Exchequer of pleas
Encyclopedia
The Exchequer of Pleas or Court of Exchequer was a court that followed equity, a set of legal principles based on natural law
, and common law
, in England and Wales
. Originally part of the curia regis
, or King's Council, the Exchequer of Pleas split from the curia during the 1190s, to sit as an independent, central court. With the Court of Chancery
's reputation for slow pace and expense, much of their business went to the Exchequer. The Exchequer and Chancery, with similar jurisdictions, drew closer together over the years, until an argument was made during the 19th century that having two seemingly identical courts was unnecessary. As a result, the Exchequer lost its equity jurisdiction. With the Judicature Acts
, the Exchequer was formally dissolved as a judicial body by an Order in Council of 16 December 1880.
The Exchequer's jurisdiction, at various times, was common law, equity, or both. Initially a court of both common law and equity, it lost much of its common law jurisdiction through the formation of the Court of Common Pleas
, and from then on concerned itself with equitable matters and those common law matters it had discretion to try, such as actions brought against Exchequer officials and actions brought by the monarch against non-paying debtors. With the Writ of Quominus
, which allowed the Exchequer to look at "common" cases between subject and subject, this discretionary area was significantly expanded, and it soon regained its standing in common law matters. Cases were formally taken by the Chancellor of the Exchequer
, but in practice were heard by the Barons of the Exchequer, a number of judicial officials led by the Chief Baron. Other court officials included the King's Remembrancer
, who officially appointed all other officials and kept the Exchequer's records, and the sworn and side clerks, who acted as attorneys to parties to a case.
, when the sole surviving Pipe roll
from his reign shows the Exchequer working out of the king's palace as part of the curia regis
. The curia regis followed the king as he travelled rather than sitting at any one fixed location, and was held in York
, London
and Northampton
at various times. By the late 12th century it had taken to sitting in a fixed location (the one body of government in England to do so), and by the 1170s it was possible to distinguish the Exchequer's work from that of the other parts of the curia regis, although the king of the time considered the Exchequer to simply be an element of the curia; indeed, it was referred to as the Curia Regis ad Scaccarium, or King's Court at Exchequer. The word "Exchequer" derives from the chequered cloth laid on a table for the purposes of counting money. In the 1190s the Exchequer began separating from the curia regis, a process which continued until the beginning of the 13th century; academics have suggested that this is due to an increasing demand on the revenue side of the court, which led to part of the common law
element being split off to form the Court of Common Pleas
. Although the Exchequer of Pleas was the first common law court, it was also the last to separate from the curia regis.
and 10,000 in the Court of Common Pleas
. Under the Tudors
, however, the Exchequer's political, judicial and fiscal importance all increased. This was partially thanks to the Lord High Treasurer
; although the Lord Chancellor
was more traditionally important, the Lord High Treasurers from 1547 to 1612 were politically influential figures, including Robert Cecil
, Thomas Sackville
and William Paulet
; since the Lord High Treasurer was head of the Exchequer, with the Treasurer's increased influence came increased importance for the Exchequer.
The appointment of the second
and third
Dukes of Norfolk
as Lord High Treasurers from 1501 to 1546 led to a gradual reduction in the Exchequer's power. The Dukes were seen by the government as too independent to be trusted with any real power, but too useful to be removed; as a result, to indirectly reduce their power, the Exchequer was deliberately weakened. When William Paulet was appointed Treasurer in 1546 the Exchequer again increased in power, absorbing the Court of Augmentations
and Court of First Fruits and Tenths
by 1554. The Exchequer was also assisted in this period by Thomas Fanshawe
, the Queen's Remembrancer; a capable man, Fanshawe was often consulted by the Barons of the Exchequer as to the best way to administer the court, and helped standardise pleadings, allowing the Exchequer to cope during a period of increased business. Fanshawe's administrative reforms were considered excellent, and his work continued to be used as the standard until the 1830s.
Exchequer business increased under James
and Charles I
, before the English Civil War
disrupted the courts. With the increasing use of the Writ of Quominus
, which allowed royal debtors to bring a case against a third party who owed them money if it was that lack of money which prevented them paying the king and the new regime, the Exchequer actively transformed from a "tax court" dealing with civil cases to a dedicated court of equity and common law. The Civil War caused four equitable courts to be dissolved; the Court of Star Chamber
was formally dissolved in 1641, the Council of the North
and Council of Wales and the Marches had their equity jurisdiction stripped by the same Act of Parliament, and the Court of Requests
became invalid after the Privy Seal was invalidated by the outcome of the English Civil War
, as it was dependant on the Seal for its authority. After the War ended there were only two equity courts remaining, the Exchequer and Court of Chancery
, the latter publicly reviled for its slow pace and because it was led by the Lord Chancellor, a political figure who had been intimately involved in the conflict. As a result the Exchequer increased in importance as a court, although it is not known whether its active transformation was a judicial or political decision.
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By the beginning of the 18th century, the equity jurisdiction of the Exchequer of Pleas was firmly cemented, and it was considered a viable alternative to the Court of Chancery
. As a result, each court cited the other's cases as precedent, and drew closely together. In addition, 18th-century Acts of Parliament treated them in the same way, merely referring to "courts of equity" rather than mentioning them individually. At the same time, the Treasury
became more and more important, leading to a reduction in the inferior Exchequer's influence. Despite these warning signs, the Exchequer continued to flourish, maintaining a large amount of business, and by 1810 was almost entirely an equity court, having little common law work. The court's equity side became deeply unpopular during the 1830s because many cases were heard by a single judge with no real prospect of appeal; while cases could be taken to the House of Lords, it was highly expensive and time-consuming to do so. The Court of Chancery, however, had long had an established method of appealing to the Lords, and later introduced an intermediary appellate court – the Court of Appeal in Chancery
. At the same time, many elements of the Exchequer's equity business had dried up, with the Tithe Commutation Act 1836
ending their tithe cases and the Insolvent Debtors Act 1820 establishing the Court of Bankruptcy
, removing cases of insolvency from the Exchequer. The Exchequer's fees were also higher than those of the Court of Chancery, and with both courts now using almost identical precedent it was seen as unnecessary to maintain two equitable courts. As a result, the Administration of Justice Act 1841 formally dissolved the equitable jurisdiction of the court.
