Front Page Titles (by Subject) CHAPTER 2: CIVIL PROCEDURE - A Concise History of the Common Law
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER 2: CIVIL PROCEDURE - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
It is universally observed that in old legal systems the place of procedure is especially prominent. In general, this is true. In repeating that statement, however, it should be added that procedure is by no means negligible even in modern law, and that if the observation is to be valuable, we must search for the reasons for its position in early law and in modern law respectively.
Superficially, our oldest sources speak mostly of procedural matters—especially the best sources. An orderly discussion of writs such as we find in Glanvill is more illuminating to the reader than the heroic (though hopeless) attempt of Bracton in the earlier part of his book to state the law in terms of general principles. To a historian, it is the practical detail of old sources which gives him his richest material. If historians prefer the precise detail of the plea rolls and Year Books to the obscure generalities of Bracton’s first hundred folios, it is because they are seeking the old law in action, rather than old law in theory. We may well believe that old lawyers themselves felt the same. The details of process and the practical side of pleading were as vital to them as recent cases or new statutes are to-day.
THE SLOWNESS OF OLD PROCEDURE
There is, however, a real difference between the place of procedure in the thirteenth and the twentieth centuries. Old procedure had to grow as it could. Much of it was ancient and traditional, but the very fact that it was not written in authoritative codes of rules left room for modification. Old procedure is therefore full of uncertainties, as a glance at any Year Book will show. Then, too, it has to contend with many difficulties which modern mechanical progress has eliminated. Most of the people whom it touched could neither read nor write, and so were easily victimised by dishonest officials. It could not rely on upright sheriffs, and sheriffs’ underlings were a by-word in the middle ages. Considering their difficulties, the middle ages achieved remarkably good communications, but at their best, those communications were apt to be slow and uncertain. Their system of sending out writs into the country, and the sheriff returning them with an endorsement, was based on sound principles of business routine, and it is now clear that these writs and returns were filed, and could be handled with comparative speed.1 But however good the system at the centre, there was always the peril of delay, mistake and fraud in the country. Procedure therefore had to be slow,2 allowing for accidents, taking an irrevocable step only after abundant precautions, and providing means for correcting blunders as it went along.
PROCEDURE AS A CONSTITUTIONAL SAFEGUARD
This slow and cautious procedure was therefore regarded as a valuable safeguard by litigants. Where modern public opinion would insist upon a trial which was substantially fair, the mediaeval public looked rather at the procedure and inquired whether all the steps in it were properly carried out.3 As a result, there is ample material for a history of mediaeval procedure, in the sense of process, for it was carefully recorded and widely studied, but very little light upon what actually went on before the eyes of a jury.
Procedure, considered as a safeguard, played a large part in constitutional struggles. Arbitrary action by the Crown or its officials necessarily involved a breach of procedural rules sooner or later. In 1215 the barons at Runnymede appealed to procedure as the only effective protection for their persons and property, and nearly two centuries earlier the same principle had been formulated in an edict of the Emperor Conrad II (1037) for the Holy Roman Empire. It is represented to this day in the due process clauses in the federal and state constitutions of America.
PROCEDURE AND SUBSTANTIVE LAW
The previous chapter has described the rise of the original writs and the forms of action which they initiated, and it will already be apparent that substantive law was discussed in terms of procedure. The rights of the parties will be expressed in the form of writs and pleading: the plaintiff in given circumstances can bring a particular writ, but if he does, the defendant in certain other circumstances may use a particular plea. Gradually there will come slight modifications as cases a little outside the ambit of the traditional forms are brought in, either by construction or by a modification of the forms. The result is a change in substantive law, but the machinery of the change, and its technical expression, will be in the rules about writs and pleadings.
THE SEPARATION OF LAW AND PROCEDURE
One of the most significant themes in the study of legal history is the growth of the power to think of law apart from its procedure. This power naturally can only develop when civilisation has reached a mature stage. It is essentially the statement of the results which have emerged from long and extensive experiment. Roman law, at the end of its long history, had reached this stage, and the results it obtained served in the middle ages as a valuable body of principles for the guidance of the younger national laws. In England, as elsewhere, premature attempts were made to express law in abstract terms by separating its principles from its practice. As we have already noticed, the failure of these attempts is clear evidence that the law was not yet strong enough to stand alone, for obscurity rather than clarity was the outcome. Glanvill is lucidly written wherever the author deals with writs, and it is only when he endeavours to generalise that he becomes obscure. Bracton’s first hundred and seven folios have caused endless discussion and are little use as a historical source unless their statements can be verified from the mass of valuable detail which fortunately forms the bulk of his treatise. Littleton, however, wrote at a time when it was just becoming possible to state some general propositions about real property; but the statute of uses soon robbed real property law of any trace of clarity, and thenceforward no attempt was made to write a text-book (apart from beginners’ manuals) on general lines.
Inspiration finally came, once again, from abroad. The middle of the eighteenth century is distinguished by the interest English lawyers took in French and Dutch works, and under this stimulus they attempted to think in terms of substantive law rather than merely of procedure. Mansfield on the bench set the example, and Blackstone at Oxford improved upon it by achieving the astonishing feat of writing his commentaries. At this time it is difficult to appreciate the daring of Blackstone. It can best be realised by looking at Viner’s Abridgement which then held the place of honour in legal literature. To abandon all the time-honoured titles from “Abatement” to “Withernam” and replace them by a logical and analytical scheme required great courage and great skill. Blackstone had both, and in his pages we find the first comprehensive attempt to state (as far as was then possible) the whole of English law in the form of substantive rules.
