it seems to have depended upon the influence of the litigants whether it met or not. If it did not meet at the date to which the case had been adjourned, then the record was discontinued. True, the second statute remedied this by saying that the absence of the judges shall not discontinue the process, but no effective means were ever provided for getting the court together within a reasonable period.
The same inadequate concession was made in respect of the other Exchequer chamber body to hear errors from the Exchequer of Pleas,1 and with the same disappointing results.
THE KING’S BENCH
The fact that these special arrangements had to be made for the review of judgments given in the King’s Bench will show that that court was enjoying unusually good business during the sixteenth century. The preamble to the earlier of the two statutes cited explains that the new court shall hear writs of error brought on “actions or suits of debt, detinue, covenant, account, action on the case, ejectione firmæ, and trespass” in the King’s Bench. These seven actions properly belonged to the Court of Common Pleas. Trespass (and ejectione firmæ resembled trespass) seems also to have been part of the original jurisdiction of the King’s Bench, but during the middle ages the only trespasses usually brought in the King’s Bench were those of unusual violence or importance.2 Most of this jurisdiction, therefore, had been acquired at a later period, and by somewhat devious means.
We have already mentioned the conflict of the King’s Bench with the Exchequer and with the Common Pleas in the fourteenth century;3 in the fifteenth century a second effort brought the King’s Bench once more into competition, if not into conflict, with the Common Pleas. The device employed in order to acquire the wide jurisdiction mentioned in Elizabeth’s statute4 of 1585 was fairly commonly used in the reign of Henry VI and was in constant use throughout the Tudor period. A bill of Middlesex made the defendant actually or fictitiously a prisoner in the custody of the marshall of the court’s marshalsea. This done, the court could entertain any sort of action against him since he was already within the jurisdiction of the court—a principle, moreover, which most courts professed. In such cases the proceedings were by bill instead of by original writ. Before the end of the century means were found5 whereby the defendant could be really arrested if he would not voluntarily admit that he was technically in the custody of the marshall, and so the new procedure served as the complete equivalent of an original writ. Throughout the sixteenth century the court enjoyed this usurped jurisdiction, with curious results. The competition between King’s Bench and Common Pleas was sometimes not merely a matter of offering procedural advantages, but sometimes even in offering better substantive law. Thus in at least one matter, which we shall refer to later,1 the two courts deliberately competed by offering two different rules of law for litigants to choose from, and in the end it was the more enlightened rule which prevailed.
PREROGATIVE WRITS
There is another aspect of the King’s Bench during this period which deserves attention, and that is the growth of the “prerogative” writs. The history of mandamus, certiorari, prohibition and some other similar writs is still unwritten,2 but it is clear that they first become important during the Tudor period, and that they were a proper development of the jurisdiction of the King’s Bench, for that court had long been close to the Council in the exercise of royal discretion in judicial matters. The writs themselves seem to have been originally mere administrative orders from superior officials to their subordinates telling them to do something, to give some information, or the like. Clearly, the King’s Bench was making a great contribution to public law when it adapted these writs to legal purposes, and assumed the task of directing them as occasion required to various departments of central and local government. When one considers the enormous activity of the King’s Council under the Tudors, it is a little surprising that the Council should have allowed the court to handle the prerogative writs, for it seems just as likely that the Council itself should have undertaken to supervise local officers by its own purely administrative machinery. If it had done so it is clear that our constitutional law would have been very different.
THE TUDORS AND LOCAL COURTS
In spite of their centralising policy, the Tudors realised that there was a proper place and function for the older local jurisdictions and so they attempted to prevent their continuing decline. To this end an act3 was passed in 1601 which is a striking example of the unforeseen effects of legislation. It was enacted that in certain personal actions a successful plaintiff shall not recover more costs than damages, if the justices certify that the damages are less than forty shillings. The object of the act was to exclude small cases from the courts at Westminster, where costs were out of all proportion to the issues at stake. The statute operated not on the verdict but on the judges’ certificate. Evasion of the act became general,1 and in many cases judges were loath to grant a certificate which would deprive a successful plaintiff of his costs. Full use of it was not made until the middle of the eighteenth century, but in the meantime other statutes2 continued its policy, notably in actions of slander.3 This legislation 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
