A Concise History of the Common Law. Theodore F. T. Plucknett

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

THE EXCHEQUER OF PLEAS

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

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

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

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

THE EXCHEQUER CHAMBER, 1357

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

THE EXCHEQUER CHAMBER FOR DEBATE

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

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

KING’S BENCH AND TRESPASS

      Defeated in its attempt to assert a jurisdiction in error over the Exchequer, the King’s Bench next engaged in a conflict with the Court of Common Pleas. Although the King’s Bench had always tried aggravated trespasses, and those where royal interests were involved, yet the ordinary run of trespass cases had always been in the Common Pleas. In 1372 the commons complained that the clerks of the King’s Bench (apparently by arrangement with the Chancery) had contrived to prevent writs of trespass being made returnable in the Common Pleas, and procured them to be directed instead