The Medieval English Court of Chancery

Law and History Review

Volumn 14, Issue 2, 1996, Pages 245-313

  Haskett, Timothy S ^a  

^a UNIVERSITY OF VICTORIA   (Canada)

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EID: 80054232257     PISSN: 07382480     EISSN: 19399022     Source Type: Journal    
DOI: 10.2307/743785     Document Type: Article

References (148)

1. See, for instance, W. J. Jones, The Elizabethan Court of Chancery (Oxford, 1967).
2. J. H. Baker, An Introduction to English Legal History, 3d ed. (London, 1990), 114.
3. S. B. Chrimes, An Introduction to the Administrative History of Medieval England, Oxford Studies in Mediaeval History, vol. 7, 3d ed. (Oxford, 1966). H. C. Maxwell-Lyte, Historical Notes on the Use of the Great Seal of England (London, 1926). T. F. Tout, Chapters in the Administrative History of Medieval England: The Wardrobe, the Chamber and the Small Seals, 6 vols. (Manchester, 1920-33); “The Household of Chancery and Its Disintegration,” in Essays in History Presented to Reginald Lane Poole, ed. H. W. C. Davis (Oxford, 1927; repr. 1969), 46-85, also in The Collected Papers of Thomas Frederick Tout with a Memoir and Bibliography, 3 vols.(Manchester, 1932-34), vol. 2, 143-72. B. Wilkinson, “The Chancery,” in English Government at Work, 1327-1336, I, ed. J. F. Willard, W. A. Morris (Cambridge, Mass., 1940), 162-205; The Chancery under Edward 111 (Manchester, 1929). All of the aspects of organization, personnel, and administration mentioned in this discussion are treated by at least one of these authors, and most are discussed by all.
4. Chrimes, Administrative History, 241-42. Prosopographical material has been presented by Charles W. Smith in “Some Trends in the English Royal Chancery: 1377-1483,” Medieval Prosopography 6 (1985), 69-94.
5. The following brief description is taken from Baker, English Legal History, 114-18.
6. In the fifteenth century the only nonclerical chancellors were Thomas Beaufort, knight and later first earl of Dorset and first duke of Exeter (chancellor 1410-11) and Richard Neville, earl of Salisbury (chancellor 1454-55). In the fourteenth century there were considerably more chancellors who were not clergy: Robert Bourchier, knight (chancellor 1340-41); Robert Parving, knight (chancellor 1341-43); Robert Sadington, knight and former chief baron of the Exchequer (chancellor 1343-45); Robert Thorpe, knight and former CJCB (chancellor 1371-72); John Knyvet, knight and former CJKB (chancellor 1372-77); Richard Scrope, lord Scrope of Bolton (1378-80, 1381-82); Michael de la Pole, knight, first earl of Suffolk (chancellor 1383-86). In total, however, these seven men held the office for less than sixteen years. In the sixteenth century Thomas More (chancellor 1529-32) looms large as the first of what would be, by and large, lay and often common-law incumbents of the office. Episcopal chancellors did reappear during Mary's brief reign. See Handbook of British Chronology, 3d ed., eds. E. B. Fryde, D. E. Greenway, S. Porter, and I. Roy (London, 1986).
7. The impact of the character of the incumbent upon the office of chancellor could be significant, despite the growth of a stable bureaucracy to run the Chancery. There are many works on the bishop-administrators of the Middle Ages, but the following may be mentioned as especially applicable to the late medieval period: Margaret E. Avery, “Chancellor John Stafford,” unpubl. paper (University of Waikato, New Zealand); J. Campbell, The Lives of the Lord Chancellors of England, new ed. by J. A. Mallory, 12 vols. (Boston, 1874-81); R. W. Dunning, “The Households of the Bishops of Bath and Wells in the Later Middle Ages,” Proceedings of the Somersetshire Archaeological and Natural History Society 110 (1965-66), 24-39; E. F. Jacob, “Archbishop John Stafford,” Transactions of the Royal Historical Society, 5th ser., 12 (1962), 1-23, reprinted in E. F. Jacob, Essays in Later Medieval History (Manchester and New York, 1968), 35-57; J. T. Rosenthal, “The Training of an Elite Group: English Bishops in the Fifteenth Century,” Transactions of the American Philosophical Society, n.s., 60, pt. 5 (Philadelphia, 1970).
