¹ Lectures on Forms of Action, p. 1.Google Scholar

² Contrast the address to a named person of a writ with the address of an Anglo-Saxon charter, ‘To all Archbishops, Bishops, Earls, Barons, etc.,’ and with the address of letters patents, ‘To all to whom these presents may come.’

³ The words ‘write’ and ‘writ’ are of purely Teutonic origin. Skeat connects them with the German reissen, to tear, the derivation being from a root meaning to cut and so to engrave.

⁴ This document is mentioned by Stevenson, W. H. in Eng. Hist. Rev. 27, 5Google Scholar, citing Codex Diplomaticus, IV, 266Google Scholar, and Thorpe, , Diplomatarium Anglicum, 302.Google Scholar

The very remarkable antiquary, Sir Dugdale, William, in his Origines Judiciales (publ. 1666)Google Scholar, cites this document as an early example of a writ under seal. P. 34.

I owe the reference to Stevenson's article, and much besides, to ProfessorWinfield, 's most useful Chief Sources of English Legal History (publ. 1925). See pp. 286–302.Google Scholar

⁵ It is not possible to form any certain opinion as the number of surviving documents is small. They come from the archives of ecclesiastical houses, See Davis, , Regesta Regum Anglo-Normannorum.Google Scholar

⁶ The writ is one of William I's. It is printed by Davis, , op. cit., p. 129, No. XL.Google Scholar

⁷ Ranulf Glanvil was a prominent statesman and soldier in the reign of Henry II, who defeated the Scots at Alnwick in 1174. He became Justiciar in 1180. The book De Legibus et consuetudinibus Angliae which is called after him, was, according to the accepted view, not written by him, but may have been written by his kinsman and secretary Hubert Walter, afterwards himself Justiciar and Chancellor. The probable date is between 1187 and 1189.

⁸ There must have been an organization similar to the Chancery in Anglo-Saxon England. It is clear that by the time of Cnut the king's chaplains had become an influential secretrial body: they were rewarded for their services by appointment to bishoprics and abbeys.

Davis, , op. cit., XI—XVGoogle Scholar, says that the first man who is given the title cancellarius in a genuine charter is Regenbald, circ. 1060. But this charter and another calling Regenbald chancellor have recently been gravely suspected: Bulletin of John Ryland's Library, XX, 348ffGoogle Scholar. I owe this reference to Professor Plucknett, who very kindly read this article in proof, and made valuable suggestions of which I have availed myself.

The words cancellarius and cancellaria are believed to be derived from the cancelli, or screen, behind which the clerks worked.

⁹ Maitland wrote as follows in P. & M., I, at p. 151Google Scholar: ‘Thus before the end of Henry's reign we must already begin to think of royal justice—and this is becoming by far the most important kind of justice—as consisting of many various commodities each of which is kept in a different receptacle. Between these the would-be litigant must make his choice; he must choose an appropriate writ, and with it an appropriate form of action. These wares are exposed for sale; perhaps some of them may already be had at fixed prices, for others a bargain must be struck. As yet the king is no mere vendor, he is a manufacturer and can make goods to order. The day has not yet come when the invention of new writs will be hampered by the claims of a parliament. But still in Glanvil's day the officina justitiae [workshop of justice] has already a considerable store of ready-made wares, and English law is already taking the form of a commentary on writs.’

¹⁰ ‘In the case of debts any royal writ… seems to be regarded as a luxury which the King is entitled to sell at a high price. Even in the earlier years of Henry III's reign the plaintiff must often promise the King a quarter or a third of all that he recovers before he will get his writ’: P. & M. II, 205.Google Scholar

¹¹ P. & M. I, 196Google Scholar. Raleigh was appointed one of the justices of the bench in 1228, Bishop of Norwich, 1239, and later of Winchester, d. 1250.

¹² Provisions of Oxford, 1258: P. & M. T. 196Google Scholar; H. E. L., I, 398.Google Scholar

¹³ Referring to the reign of Edward I, Maitland wrote, ‘It became apparent that to invent new remedies was to make new laws, and events were deciding that only in a parliament of the three estates could new laws be made: even when the King was concerned, the list of actions was to be a closed list.’ ‘Placita de Warranto, 681, 686Google Scholar; writs brought by the King are quashed by the judges.’ P. & M., I, 196Google Scholar. Professor Plucknett tells me that writs were in effect being quashed under John.

