Did the conciliar courts pose a threat to the existence of the common law courts in the 16th century?

Exchequer of Pleas

The Exchequer of Pleas was the oldest of the three common law courts.  By 1190 the Court of Exchequer possessed a judicial role including judges known as Barons, supervised by the Lord Chief Baron of the Exchequer.  The work of the Exchequer consisted of two parts: business of the Crown regarding monies owed to it, and actions of private individuals who had a right to sue in the Exchequer.  The judicial business of the Exchequer increased, and  by 1290, it became a regular common law court.   Most private business could only be bought to the Exchequer by use of a legal fiction.  Eventually the writ of Quominus became the usual way of bringing an action in the Exchequer.     

Court of Common Pleas

The Court of Common Pleas was created to help mitigate the workload of the King’s Bench.  The court dealt primarily with ‘common pleas’ and has been described as a ‘place of innovation’ where judges decided influential cases.    

In addition to the courts of the common law there was an entire array of other courts which were designed to do something other than common law.   These courts were identified as the ‘conciliar courts’, and were not initially intended as a challenge to the common law.  Milsom describes equity as a ‘dispensing power from the law’.

Conciliar Courts

The common law courts were a manifestation of the king’s prerogative.  Similarly the conciliar courts were an exercise of royal prerogative to do justice, as in several cases individuals approached the king and complained of injustices they had experienced in the common law courts.  Originally individuals petitioned to the king to complain of injustices, who then delegated these inquiries to more appropriate officials, e.g. the chancellor, who could deal with them more efficiently.  Consequently people began to approach these officials directly.  As a result this process gradually evolved into a court system consisting of: the Court of Star Chamber, Court of Requests, Court of Earl Marshall, Court of Admilitary, and Court of Chancery.    

Court of Star Chamber

The Court of Star Chamber was the best known of the conciliar courts, and acted as a supervisory body overlooking the lower courts.  At the beginning of the sixteenth century its jurisdiction was primarily civil and it was concerned mainly with issues such as real property, riots and perjury.  It was respected for its speed and flexibility.  The court was comprised of privy counsellors and common law judges, and accompanied actions of the common law and equity courts in both civil and criminal matters.  The key task of the court was to ensure a fair enforcement of laws.  A secondary function of the Court of Star Chamber was to act as a court of equity which could impose punishments for actions regarded as morally wrong but in theory not in breach of the law.  When local courts became congested, the Court of Star Chamber relieved some of the workload.  Although Star Chamber was primarily a court of appeal, plaintiffs were encouraged to bring the cases to the court directly, completely avoiding the lower courts.  The court sessions were held in secret, without indictments, juries, witnesses, and right of appeal.  

Court of Requests

The Court of Requests was regarded as a ‘minor’ court of the king’s council, established in 1519 by Thomas Wosley.  It had jurisdiction over matters of equity and cases relating to poverty.  The judges of the court were referred to as the ‘masters of the requests’. 

Court of Earl Marshall

The Court of Earl Marshall came into existence in the fourteenth century, and had jurisdiction over military matters including treason, prisoners of war and ransom.  The chief purpose of this court was to operate an extended jurisdiction overseas, as the powers of common law ended where the powers of the sheriff ended.  The court made an attempt to acquire a wider common pleas jurisdiction but was restricted by statutes of Richard II to ‘deeds of arms and war and appeals of treason and felony committed overseas.’  Due to these limitations and additional political reasons, the high office of constable was suppressed in the sixteenth century.

Court of Admilitary

The Court of Admilitary dealt with matters arising on the high seas.  On one occasion the court invaded the common law and was restrained by statute from hearing ‘matters arising within the realm whether or not they were concerned with the sea.’  The court was managed by a judge of the Admilitary and operated by civil law.  Consequently it was viewed with deep hostility and suspicion by the common lawyers.  

Court of Chancery

The Court of Chancery developed from the Lord Chancellor’s jurisdiction.  The Lord Chancellor had the jurisdiction to determine cases according to fairness rather than strict application of the law.  The Court of Chancery was divided into two sides: Latin and English.  The Latin side specialised in administration work related to royal property, royal grants, and also had jurisdiction over its own staff.  This side also issued writs for individuals to begin process in common law.  The English side dealt with bills of complaint and cases concerning property.  By the sixteenth century the Court of Chancery dealt with real property and became famous for this.  

At its inception the Chancery was a ‘gloss’ or assistance to the common law.  Individuals would have to proceed at common law and then go to equity in respect of proceeds which had already begun in common law.  However by the sixteenth century the chancellor began to hear suits independent from the common law.  Conciliar courts were most successful in the sixteenth century as a result of procedural expediency and justice.  Actions began orally by bill or plaint.  

The Chancery could ensure a defendant appeared in court or receive a penalty - this was a successful method of assuring attendance.  There was much more flexibility in discovering facts, as the court possessed extensive fact finding powers, and individuals were not required to present their stories in a specific form.  Chancery also avoided corrupt and non compliant juries.  The Court of Chancery achieved individual justice, and offered a better range of remedies.

The conciliar courts rose to prominence in the sixteenth century due to an increase in the levels of litigation in the common law.  Furthermore the courts responded to the changing needs of a rapidly developing society, which the common law and the writ system were relatively slow to respond to.  Conciliar courts complimented the common law courts rather than pose a threat.  At the time, justice was perceived as a divine concept, as God determines justice and humans cannot disagree with it.  This incorporated the view that the courts were all doing justice by different means.  The common law achieved justice by a rigid application of rules.  Equity preserves the integrity of the common law, intervening in certain cases to accomplish justice but is not a challenge to the common law, as it only acts in certain individual cases.  

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