8. Baker, English Legal History, 116.
9. T.F.T. Plucknett, A Concise History of the Common Law, 5th ed. (London, 1956), 180. Francis Palgrave, An Essay upon the Original Authority of the King's Council (London, 1834). One of the main proponents of this view was J. F Baldwin. In his 1913 work on the king's Council he began his chapter on the relationship between the Council and the chancellor with the statement that “There is nothing in the institutional history of England more remarkable than the development of the office of chancellor” (The King's Council in England in the Middle Ages [Oxford, 1913], 236). He noted further that this remarkable development was “a mysterious transformation” whereby a purely administrative office “grasped” judicial functions and eventually became a great court. It was able to achieve this, Baldwin believed, because in the thirteenth century the Chancery was not simply an executive office but a branch of the curia regis and from its beginning had “followed the methods of the curia regis as a body of consultation” (237). There does seem to be some discrepancy between an office that grasps and a body that is consulted. The question cannot be pursued here in detail, but it would be interesting to determine whether the Chancery actively sought to expand its judicial activities by making claims to jurisdiction in the same way that common-law courts did, or whether it developed from people bringing their difficulties to it in the hope of resolution. The latter suggestion seems more viable and is supported by the findings presented in the second part of this essay. For Baldwin, this consultative quality of the Chancery was crucial to its later development. The aspect central to the growth of Chancery as a court in its own right was, however, the referral to the chancellor of petitions directed to the Council and to Parliament. The history of this process of referral, and especially of the evolving relationship between the chancellor and the Council in matters judicial, was given extensive treatment (254-61).
10. Select Cases in Chancery A.D. 1364-1471, ed. William P. Baildon, Publications of the Selden Society, vol.10 (1896), xxvi.
11. Select Cases in Chancery A.D. 1364-1471., xviii.
12. Select Cases in Chancery A.D. 1364-1471., xix.
13. Baker, English Legal History, 117.
14. English Legal History., 117-18. The closing sentence is nicely adapted from F. W. Maitland, Equity: A Course of Lectures, 2d ed., eds. A. H. Chaytor and W. J. Whittaker, rev. J. Branyate (Cambridge, 1936), 17. Remarking on the twenty-fifth section of the Judicature Act (1873) Maitland argued that despite the provisions of this legislation, which implied conflict between common law and equity, such antagonism was untrue. Noting occasional disagreements, and especially Coke/Ellesmere, he remarked that this debate belonged to the “old days” and that for two centuries before 1875 the two systems had been working together harmoniously: “Equity had come not to destroy the law, but to fulfill it.” As shall be seen, Baker's replacement of equity with the person of the chancellor is of the utmost importance and advances the argument considerabl.
15. Baker, English Legal History, 118.
16. English Legal History., 119.
17. See T. S. Haskett, “The Presentation of Cases in Medieval Chancery Bills,” in Legal History in the Making, Papers Presented to the Ninth British Legal History Conference, University of Glasgow 1989, eds. W. M. Gordon and T. D. Fergus (London, 1991), 11-28.
18. Baker, English Legal History, 119.
19. English Legal History., 118.
20. Margaret E. Avery, “The History of the Equitable Jurisdiction of Chancery before 1460,” Bulletin of the Institute of Historical Research 42 (1969), 130. Only two other scholars have published work that is based directly upon the records of the court, although the scope and range of their studies is much smaller than Avery's: Nicholas Pronay, “The Chancellor, the Chancery, and the Council at the End of the Fifteenth Century,” in British Government and Administration: Studies Presented to S. B. Chrimes, eds. H. Hearder and H. R. Loyn (Cardiff, 1974), 87-103; Franz Metzger, “The Last Phase of the Medieval Chancery,” in Law-Making and Law-Makers in British History, Papers Presented to the Edinburgh Legal History Conference, 1977, ed. A. Harding, Royal Historical Society Studies in History, no. 22 (London, 1980), 79-89. Metzger's unpublished dissertation, “Das Englische Kanzleigericht unter Kardinal Wolsey, 1515-1529,” (Erlangen Ph.D., 1976), presents a statistical analysis of 7,476 Chancery cases from Wolsey's tenure. J. A. Guy in “Thomas More as Successor to Wolsey,” Thought: Fordham University Quarterly 52 (1977), 275-94, provides statistical notes on 1,222 cases from More's time in office.