¹⁴ Abate, French battre, beat down: quash, French casser, break; from Latin quatere, shake. Cp. French, Cour de Cassation.Google Scholar

¹⁵ For instance, some MSS. contain writs the efficiency of which cannot be guaranteed because they were never subjected in actual litigation to the test of judicial approval or disapproval: Winfield, , Chief Sources, 299.Google Scholar

¹⁶ For accounts of the Register, see Maitland, , Coll. Papers, II, 110–73Google Scholar; and Winfield, , Chief Sources, 286–302.Google Scholar

The Register was reprinted in 1595 and again in 1687. Maitland's opinion, based on what he calls a cursory examination of Rastell's book, was that the editions of 1595 and 1687 were almost exact reproductions of the 1531 book.

¹⁷ Maitland, F. A., 4.Google Scholar

¹⁸ At one time this process of viva voce pleading was called the loquela. Stephen, , Principles of Pleading, 5th ed., 23.Google Scholar

¹⁹ The word conte, which in modern French means a story, is derived from computare. The English equivalent ‘count’ still survives in English legal language, denoting a particular charge in an indictment which contains several charges or counts. In later times Serjeants became a class of superior counsel who had exclusive audience in the Common Pleas. And the importance of other counsel, at first called apprenticii, and later barristers, increased.

²⁰ The award of a method of proof is commonly called by modern historians the medial judgment, in contrast to the final judgment. The expressions issue en ley and issue en fet occur as early as 1309, Y. B. 3 Edw. II, 59.Google Scholar

In Y. B. 30 Edw. I, Mich., Rolls Series, p. 16, counsel is reported to have said, ‘Vous dites qe cel seygnourie a vous, etc, pur ceo qe vous estes seygnour, etc; ceo chet en destroit des justices: e la ou vous dites qe vous avez use, etc, ceo chet en pays, etc.’ ‘You say that this lordship is yours, because you are lord, this is for the decision of the justices; but so far as you say that you have made certain use of the land, this is a matter of fact for the jury.’ Dr. Sayles gives the reference to this passage in SS. Vol. 57, ciii.

²¹ The quotation is from Dr. Sayles' most interesting Introduction to Vol. II of his Select Cases in the Court of King's Bench, temp. Edw. I, at p. evi. His selection of cases fills three volumes of the Selden Society, Nos. 55, 57 and 58, published in 1936, 1938 and 1939.

²² The example which Bracton gives of a harmless difference of wording is that of the writ stating that the demandant claims two carucates of land which are worth annually ten pounds, while the declaration states, ‘I claim ten librates of land.’ A librate is a piece of land worth a pound a year, f. 431a.

On the other hand if a writ or detinue were brought for £20 and the declaration demanded £40 the variation would have been fatal. See H. E, L., IX, 264.Google Scholar

²³ Reeves, , II, 620Google Scholar. John Reeves, born about 1762, became a fellow of Queen's College, Oxford, a member of the bar, a commissioner of bankruptcy, and, for two years (1791–2), chief justice of Newfoundland. He was appointed King's Printer by Pitt. D. N. B. He wrote a History of the English Law to the end of the Reign of Elizabeth. Reference is to the 3rd ed. by Finlason, 1869.Google Scholar

²⁴ The process by which the transformation of oral into written pleadings took place is a matter of conjecture. It is clear that in the sixteenth century the issue was arrived at by means of pleadings which were partly written and partly oral. The inrolment of pleas in Latin was abolished by statute in 1731. For further information, see the brief account of the history of pleading given in my article in the Cambridge Law Journal, 1936, 1–15Google Scholar, with references to Holdsworth, , H. E. L.Google Scholar

²⁵ Bracton, f. 413b. Professor Plucknett is my authority for the statement that, while the Y. BB. lasted, most litigation was by writ.

But Maitland, in his article on the Register of Original Writs (Coll. Papers, II, 172)Google Scholar, expressed the opinion that the Register of 1531 cannot bo taken as fairly representing the law of that time. ‘I should suppose,’ he wrote, ‘that the practice of bringing actions by bill without original writ cheeked the accumulation of new precedents in the Chancery.’ There must therefore have been, in Maitland's view, a considerable use of the bill.

²⁶ S. S., Vol. 48, cxxviii.Google Scholar

²⁷ See Bolland, in S. S., Vol. 27, xxi–xxx, and Vol. 30, xi–xv.Google Scholar

Maitiana tells us that the eyre was regarded as a sore burden, and quotes a record that in 1233 the men of Cornwall fled to the woods from fear of the justices: P. & M., I, 202.Google Scholar

²⁸ The use of the word ‘bill’ to denote a charge reminds one of its use in modern times when a Grand Jury was said to find a true bill against a person indicted at Assizes or Quarter Sessions.

