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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 8

THE RISE OF THE PREROGATIVE COURTS

The previous chapter has told only half the story of Tudor reform in the sphere of law, for besides the common law courts the Tudors also inherited a group of institutions which modern historians describe as prerogative courts. The ancient common law courts had been consecrated by the centuries; the Tudor financial courts had been solemnly established by parliamentary statutes; but the courts to be considered in this chapter could claim neither antiquity nor legislative sanction. Some of them had grown up imperceptibly in various departments of government or around some officer of state; others were erected by royal commission. There was nothing irregular or “unconstitutional” in this, and the legitimacy of these institutions was undoubted. We have already seen, even in the fourteenth century, that the powers of Justices of the Peace owed as much to their royal commissions as to the statutes of Parliament.

The principal characteristic of prerogative courts, apart from their peculiar origins, was that they did not use the ancient system of common law writs, forms of action, or procedure. Instead, they used various forms of bill or petition between party and party, while crown proceedings could be begun by information, citation and like. The fundamental limitation on their jurisdiction came from the common law rule that a man could not lose his land, save by a royal (which was interpreted as a common-law) writ. Legal estates in real property were thus beyond their reach.1 It likewise followed that prerogative courts could not try treason or felony, for the forfeiture or escheat of land would be involved. During the Tudor age these courts nevertheless elaborated important bodies of law such as equity in the Chancery, maritime and commercial law in the Admiralty2 and Court of Requests, libel and slander and much criminal law in the Star Chamber, and so on.

THE NEED FOR NEWER INSTITUTIONS

We have frequently insisted that the common law was essentially the law of land. The implications of this fact were very far-reaching. Its procedure was designed to reach people who owned land, and consequently was directed principally against the land rather than the person. The King’s Court was at first concerned with the king’s tenants and their feudal rights and duties, and such people could be most surely reached through their feudal holdings. When the common law of the King’s Court was becoming the common law of the country, it had to deal with very different problems. Other heads of law besides real property had to be developed, and litigants of the newer type were not always landowners of any consequence, although they may have had other forms of wealth. The old procedure was not always effective in these cases. The common law procedure was generally patient and long-suffering, for it well knew that the tenant’s land at least could not be removed from its jurisdiction. It knew also that haste was practically undesirable, for agriculture was an exacting pursuit which made it impossible for a landowner to leave his estate at a moment’s notice. Relics of this still persist, for the long vacation of the courts and universities was once necessary to permit bench, bar and litigants to reap and garner their crops and plough their lands. Fixed terms, widely spaced, were designed to enable court work to fit in with agricultural work.3

With the growing complication of society, law had to deal with people who could not be reached quickly, if at all, by means of a procedure directed against land—with people, that is to say, who could not be identified with certain acres. Similarly, there were matters which could best be settled by securing the prompt personal attendance of parties, and by giving them direct personal commands to act or to desist in certain matters. The common law rarely achieved anything so logically direct as this action in personam, simply because its main pre-occupation was real property, and in that particular subject it was as convenient to reach a man by attacking his land, as later admiralty found it useful to reach a man by attacking his ship.

Again, the common law was slow to admit the evidence of parties and witnesses. There was in fact little need for such evidence in the early days of the common law, for its main concern was with records and documents (to which it attached exaggerated importance) or else with such publicly notorious facts as seisin, which were better proved by a jury than by the interested statements of parties or their friends. For minor matters where no deeds were used compurgation was good enough. Here again, the development of law beyond the confines of real property made it desirable to collect evidence, especially from the parties themselves. How useful this could be was apparent from the success with which the canonists were using written depositions.

If any further reason for using such a method were needed, it could be found by observing the decline of the jury. Especially in the fifteenth century there are complaints that juries were packed, bribed, intimidated, partial and difficult to obtain within any reasonable space of time. Distrust of juries is an important factor in the early popularity of equity courts.

Finally, there were those who favoured as a remedy to all this the direct business methods of the administrator. They felt that there were cases which could not be satisfactorily handled by the common law with its writs, its delays, its pleadings, its limited resources in the finding of facts and the awarding of judgment, and its weakness in the face of disorder and corruption. The abandonment of court forms and the substitution of executive methods, moreover, brought with it other consequences. Some of the substantive rules of the common law, defensible enough when considered purely from a technical point of view, seemed unjust to the unlearned who had to suffer from them, and so we need not be surprised that there grew up a desire for more equitable rules as well as more effective procedure.

