæ, and trespass” in the King’s Bench. These seven actions properly belonged to the Court of Common Pleas. Trespass (and ejectione firmæ resembled trespass) seems also to have been part of the original jurisdiction of the King’s Bench, but during the middle ages the only trespasses usually brought in the King’s Bench were those of unusual violence or importance.2 Most of this jurisdiction, therefore, had been acquired at a later period, and by somewhat devious means.
We have already mentioned the conflict of the King’s Bench with the Exchequer and with the Common Pleas in the fourteenth century;3 in the fifteenth century a second effort brought the King’s Bench once more into competition, if not into conflict, with the Common Pleas. The device employed in order to acquire the wide jurisdiction mentioned in Elizabeth’s statute4 of 1585 was fairly commonly used in the reign of Henry VI and was in constant use throughout the Tudor period. A bill of Middlesex made the defendant actually or fictitiously a prisoner in the custody of the marshall of the court’s marshalsea. This done, the court could entertain any sort of action against him since he was already within the jurisdiction of the court—a principle, moreover, which most courts professed. In such cases the proceedings were by bill instead of by original writ. Before the end of the century means were found5 whereby the defendant could be really arrested if he would not voluntarily admit that he was technically in the custody of the marshall, and so the new procedure served as the complete equivalent of an original writ. Throughout the sixteenth century the court enjoyed this usurped jurisdiction, with curious results. The competition between King’s Bench and Common Pleas was sometimes not merely a matter of offering procedural advantages, but sometimes even in offering better substantive law. Thus in at least one matter, which we shall refer to later,1 the two courts deliberately competed by offering two different rules of law for litigants to choose from, and in the end it was the more enlightened rule which prevailed.
There is another aspect of the King’s Bench during this period which deserves attention, and that is the growth of the “prerogative” writs. The history of mandamus, certiorari, prohibition and some other similar writs is still unwritten,2 but it is clear that they first become important during the Tudor period, and that they were a proper development of the jurisdiction of the King’s Bench, for that court had long been close to the Council in the exercise of royal discretion in judicial matters. The writs themselves seem to have been originally mere administrative orders from superior officials to their subordinates telling them to do something, to give some information, or the like. Clearly, the King’s Bench was making a great contribution to public law when it adapted these writs to legal purposes, and assumed the task of directing them as occasion required to various departments of central and local government. When one considers the enormous activity of the King’s Council under the Tudors, it is a little surprising that the Council should have allowed the court to handle the prerogative writs, for it seems just as likely that the Council itself should have undertaken to supervise local officers by its own purely administrative machinery. If it had done so it is clear that our constitutional law would have been very different.
THE TUDORS AND LOCAL COURTS
In spite of their centralising policy, the Tudors realised that there was a proper place and function for the older local jurisdictions and so they attempted to prevent their continuing decline. To this end an act3 was passed in 1601 which is a striking example of the unforeseen effects of legislation. It was enacted that in certain personal actions a successful plaintiff shall not recover more costs than damages, if the justices certify that the damages are less than forty shillings. The object of the act was to exclude small cases from the courts at Westminster, where costs were out of all proportion to the issues at stake. The statute operated not on the verdict but on the judges’ certificate. Evasion of the act became general,1 and in many cases judges were loath to grant a certificate which would deprive a successful plaintiff of his costs. Full use of it was not made until the middle of the eighteenth century, but in the meantime other statutes2 continued its policy, notably in actions of slander.3 This legislation failed entirely in its object of reviving the local courts and excluding small cases from the central courts, but it did have the curious result of distinguishing arbitrarily between trespass (which was within the statute) and case (which was outside of the statute) as remedies for personal injuries. It thus became perilous to bring trespass on a battery if there was a possibility of getting a verdict of only nominal damages. Such actions are therefore generally framed in case for negligence.4
THE TUDOR FINANCIAL COURTS
These courts have never been studied in detail and so little is known of them apart from the statutes creating them. If they were to be investigated, however, it might appear that the Tudors were not so prejudiced against the common law as is often supposed. It is perfectly true, as we shall see, that the Tudors developed the prerogative and equitable jurisdictions to a remarkable degree, but the creation of the financial courts seems to show that they were equally appreciative of common law forms, and were ready to use them on suitable occasions. Beside Chancery, Star Chamber and the Court of Requests, we must in fairness place those predominantly common law courts which were equally the creation of the Tudors, the Courts of Augmentations, First Fruits, Wards, Liveries (later combined with the Court of Wards), and Surveyors.5
The Court of Augmentations was erected by statute6 in 1536 partly as a department of audit, partly as an estate office, and partly as a franchise court (modelled in part on the chamber of the duchy of Lancaster7 ) to deal with the vast quantity of lands confiscated from the monasteries upon their suppression. Then, in 1540, the Court of First Fruits and Tenths was erected1 to manage sundry payments hitherto made to the popes, and recently transferred to the Crown.