The procedure was still there, however; in actual fact, the law was still entangled in it, and Blackstone’s venture could be plausibly dismissed by conservatives as a mere literary device. In the course of the succeeding century the great revolution took place. With the abolition of forms of action and the unification of courts and procedure, it became possible for law to flow more freely and to escape the confinement of the old procedural categories. Only then did it become possible to consider the law in practice as being the application of substantive, rather than procedural, rules.
PROCEDURE IN MODERN TIMES
The separation affected procedure as well. Its position was more lowly henceforth, but its functions were more clearly defined, and its details could be more freely modelled in order to fulfil its objects. In the middle ages the rights of a party were the right to enjoy certain procedures, just as in the United States the citizen has a constitutional right to due process. In the newer order the place of procedure is purely ancillary—a means to an end. There is consequently growing up a science of procedure, based on an analysis of its functions, and a search for the quickest, cheapest and most reliable methods of organising the practical side of the law. Much experiment is going on, both in England and America.1
Confining our attention, for the moment, to contested litigation, any system of procedure must contain first of all a means whereby the plaintiff sets the machine in motion. Next the defendant must be notified and brought into court. Then we come to one of the most difficult problems—the discovery of the precise nature of the dispute between them, and its termination by judgment. In the more advanced systems there will have to be means of reviewing the first decision, and in all systems there will have to be some method for enforcing whatever ultimate decision is reached.
Bearing in mind these general remarks on the history of procedure, we may now turn to an examination of some of its characteristics.
THE INITIATION OF PROCEEDINGS
A good many relics of Anglo-Saxon procedure are preserved in mediaeval borough customs; thus we find that in the time of Glanvill, Whitby had this custom:1
“If any complaint (querimonia) should arise between burgesses, the plaintiff ought to demand thrice at the defendant’s house that he should do him right and whatever law requires; and if at the third demand satisfaction is refused, let him at length make a reasonable complaint to the justice of the town.”
The object of the provision was to prevent matters coming into court before it was clear that private negotiations had been tried and had failed. Several legal systems at the present day pursue the same end by a regular procedure of “conciliation” which is a necessary stage before litigation proper.
As we have already observed,2 the King’s Court adopted a similar principle in the writs praecipe quod reddat, the main difference being that the sheriff, instead of the party, made the demand for restitution.
In some circumstances a party could do much more than merely demand his right. The ancient procedure of distress enabled him to take security from one who owed him services or rent arising out of freehold or leasehold tenure. There were rules, both of common law and statute, which prescribed the method. The distress must be made within the lord’s fee, and not on the King’s highway. Cattle were most usually taken, but plough beasts and certain essential implements of agriculture were privileged. If the tenant offered gage and pledge to contest the lord’s claim, then the cattle had to be restored pending an action of replevin. Throughout the middle ages the lord had no right to dispose of the things taken. They were merely security and the property remained in the tenant; if the lord misused the chattel he became guilty of trespass—and some thought, of felony. The right of distress was immensely enlarged when a statute of 1690 gave the distrainor power to sell the distress.3
SECURING THE DEFENDANT’S APPEARANCE
If private endeavours failed, the next step was to get the defendant into court. The coercive power of the State generally has no difficulty in doing this under modern conditions, but early law found it immensely difficult. It first resorted to long and patient persuasion, in the hope that the adversary would promise to come into court. Appearance, in fact, was contractual—one of the earliest contracts which the law undertook to enforce.1 Slowly, however, the State assumed coercive powers and undertook to compel appearance, but even when this was accomplished the forms were still relics of the earlier method. Instead of the party voluntarily giving gages and finding friends who would be his pledges, the sheriff is sent to take them, and if they are not forthcoming he will in the end seize the recalcitrant one’s property as a security for his appearance.
In the King’s Court we find a compromise between the old oral procedure and the newer machinery of written documents. The plaintiff began the proceedings by purchasing an original writ suited to his case. We find little more trace of the actual requirement of previous demands for right, although formal words long survived in the declaration on writs of debt saying that “the defendant though often requested has not paid the said sum to the plaintiff, but has so far refused, and still refuses”. If the older writs require the sheriff to urge the defendant to do right, the more modern type, represented by novel disseisin and trespass, begins at once with an order to summon.
Most original writs were not “served”; they went to the sheriff, and he carried out the order through machinery which looks very old. He appointed two “good summoners” (and at first they were certainly not officials) who went to the party and summoned him. In Glanvill’s day they had to come to court in order to testify whether they had properly summoned the defendant.2 Thrice was the party summoned, and if he had not yet appeared, process issued to take his land. This oral summons was a weak point, and disputes whether summons had been duly made were frequent. The early stringent proof of summons by the testimony of the summoners was soon relaxed, and it became general to allow wager of law—an easy “proof” of non-summons—as a means of “curing a default”.
Instead of merely failing to appear, the defendant might send certain excuses called “essoins”. A number of “essoiners” were sent to explain that the party was sick, abroad, on the King’s service, cut off by a flood, a broken bridge, and so forth. These secured delays of varying length, and in early times were verified. The court would send four knights to see whether the party was actually in bed. As one was entitled to an essoin if one had previously appeared, it was possible to spin out a long series of appearances and essoins. Worse still, in certain actions, especially debt, it was necessary to have all the co-defendants in court together. This might never happen if they arranged to cast essoins in turn. This practice of “fourcher” was particularly favoured by executors, until it was stopped by statute.1
The distinction already noted2 between “demands” and “complaints” was extended to the procedure. Upon writs of praecipe quod reddat the process consisted of a long series of distresses directed against the tenant’s land; upon writs ostensurus quare the process was a series of summonses, attachments, and possibly arrest (capias) and even outlawry.
