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

failed entirely in its object of reviving the local courts and excluding small cases from the central courts, but it did have the curious result of distinguishing arbitrarily between trespass (which was within the statute) and case (which was outside of the statute) as remedies for personal injuries. It thus became perilous to bring trespass on a battery if there was a possibility of getting a verdict of only nominal damages. Such actions are therefore generally framed in case for negligence.⁴

THE TUDOR FINANCIAL COURTS

      These courts have never been studied in detail and so little is known of them apart from the statutes creating them. If they were to be investigated, however, it might appear that the Tudors were not so prejudiced against the common law as is often supposed. It is perfectly true, as we shall see, that the Tudors developed the prerogative and equitable jurisdictions to a remarkable degree, but the creation of the financial courts seems to show that they were equally appreciative of common law forms, and were ready to use them on suitable occasions. Beside Chancery, Star Chamber and the Court of Requests, we must in fairness place those predominantly common law courts which were equally the creation of the Tudors, the Courts of Augmentations, First Fruits, Wards, Liveries (later combined with the Court of Wards), and Surveyors.⁵

The Court of Augmentations was erected by statute⁶ in 1536 partly as a department of audit, partly as an estate office, and partly as a franchise court (modelled in part on the chamber of the duchy of Lancaster⁷) to deal with the vast quantity of lands confiscated from the monasteries upon their suppression. Then, in 1540, the Court of First Fruits and Tenths was erected¹ to manage sundry payments hitherto made to the popes, and recently transferred to the Crown.

      In the same year, the Court of Wards was similarly constituted to manage the ancient feudal revenues of the Crown, and especially to enforce the rights of wardship and marriage,² in 1540. As Coke³ observed, an office in that court was partly “ministerial” and partly judicial, so that the exercise of administrative as well as judicial powers by the same institution is particularly remarkable. In the next year a Court of Surveyors was established to manage other portions of the royal estates.⁴ It is noteworthy that these bodies were primarily administrative departments for the management on business lines of a vast quantity of property, but they were given judicial powers which were very likely to be used when the Crown itself was a party. From this point of view they resembled the old Exchequer, and it has been suggested that the example of the Exchequer practice was the inspiration for certain provisions which facilitated claims in these courts by subjects against the Crown.⁵ As courts they were not oppressive (although no doubt feudalism in itself gave rise to hardships). It is interesting to note that when the rights of the subject in litigation against the Crown were thoroughly examined in Pawlett v. Attorney-General⁶ and later in the Bankers’ Case⁷ the practice of the Exchequer and the Court of Augmentations was discussed.⁸

      A curious point arose later in the reign when Henry VIII by letters patent dissolved and re-founded the Court of Augmentations and abolished the Court of Surveyors, although they had been created by statute. Under Edward VI doubts arose as to the propriety of this, and so an act was passed which grudgingly condoned this use of the prerogative.⁹ Queen Mary attempted (unsuccessfully) the still more curious feat of dissolving the Court of Augmentations, and (the next day) uniting it with the Exchequer.¹⁰

CHAPTER 8

      THE RISE OF THE PREROGATIVE COURTS

      SUMMARY

       The Need for Newer Institutions

       The Council and Petitions

       The Origin of Chancery Jurisdiction

       The Origin of the Star Chamber

       Star Chamber and Statute Law

       The Court of Requests

       Courts of the Marches

       Royal Church Courts

       Equity Side of the Exchequer

       Equity in Seignorial Courts

       Relations of the Old Courts to the New

       Common Law and Equity in the Fifteenth Century

       Equity under the Tudors

      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