A Concise History of the Common Law. Theodore F. T. Plucknett

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 are in frequent use from the reign of Edward III onwards, are clearly derived from the administrative functions of the office, and can be compared with those of the common law side of the Exchequer with which they were in some cases concurrent. It is a difficult question how far the common law jurisdiction was an origin of the equitable jurisdiction, which may have had, in the main, a different history.²

THE NEED FOR DE-CENTRALISATION

      The “impoverishment of the jurors” and the “ruin of the country” by jury trial was a real problem. When Henry II instituted the petty assizes he seems to have made the requirement that as far as possible the assize of twelve should meet in the county where the land lay—in the county where the assizemen resided. With the use of the jury in the Court of Common Pleas a similar requirement soon arose for the jury to come from the county where the cause of action lay. While the judges of the Bench were continually touring with the King, there was a fair chance of juries being taken in or near their own counties, but with the tendency for the Bench to stay in one place it was becoming more and more necessary for the jury to come to the court, instead of the court travelling about and taking the juries locally. The Great Charter³ settled the most pressing part of the question by enacting that most of the assizes (which were then the most frequently used of the common law actions) must be taken in the county where the land lay, and as the assizemen had to be neighbours from that same county, they did not have to travel very far. Hence the Crown sent commissioners at regular intervals to take the assizes in the counties.

THE NISI PRIUS SYSTEM

As for the Bench in the reign of King John, it was sufficiently important for the Charter to enact that it should no longer travel but sit permanently in some fixed place. This was perhaps convenient for suitors, but as the business of the court increased it was a grave hardship to bring jurors from the remoter parts of England to Westminster; indeed, in many cases it was utterly impossible. The solution of the problem was all the more difficult now that the Common Pleas (and for that matter, the Exchequer) were fixed at Westminster.¹ The verbal altercation which resulted in the formulation of irrevocable pleadings had to take place (at this date) in court before the judges, who supervised the process and helped the parties to reach a suitable issue. Once the issue was reached, however, it was a simple business to put the issue to the jury and record their verdict. This second process, it was realised, need not take place at Westminster. As early as 1196 parties were given a day at Westminster “nisi justiciarii interim veniant” in Norfolk,² and in the early years of Henry III justices in eyre would sometimes order juries to be taken locally (instead of before themselves) in order to save trouble to all concerned,³ and would likewise order the verdicts of locally taken inquests to be returned if necessary to Westminster.⁴ This separation of fact-finding from the rest of legal procedure gave the solution to the problem, and so legislation beginning with Edward I in the Statute of Westminster II, c. 30 (1285) slowly built up the system of nisi prius, whereby actions which began at Westminster in the Court of Common Pleas, when once they had been pleaded to an issue, could be continued by taking the jury’s verdict in the county before justices of nisi prius, instead of compelling the jurymen to undertake a costly journey to Westminster as had formerly been the case. The rise of this system had the result that a great deal of jury work took place in the country and not in Westminster; such proceedings were rarely reported, for the compilers of the Year Books were most concerned with what went on at Westminster Hall, and so the whole procedure of putting evidence before a jury, charging it and taking its verdict is an obscure matter, for neither the reporters nor the rolls give us very much information.⁵ Of these two sources the rolls are perhaps the more promising for the early history of the law of evidence.

The commissioners of assize need not be justices (although the ywere frequently serjeants, and local knights had to sit with them); the commissioners of nisi prius, on the other hand, had to be sworn justices. At the same time, it was a frequent practice to issue special commissions from time to time to justices and others authorising them to hear and determine (oyer and terminer) all pleas arising in a particular county, or all pleas of a particular type—sometimes to hear and determine one case of special importance. Furthermore, commissions of gaol delivery were a frequent necessity in order to try the persons indicted before various authorities. As a matter of obvious convenience these commissions were eventually issued to the same commissioners. Justices had to be sent at stated intervals to take nisi prius trials; the same justices could also take the assizes, and it was convenient to give them oyer and terminer and gaol delivery¹ powers as well. Hence there arose the circuit system whereby the justices of the superior courts made regular tours of the country and thus brought the courts of Westminster into direct contact with local needs. To complete their powers, it was customary to make the judges of assize justices of the peace in the counties they visited.