to those of the continental inquisitions, so severely did it search for ecclesiastical offenders.5
EQUITY SIDE OF THE EXCHEQUER
In 1415 the Commons believed that John of Waltham, who died in 1395, had invented the writ sub poena in the reign of Richard II (1377-1399), and complained of its use in the Exchequer as well as in the Chancery.6 This seems to be the first reference, faint and doubtful as it is, to a court of equity in the Exchequer in the modern sense. Its history is by far the most obscure of all the English jurisdictions, and all that seems known of it is that it acted as a court of equity, duplicating to some extent the Chancery during the seventeenth and eighteenth centuries,1 and indeed down to 1842 when its jurisdiction was transferred to the Chancery.
EQUITY IN SEIGNORIAL COURTS
A remarkable and illuminating parallel to the development of equity beside the common law courts of the Crown is to be found in the history of certain great seignorial estates, especially those of the abbey of St Albans, many of whose archives have survived. The abbot had courts in the several manors, and also a central court which supervised the estates as a whole. These may be called his “common law” jurisdictions. Already in 1308, however, we find that the abbot had a council,2 and in 1338 we find that council legislating on the rules of succession governing the abbey’s tenants,3 and towards the end of the century this council had a civilian and canonical element: in 1381 the insurgent villeins chased away the doctors of both laws, saying that they would not henceforth submit to the civil or the canon law.4 The movement and the antipathy towards it were not confined to St Albans, for a few years later a royal statute recited
“the grievous complaint of the commons made in full parliament for that many of the king’s subjects are made to come before the councils of divers lords and ladies, to answer there concerning their freeholds and many other things real and personal which ought to be conducted according to the law of the land; against the estate of our lord the king and his crown, and in defeasance of the common law.”5
The need for newer institutions was therefore felt both in royal and in seignorial judicial systems, and in both it was the conciliar form which was tried. Moreover, in both systems there was a tendency to turn to civilians and canonists. In England, the seignorial council of civilians had much less influence than on the continent, where the influence of civilians is said to have done much to depress the position of the peasantry and to prevent their gradual rise in status.1 The growth of copyhold and its recognition as a “customary” freehold in England had the result of gradually and almost imperceptibly enfranchising the villeins, but this would hardly have been possible if the civilians had succeeded in imposing their distrust of custom.2
RELATIONS OF THE OLD COURTS TO THE NEW
In the middle ages, as now, the appearance of new institutions, making light of the solemnities of dogma and procedure which were dear to practitioners before the older courts, aroused some fear and more resentment. Then, as now, conservatives were persuaded that the constitution (or the common law) was in danger, and the first impulse was not to reform the old, but to attack the new order of courts.
The rolls of the mediaeval English parliaments contain numerous petitions and acts directed against the Council and the Chancery. The promise of justice in the Great Charter3 was regarded as a declaration that the common law courts, and they alone, had jurisdiction over the lives, persons and property of Englishmen. In 1331 its provisions were pointedly re-enacted;4 in 1352 it was again recited and the King had to promise that the Council would not proceed without indictment or common law process on an original writ;5 although this was confirmed several times, we find in 1363 another attempt to enforce this construction of the charter—the Council must take security from complainants, and even then proceed only by common law.6 In 1368 the Commons once more tried to insist upon indictment or original writ as the sole foundation for legal proceedings.7 All these statutes denouncing the council were obviously ineffective, despite the show of assent given to them by the Crown. In 1389 the Chancellor is coupled with the Council in a petition to which Richard II only replied with a saving of the royal prerogative.8 The tide was on the turn. A statute of 1394 tried a different policy by allowing the Chancellor to award damages to a defendant when the plaintiff’s suit appeared founded upon falsehood,1 but the fall of Richard II brought back the older type of remonstrance. In 1415 the writ sub poena was denounced as a subtlety invented in the previous reign by John Waltham, and the examination of parties and witnesses without lawyers and without records and the use of civil and canon law forms were again vigorously denounced. The petition was bluntly rejected by the King.2 Another in 1421 which alleged that a sub poena was not “due process” was likewise refused.3 Clearly the Council and the Chancery were now solidly established. Indeed, for the future, legislation took the opposite course of increasing the powers of the Chancellor and the Council by a series of acts4 of which the act pro camera stellata5 is only one example.
The petition of 1389 was therefore the first to which the Crown ventured a refusal, and that of 1394 begins a line of statutes which accept and even enlarge the jurisdiction of the Chancellor and Council. We may therefore conclude that during the fifteenth century the Commons were gradually reconciling themselves to the existence of a jurisdiction which the country at large seems to have welcomed, and their protests can be largely ascribed to the professional common lawyers who largely directed its proceedings.
COMMON LAW AND EQUITY IN THE FIFTEENTH CENTURY
Whatever the bar may have thought about the problem, the common law judges seem to have been prepared to work with the Chancery in a spirit of co-operation. They were constantly in consultation with the Council and the Chancellor, both for the statutory purposes already mentioned, and also to assist him when called upon in the exercise of his equitable jurisdiction. The frequent conferences in the Exchequer chamber for discussing difficult cases afforded yet one more opportunity of contact. There is therefore no further questioning of the powers of the Chancellor or the Council, but instead we find an endeavour to define the limits of the two jurisdictions.6 In this there was naturally some conflict, especially as Chancery already enjoined parties from pursuing common law remedies, and the common law courts sometimes talked about prohibiting suitors from going into equity, and at least once threatened to release by habeas corpus one who had been committed by the Chancellor for contempt.1 However, occasional outbursts of ill-feeling such as this contrast with the general atmosphere, which seems to have been one of mutual tolerance. Indeed, in 1464 the Court of Common Pleas was once given the chance of recognising an equitable estate, with the reasoning that “the law of chancery is the common law of the land”. This golden opportunity was lost,2 and so we had to wait four hundred years for the fusion of law and equity.
EQUITY UNDER THE TUDORS
The sixteenth century shows us Council government at its best. The courts of Star Chamber, Requests and High Commission collaborated in the most intimate manner with the Privy Council in the task of government. All the troubles brought about by religious dissension, economic distress, foreign wars and domestic sedition were handled courageously and effectively by the newer institutions. Nowhere will be found so striking a contrast with the inadequacy of the Lancastrian age. No doubt there was some ruthlessness: legal and constitutional barriers had to yield when the State was believed to be in danger—and it certainly was on more than one occasion. The Privy Council itself exercised a jurisdiction more vague even than that of its offshoots, and all the conciliar courts inflicted “unusual” and sometimes picturesque punishments when occasion demanded. Torture was not unknown to its procedure: sedition, defamation, heresy, unlicensed printing, playacting, perjury, riot—all these might be visited with fine and imprisonment, while
