The History of English Law before the Time of Edward I. Frederic William Maitland

by a document bearing the great seal; it was “the key of the kingdom.”⁹¹ The exchequer and the two benches had indeed seals and could [p.173] issue writs running in the king’s name, writs, for example, summoning juries, coercing contumacious litigants or carrying judgments into effect; but the province of such writs was not very wide, and it was a very general rule that no action could be begun in the king’s courts and that no action touching freehold could be begun anywhere without an “original” or (as we might say) “originating” writ, which proceeded from the chancery and served as the justices’ warrant for entertaining that action.⁹² During the course of Edward’s reign writs under the privy seal became common; but the king was constrained to promise that no writ which concerned the common law should issue under that seal,⁹³ and very many of the writs thus authenticated were addressed to the chancellor and did but bid him set the great seal to some instrument which would be the final expression of the king’s will.⁹⁴ Confidential clerks or “secretaries,” (for this word was coming into use) were beginning to intervene between the king and his chancellor, sending to him written, or carrying to him oral messages.⁹⁵ The chancellor was now a man of exalted rank, and, though theoretically the chancery “followed the king,” still as a matter of fact it often happened that the king was at one place while the chancellor was at another.⁹⁶ In its final form almost every message, order or mandate that came, or was supposed to come, from the king, whether it concerned the greatest matter or the smallest, whether addressed to an emperor or to an escheator, whether addressed to all the lieges or to one man, was a document settled in the chancery and sealed with the great seal. Miles of parchment, close rolls and patent rolls, fine rolls and charter rolls, Roman rolls, Gascon rolls and so forth, are covered with copies of these documents,⁹⁷ and yet reveal but a part of the chancery’s work, for no roll sets forth all those “original” [p.174] writs that were issued “as of course.”⁹⁸

The original writs.The number of writs which were issued as of course for the purpose of enabling those who thought themselves wronged to bring their cases before the law courts, increased rapidly during the reign of Henry III. A “register of original writs” which comes from the end of that period will be much longer than one that comes from the beginning.⁹⁹ Apparently there were some writs which could be had for nothing; for others a mark or a half-mark would be charged, while, at least during Henry’s early years, there were others which were only to be had at high prices. We may find creditors promising the king a quarter or a third of the debts that they hope to recover.¹⁰⁰ Some distinction seems to have been taken between necessaries and luxuries. A royal writ was a necessary for one who was claiming freehold; it was a luxury for the creditor exacting a debt, for the local courts were open to him and he could proceed there without writ. Elaborate glosses overlaid the king’s promise that he would sell justice to none, for a line between the price of justice and those mere court fees, which are demanded even in our own day, is not easily drawn.¹⁰¹ That the poor should have their writs for nothing, was an accepted maxim.¹⁰² The almost mechanical work of penning these ordinary writs was confided to clerks who stood low in the official hierarchy, to cursitors (cursarii); it consisted chiefly of filling with names and sums of money the blanks that were left in the forms that they found in their registers; but some clerk of a higher grade seems to have been responsible for every writ.¹⁰³ No finality was as yet ascribed to the register; it was not regarded as an exhaustive scheme of justice to which no addition could be made save by definite legislation, though a common form, when once settled, was not to be lightly tampered with. New writs could be made, at all events if they were “personal”, not “real”—any innovation “touching [p.175] freehold” was a more serious matter—and they were made somewhat freely.¹⁰⁴ To take the best example, towards the close of Henry’s reign the action of trespass, which is full of future history, becomes common somewhat suddenly. The chancery had not yet fallen so far apart from the courts of law that the justices could not get new writs made if they wanted them. In manuscript registers we find a group of new writs ascribed to William Raleigh who was for a while the foremost judge in the king’s court.¹⁰⁵ For some years before the barons’ war Henry attempted to govern without a chancellor or with a chancellor who was such only in name;¹⁰⁶ his chancery was no serious obstacle to his will and pleasure, though now and again even a vice-chancellor might resign rather than set the seal to a document that he regarded as illegal.¹⁰⁷ Complaints against new and unaccustomed writs grew loud.¹⁰⁸ The discontented prelates and barons demanded a real chancellor and one sworn to issue no writs, save “writs of course,” without warrant from the baronial council.¹⁰⁹ Under Edward I. two different causes tended to give stability and finality to the cycle of original writs. On the one hand, it became apparent that to invent new remedies was to make new laws, and events were deciding that only in a parliament of the three estates could new laws be made: even when the king was concerned, the list of actions was to be a closed list.¹¹⁰ On the other hand, chancery and chancellor had grown in dignity. There were great chancellors who were usually the king’s first ministers. The chancery was by this time independent of the “benches.” The days when the chancellor would often sit among the justices were passing away, the days for stiff official correspondence between the courts and the chancery had come.

The chancery not a tribunal.It is but rarely that we hear of the chancery or the chancellor performing any work that can fairly be called judicial. The issuing of the “original” writs was not judicial work, though we may learn from petitions addressed to the chancellor and from other sources [p.176] that it was not always done mechanically: a friend of the chancellor might hope for a few words in his writ that a stranger would hardly have obtained.¹¹¹ Of any “equitable jurisdiction” exercised in the chancery we hear nothing; the king’s justices still believe that they can do what equity requires. But even of what afterwards became the “common law jurisdiction” of the chancery, the jurisdiction of its “ordinary” or “Latin side” we hear very little. In later days that jurisdiction was concerned chiefly, though not solely, with cases in which a subject required some relief against the king.¹¹² In the latter half of the thirteenth century a subject who has aught against the king has, at least as a general rule, but one course open to him. He presents a petition to the king or the king and his council. This may come before the king himself, or before a full meeting of the council, or before a select body of councillors assigned to deal with such petitions as can be easily disposed of. If he gets a favourable answer, this—since as yet he has shown but some plausible case for relief—will in general send him before some tribunal which will be instructed by a writ from the chancery to hear his claim and do what is just. Commonly that tribunal is the exchequer, which may be afforced for the occasion by the presence of the chancellor and the justices; sometimes it is one of the benches. Occasionally, but rarely, the chancellor is appointed to hear and decide the cause.¹¹³

[p.177]The two benches. The king’s court—to say no more of the exchequer and the chancery—has been slowly breaking up into three tribunals; there is a Common Bench, a King’s Bench, and a yet higher court, which in the days of Edward I. we may indifferently call the King in Council or the King in Parliament. A cleft began to appear when Henry II. in 1178 appointed certain justices to sit permanently in his court and hear the complaints of all men, but reserved the more arduous cases for himself and the wise men of the realm.¹¹⁴ It disappeared for a while under the absentee Richard; it reappeared under John, who travelled through the country with justices in his train while other justices remained on “the bench” at Westminster.¹¹⁵ Again it disappeared for a while during the minority of Henry III.; we can see no permanent, central tribunal save that held by “the justices of the bench” who sit term after term at Westminster, though the council of regency may in some sort supervise their work. It begins to reappear and this time for good and all when Henry is of full age and does justice in person. From the year 1234 onwards—but the exact date can hardly be fixed—there are two different courts, each of which has its own set of rolls.¹¹⁶ The one is held before the justices