With the loss of its equitable jurisdiction, the Exchequer became a dedicated common law court, and thus fell prey to the same fate as the other two during the late 19th century. There had long been calls for the merger of the courts, and in 1828 Henry Brougham
, a Member of Parliament, complained in Parliament that as long as there were three courts unevenness was inevitable, saying that "It is not in the power of the courts, even if all were monopolies and other restrictions done away, to distribute business equally, as long as suitors are left free to choose their own tribunal", and that there would always be a favourite court, which would therefore attract the best lawyers and judges and entrench its position.
In 1867 a commission was created to look into issues with the central courts, and the outcome was the Supreme Court of Judicature Act 1873
, under which all the central courts were made part of a single Supreme Court of Judicature, with the three central courts becoming three of the five divisions of the Supreme Court; this was not designed to be permanent, but rather to avoid having to retire or demote two of the three Chief Justices to allow a single head of the Supreme Court, as this would have violated the constitutional principle that senior justices were irremovable. By sheer chance Fitzroy Kelly
and Alexander Cockburn
, Lord Chief Baron of the Exchequer
and Lord Chief Justice of England and Wales
respectively both died in 1880, allowing the abolition of the old three-part system and the creation of a single High Court of Justice
under John Coleridge
by an Order in Council of 16 December 1880. At this point, the Exchequer of Pleas formally ceased to exist.
, was as a court where only the king could bring cases. The Exchequer became the first "tax court", where the king was the plaintiff and the debtor the defendant. The king was represented by the Attorney General
, allowing him to avoid much of the legal costs associated with a court case. The "next logical step" was to allow debtors to collect on their own debts in the Exchequer, so that they could better pay the king; this was done through the Writ of Quominus
. The Exchequer also had sole jurisdiction to try cases against their own officials and other figures engaged in collecting the royal revenue. The court was also used to prosecute clerics who, while innocent, had come close to committing an infraction; as the plaintiff was represented by the Attorney General, the costs were reduced, and as the Attorney General had no incentive to compromise it was more threatening to the cleric. In 1649 the Exchequer formally extended its common law and equity jurisdiction, becoming a fully-fledged court of law able to hear any civil case.
The main focus of the Exchequer was the collection of royal revenue as part of the greater Exchequer
, which was officially undertaken by the Lord High Treasurer
. The Exchequer was unique in having jurisdiction in matters of both equity and the common law
, the latter initially curtailed after the Magna Carta
and reserved for the Court of King's Bench
and Court of Common Pleas
, although it later grew back. This process of common law and equity was reversed; during the 16th century the Exchequer was solely a common law body, with the equity jurisdiction only again becoming relevant near the end of the Tudor period. W. H. Bryson argues that this happened during the reign of Edward I
. By 1590 the Exchequer's jurisdiction over equity cases was confirmed, and it was handling a significant number a year, including disputes over trusts
, mortgages, tithes and copyhold
s; since taxation was ever-present, it was not difficult to show that the dispute prevented the payment of a debt to the monarch, allowing the Writ of Quominus.
The Exchequer stood on an equal footing with the other Westminster courts (the Court of Common Pleas
, Court of King's Bench
and Court of Chancery
), with cases transferred easily from one to another, although there were problems in the case of the Court of King's Bench
. The traditional method for moving a case was the writ of supersedeas, but the King's Bench represented the monarch, who could not have writs placed against him. Instead, a clerk would bring the Red Book of the Exchequer
to the King's Bench and assert that the case's claimant was an officer of the Exchequer, necessitating his trial there rather than in the King's Bench. The Exchequer maintained a clear rule with the other equity court, the Court of Chancery
; a case heard in one could not be re-heard in the other. Apart from that, cases of equity could be heard by either court. The Exchequer had superior status over inferior courts of equity, able to take cases from them and countermand their decisions. The jurisdiction of ecclesiastical courts also overlapped with that of the Exchequer, particularly in relation to the collection of tithes, and there are many records of disputes between the two.
As well as appeals to the Exchequer Chamber, the court also allowed appeals to the House of Lords
, which was first used in 1660 for the case of Fanshawe v Impey and confirmed in 1677.
, who was tasked with collecting royal revenues. Originally a clerk, he was supervised by the Chief Justiciar
, and only became head of the court after this position was abolished during the reign of Henry III
. During the reign of Elizabeth I
the Treasurer's other duties began to increase, and he played less of a role in the Exchequer's affairs. By the 17th century, the Lord High Treasurer had been replaced by a dedicated Treasurer of the Exchequer (although earlier writs show that the Lord High Treasurer had been independently given this title), who was ceremoniously presented with a white staff by the monarch. The Treasurer, while active in the revenue side of the Exchequer
, played little or no active role in the Exchequer of Pleas.
, independently head of the Court of Chancery
, was also involved in the Exchequer of Pleas as a check on the Lord High Treasurer
. He evolved out of the Lord Chancellor
's clerk, or clericus cancellari, who sat in the Exchequer and was responsible for correcting and sealing writs of summons, also holding the Exchequer's copy of the Great Seal. The earliest appearances of such a clerk in the records come from 1220, when a document was signed by Robert de Neville, cancellarius. The Lord Chancellors of the time were clergymen with little interest in judicial or fiscal matters; as a result, the clerk became more independent from the Chancellor and, by the 1230s, became a royal appointment holding the seal independently of the Lord Chancellor, known as the Chancellor of the Exchequer. After 1567 the Chancellor was additionally confirmed as the Under-Treasurer of the Exchequer, allowing him to carry out the Treasurer's duties when he was unavailable. The Chancellor was appointed by letters patent
, and until 1672 it was a life appointment, then changed to an office "to hold only during the pleasures of the crown". Until the English Civil War
the Chancellor of the Exchequer was a judicial office with little political standing; after the War, however, it became seen as a "stepping stone" to higher political appointments. After 1672 it again became an administrative and judicial office, until 1714, when the Chancellor's position as head of the Treasury made it an important appointment again.
, only becoming independent positions after the Exchequer's separation from the curia regis
. In the early years of the Exchequer's existence, the Barons were the chief auditors of the accounts of England, a role passed to dedicated auditors during the reign of Edward II
. With the Exchequer's expansion during the Tudor era, the Barons became more important; where previously only the Chief Baron had been appointed from the Serjeants-at-Law
, with the other Barons mere barrister
s, it became practice for all Barons of the Exchequer to be Serjeants. This further increased the Exchequer's standing, since for the first time it put the Exchequer at the same level as the Court of Common Pleas
and Court of King's Bench
, where all judges were already required to be Serjeants.