²⁹ See Bolland, in S. S., Vol. 27, xxi–xxx, and Vol. 30, xi–xv.Google Scholar

³⁰ H. E. L., II, 336.Google Scholar

³¹ After the discontinuance of General Eyres in the first half of the fourteenth century the itinerant justices were given limited commissions only, and tried cases according to the strict procedure of the common law: H. E. L., I, 272, 449.Google Scholar

³² S. S., Vol. 48, cxxx–cxxxi.Google Scholar

³³ Hale was both a very great judge and a pioneer in legal history. Accounts aro given of him by Sir W. Holdsworth in Some Makers of English Law, and by Lord Birkenhoad in Fourteen English Judges. His judicial career was from 1654 to his death in 1676. He did not publish this tract, entitled ‘Discourse concerning the courts of King's Bench and Common Pleas’ and it was not printed until the learned Francis Hargrave in 1787 included it in his volume of Law Tracts, pp. 357–76.Google Scholar

³⁴ 22 Liber Assisarum, f. 94, pl. 41Google Scholar. It had been an old standing practice for the King's Bench and the Common Pleas to entertain quarelae. In view of the practice at the General Eyres, this is not surprising. More information on the subject will be available when the Selden Society publishes a promised volume of Select Cases of Procedure without writ under Henry III, by Mr. H. G. Richardson and Dr. G. O. Sayles.

³⁵ Coke died in 1634. The Fourth Part of his Institutes was posthumously published by order of the House of Commons in 1641.

³⁶ P. 71. He gives as justification for the enlargement of the jurisdiction of the King's Bench the facts that the Common Pleas alone would not be able to despatch all the causes, and that as Serjeants alone could practise in the Common Pleas, apprentices and other counsellors of law would not otherwise acquire the experience enabling them to be called as Serjeants. P. 72.

³⁷ The wording of the Bill of Middlesex is similar to that of the capias, which is explained later. See forms in Blackstone, III, Appendix III.

³⁸ Blackstone, , III, 285Google Scholar; Hale, in Hargrave, 's Law Tracts, 366.Google Scholar

³⁹ In the seventeenth century the King's Bench could only entertain a bill of trespass if it was alleged to have been committed in the county in which the Court sat. This limitation did not exist in earlier times. The first example given by Hale of a suit by bill at large is one of 6 Edward III, a bill ‘for a contempt committed in the county where the King's Bench sat.’ But the second example, from 11 Edward III, is ‘a suit by John Hened per billam for a trespass in a foreign county.’ It is curious that these bills at large should have fallen into disuse.

⁴⁰ In a fourteenth century Year Book the Court is reported as saying ‘et si agarde le court que vous ne preignez rien par votre breve’: Y. B., 16 Ed. II, 490 (cited Ames, , Lectures, 75)Google Scholar. The expression current in Coke's time is obviously derived from this, billam being substituted for breve.

⁴¹ The Common Law Commission was appointed on May 16, 1828, in consequence of the great speech, lasting six hours, which Brougham made in the House of Commons on February 7, 1828, on the defects of the English legal system. The First Report was presented in February, 1829. The Chairman was Serjeant (afterwards Mr. Justice) J. B. Bosanquet; the other members were James Parke (afterwards Baron Parke and Lord Wensleydale) whom all would place among the greatest common lawyers of the nineteenth century, Edward Hall Alderson and John Patteson (afterwards judges of very great distinction), and Serjeant H. J. Stephen (who refused a judgeship because, it is said, of his disapproval of capital punishment). The latter wrote two famous works, a Treatise on Pleading and Stephen's Commentaries. To his work and influence the reports of the Commissioners were largely due.

⁴² First Report, p. 82. There were various processes known by the name distringas. This one is explained later, pp. 27–8.

⁴³ I mention for the sake of completeness, and not of its intrinsic importance, procedure by bill and summons against members of the House of Commons introduced by 12 & 13 Wm. III, c. 3, s. 2. The Commissioners explain this on p. 76 of their First Report. ‘The bill of Middlesex and latitat in the King's Bench the capias in the Common Pleas, and the quo minus in the Exchequer, which all proceed either on a real or supposed apprehension of the Defendant's person, were considered as inapplicable to persons privileged from arrest. With respect to peers, lords of Parliament, and members of the House of Commons there was therefore no proper method of process but that by original writ; and it was to avoid the expense, delay, and other inconveniences attendant on this course, that the option of bill and summons in the case of persons having privilege of the House of Commons was thus afforded to the suitor.’

⁴⁴ This meant that the plaintiff was required to produce pledges of prosecution, who in course of time came to be the fictitious John Doe and Richard Roe.