THE COUNCIL AND PETITIONS

Persons who desired such extraordinary relief addressed themselves to the King and his Council. As the ultimate source of jurisdiction the King had long been accustomed to receive complaints from persons who alleged that they were unable, in law or in fact, to obtain redress in the usual courts. It has been suggested1 that Edward I was glad to encourage these approaches, but was compelled by their numbers, and by the need of checking the handling of them by his subordinates, to insist that they be presented in writing, as petitions. In doing this, he was following papal practice, and like the popes, soon found it necessary to devise a procedure by which the easy cases were dispatched to the departments and dealt with by officials, while difficult matters came before him and the Council, in order to prevent the work of Parliament being obstructed by their number.1 It soon became normal for large panels of “receivers” and “triers” of petitions to be set up at the beginning of every parliament. When Parliaments were less frequent, it seems that these applications (which continued to increase rapidly during the later fourteenth century), finally constituted a large and steady charge upon the Council’s time.

Just as one part of the local enforcement problem was attacked by setting up the new institution of justices of the peace for local matters, so the deficiencies of the central courts were being supplied by the King’s Council. For a time, Parliament had occasionally served as a court of royal discretion,2 but by the middle of the fourteenth century Parliament itself had become an institution which to some extent could be regarded as separate from the Council.3 The Council nevertheless remained in its ancient position of a small group of officials, household officers, clerks and advisers, continually attendant upon the King, and therefore exercising in his name that residuum of discretion and equity which was inseparable from the royal person. As Parliament became more settled in its powers, petitioners who sought extraordinary relief addressed themselves to the Council; and in any case, even if their petitions had been presented in Parliament, it was most likely that it would be the Council which actually passed upon them.

Indeed, a variety of addresses occur in the petitions of the middle and later fourteenth century. Sometimes they are sent to the King, sometimes to the Council or the Parliament, and sometimes to the Chancellor or some household official. In any case it was the Council which generally took action, irrespective of the address upon the petition. The administrative and political duties of the Council were already exceedingly heavy, and the mass of petitions which streamed in every day immensely increased its task. Then, too, besides petitions, the Council itself would sometimes initiate proceedings of a semi-judicial character by calling upon some local magnate who was too powerful to be reached by the ordinary courts, to appear before the Council under the penalty (sub poena) of a sum of money to answer for his misdeeds—which were usually some form of oppression or disorder. The Council therefore found itself burdened with a growing mass of semi-judicial business; some of it could be transferred to the courts of common law, but some of it had to be considered by the Council itself, either because unusual relief was necessary, or because the parties were too influential to be amenable to the ordinary process of the courts. The problem arose of how to deal with this business. The same solution was found as in previous cases. A routine was established and officials were assigned for its working, only in this case an already existing institution, the Chancery, was used to carry out these new duties.

THE ORIGIN OF CHANCERY JURISDICTION

A variety of theories have been proposed to account for the origins of Chancery jurisdiction, but the general trend has been to establish an old theory first put forward by Palgrave.1 According to this view the Chancellor’s jurisdiction was not by virtue of his office; still less had it anything to do with his supposed position of keeper of the King’s conscience.2 At a later date, it is true, Chancery became a court of conscience, with a jurisprudence deliberately based upon that idea, but that was a later development and will not account for the earliest period of Chancery history. It now seems clear that the Chancellor’s position was originally that of an informal delegate of the Council.3 Overburdened with work of every description, the Council delegated particular matters to the Chancellor, who of all the officials was the one who was most constantly in attendance. Moreover, the Chancellor already had a well-organised office staff which had long been familiar with the judicial work arising on the common law side of Chancery,4 and for a long time had exercised the power of issuing writs both judicial and administrative to all the King’s officials, central and local. The Chancellor, therefore, commanded the machinery which sooner or later would have to be set in motion in order to give redress to the petitioners, and so nothing could be simpler than for the Council to transmit the petitions addressed to it to the Chancellor, sometimes (but not always) endorsing them with a brief instruction what to do. Both on the common law and on the equity sides the Chancellors frequently called upon the judges of the common law courts to sit in Chancery, and it may well be the case that a good deal of genuine collaboration took place in the great task of creating the system of equity.