At least one Baron sat to hear a case, with convention insisting on a maximum of four Barons after the rule of Edward IV
; as a mere convention, it was occasionally broken. When one Baron was ill or otherwise unable to sit it was felt appropriate to appoint a fifth, as in 1604 when Baron Sotherton was ill, and in 1708, when Baron Smith was called to Edinburgh to be a temporary Chief Baron of the Scottish Exchequer
. In 1830 a fifth Baron was permanently added to relieve court congestion; at the same time, a fifth judge was added to the Court of Common Pleas and King's Bench. The First Baron was the Chief Baron of the Exchequer; if the Chancellor and Treasurer were unavailable, he was the head of the court. When he was also absent the Second Baron took charge, and so on; in one case in 1659, the Fourth Baron was the only judge available. The Second, Third and Fourth Barons were known as puisne Barons; initially treated as individual offices, after the time of James I
the order was determined by the judges' seniority. Unlike in the Court of King's Bench
, the different positions did not equate to different degrees of power; each Baron had an equal vote in decisions.
Barons were appointed by letters patent
and sworn in by the Lord Chancellor
, head of the judiciary. During the 16th century they held their offices quamdui se bene gesserint, or "during good behaviour". A Baron could leave the Exchequer in one of three situations; resignation, death, or appointment to another court, which automatically made their office void. The letters patent expired after the death of each monarch; when the new one was crowned, a Baron would have to receive a new patent or leave his office. This was mostly a routine event; from 1550 to 1714 all but nine continued in office after the crowning of a new monarch.
was the chief clerk of the Exchequer, handling all bills of equity. He was the equivalent of the Court of Chancery
's Master of the Rolls
, in that he headed up the clerical side of the court. As well as his duties to the judicial body, the King's Remembrancer also handled the revenue side of the Exchequer, a jurisdiction established in the 14th century. He was originally able to appoint all the sworn clerks, but by the 16th century this jurisdiction had been limited to appointing one of the 24 side clerks, with the sworn clerks appointing the rest. In a similar way, while he was originally in charge of the court's records and the enrolment of writs, by the 17th century he no longer possessed the keys to the record office, and the sworn clerks had the exclusive right to search the records. His main job was instead quasi-judicial, examining certain witnesses, taking minutes in court and settling disputes over "scandal and impertinence".
The Remembrancer was appointed for life, and qualified to appoint a deputy, the first of whom, John West, was appointed by Sir Christopher Hatton in 1616. From 1565 until 1716, the office was kept in the Fanshawe family, starting with Henry Fanshawe
and ending with Simon Fanshawe. After 1820, the Remembrancer's broad duties were split up by the Court of Exchequer (England) etc. Act 1820. To replace him, two masters were appointed, one of whom was to be the accountant general. These officials were to be appointed by the Chief Baron of the Exchequer from barristers of five years standing, holding offices during good behaviour and unable to appoint a deputy. The masters handled the taking of minutes previously undertaken by the Remembrancer, with the accountant general overseeing all money paid into the court, which was deposited in the Bank of England
; previously the Remembrancer had held complete discretion as to what to do with the money.
. There were eight sworn clerks, so called because they were sworn officers of the court, who held their offices for life and worked under the Remembrancer. Each clerk acted as an attorney for the parties in court, and every party was required to employ one. The first clerk was known as the First Secondary, and administered oaths out of the Red Book of the Exchequer
. The sworn clerks were assisted by 24 side clerks, of whom each sworn clerk appointed three. Each side clerk studied under a sworn clerk for five years before practising himself, although under the sworn clerk's name. A side clerk had the chance of being promoted to sworn clerk, first by the Remembrancer and then by the sworn clerks themselves. The examiners were tasked with supervising depositions of witnesses, bringing the witness to a Baron, administering the oath and keeping the files of the depositions. In 1624 it was decided these examiners should be sworn officers of the court, and from then on each Baron had an examiner, who acted in the Baron's name. The office of examiner was dissolved in 1841, when the equity jurisdiction of the Exchequer came to an end. In addition to an examiner, each Baron had at least one clerk, who acted as their private secretary; although not paid, they were authorised to take fees for their work. The Chief Baron had two clerks, while the puisne Barons had one each. The King's Remembrancer also employed a clerk, who was also a secretary. He received no salary and was not a sworn officer of the court, meaning the Remembrancer could have him replaced at any time.
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
, and common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
. Originally part of the curia regis
Curia Regis
Curia regis is a Latin term meaning "royal council" or "king's court."- England :The Curia Regis, in the Kingdom of England, was a council of tenants-in-chief and ecclesiastics that advised the king of England on legislative matters...
, or King's Council, the Exchequer of Pleas split from the curia during the 1190s, to sit as an independent, central court. With the Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
's reputation for slow pace and expense, much of their business went to the Exchequer. The Exchequer and Chancery, with similar jurisdictions, drew closer together over the years, until an argument was made during the 19th century that having two seemingly identical courts was unnecessary. As a result, the Exchequer lost its equity jurisdiction. With the Judicature Acts
Judicature Acts
The Judicature Acts are a series of Acts of Parliament, beginning in the 1870s, which aimed to fuse the hitherto split system of courts in England and Wales. The first two Acts were the Supreme Court of Judicature Act 1873 and the Supreme Court of Judicature Act 1875 The Judicature Acts are a...
, the Exchequer was formally dissolved as a judicial body by an Order in Council of 16 December 1880.
The Exchequer's jurisdiction, at various times, was common law, equity, or both. Initially a court of both common law and equity, it lost much of its common law jurisdiction through the formation of the Court of Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...
, and from then on concerned itself with equitable matters and those common law matters it had discretion to try, such as actions brought against Exchequer officials and actions brought by the monarch against non-paying debtors. With the Writ of Quominus
Writ of Quominus
The Writ of Quominus, or Writ of Quo Minus, was a writ and legal fiction which allowed the Court of Exchequer to obtain a jurisdiction over cases normally brought in the Court of Common Pleas...
, which allowed the Exchequer to look at "common" cases between subject and subject, this discretionary area was significantly expanded, and it soon regained its standing in common law matters. Cases were formally taken by the Chancellor of the Exchequer
Chancellor of the Exchequer
The Chancellor of the Exchequer is the title held by the British Cabinet minister who is responsible for all economic and financial matters. Often simply called the Chancellor, the office-holder controls HM Treasury and plays a role akin to the posts of Minister of Finance or Secretary of the...
