The History of English Law before the Time of Edward I. Frederic William Maitland
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at any rate it was no baron but a lawyer, an ecclesiastic, a judge, Bracton’s master, William Raleigh, who had to meet the clerical forces and to stand up for English practice against the laws and canons and consensus of Christendom.73
Equity.Of “equity” as of a set of rules which can be put beside the rules of “law,” or of courts whose proper function is the administration, not of law, but of equity, we shall hear nothing for a long time to come. We must however remember, first, that a contrast between aequitas and rigor iuris is already a part of what passes as philosophical jurisprudence, and secondly, that our king’s court is according to very ancient tradition a court that can do whatever equity may require. Long ago this principle was asserted by the court of Frankish kings and, at all events since the Conquest, it has been bearing fruit in England.74 It means that the royal tribunal is not so strictly bound by rules that it cannot defeat the devices of those who would use legal forms for the purposes of chicane; it means also that the justices are in some degree free to consider all the circumstances of those cases that come before them and to adapt the means to the end. In the days of Henry II. and Henry III. the king’s court wields discretionary powers such as are not at the command of lowlier courts, and the use of these powers is an exhibition of “equity.” Often on the plea rolls we find it written that some order [p.169] is made “by the counsel of the court” (de consilio curiae). It is an order that could not be asked for as a matter of strict right; the rigor iuris does not dictate it—would perhaps refuse it; but it is made in order that the substantial purposes of the law may be accomplished without “circuity of action.”75 The need of a separate court of equity is not yet felt, for the king’s court, which is not as yet hampered by many statutes or by accurately formulated “case law,” can administer equity.
The king’s courts.In the middle of the thirteenth century the high courts that do justice in the king’s name are rapidly taking what will long be their final form. When in 1875 a Supreme Court of Judicature once more absorbs them, the Court of King’s Bench, the Court of Common Pleas, the Court of Exchequer and the Chancery will be able to claim some six centuries of existence as distinct and separate courts.76 To fix precisely the exact moment at which one court became two or more courts, is perhaps impossible, for “court,” as our modern statute book would amply prove, is a term that cannot easily be defined. In dealing, however, with the thirteenth century and the later middle ages we might be justified in saying that each of the high courts of the realm must have a set of rolls that is its own and a seal that is its own. A continuous memory of all that it has done seems the essence of a court’s identity, and this memory takes the shape of a continuous series of written records.
The exchequer.At what we may call an early time the exchequer ceased to be a phase of the general governing body of the realm, and became a department, with a seal and many records of its own, a financial department.77 In Bishop Richard’s Dialogue we still see all the great ones of the kingdom seated round the chess-board. The chief [p.170] justiciar is there and the chancellor of the realm. Gradually they withdraw themselves from the ordinary work of the board, though they may attend it on special occasions. The treasurer becomes its president; its seal is kept by the chancellor of the exchequer, an officer who first appears in Henry III.’s reign, and the writs that it issues are tested by the senior baron;78 as yet there is no “chief baron.”79 From the beginning of the reign onwards men are definitely appointed to be barons of the exchequer.80 They are chosen from among the king’s clerks, but they keep the old title and are sufficiently the “peers” of the barons of the realm to enable them to inflict amercements on noble offenders. The treasurer is the head of the court whatever it may be doing. The position of the chancellor of the exchequer is subordinate; he keeps the seal of the court, and his accounts may serve to check the treasurer’s, but apparently the acts of the court are always attributed to the treasurer and barons.81
Work of the exchequer.The exchequer is called a curia.82 In our view it may be a compound institution, in part a judicial tribunal, in part a financial bureau. The process which in course of time will divide a great “government office” known as the treasury from the court of law held before a chief baron and other barons, has not as yet gone far. The duty of issuing the king’s treasure is performed by the treasurer with the assistance of the deputy chamberlains—already the chamberlainships have become hereditary sinecures83—and in this matter he is not controlled by the barons. But then in this matter he has little discretion, for he dares issue no penny save in obedience to an order which comes to him under the great or the privy seal; even for every payment of an annual salary he requires such a warrant from above.84 There was, however, some rivalry between the two departments, and during some late years of Edward I.’s reign the treasurer, rather than the chancellor, was the king’s first minister.85 The main work of the court or board over which he presides is that of collecting the king’s revenue. It receives and audits the accounts [p.171] of the sheriffs and other collectors; it calls the king’s debtors before it, hears what they have to say, investigates the truth of their allegations, grants them an acquittance or issues process against them, “according to the customs and usages of the exchequer.” We may perhaps call it an administrative tribunal. If questions of fact or questions of law arise, it ought to judge impartially between the king and his subjects; but still its duty is to get in what is due to the king, and to do this spontaneously without waiting for any external impulse. It is a revenue board which hears and decides. Then also it is often empowered to give relief against the king. Not that a subject can bring an action against the king either here or elsewhere, but when a man thinks that he has a claim against the king, either in respect of some money that the king owes him, or in respect of some land that the king has seized, he will (this is the common practice of Edward I.’s day) present a petition to the king and council, and a favourable response to this petition will generally delegate the matter to the treasurer and barons and bid them do what is right.86 If a question of general law is involved, they will often be told to associate with themselves the justices of the two benches, for they themselves are supposed to know rather “the course of the exchequer” than the common law of the land. However, during our period we may see an irrepressible tendency at work which will give them a power to adjudicate in personal actions between subject and subject. In Edward’s reign they are often forbidden to do this, but they do it; and in so doing they may be rather striving to retain old powers, powers that had been exercised by the exchequer when it was a phase of the as yet undifferentiated “curia,” than to usurp a new function. We are at a loss to account on the one hand for the offence that they thus gave to the community of the realm, and on the other for the persistent recourse to their tribunal of creditors who might have gone elsewhere, unless it be that a creditor might thus obtain the advantage of some of those expeditious and stringent [p.172] processes which had been devised for the collection of crown debts. In the end, as is well known, the exchequer triumphed under the cover of fictions; but this victory belongs to a later time than that of which we are speaking.87
The chancery.Men are beginning to speak of the chancery as a curia;88 but even in Edward I.’s reign it is not in our view a court of justice; it does not hear and determine causes. It was a great secretarial bureau, a home office, a foreign office and a ministry of justice. At its head was the chancellor, who, when there was no longer a chief justiciar of the realm, became the highest in rank of the king’s servants. He was “the king’s secretary of state for all departments.”89 Under him there were numerous clerks. The highest in rank among them we might fairly call “under-secretaries of state”; they were ecclesiastics holding deaneries or canonries; they were sworn of the king’s council; some of them were doctores utriusque iuris; they were graduates, they were “masters”; some of them as notaries of the apostolic see were