THE ORIGIN OF THE STAR CHAMBER

It was only natural that petitions concerning civil matters should be treated in this way. Many petitions, however, raised questions of a criminal character. As we pass through the fifteenth century, disorder and oppression by local magnates constantly becomes more common; petitioners are continually complaining of the lawlessness of their great neighbours, and it is perfectly evident that the courts of common law were helpless in face of this situation. Their procedure was too slow and too mild; juries and sometimes judges were intimidated by large forces of retainers who constituted the private armies of unruly subjects. With such grave matters the Council alone was powerful enough to deal. Peremptory commands to appear before the Council were the only effective procedure. Consequently the Council retained control of these graver matters in its own hands. The Council’s original jurisdiction, therefore, shows signs of dividing into two portions, most of its civil jurisdiction being exercised in its name by the Chancellor, while the rest, together with its criminal powers, was exercised at the Council board.

When, finally, the House of Lancaster had fallen and the Yorkist, Edward IV, had established himself upon the throne, important changes took place in the Council. As far as we can judge (the affair is somewhat mysterious) what happened was this:1 the Council lost the power of controlling the administration which it had exercised so rashly under the Lancastrian kings. Edward IV retained in his own hands the control of the State machinery, which he operated through officials responsible to him alone. The Council’s attempt to become the supreme power in the State failed with the fall of the House of Lancaster. The evidence which survives of the Council’s activity under Edward IV is very scanty indeed; yet on the other hand we know that the Council was a very large body. It would seem that Edward IV deliberately confined its activities to the sort of business we have mentioned, namely, the handling of petitions, especially when those petitions raised questions of public order, and the administration of criminal law. Of the many rooms which the Council used in the fifteenth century its favourite seems to have been the Star Chamber, and from the reign of Edward IV onwards it seems that the Council is steadily turning into the Court of Star Chamber.

Not until the reign of Henry VIII do we find the deliberative and executive functions of the old Council revive. But by this time the old Council had become the Court of Star Chamber with a large and regular judicial business. Henry VIII, therefore, had to create a new institution, the Privy Council. When the Court of Star Chamber was abolished in 1641, the old mediaeval Council at last came to an end, and there only remained Henry VIII’s recent invention, the Privy Council.

A word must be said of the famous act of 1487.1 Old writers took it as the statutory origin of the Court of Star Chamber, principally on the strength of a marginal title on the statute roll which reads “pro camera stellata”. So firm was this belief that when the court was abolished in 1641 the act of 1487 was repealed. It has now been shown that this act has no connection with the Star Chamber, and that the marginal title is an addition in a later handwriting. The act’s principal effect was to emphasise the separation between the civil jurisdiction of the Chancery and the criminal jurisdiction of the Council, for it called upon the principal officers of State2 to exercise wide powers for the repression of serious crime—and it is certain that they had already exercised these powers for many years. In short, the act was one more public threat by the government, which proclaimed its intention of vigorously enforcing the law by a summary procedure in the Council.3

Nevertheless, as far as the reign of Henry VII is concerned,

STAR CHAMBER AND STATUTE LAW

The tradition which associated the Star Chamber with the act of 1487 has some significance, however, for it emphasises the importance of the problem of enforcing statute law. The fifteenth-century government tried to check the growth of disorder and corruption by enacting heavy penalties against persons guilty of these offences. But statutes are unavailing without enforcement, and they had little effect until the Council and the Star Chamber took the matter in hand. It thus came about that the Star Chamber was largely concerned with the summary enforcement of legislation. Simultaneously, attempts were made from time to time to provide special courts for the enforcement of particular groups of statutes. The act of 1487 is an example of this policy, and the similarity of the means and the end may well account for the rise of the opinion that the act was the origin of the court, instead of both being independent attempts to enforce the same body of statute law.

Indeed, it was becoming a common opinion that drastic legislation can only be effectively enforced by courts erected ad hoc, and untrammelled by the ancient common law traditions. An early example is a statute of 1362 which contains the following remarkable, but little-known provision:

If the provisions of this and similar acts had been consistently followed, the Chancery would have become a court for the application of statute law, and particularly that of a constitutional, international or commercial character. The act of 1487, as we have seen, set up a special body to deal with statute law of a criminal character, and this was amended in 1529.2 In 1535 or 1536 it was proposed to empower the group mentioned in the act of 1487 to hear charges of corruption against certain public officials,3 and still more interesting is a bill of about the same date which would have set up a court of “conservators of the common weal” to enforce all statutes passed since 1485.4 Of the greatest examples of this tendency, the financial courts of Henry VIII, we have already spoken: one other, the Court of High Commission, will be mentioned later.