21. William S. Holdsworth, A History of English Law, 4th ed., 16 vols. (London, 1936; repr. 1966), vol. 2, 346-47. In discussing the second of his three factors he notes that these ideas of conscience were “borrowed from the canon lawyers.”
22. A History of English Law., 591-92, 596-97. In opposition to Holdsworth's suggestion of new developments in Chancery jurisprudence, G. B. Adams argued forcefully for the idea of the origin and development of equity in king and Council. He posited a continual line of equity through the royal prerogative, beginning with the Council at the Conquest and ending with the Judicial Committee of the Privy Council in modern times. From this line branched off three major arenas in which the equity that was still dependent on the prerogative was administered: in the common law courts until the fifteenth century; in Chancery; and in the court of Star Chamber (Council and Courts in Anglo-Norman England [London and New Haven, 1926], 200-205). For Adams, common law and equity originated together as an undifferentiated system within the king's duty to provide justice and security through his prerogative authority and administration (185). As the common law-itself a method of improving the administration of justice through the use of the prerogative-hardened into a fixed system, the prerogative was sought again to provide needed flexibility; from this second stage came the mature equity system (189 n.22).
23. J. B. Post, “Equitable Resorts before 1450,” in Law, Litigants and the Legal Profession, Papers Presented to the Fourth British Legal History Conference, University of Birmingham 1979, eds. E. W. Ives and A. H. Manchester. Royal Historical Society Studies in History, no. 36 (London, 1983), 68-69.
24. “Equitable Resorts before 1450,”., 78.
25. “Equitable Resorts before 1450,”., 71.
26. Understanding of such activity has been advanced in one specific area by Carole Rawcliffe in “The Great Lord as Peacekeeper: Arbitration by English Noblemen and Their Councils in the Later Middle Ages,” in Law and Social Change in British History, Papers Presented to the Bristol Legal History Conference, 1981, eds. J. A. Guy and H. G. Beale (London, 1984), 34-54.
27. Post, “Equitable Resorts,” 78.
28. F. W. Maitland, The Constitutional History of England (Cambridge, 1908), 225.
29. The Constitutional History of England., 222.
30. The Constitutional History of England., 224.
31. Maitland, Equity, 5. Baker, after H. Coing and J. L. Barton, notes that the specific model for Chancery process may have been the denunciatio evangelica (English Legal History, 199 n.26); see infra at nn.55-68.
32. Maitland, Equity, 1.
33. Maitland cited George Spence on the side of strong Romanism (The Equitable Jurisdiction of the Court of Chancery, 2 vols. [London, 1846-49; Philadelphia, 1846-50]) and O. W. Holmes opposed to such a notion (“Early English Equity,” in Select Essays in Anglo-American Legal History, 3 vols. [Boston, 1907-9], vol. 2, 705-21).
34. Maitland, Equity, 8.
35. Maitland, Equity, 8-9.
36. Paul Vinogradoff, “Reason and Conscience in Sixteenth-Century Jurisprudence,” Law Quarterly Review 24 (1908), 379.
37. “Reason and Conscience in Sixteenth-Century Jurisprudence,”., 384.
38. Paul Vinogradoff, Roman Law in Medieval Europe (Oxford, 1929; repr. with a new Foreword by Peter Stein, Cambridge and New York, 1968), 117-18.
39. Vinogradoff, “Reason and Conscience,” 380. Adams, Council and Courts, 212.
40. Willard T. Barbour, “Some Aspects of Fifteenth-Century Chancery,” Harvard Law Review 31 (1917-18), 835. He describes these ecclesiastics as people “who knew little of the common law but a good deal of another system.”
41. “Some Aspects of Fifteenth-Century Chancery,”., 859.
42. O. W. Holmes, for example, made the following statement with respect to the protection of the cestui que use: “As soon as the need for protection was felt, the means of supplying it was at hand. Nothing was easier than for the ecclesiastics who presided in Chancery to carry out there, as secular judges, the principles which their predecessors had striven to enforce in their own tribunals under the rival authority of the Church. As chancellors they were free from those restrictions which confined them as churchmen to suits concerning matrimony and wills” (Select Essays, vol. 2, 715-16). Despite the problematical description of the chancellor as a secular judge, the overly strong emphasis of the Church as a rival authority, and the limitation of ecclesiastical jurisdiction to matrimony and wills, this view at least recognised the ecclesiastical character of the chancellor, his familiarity with another procedure, and the presence of principles of law and equity in the canonical tradition.