OUTLAWRY IN CIVIL PROCESS
The dreadful penalty of outlawry was originally the last resort of criminal law. In the time of Bracton, however, it makes its appearance in civil procedure, and it is not surprising that the first form of action to involve outlawry was trespass. Further extensions of outlawry were made by statute to actions of account3 in 1285, debt, detinue and replevin4 in 1352, and to actions of case5 in 1504. Necessarily, this procedural outlawry had to be in a much mitigated form, and so what was once equivalent to a death sentence was shorn of such terrors as peril of life, corruption of blood and escheat of lands;6 the insurgent peasants demanded its abolition, both in civil and criminal proceedings, but without success; down to 1870 it still involved forfeiture of chattels.7 Moreover, the use of outlawry was hedged about with procedural precautions which left many chances of getting it reversed upon a writ of error.
JUDGMENT BY DEFAULT
The common law was reluctant to give judgment by default. The principle of the petty assizes, however, made it necessary, and so we find that, as part of the very summary procedure of the assize of novel disseisin, the twelve recognitors were summoned at the same time as the defendant; if the defendant persistently defaulted, then the verdict of the assize would be taken even in his absence, and judgment given. In other real actions judgment could be given against a tenant who had exhausted his liberal allowance of defaults. A tenant who lost by default was not for ever barred, but could regain his land if he succeeded in a writ “of a higher nature”; thus, if he had lost by default in an assize he could still recover (if his title was sufficient) in a writ of entry, or if he had lost by default in a writ of entry, he could resort to a writ of right. Even in a writ of right, a judgment by default will not bar a future writ of right except in certain circumstances.1
In personal actions the situation was rather different. The subject matter of the dispute was not indestructible like land, and there was the additional factor of the rights of the Crown. Especially in trespass, there was the idea that people ought to be punished for their torts as well as making reparation, and where the Crown and a subject were in competition, the issue was inevitable. Bracton indeed had argued that debts and damages ought to be levied from a defaulter’s personal property, but (as Maitland remarked) it took six hundred years for his view to prevail.2 There was a time when something of the sort could be done in actions of debt,3 but the experiment was abandoned and the common law clung to the principle that no judgment should be given in personal actions against an absent defendant. The Crown did, indeed, pursue him with rigorous process, but the resulting attachments and forfeitures only benefited the Crown and not the party.
THE NEW CONVENTIONAL PROCEDURE
In the course of the seventeenth century the courts and the profession combined to evolve a remarkable reform in procedure. This revolution—it was nothing less—was effected by a series of fictions, and had for its object nothing less than the abandonment of the old system of original writs.
We have already noticed the fact that the common law courts were often rivals for business, and this rivalry was no doubt the main motive of these reforms, for their primary object was not so much the relief of litigants as the attraction of business from one court into another.
PROCEEDINGS BY BILL
It had long been a principle with the mediaeval courts that proceedings could be taken by bill, without further preliminaries, against an officer of the court or against a person who for any reason was already within the jurisdiction of the court; particularly, the King’s Bench would hear bills based upon causes of action arising in the county where the court happened at the time to be sitting.4 The exploitation of this rule had far-reaching results. In the middle of the fifteenth century the King’s Bench allowed a real or fictitious bill of Middlesex to be proffered against a person, supposing him to have committed within that county (where the court had by now settled down) a trespass with force and arms. This was within the court’s normal jurisdiction, and if the defendant surrendered and was committed or bailed he was sufficiently within the court’s jurisdiction to be put to answer any other bill proffered against him while in custody. If the defendant did not come in, process called latitat issued, and eventually he might find himself in contempt. An ingenious but complicated system of bail gave some reality to the proceedings, but the Court of Common Pleas procured a statute in 1661 which rendered the device ineffective by enacting that arrest and bail could only be had if the process disclosed the true cause of action.1
The bill of Middlesex only alleged a fictitious trespass, and so was useless after the statute, until the King’s Bench took the simple course of adding to the fictitious trespass (which gave it jurisdiction) a clause ac etiam, “and moreover”, which set out the real cause of action. The King’s Bench therefore regained the use of this device to capture business (but not real actions) from the Common Pleas. Retaliation followed when the Common Pleas used its ancient writ of trespass quare clausum fregit with an ac etiam clause containing other matter, which enabled it to compete with King’s Bench.
In both cases the commencement of the proceedings was a document whose contents were completely fictitious, and in practice neither the bill of Middlesex nor the writ of trespass quare clausum fregit was issued. Process therefore began immediately with the latitat (in the King’s Bench) or with the capias (in the Common Pleas).2
In the eighteenth century this omission was extended to trespass actions which did not have a fictitious origin, with the result that most actions, apart from the older real actions, began with a capias instead of an original writ. By such devious means the courts achieved a considerable measure of reform, which paved the way for the more thorough simplification effected in 1832.3
The proceedings between appearance and judgment will be described in the next chapter in so far as they are pleadings; modes of trial and the nisi prius system have already been described.