The connection of the Star Chamber with the numerous statutory offences created during the fifteenth and sixteenth centuries was carried a step further when, under the Tudors and Stuarts, it undertook to enforce royal proclamations. The legal questions involved belong to constitutional history, where they had much to do with the growing unpopularity of the court, which was considerably augmented by a further development whereby the Star Chamber assumed legislative powers by making “decrees”.1

THE COURT OF REQUESTS

Numerous courts were founded upon the model of the Council. Many of them have faint beginnings in the reign of Henry VII or even earlier, but it is to Henry VIII and Elizabeth that they owe the bulk of their power. We have already mentioned the Council and the Star Chamber; there were many more besides. The Court of Requests first appears in 14832 and was modelled to some extent on the Chambre des Requêtes, a similar institution in France. The next we hear of it is in 1485 when a bill to abolish it was introduced into parliament and passed the commons, but got no further.3 Under Henry VII it was, in effect, a committee of the Council for the hearing of poor men’s causes and matters relating to the King’s servants. Sometimes it appears in two divisions, one in the White Hall at Westminster and the other travelling with the King. Its jurisdiction was mainly civil, although at times it entertained matters of a criminal character, such as grave disorder, forgery, etc., and for some time the court seems to have been genuinely popular. Its head was the Lord Privy Seal, and assisting him were a number of masters of requests, two of whom deserve to be remembered for their contributions to legal literature: Christopher St. Germain, and Sir Julius Caesar. Its organisation closely followed that of the Chancery. Its procedure was at first intended to be informal, but the abuses to which this led compelled the court to follow the Chancery system of having bills drawn and signed by counsel. In the end it passed from an extreme of informality to the opposite extreme of technicality when it had adopted the summary procedure of the civil law—which was far from summary according to modern ideas. No doubt the example of Chancery was influential here, as also in its claims to administer equity. Later in Elizabeth’s reign the presence of civilians in the Court of Requests led that court to exercise a wide Admiralty jurisdiction, including mercantile as well as maritime and prize jurisdiction.4

COURTS OF THE MARCHES

Exercising concurrent jurisdiction with the Council and the Star Chamber were two other courts, the Council of Wales and the Council of the North. These remarkable bodies combined with the utmost facility the political business of governing Wales and the North (where there was considerable unrest at this time) with such judicial duties as seemed to them expedient. They controlled local government within their area, and acted as courts of equity and of extraordinary criminal jurisdiction.

ROYAL CHURCH COURTS

The Reformation statutes necessitated the creation of yet more special courts to enforce their provisions and carry out their policy. Appeals which once went from the archbishop to the pope were reserved by a statute of 1534 to the King, who was to follow the papal practice of commissioning delegates to hear them.1 Hence there was created the High Court of Delegates. The judges were not permanent but nominated ad hoc for each case, and, as they were paid latterly but a guinea a day, only very junior men would consent to act, and so the court enjoyed very little esteem.2 Its powers are now exercised by the Judicial Committee of the Privy Council.

The Act of Supremacy3 conferred upon the Crown the whole remaining jurisdiction of the pope, and to exercise this immense and vague authority commissions were issued from time to time, which finally became stabilised in their content, and the persons empowered to act by them became known as the Court of High Commission.4 It consisted mainly of bishops and devoted itself largely to the criminal side of the ex-papal jurisdiction. Its proceedings were later likened (with some justice) to those of the continental inquisitions, so severely did it search for ecclesiastical offenders.5

EQUITY SIDE OF THE EXCHEQUER

In 1415 the Commons believed that John of Waltham, who died in 1395, had invented the writ sub poena in the reign of Richard II (1377-1399), and complained of its use in the Exchequer as well as in the Chancery.6 This seems to be the first reference, faint and doubtful as it is, to a court of equity in the Exchequer in the modern sense. Its history is by far the most obscure of all the English jurisdictions, and all that seems known of it is that it acted as a court of equity, duplicating to some extent the Chancery during the seventeenth and eighteenth centuries,1 and indeed down to 1842 when its jurisdiction was transferred to the Chancery.