43. Ronald A. Marchant, The Church under the Law. Justice, Administration and Discipline in the Diocese of York, 1560-1640 (Cambridge, 1969), 2.
44. Avery, “History,” 144.
45. “History,”., 131.
46. Expanding Avery's list back to Edmund Stafford and forward to Thomas More extends the survey to match the range of the Early Court of Chancery in England Project (ECCE), 1417-1532, described infra, Part II. The Appendix presents a description of each chancellor.
47. Adams, Council and Courts, is a particularly good example of this approach.
48. Avery, “History,” 142.
49. Margaret E. Avery, “An Evaluation of the Effectiveness of the Court of Chancery under the Lancastrian Kings,” Law Quarterly Review 86 (1970), 90.
50. H. Coing, “English Equity and the Denunciatio Evangelica of the Canon Law,” Law Quarterly Review 71 (1955), 225. Coing remarks that there is a general view that, since most pre-Reformation chancellors were ecclesiastics, there must have been some canon-law influence. He notes that such opinions are always expressed in general terms rather than based on specific aspects of canon law and equity (224).
51. “English Equity and the Denunciatio Evangelica of the Canon Law,”., 231-32. Further detail strengthens Coing's comparison. Admissability of the remedy in both jurisdictions is to be found either in defectus iustitiae (justice denied because of the plaintiff's weakness or the defendant's power) or through naturalis obligatio (in parol contract). Coing also sees parallels in crimen de sua natura ecclesiasticwn (robbery, plundering, wrongful imprisonment), yet concedes that the denunciatio evangelica in such cases duplicated, rather than informed, the English practice, as the kings had long been a source of appeal for such acts of violence (232-33). Substantive rules, too, offer parallels. In general, the enforcement of the duties of reason and conscience is central to both the denunciatio evangelica and Chancery, while neither finds the mere observance of positive law sufficient. Specifically, the denunciatio evangelica draws on the concept of the obligatio naturalis deriving either from consent-whence the enforcement of the nudum pactum, the promise under oath, and the promise given for the benefit. of a third person-or from unjust enrichment, that is, the case where “quis locupletatur cum aliena iactura, quia quod alienum est pervenit ad eum” (233-34). The citation is from Bartolus.
52. Coing himself noted that less than 1 percent of the petitions in the Public Record Office had been printed. His estimate was too generous., 235.
53. Coing himself noted that less than 1 percent of the petitions in the Public Record Office had been printed. His estimate was too generous…, 237-38.
54. Coing himself noted that less than 1 percent of the petitions in the Public Record Office had been printed. His estimate was too generous…., 238.
55. Coing himself noted that less than 1 percent of the petitions in the Public Record Office had been printed. His estimate was too generous…., 239. In a backhanded compliment, Coing offers this general assessment of English equity. “Equity jurisdiction had an incomparably greater task in England than on the Continent, since in England it had to supplement a much less advanced system of law. That the Chancellors undertook this task remains their glory… for although canon law provided the guiding principles, English equity as a distinct body of law is the expression of the English genius.” He adds, however, that English equity “is yet another illustration of the truth, that European civilisation consists in what the various nations have made of a common inheritance: antique thought and Christian faith” (240). Coing notes that while all trace of the denunciatio evangelica disappeared on the Continent in the sixteenth century, it survives in English equity, however much altered (241).
56. J. L. Barton, “Equity in the Medieval Common Law,” in Equity in the World's Legal Systems, ed. R. A. Newman (Brussels, 1973), 145*7.
57. “Equity in the Medieval Common Law,”., 143-45. Interestingly, Barton makes no mention of Coing's article. He notes that if the denouncing party were himself wronged by the sin, the denunciatio evangelica became the denunciatio iudicialis.
58. “Equity in the Medieval Common Law,”., 147. These terms, Barton notes, are anachronistic.
