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 to the King’s Bench. This caused hardship, as men of wealth already had to keep standing attorneys in the Common Pleas for their general affairs, and the King’s Bench was still a perambulating body. The reply to the complaint seems to indicate that once again the King’s Bench was defeated.1
THE COMMON LAW SIDE OF CHANCERY
We have said nothing so far of the Chancery.2 Its functions were in fact almost entirely secretarial in its early days, and it is not until about 1307 that we can say that it has become an independent office free from household control.3 Indeed, “office” was thought to be the most suitable word for the Chancery, as we can see from Fleta (c. 1290) who refrains from using the word “court” in this connection.4
The Chancellor was often the King’s principal adviser in political matters, but his staff was a highly specialised body of clerks. The duties of many of them were partly mechanical—copies of all important documents which passed the Great Seal were prepared upon the voluminous rolls which survive in thousands in the Public Records Office. They had also the duty of drafting and writing the original writs which were so vital to the conduct of litigation. In the early thirteenth century it would seem that they had a part to play in the formation of the common law, for it was they who sanctioned the numerous variants upon traditional forms which applicants urged them to make, and thus indirectly extended the scope of the common law. Such powers, however, were peculiar to the early formative period of the century. By its close it was already well established that the issue of a writ from the Chancery was no guarantee that the writ was valid at common law, for the judges asserted their right to quash writs which they considered unsuitable. Hence the real control over the issue of writs soon passed to the common law courts, for it was they who had the last word in sustaining or quashing the writs brought before them in litigation. The Chancery therefore exerted little influence over the creation of new writs after the thirteenth century, and the “register of writs” never became an official Chancery collection.1 It soon becomes evident that the parties themselves, or their legal advisers, draft the writs they desire, get them engrossed and sealed in the Chancery, and then support them by such arguments as they can when the time comes to plead them in the common law courts. One thing seems certain, and that is that the business of issuing writs was not the origin of either the common law or the equity jurisdiction of the Chancellor.2
Of much greater importance were the powers connected with the feudal rights of the Crown. When a tenant-in-chief died, a writ issued from Chancery to inquire by means of a jury into the lands of the late tenant and to ascertain the Crown’s rights to primer seisin, relief, the wardship of his heir if an infant, and to arrange for the dower (and sometimes the re-marriage) of his widow. Interested parties could intervene, and so a good deal of litigation arose under the head of “traverses of offices”, as these proceedings were called. Similarly, when the Crown made grants of lands or offices by letters patent, persons whose rights were affected could bring proceedings to repeal them.3 It also had important jurisdiction in petitions of right and monstrans de droit. The judges were so frequently engaged upon business of this sort in the Chancery that the Commons complained in Parliament that the courts of common law suffered considerable delays.1 These powers, which