The hierarchy of ecclesiastical courts—archdeacon, bishop, archbishop, pope—gave English lawyers their first sight of appeals being carried from court to court. Within the limits of their own system they copied it, at least in externals. Bracton likened the King to the Pope, and, like the Pope, the King could call into his court cases which were in progress in inferior tribunals. By means of tolt a plea could be removed from a seignorial court into the county, and by a writ of pone it could be thence transferred to the Common Pleas. It is interesting to observe that by 1294 these were merely paper proceedings, so to speak, and that such a case did not in fact come before the county court on its way to Westminster.1
If a plea in the local court had proceeded to judgment, it could be reviewed only in the King’s Court. There was thus no possibility of pleas moving up through a hierarchy of feudal courts, for as early as the reign of Henry I the principle was formulated that “false judgment is a royal plea”.2 The proceedings in the local courts were oral, and so they had to be committed to writing before the King’s Court could examine them. A writ of recordari facias loquelam in the form of an accedas ad curiam ordered the sheriff to go to the court of a lord and cause its proceedings in the case to be recorded; this record was then brought into the King’s Court by four suitors of the court below—or four knights if the case came from the county court. If one of the parties disputed the accuracy of the record, battle might be waged. The record being settled, the King’s Court would hear the objections to it and act accordingly; it might even continue the remaining stages of the case itself, for the error below will amost certainly have been a procedural one.3
The expression “false judgment” is not one which any prudent person would apply to the decision of a royal court. The proper expression will be “error on the record” if the acts of the Common Pleas are to be reviewed, and the procedure will be a writ of error to move the record (or rather, a copy of it) into the King’s Bench,4 and thence maybe to Parliament.5 Like false judgment, the writ of error will only secure a review of whatever appears on the record of the court below. This will be largely concerned with matters of procedure, although implicit in them there may well be a question of substantive law. Questions of fact, however, were definitely outside the operation of a writ of error.6
The successful demandant in a real action obtained a writ directed to the sheriff, who was thereby authorised to put him into seisin.1
The final process in personal actions, however, was not so simple a matter. The plaintiff had judgment for a sum of money as a debt, or damages, or both. Different possibilities have been open to such creditors at different epochs of our legal history. Obviously there are three principal types of execution to be considered, which may be directed against the defendant’s person, his chattels, and his land respectively.
Personal slavery in satisfaction of debts is an ancient institution and undoubtedly formed part of Anglo-Saxon law,2 as also of old German law.3 It disappeared, however, after the Conquest, with the result that for a time our law did not issue process against the person of a judgment debtor. Its reappearance is largely statutory. The King could always use it for Crown debts, but in 1285 masters, without judicial proceedings of any sort, were authorised by statute—one of the most drastic enactments in our history—to commit to gaol servants and bailiffs whose accounts were in arrears.4
Meanwhile, the statutes of merchants (to be mentioned later) gave similarly stringent execution against the persons of merchants, who, it must be remembered, were a well-defined class or estate, subject to peculiar rules of law, and against such others as had expressly placed themselves within the terms of the statutes. “Common persons” could not be imprisoned for debt until after 1352, when the initial process of actions of debt was assimilated to that of account.5 In terms the statute only dealt with mesne process, but by this time there was a common law rule that if a defendant could be imprisoned on mesne process, then he could also be imprisoned on final process; indirectly, therefore, the result was to introduce imprisonment for debt.6 The rule in question no doubt derived from trespass vi et armis to which it originally applied. Imprisonment was not extended to actions on the case until 1504.7 It seems early to have been established that if the plaintiff takes a capias ad satisfaciendum he must abandon all other modes of execution, and so (as a general rule) cannot proceed against the defendant’s property if once he has proceeded against his person.
It is not surprising, then, that the majority of creditors saw more chances of satisfaction by proceeding against the debtor’s property. Down to the reign of Edward I only the debtor’s chattels could be reached by the two common law writs available. Of these, fieri facias authorised the sheriff to “cause” the sum due “to be made up” from the debtor’s goods and chattels; levari facias went a little further and allowed it to be levied out of the produce of his land as it became available. This included crops, rents and the like, and leases,1 all of which the sheriff could take and realise.
These writs of execution were only available upon judgments in the King’s courts. In local courts “of wapontakes, hundreds, and courts of barons” it was only possible to distrain the defendant. This caused him harm, but it did no good to the creditor; a petition in 1348 that such distresses might be sold in order to satisfy the judgment was rejected.2 This archaic procedure must have had much to do with the decline of the local courts.
STATUTORY PROCESS OF ELEGIT
We have already hinted that dealings with, and through the medium of, the sheriff were not always entirely satisfactory in the middle ages. The levying of judgment debts could no doubt be done quicker and cheaper by the creditor himself than by the ancient machinery of the county executive. It took the common law some time to get over its repugnance to putting a creditor in possession of a debtor’s lands, and the restrictions on alienation may also have proved an obstacle. However, as early as 1215 the first step in this direction was taken. The Great Charter enacted that if a surety had discharged his principal’s debt to the Crown, then the surety could be put into possession of the principal’s lands, to hold them until he had levied the debt from the issues.3 The courts themselves made one more effort in this direction, in a situation which has already been mentioned,4 but a general procedure allowing the creditor to reach the proceeds of land without the intervention of the sheriff only appears in 1285. By the Statute of Westminster the Second,
“When a debt has been recovered, or acknowledged, or damages awarded in the king’s court, it shall henceforth lie in the election of the plaintiff to sue a writ to the sheriff ordering that he cause to be made (fieri facias) out of the lands and chattels; or, that the sheriff deliver to him all the chattels of the debtor (except cattle and beasts of the plough) and one half of his land (according to a reasonable price or extent) until the debt shall have been levied. And if he is ejected from the tenement let him recover by novel disseisin. . . .”1
The alternative procedure here provided was called elegit because the writ recites that the creditor “has chosen” it instead of fieri facias. A jury was summoned to make the “extent” or valuation of the land, and to fix a fair price for the chattels. The concluding clause of the statute is interesting, for it contemplates the creditor entering into possession of the lands, and protects him by novel disseisin, although it would clearly be anomalous to describe him as “seised”; we have here, therefore, an early example of a statutory estate which will not fit into the common law system of seisin.2 Leases held by the debtor were also in an anomalous position, for the sheriff might deliver them to be sold by the creditor as “chattels” or he might extend them as “lands”, in which case the creditor merely takes over the remainder of the lease from the debtor.