59. “Equity in the Medieval Common Law,”…, 147-48. Barton suggests that this would not be extended infinitely. Relieving the contract creditor on the surmise that the debtor would make his law if the plaintiff proceeded at common law was more serious, and relieving the creditor after the debtor had made his law was further than most canonists would go. Barton notes that the common opinion-presumably among the canonists-was that if judgment were given in a competent court, then the justice of the judgment was a matter between the successful party and his confessor (148). This view presents some serious implications for Baker's suggestion that the chancellor exercised the temporal counterpart of the confessional (see infra at n.75).
60. “Equity in the Medieval Common Law,”…., 148-49.
61. “Equity in the Medieval Common Law,”…., 149-50.
62. “Equity in the Medieval Common Law,”……, 151. Barton proceeds to a discussion of the work of Christopher St German, which is discussed infra at nn.85-98.
63. Jones, Elizabethan Court, 2.
64. Maitland, Equity, 7-8.
65. See Equity at nn. 16-20.
66. Adams speaks of the rule of reason and conscience as motivating the new doctrine of equity in the Chancery and notes that the function of conscience in such activity was borrowed from the canon lawyers (see See Equity at nn., n.43). Guy mentions conscience as the ground upon which the chancellors came to guarantee various interests in their court (see See Equity at nn., n.54).
67. This definition is taken from Baker, English Legal History, 122.
68. Baker, English Legal History, 122.
69. English Legal History., 123.
70. As the denunciatio was regarded in canon law primarily as a means to prevent sin, Baker's suggestion may find some support from Coing's discussion (see English Legal History. at nn.55-61). Barton, however, indicates that there were points in the canon law beyond which matters of conscience were properly the concern of the internal forum (see English Legal History., n.65).
71. Coing, 223-24. The subsuming of conscience as a part of equity is an interesting and important element in his approach.
72. Metzger, “The Last Phase of the Medieval Chancery,” 79.
73. “The Last Phase of the Medieval Chancery,”., 87. Edith G. Henderson chose to work in this period because it was with such decree rolls that the Court of Chancery began to keep “systematic records of its doings for its own use” (“Relief from Bonds in the English Chancery: Mid-Sixteenth Century,” American Journal of Legal History 18 [1974], 298-306, at 298).
74. Metzger, “The Last Phase of the Medieval Chancery,” 89.
75. The Reports of Sir John Spelman, vol. 2, ed. J. H. Baker, Publications of the Selden Society, vol. 94 (1977), 37.
76. The Reports of Sir John Spelman., 37-38.
77. For a brief description of the main features of Chancery process, see The Reports of Sir John Spelman. at nn. 16-20.
78. St German's Doctor and Student, eds. T. F. T. Plucknett and J. L. Barton, Publications of the Selden Society, vol. 91 (1974), xiv-xv.
79. St German's Doctor and Student., 3.
80. Charles Donahue Jr., review of St German's Doctor and Student, eds. T. F. T. Plucknett and J. L. Barton, in The Legal History Review 47 (1979), 182-83.
81. Spelman, 39.
82. Donahue remarks that the book is “unsurpassed as a source of information about the activities of the Chancery in St German's day” and tells us much about the author and the intellectual milieu in which he lived (review of St German's Doctor and Student, 184). S. F, C. Milsom, too, is at pains to place Doctor and Student in context, noting that it marked an important stage in English legal thought, “not because it was new but because it linked the medieval world to the modern.” The appeal to conscience-the medieval element-was not novel; the new element was “a positive human law beginning to be conceived in substantive terms, in terms of a rule that on these facts this result ought to follow, and on those facts that result” (S. F. C. Milsom, Historical Foundations of the Common Law, 2d ed. [London, 1981], 89).
83. Doctor and Student, xxvi.
84. Doctor and Student., xxviii. See xi-xiv for a discussion of St German's political and religious views.
85. For examples of such difficulties, see Doctor and Student., xxviii-xxix.
86. For examples of such difficulties., xxix. Barton discusses in detail the relationship between law, conscience, and the canonists (xxix-xxxix) and then considers the relationship between canon law, conscience, and the chancellor (xxxix-xliv).