EQUITY IN SEIGNORIAL COURTS

A remarkable and illuminating parallel to the development of equity beside the common law courts of the Crown is to be found in the history of certain great seignorial estates, especially those of the abbey of St Albans, many of whose archives have survived. The abbot had courts in the several manors, and also a central court which supervised the estates as a whole. These may be called his “common law” jurisdictions. Already in 1308, however, we find that the abbot had a council,2 and in 1338 we find that council legislating on the rules of succession governing the abbey’s tenants,3 and towards the end of the century this council had a civilian and canonical element: in 1381 the insurgent villeins chased away the doctors of both laws, saying that they would not henceforth submit to the civil or the canon law.4 The movement and the antipathy towards it were not confined to St Albans, for a few years later a royal statute recited

The need for newer institutions was therefore felt both in royal and in seignorial judicial systems, and in both it was the conciliar form which was tried. Moreover, in both systems there was a tendency to turn to civilians and canonists. In England, the seignorial council of civilians had much less influence than on the continent, where the influence of civilians is said to have done much to depress the position of the peasantry and to prevent their gradual rise in status.1 The growth of copyhold and its recognition as a “customary” freehold in England had the result of gradually and almost imperceptibly enfranchising the villeins, but this would hardly have been possible if the civilians had succeeded in imposing their distrust of custom.2

RELATIONS OF THE OLD COURTS TO THE NEW

In the middle ages, as now, the appearance of new institutions, making light of the solemnities of dogma and procedure which were dear to practitioners before the older courts, aroused some fear and more resentment. Then, as now, conservatives were persuaded that the constitution (or the common law) was in danger, and the first impulse was not to reform the old, but to attack the new order of courts.

The rolls of the mediaeval English parliaments contain numerous petitions and acts directed against the Council and the Chancery. The promise of justice in the Great Charter3 was regarded as a declaration that the common law courts, and they alone, had jurisdiction over the lives, persons and property of Englishmen. In 1331 its provisions were pointedly re-enacted;4 in 1352 it was again recited and the King had to promise that the Council would not proceed without indictment or common law process on an original writ;5 although this was confirmed several times, we find in 1363 another attempt to enforce this construction of the charter—the Council must take security from complainants, and even then proceed only by common law.6 In 1368 the Commons once more tried to insist upon indictment or original writ as the sole foundation for legal proceedings.7 All these statutes denouncing the council were obviously ineffective, despite the show of assent given to them by the Crown. In 1389 the Chancellor is coupled with the Council in a petition to which Richard II only replied with a saving of the royal prerogative.8 The tide was on the turn. A statute of 1394 tried a different policy by allowing the Chancellor to award damages to a defendant when the plaintiff’s suit appeared founded upon falsehood,1 but the fall of Richard II brought back the older type of remonstrance. In 1415 the writ sub poena was denounced as a subtlety invented in the previous reign by John Waltham, and the examination of parties and witnesses without lawyers and without records and the use of civil and canon law forms were again vigorously denounced. The petition was bluntly rejected by the King.2 Another in 1421 which alleged that a sub poena was not “due process” was likewise refused.3 Clearly the Council and the Chancery were now solidly established. Indeed, for the future, legislation took the opposite course of increasing the powers of the Chancellor and the Council by a series of acts4 of which the act pro camera stellata5 is only one example.

The petition of 1389 was therefore the first to which the Crown ventured a refusal, and that of 1394 begins a line of statutes which accept and even enlarge the jurisdiction of the Chancellor and Council. We may therefore conclude that during the fifteenth century the Commons were gradually reconciling themselves to the existence of a jurisdiction which the country at large seems to have welcomed, and their protests can be largely ascribed to the professional common lawyers who largely directed its proceedings.

COMMON LAW AND EQUITY IN THE FIFTEENTH CENTURY

Whatever the bar may have thought about the problem, the common law judges seem to have been prepared to work with the Chancery in a spirit of co-operation. They were constantly in consultation with the Council and the Chancellor, both for the statutory purposes already mentioned, and also to assist him when called upon in the exercise of his equitable jurisdiction. The frequent conferences in the Exchequer chamber for discussing difficult cases afforded yet one more opportunity of contact. There is therefore no further questioning of the powers of the Chancellor or the Council, but instead we find an endeavour to define the limits of the two jurisdictions.6 In this there was naturally some conflict, especially as Chancery already enjoined parties from pursuing common law remedies, and the common law courts sometimes talked about prohibiting suitors from going into equity, and at least once threatened to release by habeas corpus one who had been committed by the Chancellor for contempt.1 However, occasional outbursts of ill-feeling such as this contrast with the general atmosphere, which seems to have been one of mutual tolerance. Indeed, in 1464 the Court of Common Pleas was once given the chance of recognising an equitable estate, with the reasoning that “the law of chancery is the common law of the land”. This golden opportunity was lost,2 and so we had to wait four hundred years for the fusion of law and equity.