, but in practice were heard by the Barons of the Exchequer, a number of judicial officials led by the Chief Baron. Other court officials included the King's Remembrancer
King's Remembrancer
The Queen's Remembrancer is an ancient judicial post in the legal system of England and Wales. Since the Lord Chancellor no longer sits as a judge, the Remembrancer is the oldest judicial position in continual existence...
, who officially appointed all other officials and kept the Exchequer's records, and the sworn and side clerks, who acted as attorneys to parties to a case.
Origins
It was originally claimed that the Exchequer was based on a similar Norman court; however, while there are many records of the Exchequer's work in England, there is no evidence of a similar body in pre-conquest Normandy. The first reliable records come from the time of Henry IHenry I of England
Henry I was the fourth son of William I of England. He succeeded his elder brother William II as King of England in 1100 and defeated his eldest brother, Robert Curthose, to become Duke of Normandy in 1106...
, when the sole surviving Pipe roll
Pipe Rolls
The Pipe rolls, sometimes called the Great rolls, are a collection of financial records maintained by the English Exchequer, or Treasury. The earliest date from the 12th century, and the series extends, mostly complete, from then until 1833. They form the oldest continuous series of records kept by...
from his reign shows the Exchequer working out of the king's palace as part of the curia regis
Curia Regis
Curia regis is a Latin term meaning "royal council" or "king's court."- England :The Curia Regis, in the Kingdom of England, was a council of tenants-in-chief and ecclesiastics that advised the king of England on legislative matters...
. The curia regis followed the king as he travelled rather than sitting at any one fixed location, and was held in York
York
York is a walled city, situated at the confluence of the Rivers Ouse and Foss in North Yorkshire, England. The city has a rich heritage and has provided the backdrop to major political events throughout much of its two millennia of existence...
, London
London
London is the capital city of :England and the :United Kingdom, the largest metropolitan area in the United Kingdom, and the largest urban zone in the European Union by most measures. Located on the River Thames, London has been a major settlement for two millennia, its history going back to its...
and Northampton
Northampton
Northampton is a large market town and local government district in the East Midlands region of England. Situated about north-west of London and around south-east of Birmingham, Northampton lies on the River Nene and is the county town of Northamptonshire. The demonym of Northampton is...
at various times. By the late 12th century it had taken to sitting in a fixed location (the one body of government in England to do so), and by the 1170s it was possible to distinguish the Exchequer's work from that of the other parts of the curia regis, although the king of the time considered the Exchequer to simply be an element of the curia; indeed, it was referred to as the Curia Regis ad Scaccarium, or King's Court at Exchequer. The word "Exchequer" derives from the chequered cloth laid on a table for the purposes of counting money. In the 1190s the Exchequer began separating from the curia regis, a process which continued until the beginning of the 13th century; academics have suggested that this is due to an increasing demand on the revenue side of the court, which led to part of the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
element being split off to form the Court of Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...
. Although the Exchequer of Pleas was the first common law court, it was also the last to separate from the curia regis.
Increasing work and transformation
There are few records known to date from before 1580, as bills were not dated before then. Until the 16th century, the Exchequer carried out its duties with little variation in its function or practice. A small court, the Exchequer handled around 250 cases a year, compared to 2,500 in the Court of King's BenchCourt of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...
and 10,000 in the Court of Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...
. Under the Tudors
Tudor dynasty
The Tudor dynasty or House of Tudor was a European royal house of Welsh origin that ruled the Kingdom of England and its realms, including the Lordship of Ireland, later the Kingdom of Ireland, from 1485 until 1603. Its first monarch was Henry Tudor, a descendant through his mother of a legitimised...
, however, the Exchequer's political, judicial and fiscal importance all increased. This was partially thanks to the Lord High Treasurer
Lord High Treasurer
The post of Lord High Treasurer or Lord Treasurer was an English government position and has been a British government position since the Act of Union of 1707. A holder of the post would be the third highest ranked Great Officer of State, below the Lord High Chancellor and above the Lord President...
; although the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
was more traditionally important, the Lord High Treasurers from 1547 to 1612 were politically influential figures, including Robert Cecil
Robert Cecil, 1st Earl of Salisbury
Robert Cecil, 1st Earl of Salisbury, KG, PC was an English administrator and politician.-Life:He was the son of William Cecil, 1st Baron Burghley and Mildred Cooke...
, Thomas Sackville
Thomas Sackville, 1st Earl of Dorset
Thomas Sackville, 1st Earl of Dorset was an English statesman, poet, dramatist and Freemason. He was the son of Richard Sackville, a cousin to Anne Boleyn. He was a Member of Parliament and Lord High Treasurer.-Biography:...
and William Paulet
William Paulet, 1st Marquess of Winchester
Sir William Paulet was an English Secretary of State and statesman who attained several peerages throughout his lifetime: Baron St John , Earl of Wiltshire , and Marquess of Winchester .-Family origins and early career in Hampshire:William Paulet was eldest son of Sir John Paulet of...
; since the Lord High Treasurer was head of the Exchequer, with the Treasurer's increased influence came increased importance for the Exchequer.
The appointment of the second
Thomas Howard, 2nd Duke of Norfolk
Thomas Howard, 2nd Duke of Norfolk, KG, Earl Marshal , styled Earl of Surrey from 1483 to 1514, was the only son of John Howard, 1st Duke of Norfolk by his first wife, Katherine Moleyns...
and third
Thomas Howard, 3rd Duke of Norfolk
Thomas Howard, 3rd Duke of Norfolk, KG, Earl Marshal was a prominent Tudor politician. He was uncle to Anne Boleyn and Catherine Howard, two of the wives of King Henry VIII, and played a major role in the machinations behind these marriages...