87. For examples of such difficulties., xli.
88. For examples of such difficulties…, xliii-xliv.
89. For examples of such difficulties…., xlvi-xlvii.
90. For examples of such difficulties…., xlviii.
91. The same approach must be taken with two related works. The dialogues were followed by The Replication of a Serjeant at the Laws of England and The Little Treatise concerning Writs of Subpoena, the former probably and the latter certainly written by St German himself (Christopher St German on Chancery and Statute, ed. J. A. Guy, Publications of the Selden Society, Supplementary Series, vol. 6 [1985], 56-63). Guy has emphasized that their significance lies in their continuation of the dialogues of Doctor and Student concerning the relation of the laws of England to equity and conscience, now with specific reference to the contemporary practice of the Court of Chancery. The Little Treatise in particular affords a special opportunity to understand St German's thoughts on Chancery and equity as they developed after Wolsey's departure and the difficulties of More's chancellorship (64). Chapters nine and ten, Guy notes, extend St German's argument into the more general aspects of contemporary theory on Chancery, equity, and the chancellor's own conscience (81). In assessing the discussion in chapter seven of what the chancellor ought not to be doing, he observes that the author's views concerning equity's boundaries were essentially those reached by the early seventeenth-century judges and that in sixteenth-century terms “St German was marginally ahead of his time” (87). Guy concludes that, within the framework of the renaissance of common-law process after 1550, “it is clear that St German's legal writings were, in fact, themselves part of the process by which new ideas were assimilated with traditional forms…. They trace the genesis of the new-style debates that galvanised lawyers in the age of Reformation” (94).
92. Norman Doe, Fundamental Authority in Late Medieval English Law, (Cambridge, 1990), 3-4.
93. Fundamental Authority in Late Medieval English Law., 4, 178.
94. Fundamental Authority in Late Medieval English Law., 4-5, 177.
95. Fundamental Authority in Late Medieval English Law…, 6.
96. Fundamental Authority in Late Medieval English Law…., 132. Interestingly, Doe's suggestion is based on Baker, Milsom, Holdsworth, and Baildon only.
97. Doe, Fundamental Authority, 132.
98. Fundamental Authority., 144-46.
99. Fundamental Authority., 146-48.
100. Fundamental Authority…, 148-53.
101. Fundamental Authority…., 153.
102. Pronay, “The Chancellor, the Chancery, and the Council,” 87-88.
103. “The Chancellor, the Chancery, and the Council,”., 88-90.
104. “The Chancellor, the Chancery, and the Council,”., 90-92.
105. Jones, Elizabethan Court, 7.
106. Elizabethan Court., 8-9.
107. Elizabethan Court., 12-15. It is, of course, questionable whether the lack of recorded decisions was solely negative; this characteristic gave the court the remarkable flexibility that made it so effective and popular. For the jurist and the historian, undoubtedly, it deprives the researcher of useful material; for the common lawyer, it produces uncertainty.
108. Elizabethan Court…, 16.
109. Elizabethan Court…., 177.
110. Elizabethan Court…., 3-4.
111. Palmer as recently as 1993 remarked that “Neither the use nor the chancellor's court of conscience can be treated with confidence; approaches to the sources do not yet provide firm conclusions” (English Law, 130).
112. J. R. Lander, Conflict and Stability in Fifteenth-Century England, 3d ed. (London, 1977), 12-13. Social structure is, of course, but one area of investigation.
113. Milsom, Historical Foundations, 82-83.
114. W. H. Bryson, The Equity Side of the Exchequer (Cambridge, 1975), 2.
115. The author would like to acknowledge the great amount of careful work contributed to the ECCE Project over the past five years by his research team at the University of Victoria, headed from 1992 to 1994 by E. Alexandra Bovey: Brent Burbridge, Chelsea Caldwell, Ramsey Fendall, Karen Forse, Andrew van der Gugten, Sharon Hanen, Joni Miller, Ian Moyer, Sara Plumpton, Simon Tuffin. Without their enthusiastic efforts little could have been accomplished. Funding for the Project from 1991 to 1995 was provided by a generous grant from the Social Sciences and Humanities Research Council of Canada and by the University of Victoria. The staff of the Public Record Office, London, has been consistently supportive of the research. Dr. R. F. Hunnisett was enthusiastic and helpful in the formative stages of the work, and Dr. Elizabeth Hallum Smith, Director of Public Services, deserves special thanks for her continual assistance and enthusiasm; Mr. G. Troop and Mr. R. J. Elvin have guided an extensive microfilm undertaking through its various stages.
