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

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 in the early popularity of equity courts.

      Finally, there were those who favoured as a remedy to all this the direct business methods of the administrator. They felt that there were cases which could not be satisfactorily handled by the common law with its writs, its delays, its pleadings, its limited resources in the finding of facts and the awarding of judgment, and its weakness in the face of disorder and corruption. The abandonment of court forms and the substitution of executive methods, moreover, brought with it other consequences. Some of the substantive rules of the common law, defensible enough when considered purely from a technical point of view, seemed unjust to the unlearned who had to suffer from them, and so we need not be surprised that there grew up a desire for more equitable rules as well as more effective procedure.

THE COUNCIL AND PETITIONS

      Persons who desired such extraordinary relief addressed themselves to the King and his Council. As the ultimate source of jurisdiction the King had long been accustomed to receive complaints from persons who alleged that they were unable, in law or in fact, to obtain redress in the usual courts. It has been suggested¹ that Edward I was glad to encourage these approaches, but was compelled by their numbers, and by the need of checking the handling of them by his subordinates, to insist that they be presented in writing, as petitions. In doing this, he was following papal practice, and like the popes, soon found it necessary to devise a procedure by which the easy cases were dispatched to the departments and dealt with by officials, while difficult matters came before him and the Council, in order to prevent the work of Parliament being obstructed by their number.¹ It soon became normal for large panels of “receivers” and “triers” of petitions to be set up at the beginning of every parliament. When Parliaments were less frequent, it seems that these applications (which continued to increase rapidly during the later fourteenth century), finally constituted a large and steady charge upon the Council’s time.

      Just as one part of the local enforcement problem was attacked by setting up the new institution of justices of the peace for local matters, so the deficiencies of the central courts were being supplied by the King’s Council. For a time, Parliament had occasionally served as a court of royal discretion,² but by the middle of the fourteenth century Parliament itself had become an institution which to some extent could be regarded as separate from the Council.³ The Council nevertheless remained in its ancient position of a small group of officials, household officers, clerks and advisers, continually attendant upon the King, and therefore exercising in his name that residuum of discretion and equity which was inseparable from the royal person. As Parliament became more settled in its powers, petitioners who sought extraordinary relief addressed themselves to the Council; and in any case, even if their petitions had been presented in Parliament, it was most likely that it would be the Council which actually passed upon them.

      Indeed, a variety of addresses occur in the petitions of the middle and later fourteenth century. Sometimes they are sent to the King, sometimes to the Council or the Parliament, and sometimes to the Chancellor or some household official. In any case it was the Council which generally took action, irrespective of the address upon the petition. The administrative and political duties of the Council were already exceedingly heavy, and the mass of petitions which streamed in every day immensely increased its task. Then, too, besides petitions, the Council itself would sometimes initiate proceedings of a semi-judicial character by calling upon some local magnate who was too powerful to be reached by the ordinary courts, to appear before the Council under the penalty (sub poena) of a sum of money to answer for his misdeeds—which were usually some form of oppression or disorder. The Council therefore found itself burdened with a growing mass of semi-judicial business; some of it could be transferred to the courts of common law, but some of it had to be considered by the Council itself, either because unusual relief was necessary, or because the parties were too influential to be amenable to the ordinary process of the courts. The problem arose of how to deal with this business. The same solution was found as in previous cases. A routine was established and officials were assigned for its working, only in this case an already existing institution, the Chancery, was used to carry out these new duties.

THE ORIGIN OF CHANCERY JURISDICTION

      A variety of theories have been proposed to account for the origins of Chancery jurisdiction, but the general trend has been to establish an old theory first put forward by Palgrave.¹ According to this view the Chancellor’s jurisdiction was not by virtue of his office; still less had it anything to do with his supposed position of keeper of the King’s conscience.² At a later date, it is true, Chancery became a court of conscience, with a jurisprudence deliberately based upon that idea, but that was a later development and will not account for the earliest period of Chancery history. It now seems clear that the Chancellor’s position was originally that of an informal delegate of the Council.³ Overburdened with work of every description, the Council delegated particular matters to the Chancellor, who of all the officials was the one who was most constantly in attendance. Moreover, the Chancellor already had a well-organised office staff which had long been familiar with the judicial work arising on the common law side of Chancery,⁴ and for a long time had exercised the power of issuing writs both judicial and administrative to all the King’s officials, central and local. The Chancellor, therefore, commanded the machinery which sooner or later would have to be set in motion in order to give redress to the petitioners, and so nothing could be simpler than for the Council to transmit the petitions addressed to it to the Chancellor, sometimes (but not always) endorsing them with a brief instruction what to do. Both on the common law and on the equity sides the Chancellors frequently called upon the judges of the common law courts to sit in Chancery, and it may well be the case that a good deal of genuine collaboration