Dukes of Norfolk
Duke of Norfolk
The Duke of Norfolk is the premier duke in the peerage of England, and also, as Earl of Arundel, the premier earl. The Duke of Norfolk is, moreover, the Earl Marshal and hereditary Marshal of England. The seat of the Duke of Norfolk is Arundel Castle in Sussex, although the title refers to the...
as Lord High Treasurers from 1501 to 1546 led to a gradual reduction in the Exchequer's power. The Dukes were seen by the government as too independent to be trusted with any real power, but too useful to be removed; as a result, to indirectly reduce their power, the Exchequer was deliberately weakened. When William Paulet was appointed Treasurer in 1546 the Exchequer again increased in power, absorbing the Court of Augmentations
Court of Augmentations
The Court of Augmentations was established during the reign of King Henry VIII of England along with three lesser courts following the dissolution of the monasteries. Its primary function was to gain better control over the land and finances formerly held by the Roman Catholic Church in the kingdom...
and Court of First Fruits and Tenths
Court of First Fruits and Tenths
-First Fruits and Tenths:First Fruits and Tenths was a form of tax on clergy taking up a benefice or ecclesiastical position in Great Britain. The Court of First Fruits and Tenths was established in 1540 to collect from clerical benefices certain monies that had previously been sent to Rome...
by 1554. The Exchequer was also assisted in this period by Thomas Fanshawe
Thomas Fanshawe
Sir Thomas Fanshawe of Jenkins and Barking Manor was an English politician and government official....
, the Queen's Remembrancer; a capable man, Fanshawe was often consulted by the Barons of the Exchequer as to the best way to administer the court, and helped standardise pleadings, allowing the Exchequer to cope during a period of increased business. Fanshawe's administrative reforms were considered excellent, and his work continued to be used as the standard until the 1830s.
Exchequer business increased under James
James I of England
James VI and I was King of Scots as James VI from 24 July 1567 and King of England and Ireland as James I from the union of the English and Scottish crowns on 24 March 1603...
and Charles I
Charles I of England
Charles I was King of England, King of Scotland, and King of Ireland from 27 March 1625 until his execution in 1649. Charles engaged in a struggle for power with the Parliament of England, attempting to obtain royal revenue whilst Parliament sought to curb his Royal prerogative which Charles...
, before the English Civil War
English Civil War
The English Civil War was a series of armed conflicts and political machinations between Parliamentarians and Royalists...
disrupted the courts. With the increasing use of the Writ of Quominus
Writ of Quominus
The Writ of Quominus, or Writ of Quo Minus, was a writ and legal fiction which allowed the Court of Exchequer to obtain a jurisdiction over cases normally brought in the Court of Common Pleas...
, which allowed royal debtors to bring a case against a third party who owed them money if it was that lack of money which prevented them paying the king and the new regime, the Exchequer actively transformed from a "tax court" dealing with civil cases to a dedicated court of equity and common law. The Civil War caused four equitable courts to be dissolved; the Court of Star Chamber
Star Chamber
The Star Chamber was an English court of law that sat at the royal Palace of Westminster until 1641. It was made up of Privy Counsellors, as well as common-law judges and supplemented the activities of the common-law and equity courts in both civil and criminal matters...
was formally dissolved in 1641, the Council of the North
Council of the North
The Council of the North was an administrative body originally set up in 1484 by king Richard III of England, the third and last Yorkist monarch to hold the Crown of England; its intention was to improve government control and economic prosperity, to benefit the entire area of Northern England...
and Council of Wales and the Marches had their equity jurisdiction stripped by the same Act of Parliament, and the Court of Requests
Court of Requests
The Court of Requests was a minor equity court in England and Wales. Created at an unknown date, it first became a formal tribunal with some Privy Council elements under Henry VII, hearing cases from the poor and the servants of the King. It quickly became popular due to the low cost of bringing a...
became invalid after the Privy Seal was invalidated by the outcome of the English Civil War
English Civil War
The English Civil War was a series of armed conflicts and political machinations between Parliamentarians and Royalists...
, as it was dependant on the Seal for its authority. After the War ended there were only two equity courts remaining, the Exchequer and Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
, the latter publicly reviled for its slow pace and because it was led by the Lord Chancellor, a political figure who had been intimately involved in the conflict. As a result the Exchequer increased in importance as a court, although it is not known whether its active transformation was a judicial or political decision.
Loss of equity jurisdiction and dissolution
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
. As a result, each court cited the other's cases as precedent, and drew closely together. In addition, 18th-century Acts of Parliament treated them in the same way, merely referring to "courts of equity" rather than mentioning them individually. At the same time, the Treasury
HM Treasury
HM Treasury, in full Her Majesty's Treasury, informally The Treasury, is the United Kingdom government department responsible for developing and executing the British government's public finance policy and economic policy...
became more and more important, leading to a reduction in the inferior Exchequer's influence. Despite these warning signs, the Exchequer continued to flourish, maintaining a large amount of business, and by 1810 was almost entirely an equity court, having little common law work. The court's equity side became deeply unpopular during the 1830s because many cases were heard by a single judge with no real prospect of appeal; while cases could be taken to the House of Lords, it was highly expensive and time-consuming to do so. The Court of Chancery, however, had long had an established method of appealing to the Lords, and later introduced an intermediary appellate court – the Court of Appeal in Chancery
Court of Appeal in Chancery
England’s Court of Appeal in Chancery was created in 1851 to hear appeals of decisions made by the Vice Chancellors and the Master of the Rolls in Chancery Court. The appeals in the court were heard by the Lord Chancellor and two Lords Justices of Appeal. Cases from the Court of Appeal in...
. At the same time, many elements of the Exchequer's equity business had dried up, with the Tithe Commutation Act 1836
Tithe Commutation Act 1836
The Tithe Commutation Act of 1836 was an Act of the Parliament of the United Kingdom with the long title "An Act for the Commutation of Tithes in England and Wales". It replaced the ancient system of payment of tithes in kind with monetary payments...
ending their tithe cases and the Insolvent Debtors Act 1820 establishing the Court of Bankruptcy
Bankruptcy
Bankruptcy is a legal status of an insolvent person or an organisation, that is, one that cannot repay the debts owed to creditors. In most jurisdictions bankruptcy is imposed by a court order, often initiated by the debtor....
, removing cases of insolvency from the Exchequer. The Exchequer's fees were also higher than those of the Court of Chancery, and with both courts now using almost identical precedent it was seen as unnecessary to maintain two equitable courts. As a result, the Administration of Justice Act 1841 formally dissolved the equitable jurisdiction of the court.