EQUITY UNDER THE TUDORS

The sixteenth century shows us Council government at its best. The courts of Star Chamber, Requests and High Commission collaborated in the most intimate manner with the Privy Council in the task of government. All the troubles brought about by religious dissension, economic distress, foreign wars and domestic sedition were handled courageously and effectively by the newer institutions. Nowhere will be found so striking a contrast with the inadequacy of the Lancastrian age. No doubt there was some ruthlessness: legal and constitutional barriers had to yield when the State was believed to be in danger—and it certainly was on more than one occasion. The Privy Council itself exercised a jurisdiction more vague even than that of its offshoots, and all the conciliar courts inflicted “unusual” and sometimes picturesque punishments when occasion demanded. Torture was not unknown to its procedure: sedition, defamation, heresy, unlicensed printing, playacting, perjury, riot—all these might be visited with fine and imprisonment, while all sorts of mercantile disputes (especially those involving aliens), domestic disputes and private litigation of all sorts flowed in an ever-growing stream through the Council chamber, in spite of all attempts to divert it to other courts of law or equity.3

By the middle of the sixteenth century the Court of Chancery had a great deal of business and a large and complicated establishment. In theory it remained, almost to the end, one court with a single judge, the Chancellor himself, but the legal work alone, without considering the political duties attached to the office, was very heavy and devices had to be found for lightening the burden. Minor matters were left to the Masters in Chancery, while the Master of the Rolls was coming into prominence as an assistant, and sometimes as a deputy, to the Chancellor.4

The tolerably good relations which we have seen existing in the fifteenth century between common law courts and Chancery were interrupted during the chancellorship of Cardinal Wolsey (1515-1529). The list of charges against the Cardinal1 accuse him of misusing injunctions as well as publicly insulting common law judges. The fact that harmony once again reigned under his successor, Sir Thomas More, would seem to indicate that the fault lay as much with Wolsey’s character as with his policy. More, trained as a common lawyer, even suggested to the judges that they should adopt equitable principles and so render injunctions unnecessary.2 He at least seems to have thought this a practicable solution, but again the judges replied with a non possumus. The one hopeful sign was that there was no distinction of a common law bar from a Chancery bar; as Bacon was able to remark much later, many of the common law judges had either sat as commissioners in Chancery, or had practised there earlier in their careers. Not until the accession of James I did discord reappear.

[1]This did not prevent Chancery from adjudicating upon uses, or the Council in Star Chamber from awarding possession.

[2]For the Admiralty courts, see below, pp. 660 ff.

[3]Plucknett, Legal Chronology, in Handbook of Dates, ed. C. R. Cheney.

[1]L. Ehrlich, Proceedings against the Crown, 95.

[1]Cf. the ordinance of 1280, ibid., 235. For similar situations in Sicily and Hungary, see ibid., 92 ff. The popes, in turn, could find some basic principles, already settled by Roman emperors from Diocletian onwards, conveniently assembled in Cod. i. 19: A. de Boüard, Diplomatique française et pontificale, i. 67.

[2]Occasionally, relief of a sort which would later be described as “equitable” was given in Parliament when the parties were important personages. Thus, relief against a specialty was granted in 1327 (Cal. Close Rolls, 1327-1330, 47); in 1366 a petition for a decree of specific performance was referred by Parliament to the Chancellor, justices and others; the Council finally compelled the defendant to convey (Cal. Close Rolls, 1364-1368, 237); and in 1421 Parliament heard a suit for, and decreed, the performance of certain uses (Rot. Parl., iv. 151-153). On the other hand, the word “equity” may be used without any technical implication whatever, as in Rot. Parl., ii. 181 no. 23 (1348); cf. “this high court of Parlement, that ministreth all justice and equitee”, Rot. Parl., v. 240 no. 28 (1454).

[3]In Ireland, on the other hand, it has been suggested that the Irish Chancellor had no original equity jurisdiction but merely acted as the delegate of Parliament in any particular case: H. G. Richardson and G. O. Sayles, The Irish Parliament in the Middle Ages, 219.

[1]Palgrave, Original Authority of the King’s Council (1834); Baldwin, The King’s Council (1913), 236-261.