DEBTS OF RECORD
So far, this chapter has been concerned with contentious litigation. Many persons, however, desired to obtain the benefits of a judgment without the hazards and delays of a long process; particularly, lenders wished to have judgment entered at the moment the loan was contracted, and thus avoid the difficulties of getting the debtor into court, and also the further risks of meeting a defence of wager of law, of depending on the appearance of witnesses, or the risk of losing a bond under seal—for if it were lost or defaced, the action was extinguished. Prudent lenders in the early thirteenth century almost always solved these difficulties by bringing an action of debt and pursuing it as far as judgment against their prospective debtors—“and we may be pretty certain that in many cases no money has been advanced until a judgment has been given for its repayment”.3 Many actions, collusive no doubt, did not proceed to judgment, but concluded with a compromise which was recorded on the plea rolls, often with a covenant that the sheriff may levy the debt if it is defaulted. Still other cases are to be found on the close rolls of Chancery. These were not judicial records, but merely copies of State correspondence for official reference, but on the backs of the rolls numerous private deeds are to be found, generally concerned with debts. Private debts might also be acknowledged in the Exchequer.
The principal advantage of these measures was the ease with which the debt could be proved from documents which were kept in official custody with great care. Moreover, such a recognisance enrolled in a court of record operated immediately as a charge upon the debtor’s lands. Upon default fieri facias or elegit could be had.1 The Statute of Westminster the Second enacted that matters enrolled by the chancellor or judges, whether they concern land or debts, ought not to admit of further pleading, and that the plaintiff at any time within a year of the record may henceforth have a writ of execution upon them; if more than a year has elapsed, he may have a scire facias calling on the defendant to show cause why execution should not be issued.2
The class of merchants were particularly interested in procedures of this sort, and at this same moment were procuring legislation especially adapted to their requirements. Speed, ease of proof and drastic execution were the principles which they incorporated into the traditional deed enrolled and the recognisance. In 1283 the Statute of Acton Burnell made special provision for the enrolment of mercantile debts in the principal towns, where the mayor was to keep a roll, and a clerk appointed by the Crown was to enter upon it the details of recognisances; the clerk was also to draw a deed and give it to the creditor, sealed with the debtor’s seal and his own official seal. Upon default, the mayor was to order the sale of the debtor’s chattels and devisable burgage lands; if there were none within the jurisdiction, the Lord Chancellor was to make suitable process. If the debtor had no such property he was to be imprisoned, the creditor providing him bread and water only.3
Defects in the working of the statute soon became apparent, and there was talk of “malice and delay”. The matter was therefore taken up again two years later and the result was the great Statute of Merchants of 1285.4 The details of enrolment and sealing were changed so as to leave less room for fraud by the local officials, but the greatest change was in the execution allowed. The process was to begin with the imprisonment of the debtor, instead of using imprisonment as a last resort. There was to be no escaping this; if the gaoler did not accept the prisoner he (or failing him, the owner of the gaol) became liable for the debt. During the first three months the debtor was to have facilities for selling not only his chattels but also his land. If the debt had not been settled within those three months, the chattels were delivered to the creditor for sale and all the land (not merely half as by elegit) was to be held by the creditor, who was to be “seised” of it until the debt was levied from the issues. A very peculiar feature of the statute is that it makes all lands held at the time of the recognisance liable to execution, even if they had since been alienated.1
The object was clearly to circumvent the prejudice against compulsorily stripping a debtor of his land by selling it. The statute did not venture to do this, but the drastic process of immediate close imprisonment was evidently meant to compel the debtor to sell. A clause was necessary to declare that such sales should be valid, no doubt because at common law a deed made in prison could generally be avoided.
Recognisances entered into in accordance with this act were called shortly “statutes”, and a creditor who was in under the act was called a “tenant by statute merchant”. It remained the principal form of security during the middle ages, and even for centuries afterwards it was in very general use.
Similar machinery was set up in every staple town by Edward III in 1353 for the special convenience of the members of those particular communities of merchants.2 The law and the forms were the same as for statutes merchant, the only difference being that the officials who took the recognisances were the staple officers, and that (at first) the recognisances were practically confined to operations in the “staple” commodities of wool, leather, etc.
In later times both statutes merchant and statutes staple were used by non-merchants.
The principle behind all these devices was that no defence could be possible to a recognisance made under these forms. No provision therefore was made for pleadings or defences by the debtor.
It soon became clear that the legislature had been too optimistic in this respect. The resources of mediaeval fraud and forgery were considerable, and the complication of the land law introduced many nice points in the execution of “statutes”. We therefore find that the necessary procedure finally appears, taking the form of the writ auditaquerela.1 It issued out of Chancery and was directed to the judges of the King’s Bench or Common Pleas, ordering them to do speedy justice to the debtor, after having heard his complaint (audita querela) and the reasons of the parties. There is good ground for believing that this writ was first authorised by Parliament in 1336 as a remedy in these circumstances.2
The scope of the writ was, in general, to permit the defendant to raise matters which in ordinary cases he could have raised by way of plea in common law actions. It replaced the action of deceit and the writ of error to a large extent in matters arising under the statutes of merchants and staple, and later in the middle ages was used as a general remedy for those who had been the victims of the forgery or fraudulent manipulation of any type of procedure and records.3 It may be added that the defences available do not seem to extend beyond the common law’s traditional relief against the abuse of legal procedure, and that there seems to be no ground for regarding audita querela as being particularly “equitable” in its nature.4 It seems that the words of Stonor, C.J., “I tell you plainly that audita querela is given rather by equity than by common law”,5 simply mean that the writ allows the debtor to plead common law defences, although the statutes deliberately deprived him of that opportunity.