With the loss of its equitable jurisdiction, the Exchequer became a dedicated common law court, and thus fell prey to the same fate as the other two during the late 19th century. There had long been calls for the merger of the courts, and in 1828 Henry Brougham
Henry Brougham, 1st Baron Brougham and Vaux
Henry Peter Brougham, 1st Baron Brougham and Vaux was a British statesman who became Lord Chancellor of Great Britain.As a young lawyer in Scotland Brougham helped to found the Edinburgh Review in 1802 and contributed many articles to it. He went to London, and was called to the English bar in...
, a Member of Parliament, complained in Parliament that as long as there were three courts unevenness was inevitable, saying that "It is not in the power of the courts, even if all were monopolies and other restrictions done away, to distribute business equally, as long as suitors are left free to choose their own tribunal", and that there would always be a favourite court, which would therefore attract the best lawyers and judges and entrench its position.
In 1867 a commission was created to look into issues with the central courts, and the outcome was the Supreme Court of Judicature Act 1873
Supreme Court of Judicature Act 1873
The Supreme Court of Judicature Act 1873 was an Act of Parliament by the Parliament of the United Kingdom in 1873...
, under which all the central courts were made part of a single Supreme Court of Judicature, with the three central courts becoming three of the five divisions of the Supreme Court; this was not designed to be permanent, but rather to avoid having to retire or demote two of the three Chief Justices to allow a single head of the Supreme Court, as this would have violated the constitutional principle that senior justices were irremovable. By sheer chance Fitzroy Kelly
Fitzroy Kelly
Sir Fitzroy Edward Kelly PC, KC , was an English commercial lawyer, Tory politician and judge.-Background and education:...
and Alexander Cockburn
Sir Alexander Cockburn, 12th Baronet
Sir Alexander James Edmund Cockburn, 12th Baronet Q.C. was a Scottish lawyer, politician and judge. A notorious womaniser and socialite, as Lord Chief Justice he heard some of the leading causes célèbres of the 19th century.-Life:Cockburn was born in Alţâna, in what is now Romania and was then...
, Lord Chief Baron of the Exchequer
Lord Chief Baron of the Exchequer
The Chief Baron of the Exchequer was the first "baron" of the English Exchequer of pleas. "In the absence of both the Treasurer of the Exchequer or First Lord of the Treasury, and the Chancellor of the Exchequer, it was he who presided in the equity court and answered the bar i.e...
and Lord Chief Justice of England and Wales
Lord Chief Justice of England and Wales
The Lord Chief Justice of England and Wales is the head of the judiciary and President of the Courts of England and Wales. Historically, he was the second-highest judge of the Courts of England and Wales, after the Lord Chancellor, but that changed as a result of the Constitutional Reform Act 2005,...
respectively both died in 1880, allowing the abolition of the old three-part system and the creation of a single High Court of Justice
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
under John Coleridge
John Coleridge, 1st Baron Coleridge
John Duke Coleridge, 1st Baron Coleridge PC was a British lawyer, judge and Liberal politician. He held the posts, in turn, of Solicitor General for England and Wales, Attorney General for England and Wales, Chief Justice of the Common Pleas and Lord Chief Justice of England.-Background and...
by an Order in Council of 16 December 1880. At this point, the Exchequer of Pleas formally ceased to exist.
Jurisdiction and relationship with other courts
The Exchequer's position as a court originally came from an informal process of argument between the king and his debtors as to how much money was owed; by the 13th century, this had evolved into formal court proceedings. Therefore its initial jurisdiction, as defined by the Statute of RhuddlanStatute of Rhuddlan
The Statute of Rhuddlan , also known as the Statutes of Wales or as the Statute of Wales provided the constitutional basis for the government of the Principality of North Wales from 1284 until 1536...
, was as a court where only the king could bring cases. The Exchequer became the first "tax court", where the king was the plaintiff and the debtor the defendant. The king was represented by the Attorney General
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
, allowing him to avoid much of the legal costs associated with a court case. The "next logical step" was to allow debtors to collect on their own debts in the Exchequer, so that they could better pay the king; this was done through the Writ of Quominus
Writ of Quominus
The Writ of Quominus, or Writ of Quo Minus, was a writ and legal fiction which allowed the Court of Exchequer to obtain a jurisdiction over cases normally brought in the Court of Common Pleas...
. The Exchequer also had sole jurisdiction to try cases against their own officials and other figures engaged in collecting the royal revenue. The court was also used to prosecute clerics who, while innocent, had come close to committing an infraction; as the plaintiff was represented by the Attorney General, the costs were reduced, and as the Attorney General had no incentive to compromise it was more threatening to the cleric. In 1649 the Exchequer formally extended its common law and equity jurisdiction, becoming a fully-fledged court of law able to hear any civil case.
The main focus of the Exchequer was the collection of royal revenue as part of the greater Exchequer
Exchequer
The Exchequer is a government department of the United Kingdom responsible for the management and collection of taxation and other government revenues. The historical Exchequer developed judicial roles...
, which was officially undertaken by the Lord High Treasurer
Lord High Treasurer
The post of Lord High Treasurer or Lord Treasurer was an English government position and has been a British government position since the Act of Union of 1707. A holder of the post would be the third highest ranked Great Officer of State, below the Lord High Chancellor and above the Lord President...
. The Exchequer was unique in having jurisdiction in matters of both equity and the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, the latter initially curtailed after the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
and reserved for the Court of King's Bench
Court of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...
and Court of Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...
, although it later grew back. This process of common law and equity was reversed; during the 16th century the Exchequer was solely a common law body, with the equity jurisdiction only again becoming relevant near the end of the Tudor period. W. H. Bryson argues that this happened during the reign of Edward I
Edward I of England
Edward I , also known as Edward Longshanks and the Hammer of the Scots, was King of England from 1272 to 1307. The first son of Henry III, Edward was involved early in the political intrigues of his father's reign, which included an outright rebellion by the English barons...
. By 1590 the Exchequer's jurisdiction over equity cases was confirmed, and it was handling a significant number a year, including disputes over trusts
English trusts law
English trusts law is the original and foundational law of trusts in the world, and a unique contribution of English law to the legal system. Trusts are part of the law of property, and arise where one person gives assets English trusts law is the original and foundational law of trusts in the...
, mortgages, tithes and copyhold
Copyhold
At its origin in medieval England, copyhold tenure was tenure of land according to the custom of the manor, the "title deeds" being a copy of the record of the manorial court....
s; since taxation was ever-present, it was not difficult to show that the dispute prevented the payment of a debt to the monarch, allowing the Writ of Quominus.
