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
THE RISE OF THE PREROGATIVE COURTS
SUMMARY
The Need for Newer Institutions
The Origin of Chancery Jurisdiction
The Origin of the Star Chamber
Relations of the Old Courts to the New
Common Law and Equity in the Fifteenth Century
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 law of the King’s Court was becoming the common law of the country, it had to deal with very different problems. Other heads of law besides real property had to be developed, and litigants of the newer type were not always landowners of any consequence, although they may have had other forms of wealth. The old procedure was not always effective in these cases. The common law procedure was generally patient and long-suffering, for it well knew that the tenant’s land at least could not be removed from its jurisdiction. It knew also that haste was practically undesirable, for agriculture was an exacting pursuit which made it impossible for a landowner to leave his estate at a moment’s notice. Relics of this still persist, for the long vacation of the courts and universities was once necessary to permit bench, bar and litigants to reap and garner their crops and plough their lands. Fixed terms, widely spaced, were designed to enable court work to fit in with agricultural work.3
With the growing complication of society, law had to deal with people who could not be reached quickly, if at all, by means of a procedure directed against land—with people, that is to say, who could not be identified with certain acres. Similarly, there were matters which could best be settled by securing the prompt personal attendance of parties, and by giving them direct personal commands to act or to desist in certain matters. The common law rarely achieved anything so logically direct as this action in personam, simply because its main pre-occupation was real property, and in that particular subject it was as convenient to reach a man by attacking his land, as later admiralty found it useful to reach a man by attacking his ship.
Again, the common law was slow to admit the evidence of parties and witnesses. There was in fact little need for such evidence in the early days of the common law, for its main concern was with records and documents (to which it attached exaggerated importance) or else with such publicly notorious facts as seisin, which were better proved by a jury than by the interested statements of parties or their friends. For minor matters where no deeds were used compurgation was good enough. Here again, the development of law beyond the confines of real property made it desirable to collect evidence, especially from the parties themselves. How useful this could be was apparent from the success with which the canonists were using written depositions.
If any further reason for using such a method were needed, it could be found by observing the decline of the jury. Especially in the fifteenth century there are complaints that juries were packed, bribed, intimidated, partial and difficult to obtain within any reasonable space of time. Distrust of juries is an important factor