The writs mentioned here and in the last chapter have been essential parts in the conduct of litigation; but the primary function of a writ was merely to convey the King’s commands to his officers and servants, of whatever nature those commands might be.6 The Register of Writs shows in fact a large variety of writs whose nature was administrative rather than judicial. Some of these writs acquired the name of “prerogative writs” in the seventeenth and eighteenth centuries.7 A few of them have been the subject of special study.8 At the present time, writs on administrative matters are of importance in local government matters, mandamus and certiorari for example; in the middle ages prohibition played an important part in the conflict of church and state,1 and could be used against the admiralty and local courts as well.2 Occasionally it happened that the constant issue of prohibitions would result in the creation of a new form of action.3
THE ISSUE OF WRITS
The precise functions of chancery in the drafting and issuing of writs leave room for controversy.4 The ambiguity of the word “writ” is a source of trouble, for it has led some historians to regard restrictions upon the issue of “writs” by the council’s authorisation as if they were restrictions upon its supposed power to create new writs for judicial use,5 and the efforts of Bracton and Fleta to explain the procedure are hardly successful. The statute in consimili casu of 1285 shows that chancery had important functions,6 and a famous year book passage shows how those functions were carried out.7 It was confessedly the aim of the writ-system to cover the whole field of law,8 and the responsibility of chancery in controlling so vast a movement was of the gravest—in effect it threatened to be the supreme legislator of the common law. But one great check was maintained over its activities: the common law courts could, and did, quash writs of which they disapproved.9 The ultimate decision to quash or to sustain a novel writ therefore lay with the common law judges.
Royal justice was so good that it could overcome the inherent defect that the issue of writs was almost a monopoly of the chancery—a distant and peripatetic office. Certain prudent concessions had, indeed, been made—plaints could be brought in local courts, and even in the King’s Court,10 and on the occasion of a general eyre some original writs could be got from the court (as judicial writs regularly could11 ). Some alleviation could thus be brought lest the writ-system become impossibly difficult, but the erection of local branches of the chancery never took place.1
There have been two main lines of procedure, therefore, the one concerned with contested litigation, and the other with uncontested forms in which the proceedings consisted of final process issuing out of records upon which the parties had voluntarily enrolled their obligations. Parties who had not taken the preliminary precautions of entering into recognisances had perforce to go through all the forms of contested litigation, but as early as Coke’s day this was made less formidable by the practice of the profession.2 It had already become impossible, and indeed unnecessary, to pronounce judgment in open court upon the thousands of cases in which there was actually no defence. In such circumstances, where the functions of the court were purely ministerial, the attorneys carried on the proceedings between themselves, making up the record and procuring its enrolment, even going so far as to enter judgment in multitudes of cases which had never been mentioned in court. Of course, the record, if erroneous, was liable to be quashed if the defendant brought a writ of error, but the careful copying of approved forms out of the current books of practice (of which there was a great number) was almost always a sufficient precaution. The way was therefore well prepared for the still speedier and easier summary judgment which we owe to nineteenth-century statute law.
The conventional procedure of the seventeenth and eighteenth centuries likewise achieved a very large measure of reform which made the work of the legislature much simpler, for it constituted a substantial advance towards uniformity of process by its extended use of the capias in initiating all sorts of actions.3
METHODS OF REFORM
It is not without interest to notice the different methods of law reform which are illustrated by various episodes in the history of procedure (and for that matter, of other branches of the law as well). If a rule, a procedure or an institution is working unsatisfactorily, there are several courses from which to choose. The simplest is to abolish it and substitute something better. It is natural that so straightforward a remedy should only be employed when there are men with vigour and courage to carry it out. It is apt to be characteristic of the great moments of the common law, therefore, rather than of those less heroic times when the system is in repose. The last years of the thirteenth century may be rightly regarded as the golden age of the common law, and it was a moment when some things were being abolished by statute (especially in the field of procedure) and other new things were being established. It is not a little curious that the most conservative minds, looking back to a distant golden age, are apt to light upon a period which was distressing to the conservatives who lived in it; “new king, new laws, new judges, new masters” is the lament of a Year Book in reporting a case decided by Chief Justice Bereford, who is the brightest figure in the brightest period of the Year Books.1
A less drastic policy is to diminish the importance of the offending member without excising it. The long line of statutes of jeofail is an example. These statutes adopted the policy of enacting that certain minute slips in enrolling should not for the future invalidate the record.2 They began with slips of spelling, and proceeded by cautious stages to defects slightly less trivial. The result was disastrous. By excusing some slips, the others were by implication rendered still more grave, with the inevitable result that pleadings as a whole became still more dependent upon minute accuracy for their effect than they were before.