In the same year, the Court of Wards was similarly constituted to manage the ancient feudal revenues of the Crown, and especially to enforce the rights of wardship and marriage,2 in 1540. As Coke3 observed, an office in that court was partly “ministerial” and partly judicial, so that the exercise of administrative as well as judicial powers by the same institution is particularly remarkable. In the next year a Court of Surveyors was established to manage other portions of the royal estates.4 It is noteworthy that these bodies were primarily administrative departments for the management on business lines of a vast quantity of property, but they were given judicial powers which were very likely to be used when the Crown itself was a party. From this point of view they resembled the old Exchequer, and it has been suggested that the example of the Exchequer practice was the inspiration for certain provisions which facilitated claims in these courts by subjects against the Crown.5 As courts they were not oppressive (although no doubt feudalism in itself gave rise to hardships). It is interesting to note that when the rights of the subject in litigation against the Crown were thoroughly examined in Pawlett v. Attorney-General6 and later in the Bankers’ Case7 the practice of the Exchequer and the Court of Augmentations was discussed.8
A curious point arose later in the reign when Henry VIII by letters patent dissolved and re-founded the Court of Augmentations and abolished the Court of Surveyors, although they had been created by statute. Under Edward VI doubts arose as to the propriety of this, and so an act was passed which grudgingly condoned this use of the prerogative.9 Queen Mary attempted (unsuccessfully) the still more curious feat of dissolving the Court of Augmentations, and (the next day) uniting it with the Exchequer.10
This point is well made by Professor Putnam in Transactions of the Royal Historical Society (1929), 47.
Above, p. 159.
The famous writ of Quominus is described in Holdsworth, i. 240; cf. above, p. 161.
They are described as barons as early as the Dialogus de Scaccario, i. 7. Bracton, f. 116 b, observes that earls and barons must be amerced by their peers, and that the barons of the exchequer are their peers for this purpose.
Cf. pp. 161-162 above.
27 Eliz. c. 8 (1585) amended by 31 Eliz. c. 1 (1589); both will be found in Tanner, Tudor Constitutional Documents, 343-346.
Cases which were brought to the King’s Bench on error from other courts were reviewable only in Parliament, and not in the new court; likewise proceedings to which the Crown was a party.
Above, p. 162. By 16 Car. II, c. 2 (1664) the presence of the two chief justices sufficed to continue the process, but judgment had to be by the Treasurer and Chancellor; by 19 & 20 Car. II, c. 9 (1668) a Lord Keeper could give judgment when there was no Treasurer or Chancellor.
Above, p. 163.
Above, pp. 160-162.
Above, p. 171.
The details are discussed in Reeves, History of English Law (1869), ii. 602; for a summary see Holdsworth, i. 219 ff.; below, p. 387.
See below, p. 644.
S. A. de Smith, The Prerogat Writs, Cambridge Law Journal, xi. 40 (1951) is the best historical introduction to the whole group. The history of habeas corpus has been studied in full, however; see Jenks, The Prerogative Writs in English Law, Yale Law Journal, xxxii. 523, and The Story of Habeas Corpus, Law Quarterly Review, xviii. 64-77 (reprinted in Select Essays in Anglo-American Legal History, ii. 531-548); and the extended treatment given in Holdsworth, ix. 108-125, x. 658-672; above, p. 57.
43 Eliz. c. 6 (1601).
Bacon, Abridgement, Costs B; Holdsworth, i. 74 n. 7.
22 & 23 Car. II. c. 9, s. 136 (1670); below, p. 461.
21 James I, c. 16 (1624); below, p. 495.
Below, pp. 461-462; this resulted from the act of 1670.
So, too, the Court of the Common Weal, below, p. 183.
27 Hen. VIII, c. 27.
On the Court of Duchy Chamber, see Holdsworth, i. 116 and R. Somerville, The Duchy of Lancaster Council and Court of Duchy Chamber, Transactions of the Royal Historical Society (1941), 159.
32 Hen. VIII, c. 45.
32 Hen. VIII, c. 46. By 33 Hen. VIII, c. 22, it became the Court of Wards and Liveries. Its history is admirably told in H. E. Bell, History and Records of the Court of Wards and Liveries (1953).
Auditor Curle’s Case, 11 Rep. 2 b.
33 Hen. VIII, c. 39. In establishing this court, Henry VIII seems to have been developing the curious office of “Surveyor of the King’s Prerogative” which his father created in 1508; Calendar of Patent Rolls, 1494-1509, 591.
Holdsworth, ix. 35.
Hardres, 465 (1668).
14 S.T. 1 (1690-1700).
A few extracts from the many statutes erecting and modifying these courts can be seen in Tanner, Tudor Constitutional Documents; for a general account of them, it is still necessary to consult Reeves, iii. 293-300. They are entitled to be called common law courts, although they were organised on the plan of Chancery, for it was from the common law side of Chancery and the revenue side of the Exchequer that they drew their inspiration.
7 Edw. VI, c. 3 (1553).
Reeves, History of the English Law (ed. Finlayson), iii. 296-297.