⁴⁵ For the use of the word ‘ponere,’ to put, in this connection, compare the modern expression ‘to put a person upon his honour.’ There was another quite different writ of pone used for transferring certain actions from the County Court to the Common Pleas.

⁴⁶ Until 1504 when 19 Hen. VII, c. 9, made capias applicable to all actions on the case. Capias had previously been made applicable to actions of account by Stat. Westminster, II, 1285, c. 11Google Scholar (extending Stat. Marlborough, , 1267, c. 23)Google Scholar, and to actions of debt and detinue by 25 Edw. III, st. 5, c. 17.

⁴⁷ Described by Maitland in F. A., Lecture 5. Real actions were abolished in 1833 by 3 & 4 Wm. IV, c. 27, except two writs of dower and the writ of quare impedit relating to advowsons. So were mixed actions, except ejectment. ‘Real,’ ‘personal’ and ‘mixed’ as applied to actions, mean actions of which the result is the recovery of the thing, or of damage or of both respectively. Maitland said of this classification: ‘I am not certain that it ever became correct to speak of ejectment as either real or mixed until the statute of 1833 abolished all real and mixed actions “except” ejectment and some others, thus speaking as though ejectment were either real or mixed. The truth is that this classification never fitted our law very well.’ F. A., 77.Google Scholar

⁴⁸ Blackstone, , III, Ch. 19Google Scholar; Reeves, , III, p. 758Google Scholar. It appears from Blackstone, , III, 221Google Scholar, that in Charles II's time special bail could be demanded if the plaintiff made an affidavit that the cause of action amounted to £10 or upwards.

⁴⁹ Blackstone said that there was no intention on the part of the makers of the statute to oust the King's Bench from the jurisdiction which it had acquired. But the tract was not published till 1787. Blackstone therefore either had not read the tract in manuscript, or, if he had done so, had not noted Hale's statement.

The section certainly does not read like an attack on the King's Bench. It applies both to writs out of the King's Bench and to writs out of the Common Pleas. It is surprising that the section should have had as much effect, as it allowed bail up to £40 even if the cause of action was not stated. I cannot make the sentence on the subject on p. 221 of H. E. L., Vol. IGoogle Scholar, tally with the section.

⁵⁰ An account of the matter is given by Roger, North in his Lives of the Norths, Vol. I.Google Scholar

⁵¹ The personal ascendancy of Lord Mansfield, C.J.K.B. 1756 to 1788, increased the prestige of his Court in relation to the Common Pleas. The Chief Justiceship of the Common Pleas was often colloquially referred to as the cushion. But the list of those who held it in the eighteenth century is a distinguished one:—1701, Trevor, Thomas (Lord Trevor); 1714Google Scholar, King, Peter (Lord King); 1725Google Scholar, Eyre, Robert; 1736Google Scholar, Reeve, Thomas; 1737Google Scholar, Willes, John; 1762Google Scholar, Pratt, Charles (Lord Camden); 1766Google Scholar, Wilmot, John Eardley; 1771Google Scholar, de Grey, William (Lord Walsingham); 1780Google Scholar, Wedderburn, Alexander (Lord Loughborough); 1793Google Scholar, Eyre, James; 1799Google Scholar, John Scott (Lord Eldon).

The Common Law Commissioners, First Report, p. 11, gave the following figures, for the three Courts between 1823 and 1827 inclusive:—K. B., 281, 109 actions commenced; C. P., 80, 158; Exch., 37, 197.

⁵² The medieval Latin word ‘scacci,’ chess-men, is derived from the Persian word Shah, a king. A scaccarium was a board or cloth divided into black and white squares like a chess-board. From these words are derived our words check, chequer and cheque as well as chess. The Norman Curia Regis sat for its financial business round a table covered with a chequered cloth, on which accounts were calculated by means of counters. It was about ten feet long and five broad, and was surrounded by a rim between three and four inches high, to prevent things from falling off it. Ref., Skeat, , Etym. Dict.Google Scholar; Ducange, , GlossariumGoogle Scholar; Camden, , Britannia, ccliii.Google Scholar

Much information about the meetings ad scaccarium in Henry II's reign is available in the Dialogus de Scaccario written by Richard Fitz Neal, treasurer 1158 to 1198. Madox first printed it in his History of the Exchequer (1711)Google Scholar, editing it from a thirteenth century MS. the Red Book of the Exchequer. Stubbs included it in his Select Charters (the 8th ed. was in 1895)Google Scholar. In 1902 a more accurate text was published by Hughes, Crump and Johnson. Extracts from this text were included in the 9th ed. of Stubbs’ S. C. by H. W. C. Davis.