The Exchequer stood on an equal footing with the other Westminster courts (the Court of Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...
, Court of King's Bench
Court of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...
and Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
), with cases transferred easily from one to another, although there were problems in the case of the Court of King's Bench
Court of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...
. The traditional method for moving a case was the writ of supersedeas, but the King's Bench represented the monarch, who could not have writs placed against him. Instead, a clerk would bring the Red Book of the Exchequer
Red Book of the Exchequer
The Red Book of the Exchequer is a 13th-century manuscript compilation of the records of the English Exchequer. Made of vellum, the book was compiled by a royal clerk who died in 1246...
to the King's Bench and assert that the case's claimant was an officer of the Exchequer, necessitating his trial there rather than in the King's Bench. The Exchequer maintained a clear rule with the other equity court, the Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
; a case heard in one could not be re-heard in the other. Apart from that, cases of equity could be heard by either court. The Exchequer had superior status over inferior courts of equity, able to take cases from them and countermand their decisions. The jurisdiction of ecclesiastical courts also overlapped with that of the Exchequer, particularly in relation to the collection of tithes, and there are many records of disputes between the two.
As well as appeals to the Exchequer Chamber, the court also allowed appeals to the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
, which was first used in 1660 for the case of Fanshawe v Impey and confirmed in 1677.
Treasurer
The formal head of the Exchequer for much of its existence was the Lord High TreasurerLord High Treasurer
The post of Lord High Treasurer or Lord Treasurer was an English government position and has been a British government position since the Act of Union of 1707. A holder of the post would be the third highest ranked Great Officer of State, below the Lord High Chancellor and above the Lord President...
, who was tasked with collecting royal revenues. Originally a clerk, he was supervised by the Chief Justiciar
Justiciar
In medieval England and Ireland the Chief Justiciar was roughly equivalent to a modern Prime Minister as the monarch's chief minister. Similar positions existed on the Continent, particularly in Norman Italy. The term is the English form of the medieval Latin justiciarius or justitiarius In...
, and only became head of the court after this position was abolished during the reign of Henry III
Henry III of England
Henry III was the son and successor of John as King of England, reigning for 56 years from 1216 until his death. His contemporaries knew him as Henry of Winchester. He was the first child king in England since the reign of Æthelred the Unready...
. During the reign of Elizabeth I
Elizabeth I of England
Elizabeth I was queen regnant of England and Ireland from 17 November 1558 until her death. Sometimes called The Virgin Queen, Gloriana, or Good Queen Bess, Elizabeth was the fifth and last monarch of the Tudor dynasty...
the Treasurer's other duties began to increase, and he played less of a role in the Exchequer's affairs. By the 17th century, the Lord High Treasurer had been replaced by a dedicated Treasurer of the Exchequer (although earlier writs show that the Lord High Treasurer had been independently given this title), who was ceremoniously presented with a white staff by the monarch. The Treasurer, while active in the revenue side of the Exchequer
Exchequer
The Exchequer is a government department of the United Kingdom responsible for the management and collection of taxation and other government revenues. The historical Exchequer developed judicial roles...
, played little or no active role in the Exchequer of Pleas.
Chancellor
The Chancellor of the ExchequerChancellor of the Exchequer
The Chancellor of the Exchequer is the title held by the British Cabinet minister who is responsible for all economic and financial matters. Often simply called the Chancellor, the office-holder controls HM Treasury and plays a role akin to the posts of Minister of Finance or Secretary of the...
, independently head of the Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
, was also involved in the Exchequer of Pleas as a check on the Lord High Treasurer
Lord High Treasurer
The post of Lord High Treasurer or Lord Treasurer was an English government position and has been a British government position since the Act of Union of 1707. A holder of the post would be the third highest ranked Great Officer of State, below the Lord High Chancellor and above the Lord President...
. He evolved out of the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
's clerk, or clericus cancellari, who sat in the Exchequer and was responsible for correcting and sealing writs of summons, also holding the Exchequer's copy of the Great Seal. The earliest appearances of such a clerk in the records come from 1220, when a document was signed by Robert de Neville, cancellarius. The Lord Chancellors of the time were clergymen with little interest in judicial or fiscal matters; as a result, the clerk became more independent from the Chancellor and, by the 1230s, became a royal appointment holding the seal independently of the Lord Chancellor, known as the Chancellor of the Exchequer. After 1567 the Chancellor was additionally confirmed as the Under-Treasurer of the Exchequer, allowing him to carry out the Treasurer's duties when he was unavailable. The Chancellor was appointed by letters patent
Letters patent
Letters patent are a type of legal instrument in the form of a published written order issued by a monarch or president, generally granting an office, right, monopoly, title, or status to a person or corporation...
, and until 1672 it was a life appointment, then changed to an office "to hold only during the pleasures of the crown". Until the English Civil War
English Civil War
The English Civil War was a series of armed conflicts and political machinations between Parliamentarians and Royalists...
the Chancellor of the Exchequer was a judicial office with little political standing; after the War, however, it became seen as a "stepping stone" to higher political appointments. After 1672 it again became an administrative and judicial office, until 1714, when the Chancellor's position as head of the Treasury made it an important appointment again.
Barons
The main judicial officers were the Barons of the Exchequer, or barones scaccari, who were originally the same judges as those of the Court of King's BenchCourt of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...
, only becoming independent positions after the Exchequer's separation from the curia regis
Curia Regis
Curia regis is a Latin term meaning "royal council" or "king's court."- England :The Curia Regis, in the Kingdom of England, was a council of tenants-in-chief and ecclesiastics that advised the king of England on legislative matters...
. In the early years of the Exchequer's existence, the Barons were the chief auditors of the accounts of England, a role passed to dedicated auditors during the reign of Edward II
Edward II of England
Edward II , called Edward of Caernarfon, was King of England from 1307 until he was deposed by his wife Isabella in January 1327. He was the sixth Plantagenet king, in a line that began with the reign of Henry II...
. With the Exchequer's expansion during the Tudor era, the Barons became more important; where previously only the Chief Baron had been appointed from the Serjeants-at-Law
Serjeant-at-law
The Serjeants-at-Law was an order of barristers at the English bar. The position of Serjeant-at-Law , or Sergeant-Counter, was centuries old; there are writs dating to 1300 which identify them as descended from figures in France prior to the Norman Conquest...