[2]Sir Christopher Hatton in 1587 seems the first to have described himself, rhetorically, as keeper of his Sovereign’s conscience; Spence, Equitable Jurisdiction, i. 406, 414. Rot Parl., i. 74 b (1292) is possibly unique in deciding a highly political trespass case in Parliament “ex premeditato judicio consciencie domini regis”. The still wilder legend that the Chancellor was the King’s confessor is easily refuted, as lists of confessors have been compiled—and they were not Chancellors (The Antiquary, xxii. 114, 159, 202; Home Counties Magazine, 1910). Kings’ confessors rarely appear in public affairs, although Richard II’s was impeached (Rot. Parl., iii. 241 a), and Henry IV’s confessor was removed in Parliament: Rot. Parl., iii. 525 no. 16.

[3]As late as 1641 Lord Keeper Finch could assert that an order of the council was in itself adequate ground for making a decree in chancery: Holdsworth, v. 257.

[4]Cf. above, p. 165 n. 2, for the view that the Chancellor’s equity originated in the common-law jurisdiction of his court. Under either view, the common-lawyers seem significantly prominent in the creative days of early equity.

[1]Plucknett, The Place of the Council in the Fifteenth Century, Transactions of the Royal Historical Society (1918), 186-188. But see Bayne, Cases in the Council of Henry VII, ed. W. H. Dunham (Selden Society), intro. xxiv for another view. See below, p. 182 n. 3.

[1]3 Hen. VII, c. 1 (reprinted in Tanner, Tudor Constitutional Documents, 258); Baldwin, The King’s Council, 438-442; Bulletin of the Institute of Historical Research, iii. 115 and plate II; Pollard, Council, Star Chamber and Privy Council under the Tudors, English Historical Review, xxxvii. 516; C. H. Williams, The So-called Star Chamber Act, History, xv. 129.

[2]For some other powers which it was proposed to confer upon the same group of officers, see Holdsworth, iv. 458 n. 6; the Statute of Proclamations set up substantially the same group in 1539 (31 Hen. VIII, c. 8; reprinted in Tanner, Tudor Constitutional Documents, 532). Above, p. 45.

[3]The late C. G. Bayne left a volume of Select Cases in the Council of Henry VII, with a valuable introduction on the early history of the Star Chamber and the act of 1487. It is being prepared for publication in the Selden Society’s series by Professor W. H. Dunham, Jr.

[4]C. G. Bayne, op. cit., clxxii.

[1]36 Edw. III, stat. 1, c. 9; cf. 20 Edw. III, c. 6 (1346), on sheriffs; 27 Edw. III, st. 1, c. 1 (1353), provisors; 37 Edw. III, c. 18 (1363), on informations; 38 Edw. III, st. 2, c. 2 (1364), provisors; 15 Rich. II. c. 12 (1391); below, p. 186 n. 5.

[2]21 Hen. VIII, c. 20 (in Tanner, Tudor Constitutional Documents, 259).

[3]Draft bill printed in Holdsworth, iv. 584 (9).

[4]Letters and Papers of Henry VIII, vii. 1611 (4) printed in full in Plucknett, Some proposed legislation of Henry VIII, Transactions of the Royal Historical Society (1936), 119. In 1495 Parliament gave wide powers to justices of the peace to try all statutory offences less than felony (11 Hen. VII, c. 3). See below, p. 438.

[1]One of them is printed in Tanner, Tudor Constitutional Documents, 279.

[2]For this date, see A. F. Pollard, The Council under the Tudors, English Historical Review, xxxvii, at p. 344.

[3]A. F. Pollard, The Growth of the Court of Requests, English Historical Review, lvi. 300. The whole matter is re-examined by C. G. Bayne in the introduction to the work mentioned, above, p. 182 n. 3.

[4]See the examples collected in Holdsworth, v. 139 n. 7. For an admiralty judge who would have found it convenient to be a master of requests in 1588, see Lord Eustace Percy, Privy Council under the Tudors, 49.

[1]25 Hen. VIII, c. 19 (partly in Tanner, Tudor Constitutional Documents, 22-25).

[2]Holdsworth, i. 605.

[3]26 Hen. VIII, c. 1 (1534); in Tanner, Tudor Constitutional Documents, 47.

[4]Specimens of the commissions will be found in Tanner, op. cit., 367 ff.

[5]Its oath ex officio, against which there was great outcry, could be matched in the Star Chamber; see the letters in Tanner, op. cit., 373-374, and M. M. Maguire, The oath “ex officio” in Essays in honor of C. H. McIlwain (1936), 199.

[6]Rot. Parl., iv. 84 (46).