A third policy was to neutralise the wrong done at one point by introducing a new mechanism to counteract the old. This is surely the most tempting, and the most fallacious, of all. It is also the most frequent, for the courts must make their own reforms if the legislature will not, but the courts cannot (as a rule) abolish anything. Their efforts are therefore confined to providing safeguards against other legal rules. We thus get as a result an increase in the bulk of the law, for the old subsists with the new, and an increase in its complexity because the question of the relationship between the old and the new is bound to arise. Nor is this situation confined to judicial legislation, for even the statutes of Edward I raised the question by their failure to complete their work by abolishing unsatisfactory law. One of the most notorious examples, however, is the law of outlawry. Its traditional machinery was slow, but crushing. When it was felt that it was too severe, reform took the shape, not of modifying the nature of mesne process, but of insisting upon extraordinary accuracy in every detail of the outlawry procedure.3 This terrible engine was fitted with prodigious brakes, therefore, and so its energy, which might have been usefully applied, was carefully neutralised. The result frequently was that when it ought to have moved it did not, while at other times it might unexpectedly get out of control. The law of outlawry thus became notoriously tricky and ineffective.1 Another example we shall find later in the history of defamation. Early in the seventeenth century the courts felt that the law of slander was unsatisfactory because a great many persons invoked its protection. Such reasoning is not very promising, and the remedy devised was worthy of it—the courts insisted upon a fantastically strict observance of pleading and other technicalities. The greatest of all examples is of course the history of the conventional and fictitious procedure which we have just related, while nearly as remarkable is the development of vast masses of law dealing with “falsifying recoveries”, “counterpleas of voucher” and similar matters in real property law, where one procedure is piled on another in the hope that the last will counteract the defects of the earlier ones.
See Sir Hilary Jenkinson’s introduction to Select Cases in the Exchequer of Pleas (Selden Society); J. Conway Davies, in Bulletin of the Institute of Historical Research, xxvi. 125, xxvii. 1.
Cf. Hengham (ed. Dunham), 16, 17.
Cf. the demand in 1368 that no legal proceedings should be begun, except by indictment or original writ; above, p. 187.
Much material is analysed by R. W. Millar, The Formative Principles of Civil Procedure, Illinois Law Review, xviii. 1, 94, 150 (reprinted as prolegomena to his translation of A. Englemann and others, History of Continental Civil Procedure, 1927).
Borough Customs (ed. Bateson, Selden Society), i. 89.
Above, p. 363 n. 1.
2 William & Mary, session 1, c. 5.
Holdsworth, ii. 83.
Glanvill, 1. 7.
Fourcher was forbidden between parceners and joint-tenants in 1275 (Westminster I, c. 43), and between husband and wife in 1278 (Gloucester, c. 10); since 1335 actions of debt against executors were to proceed against whichever one appeared first (9 Edw. III, stat. 1, c. 3); a petition for such legislation is printed in Sayles, King’s Bench, iii. p. cxix. Fourcher in account survived: Y.BB. Edward II (Selden Society), xxii. 115.
Above, p. 372.
Westminster II, c. 11.
25 Edw. III, stat. 5, c. 17.
19 Hen. VII, c. 9.
See the discussion in Y.B. 3 Edward III, Michs. no. 19 (1329).
Forfeiture Act, 1870 (33 & 34 Vict., c. 23).
See the discussion in Bracton f. 367.
Pollock and Maitland, ii. 595; Uniformity of Process Act, 1832 (2 Will. IV, c. 39).
Bracton’s Note Book, no. 900 (1224).
In the fourteenth century it moved frequently. Cf. below, p. 470. H. G. Richardson and G. O. Sayles, Proceedings without Writ: Henry III (Selden Society), have assembled material showing an even greater use of bills than that mentioned in the text. The interpretation of this material is difficult, and cannot be attempted here. The frequency of bills of trespass is evident from statutes of 1331 (5 Edw. III, c. 7) and 1354 (28 Edw. III, c. 8).
13 Car. II, st. 2, c. 2.
On some surviving manuscript criticisms of these developments, see Faith Thompson, Magna Carta . . . 1300-1629, 201-202.
Uniformity of Process Act, 1832 (2 Will. IV, c. 39).
Y.B. 21 & 22 Edward I (Rolls Series), 452. See generally, F. L. Ganshof, Faussement de Jugement (Bulletin de la Commission royale des anciennes lois de Belgique, XIV. ii) 1935, and Julius Goebel, “The Matrix of Empire”, in J. H. Smith, Appeals to the Privy Council, 1950.
Plucknett, Legislation of Edward I, 24-25.
An example of this procedure has been given above, p. 121.
For the earliest writ of error in the King’s Bench from the Common Pleas, see Bracton’s Note Book, no. 1166 (dated 1236).
In 1376 Parliament refused to hear error in the Common Pleas, Rot. Parl., ii. 330 (48); the procedure is explained in Y.B. 1 Henry VII, 19, and Y.B. 14 & 15 Edward III (Rolls Series), 364.
The writs of error coram nobis and coram vobis are only apparent exceptions to this principle See the note in Harvard Law Review, xxxvii. 744.
To enter without the sheriff is disseisin: Y.B. 20-21 Edward I, 52; Sayles, King’s Bench II. 98 (but see the denial by Bereford in Y.BB. Edward II (Selden Society), xxii. 104).
Pollock and Maitland, ii. 596.
Tacitus, Germania, c. 24.
Westminster II, c. 11 (1285). Cf. Plucknett, The Medieval Bailiff, 22 ff.
25 Edw. III, st. 5, c. 17 (1352).
Y.B. 40 Edward III, 25, pl. 28 (1366). If, however, the defendant appeared before the mesne process had got as far as the capias ad respondendum, then he was not liable to a capias ad satisfaciendum: Y.B. 49 Edward III, 2, pl. 5 (1375), which doubts whether outlawry was possible after judgment.
19 Henry VII, c. 9 (1504).
Leases could also be sold under fi. fa.