, with the other Barons mere barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
s, it became practice for all Barons of the Exchequer to be Serjeants. This further increased the Exchequer's standing, since for the first time it put the Exchequer at the same level as the Court of Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...
and Court of King's Bench
Court of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...
, where all judges were already required to be Serjeants.
Edward IV of England
Edward IV was King of England from 4 March 1461 until 3 October 1470, and again from 11 April 1471 until his death. He was the first Yorkist King of England...
; as a mere convention, it was occasionally broken. When one Baron was ill or otherwise unable to sit it was felt appropriate to appoint a fifth, as in 1604 when Baron Sotherton was ill, and in 1708, when Baron Smith was called to Edinburgh to be a temporary Chief Baron of the Scottish Exchequer
Court of Exchequer (Scotland)
The Court of Exchequer was formerly a distinct part of the court system in Scotland, with responsibility for administration of government revenue and judicial matters relating to customs and excise, revenue, stamp duty and probate...
. In 1830 a fifth Baron was permanently added to relieve court congestion; at the same time, a fifth judge was added to the Court of Common Pleas and King's Bench. The First Baron was the Chief Baron of the Exchequer; if the Chancellor and Treasurer were unavailable, he was the head of the court. When he was also absent the Second Baron took charge, and so on; in one case in 1659, the Fourth Baron was the only judge available. The Second, Third and Fourth Barons were known as puisne Barons; initially treated as individual offices, after the time of James I
James I of England
James VI and I was King of Scots as James VI from 24 July 1567 and King of England and Ireland as James I from the union of the English and Scottish crowns on 24 March 1603...
the order was determined by the judges' seniority. Unlike in the Court of King's Bench
Court of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...
, the different positions did not equate to different degrees of power; each Baron had an equal vote in decisions.
Barons were appointed by letters patent
Letters patent
Letters patent are a type of legal instrument in the form of a published written order issued by a monarch or president, generally granting an office, right, monopoly, title, or status to a person or corporation...
and sworn in by the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
, head of the judiciary. During the 16th century they held their offices quamdui se bene gesserint, or "during good behaviour". A Baron could leave the Exchequer in one of three situations; resignation, death, or appointment to another court, which automatically made their office void. The letters patent expired after the death of each monarch; when the new one was crowned, a Baron would have to receive a new patent or leave his office. This was mostly a routine event; from 1550 to 1714 all but nine continued in office after the crowning of a new monarch.
Remembrancer
The King's RemembrancerKing's Remembrancer
The Queen's Remembrancer is an ancient judicial post in the legal system of England and Wales. Since the Lord Chancellor no longer sits as a judge, the Remembrancer is the oldest judicial position in continual existence...
was the chief clerk of the Exchequer, handling all bills of equity. He was the equivalent of the Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
's Master of the Rolls
Master of the Rolls
The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal...
, in that he headed up the clerical side of the court. As well as his duties to the judicial body, the King's Remembrancer also handled the revenue side of the Exchequer, a jurisdiction established in the 14th century. He was originally able to appoint all the sworn clerks, but by the 16th century this jurisdiction had been limited to appointing one of the 24 side clerks, with the sworn clerks appointing the rest. In a similar way, while he was originally in charge of the court's records and the enrolment of writs, by the 17th century he no longer possessed the keys to the record office, and the sworn clerks had the exclusive right to search the records. His main job was instead quasi-judicial, examining certain witnesses, taking minutes in court and settling disputes over "scandal and impertinence".
The Remembrancer was appointed for life, and qualified to appoint a deputy, the first of whom, John West, was appointed by Sir Christopher Hatton in 1616. From 1565 until 1716, the office was kept in the Fanshawe family, starting with Henry Fanshawe
Henry Fanshawe
-Early life:Henry Fanshawe, baptised 15 August 1569, was the elder son of Thomas Fanshawe by his first wife, Mary, daughter of Antony Bourchier and was thus a half-brother of Thomas Fanshawe. In November 1586 he became a student of the Inner Temple...
and ending with Simon Fanshawe. After 1820, the Remembrancer's broad duties were split up by the Court of Exchequer (England) etc. Act 1820. To replace him, two masters were appointed, one of whom was to be the accountant general. These officials were to be appointed by the Chief Baron of the Exchequer from barristers of five years standing, holding offices during good behaviour and unable to appoint a deputy. The masters handled the taking of minutes previously undertaken by the Remembrancer, with the accountant general overseeing all money paid into the court, which was deposited in the Bank of England
Bank of England
The Bank of England is the central bank of the United Kingdom and the model on which most modern central banks have been based. Established in 1694, it is the second oldest central bank in the world...
; previously the Remembrancer had held complete discretion as to what to do with the money.
Other offices
Other offices included the sworn clerks, the examiners, the clerk to the barons, and the clerk to the King's RemembrancerKing's Remembrancer
The Queen's Remembrancer is an ancient judicial post in the legal system of England and Wales. Since the Lord Chancellor no longer sits as a judge, the Remembrancer is the oldest judicial position in continual existence...
. There were eight sworn clerks, so called because they were sworn officers of the court, who held their offices for life and worked under the Remembrancer. Each clerk acted as an attorney for the parties in court, and every party was required to employ one. The first clerk was known as the First Secondary, and administered oaths out of the Red Book of the Exchequer
Red Book of the Exchequer
The Red Book of the Exchequer is a 13th-century manuscript compilation of the records of the English Exchequer. Made of vellum, the book was compiled by a royal clerk who died in 1246...
. The sworn clerks were assisted by 24 side clerks, of whom each sworn clerk appointed three. Each side clerk studied under a sworn clerk for five years before practising himself, although under the sworn clerk's name. A side clerk had the chance of being promoted to sworn clerk, first by the Remembrancer and then by the sworn clerks themselves. The examiners were tasked with supervising depositions of witnesses, bringing the witness to a Baron, administering the oath and keeping the files of the depositions. In 1624 it was decided these examiners should be sworn officers of the court, and from then on each Baron had an examiner, who acted in the Baron's name. The office of examiner was dissolved in 1841, when the equity jurisdiction of the Exchequer came to an end. In addition to an examiner, each Baron had at least one clerk, who acted as their private secretary; although not paid, they were authorised to take fees for their work. The Chief Baron had two clerks, while the puisne Barons had one each. The King's Remembrancer also employed a clerk, who was also a secretary. He received no salary and was not a sworn officer of the court, meaning the Remembrancer could have him replaced at any time.