between the different jurisdictions were not insurmountable; the King was in constant contact, through the council, with the judges, and his intervention was often to the advancement of justice, although at times no doubt it might be used by a weak monarch for personal ends. The judges themselves, closely co-operating with the council, exercised a good deal of discretion, and in many cases tempered law with equitable considerations. As the centuries passed, however, many changes came about. The courts gained some degree of independence of the Crown, but in doing so lost their discretionary powers. Their procedure became rigid and mechanical, unchangeable save by parliamentary statute. Reform, if it came at all, came from without.
THE ISOLATION OF THE JUDGES
We have already noticed the close connection which once existed between the courts and the council, and indeed with the King himself. The result, while it lasted, was that the judges normally exercised a considerable amount of discretion, particularly in procedural matters. It must not be rashly assumed that the further back we go the more rigid was the law. On the contrary, investigation has shown the wide discretion which was allowed to the courts both in the twelfth and thirteenth centuries.1 It is not until the middle of the fourteenth century that this discretion begins to disappear. A great step in this development was the solemn enactment of the Statute of Northampton2 in 1328 which declared that no royal command under the Great or the Smaller Seal shall disturb the course of the common law, and that if such a command is issued, the judges shall ignore it. Slowly but steadily the judges ventured to enforce the plain words of this important act,3 and so to assume the detached position which is typical of most modern judiciaries.
The remarkable political crisis4 of 1340 took matters a stage further by showing the unseemliness of treating judges as though they were politicians, and about the years 1340 to 1350 we find several expressions from the bench and bar which seem to indicate that the position of the courts is changing. In cases where we know that discretion was once exercised we now find it refused. Instead of bending the rules of procedure to the broad requirements of justice, we find the courts declaring that “we will not and cannot change ancient usages”; “statutes are to be taken strictly”; an innocent man might lie indefinitely in prison, or a creditor might be deprived of his remedy through the manipulation of procedural rules, and all the court will say is that “we can do nothing without a statute”.5 In short, the judges attempted to cast upon parliament the responsibility for future legal reform.
Similarly, there were difficult cases where the judges could not make up their minds—to the great delay of litigants. Already, in theory, Fleta had attributed to parliament the duty of resolving judicial doubts,6 and in 1311 the Ordinances, c. 29, required the termination of such cases in parliament—instances occur of the ordinance being applied.7
In the next reign Parliament passed a curious statute in 1340 giving powers to commissioners (evidently non-lawyers) to decide cases which had been delayed because the judges found them too difficult.8 So public an expression of distrust in the judiciary could only have the effect of making the benches retire still more strictly into the seclusion of their courts and the technicalities of their procedure. Moreover, if the five could not agree, the lords at large undertook to settle the matter—and from this date the lords assert their ascendancy, and treat the judges (and the councillors) as merely assistants in their house.1
The common law is therefore beginning to retire to a definite and limited field, resigns its flexibility and declines to be drawn into attempts to remove its own defects: that will henceforth be the province of Parliament. Later still, when Parliament fails to keep pace with the needs of litigants, it will be the Chancellor who will take up the task. This loss is compensated to some extent by the growing independence of the judges. Less and less often do we find them at the council board or giving effect to royal commands from the bench.
COMPETITION BETWEEN COURTS
The formulary system, which once had been a labour-saving device, developed into the system of forms of action which finally stunted and crippled the common law to such an extent that an entirely new system or prerogative courts of equity was needed. Even within the common law itself, the formulaic system was recognised as mischievous, for the common law courts began to compete with one another for business, piling fiction upon fiction in an endeavour to escape from the heavy burden of their history. Most strange of all, the common law courts found themselves champions of the popular cause against the Crown in the seventeenth century, although just a century before they had been loudly condemned by the public for their weakness, their slowness and their costliness.
The Restoration opened 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