Rot. Parl., ii. 167 no. 21.
Magna Carta (1215), c. 9; (1225), c. 8.
Above, p. 377 n. 4; where the heir was expressly made liable for the debt by his ancestor’s deed, then the heir’s land was delivered to the creditor; otherwise execution would be impossible, for the testator’s goods go to the executors. Fleta ii. 62, 10; Davy v. Pepys (1573), Plowd. 441 (cf. Harbert’s Case (1584), 3 Rep. 12 b); Jews already had such a remedy by the Statute of Jewry, 3 Edw. I.
Westminster II, c. 18; the reference in the statute to “lands” in connection with fi. fa. is curious. It possibly means those devisable burgages in towns which the law regarded more as chattels than lands (as in the Statute of Acton Burnell); cf. also p. 390 n. 1 above. Cf. Plucknett, Legislation of Edward I, 148 ff.
It soon became customary to describe the tenant by elegit as “seised”.
Pollock and Maitland, ii. 203.
Y.BB. Edward II (Selden Society), xxii. 96 (1317), was an ingenious fraud to evade the statute; the court stated the nature of a recognisance in its judgment enrolled, ibid., 110.
Westminster II, c. 45 (1285). For scire facias awarded against an infant heir, see Y.BB. Edward II (Selden Society), xxii. 238-241 (1318); for the charge falling upon after-acquired land, ibid., 244. There seem no grounds for the suggestion in Y.B. 12 & 13 Edward III (Rolls Series), cvii, that there is anything “equitable” about scire facias.
Statute of Acton Burnell, 11 Edw. I (1283). This was a much more thorough system than the one devised in France a few years earlier and summarised by Beaumanoir, § 52; cf. Barré, L’Ordonnance de Philippe le Hardi, Bibliothèque de l’École des Chartes, xcvi. 5.
For the differences between the statutes of 1283 and 1285, see Plucknett, Legislation of Edward I, 138 ff.
Statute of Merchants, 13 Edw. I (1285). For material illustrating the use of statutes merchant and staple in both mediaeval and modern times see Select Cases in Law Merchant (ed. Hall, Selden Society), vols. ii and iii; A. Beardwood, Bishop Langton’s use of statute merchant recognisances, Medievalia et Humanistica, ix. 54; E. E. Rich, Staple Court Books of Bristol.
Statute of Staples, 27 Edw. III (1353).
Of the “complaint” as a procedure we have already spoken. Those complaints which could be immediately dealt with were brought into court (as we have seen) sometimes by an assize of novel disseisin, which Bracton f. 179 and elsewhere constantly calls a querela, and sometimes by a summons ostensurus quare . . . unde queritur (above, pp. 370, 371). Those which required preliminary investigation were often dealt with by writs reciting ex gravi querela or audita querela: examples in Sayles, King’s Bench, iii. 11, and in intro. p. lxiv. n. 3. Indeed, there was a marked trespassory element (including damages) in audita querela: Y.BB. Richard II (Ames Foundation), v. 147-149 (1388).
See the statement made in 1344: Y.B. 18 Edward III (Rolls Series), 308. Cf. Plucknett, Legislation of Edward I, 145.
See the fifteenth-century example, in Rastell’s Entries.
Y.B. 20 Edward III (Rolls Series), i. 92-94 (1346), is a good example.
Y.B. 17 Edward III (Rolls Series), 370 (1343); cf. Holdsworth, ii. 344, 593.
F. E. Harmer, Anglo-Saxon Writs, 1 ff.
S. A. de Smith, Prerogative Writs, Cambridge Law Journal, xi. 40.
E. Jenks, Story of the Habeas Corpus, Law Quarterly Review, xviii. 64.
Norma Adams, The Writ of Prohibition to Court Christian, Minnesota Law Review, xx. 272; G. B. Flahiff, The use of prohibitions by clerics against ecclesiastical courts in England, Mediaeval Studies (Pontifical Institute of Mediaeval Studies, Toronto), iii. 101, The Writ of prohibition in the thirteenth century, ibid., vi. 261, vii. 229.
Above, pp. 197-198.
Below, p. 570 (waste); so also Contra formam feofamenti and champerty (Plucknett, Statutes and their Interpretation, 9-10).
The references given above, p. 373 n. 2, all deal with the matter.
Provisions of Oxford (in Stubbs, Charters).
Westminster II, c. 24.
Y.BB. Edward II (Selden Society), iii. 19, 108-109; above, p. 362 n. 4.
Cf. above, p. 354.
Bracton, f. 414 b.
Above, pp. 370 ff.
Y.BB. 30 & 31 Edward I (Rolls Series) 124; Rot. Parl., i. 154 no. 5, ii. 229 no. 25; Brevia Placitata (Selden Society), xlvi ff.
G. O. Sayles, Local Chanceries, Bulletin of the Institute of Historical Research, xiv. 69.
Holdsworth, ix. 259.
The history of the successive reforms made by the legislature in the nineteenth century involves a formidable mass of detail; the main changes have been skilfully extracted by Professor Jenks in chapter xix of his Short History of English Law (4th ed. enlarged, 1934).
Y.BB. Edward II (Selden Society), xi. 87.
They begin with 14 Edw. III, st. 1, c. 6 (1340), when the record was still beyond the reach of the parties. Later these statutes benefited attorneys and counsel who drew pleadings.
Cf. the statute of additions, 1 Hen. V, c. 5 (1413), explained in Reeves, History of English Law, ii. 520 n. Below, p. 429.
The great severity of the criminal law in general likewise produced the “safeguard” of minutely technical indictments and definitions of various crimes.