[1]Blackstone, Commentaries, iii. 45-46. It is suggested by Emyr Gwynne Jones, Exchequer Proceedings (Equity), (University of Wales, Board of Celtic Studies: History and Law Series, no. 4), (1939) that the equity side grew out of the common law jurisdiction of the court. A similar thesis has been put forward (with reference to chancery) by L. O. Pike, intro. to Y.B. 12 & 13 Edward III (Rolls Series), cvi-cxi. See, however, G. O. Sayles, Select Cases in King’s Bench, ii. intro. lix who would find equity in the Exchequer under Edward I, and Alice Beardwood, Alien Merchants in England, 107, who suggests that there were equity cases in the Exchequer under Edward III. Neither seems convincing. Holdsworth i. 241 is noncommittal.

[2]Levett, The Courts of St. Albans, Transactions of the Royal Historical Society (1924), 62. Cf. Page, Crowland Abbey (1934), 45-49.

[3]Levett, loc. cit., 66; and in Mélanges Lot, 431.

[4]Ibid., 63; cf. Plucknett, Year Book 13 Richard II (Ames Foundation), xlii and Economic History Review, ii. 332. The suggestion that such councils, unconnected with tenure, do not appear while feudalism was at its height (Levett, in Mélanges offerts à F. Lot) was questioned by D. C. Douglas, Feudal Documents from Bury St. Edmunds (1932), cxlix-cl, and it is now known that an instance occurs as early as 1140 (Stenton, English Feudalism, 73). Valuable references are collected in Hilda Johnstone, The Queen’s Household (in J. F. Willard and W. A. Morris, English Government at Work, i. 292 n. 2) and N. Denholm-Young, Seignorial Administration, 26-30.

[5]15 Rich. II, c. 12 (1391), which appoints the Chancellor to enforce it (cf. above, p. 183); by 16 Rich. II, c. 2 (1393) such lords and ladies were to be fined twenty pounds.

[1]Maitland, English Law and the Renaissance, 23, 83 (Select Essays in Anglo-American Legal History, i. 195). This was, in fact, the result of the reception in Scotland according to H. Goudy in English Historical Review, xvii. 359.

[2]Below, pp. 310-312.

[3]Magna Carta (1215), c. 39; (1225), c. 29.

[4]5 Edw. III, c. 9.

[5]Rot. Parl., iii. 239 (19); 25 Edw. III, stat. 5, c. 4.

[6]37 Edw. III, c. 18.

[7]42 Edw. III, c. 3.

[8]Rot. Parl., iii. 267 (33); the Commons would have fined the Chancellor £100 for each offence. Cf. below, p. 684 n. 1.

[1]17 Rich. II, c. 6; confirmed by 15 Hen. VI, c. 4 (1437).

[2]Rot. Parl., iv. 84; the writ is older than Waltham. Indeed, it is found even in common law procedure; see Y.B. 30-31 Edw. I, 195 (Rolls Series).

[3]Rot. Parl., iv. 156.

[4]2 Hen. V, stat. 1, c. 9 (1414), confirmed by 8 Hen. VI, c. 14 (1429); 31 Hen. VI. c. 2 (1453); 33 Hen. VI, c. 1 (1455).

[5]3 Hen. VII, c. 1 (1487); above, p. 182.

[6]For examples of early bills in Chancery, see especially Select Cases in Chancery (Selden Society); for an early specimen see Pound and Plucknett, Readings, 195-196. The relations of common law and equity are further discussed below, p. 193.

[1](1482), Y.B. 22 Edward IV, Mich. no. 21, f. 37 translated in Pound and Plucknett, Readings, 197-198).

[2]Anon., Y.B. 4 Edward IV, Pasch. 9 (translated in Digby, History of the Law of Real Property (5th edn., 1897), 338-340: extracts in Pound and Plucknett, Readings, 196-197).

[3]See the Council orders printed in Tanner, Tudor Constitutional Documents, 242-245; for an excellent brief account see Lord Eustace Percy, The Privy Council under the Tudors (Oxford, 1907), and longer discussions by C. G. Bayne and others in introductions to the relevant volumes of the Selden Society.

[4]Some details will be found in Spence, Equitable Jurisdiction, i. 360-362.

[1]Printed in 4 Inst. 89-95: Coke’s statement that Wolsey was indicted for trying to subvert the common law (2 Inst. 626; 3 Inst. 208) was based upon a careless confusion of documents; Holdsworth, iv. 257.

[2]More details will be found in Holdsworth, v. 223.