For accounts of the Dialogus, see P. & M., I, 161Google Scholar, and Poole, R. L., Exchequer in the Twelfth Century.Google Scholar

⁵³ An account of this matter is given by Tout on his Place of Edward II in English History, 334Google Scholar. In 1234 William of Beauchamp, Alexander of Swerford, and Richard of Montfichet were formally assigned as fellows of the other barons to be resident at the Exchequer. It was Swerford who began the compilation of the Red Book of the Exchequer: Winfield, 117. No other appointment is recorded until 1253 when that of Peter of Rivaux was enrolled on the close roll. From that time references to official barons became not uncommon.

⁵⁴ P. & M., I, 191.Google Scholar

⁵⁵ Fleta, (circa 1290), p. 81Google Scholar: ‘Habet etiam Rex curiam suam et justitiarios suos in scaccario apud Westmonasterium residentes.’

⁵⁶ In these paragraphs I have summarized pp. 191–3 of P, & M., Vol. I.

⁵⁷ All that is known about the work of the Exchequer on its judicial side in the thirteenth century is to be found in the valuable introduction to S. S., Vol. 48, Select Cases in the Exchequer of Pleas, edited by Hilary Jenkinson and Beryl Formoy.

⁵⁸ Britton, Liv., I, c. 1, s. 9, ed. F. M. Nichols, 1865.

⁵⁹ A number of cases in which B was attached to answer Regi una cum A (to the King together with A) are printed in S. S., Vol, 48. See Introduction, c—cii.

⁶⁰ This quotation is from a writ of Charles I's reign given by Burton in his Practice of the Office of Pleas in the Court of Exchequer (publ. 1791), II, 475.Google Scholar

It may be regarded as certain that no quo minus formula had come into use in the thirteenth century, for Dr. Jenkinson tells us that he had looked for any trace of it in vain: S. S., Vol. 48, c—cii. But Burton, I, 105, gives three examples from the year 1329. One of them runs, Quo minus rex percipere potest debita in quibus B ei tenebatur. In 1400 a writ containing a formula of that kind was called a quo minus, for in Y. B., 2 Hen. IV, Mich. pl. 48, Markham is reported as saying, ‘Jeo avera le quo minus.’

ProfessorPlucknett, states, in his Concise History of the Common Law, 3rd ed., p. 147Google Scholar, that the fiction of pretending to be a Crown debtor appears in the middle of the fourteenth century. I have discussed this passage with him, and he allows me to state that he agrees with me that there is not at present available any evidence as to when this fiction was admitted by the Court. There is a remarkable silence on the subject, apparently neither Coke nor Hale mentions it. It may be regarded as certain that the quo minus allegation had become a pure fiction before the reign of Elizabeth, when the status of the barons was raised.

⁶¹ 4 Geo. II, c. 26.

⁶² Blackstone, , III, Appendix III, § 4Google Scholar. Sir Thomas Parker was Chief Baron from 1742 to 1772. Blackstone began lecturing in 1753 in George II's reign: the first edition of his Commentaries was in 1765–1769Google Scholar, in George III's reign.

⁶³ The authority for this is a statement made by John Walter, Chief Baron 1625–30, in an Exchequer case. It is quoted by Salkeld, an early eighteenth century reporter, on p. 546 of Vol. II of his Reports. It does not appear from what source he obtained it. The reason for the distinction is:—the object of the quo minus was to bring the defendant within the jurisdiction of the Court, but if the defendant was an accountant to the King or an officer of the Court he was already within the jurisdiction, and so could be proceeded against by bill.

⁶⁴ H. E. L., I, 240.Google Scholar

⁶⁵ Chronica Series, 94 (appended to his Origines Judiciales).Google Scholar

⁶⁶ In the eighteenth century, when the creation of peerages was lavish, no Chief Baron was of sufficient distinction to receive that honour. But in 1831 Lord Lyndhurst, who had been Lord Chancellor for three years, did not consider it beneath his dignity to accept the post of Chief Baron.

⁶⁷ Supra, p. 30, note 51.Google Scholar

⁶⁸ If the action was one in which it was intended to hold the defendant to special bail, then the writ (to be issued out of the Court concerned) was to be a writ of capias addressed to the sheriff.

⁶⁹ It was, however, provided that a plaintiff having a good cause of action for £50 or more could apply to a judge for the arrest of the defendant if the latter was about to leave England and did not give the prescribed security. The rules governing such applications are contained in Order LIX. of the Rules of the Supreme Court.

⁷⁰ Blackstone gives an account of the procedure in III, 283–4. He says that in order to proceed to outlawry it was essential that the action should have been commenced by original writ, and not by bill.