116. The Decree Rolls, C 78, and the Supplementary Series, C 79 (26 Henry VIII to 1903), contain decrees, orders, and dismissions of the Court of Chancery, which were enrolled to render the judgment more solemn and authoritative. The Entry Books of Decrees and Orders, C 33 (36 Henry VIII to 1875), were kept by the registrars of the court. See Guide to the Contents of the Public Record Office, vol. 1, Legal Records, etc. (London, 1963), 30.
117. Although originally filed in a complicated system that is now only discernible for the postmedieval period, this system reached its most complex form between the reign of James I and 1842. See Guide, vol. 1, 32-33.
118. List of Early Chancery Proceedings, vol. 1, Public Record Office Lists and Indexes No. XII (London, 1901; repr. Kraus 1963), iii.
119. List of Early Chancery Proceedings. Maxwell-Lyte was, of course, fully aware of this difficulty. The problem can be seen clearly from a glance at the chronological table in volume one of the List of Early Chancery Proceedings. The bills gathered together to form Bundle 6, for example, are all addressed to the bishop of Winchester and the period to which they could belong is 1388 x 1392, or 1413 x 1426, or 1456 x 1460 (List of Early Chancery Proceedings., vii). Without some method of internal dating or the presence of additional documents or notes on the bill to suggest the correct date, a researcher is faced with the dilemma that a document may come from any one of three periods over a seventy-two-year span.
120. We reached this number by taking the total number of cases that survive in C 1 for the two ten-year spans represented by Samples II and III: the former yields an average of 148 cases per year, the latter 156. The C 1 bundles for Samples IV-VII contain many more cases than do these earlier samples and the sampling rate of 150 cases per year has been applied to them. Baker, in noting that “all actions [in Chancery] were commenced by informal complaint, either by bill or by word of mouth,” adds that this makes it impossible to measure the amount of business in Chancery and that the increase in the number of bills in the fifteenth century “may be due simply to a decline in oral complaints” (English Legal History, 119 and n.27). This could be true, yet it is to argue on the basis of supposition against an overwhelming body of evidence. There is an important element of orality in the work of the early Court of Chancery, but the huge increase in the number of written bills indicates a real change in the volume of the court's business.
121. See Table 1. Only 362 of these cases have been included in the data base; eighteen were omitted due to extensive damage to the documents (see infra, n.133).
122. List of Early Chancery Proceedings, vols. 1-3, Public Record Office Lists and Indexes Nos. XII, XVI, XX (London, 1901, 1903, 1906; repr. Kraus, 1963).
123. Some remarks on this subject may be found in T. S. Haskett, “Country Lawyers? The Composers of English Chancery Bills,” in The Life of the Law, Proceedings of the Tenth British Legal History Conference, University of Oxford 1991, ed. P. Birks (London, 1993), 9-23.
124. This list is too long to reproduce here. There is an analysis of the major occupations infra, 289-91.
125. C 1/26, no 481.
126. C 1/9, no 75.
127. C 1/26, no 484.
128. These 18,173 constitute 74 percent of the total number of people named in the records. The remainder appear in ancillary roles of various types.
129. Assessment of the subjects that brought aldermen and bailiffs into Chancery shows that their occupations did generate some of the activity (see infra, 29\jf., for a discussion of the substance of the Chancery cases). Both are involved in arrest and assault cases; aldermen appear in writs and maintenance cases. Bailiffs are found in cases of distraint, entry, escape, lying in wait, negligence, record, surety, threats, and trespass but appear much more often in matters involving writs and imprisonment. Yet both aldermen and bailiffs repeatedly appear in court for personal matters, usually concerning debt and bonds.
130. Sample HI: female respondent-executors 24.5 percent, male respondent-executors 3 percent. Sample VII: female respondent-executors 20.2 percent, male respondent-executors 6.1 percent.
131. Of the total number of principals, 28.4 percent of petitioner-heirs in Sample VII are women, 12.9 percent are men.
132. Respondent-heirs average less that 2 percent of the total number of principals, women and men, although in Sample VII women constitute 3.4 percent, men 0.4 percent.
133. Petitioner-feoffees represent such a small group (0.84 percent of men, 0.15 percent of women) that they need not be included.
134. A preliminary look at the presence of widows in the Court of Chancery may be found in T. S. Haskett, “The Role of Conscience in Fifteenth-Century English Family Law: Widows in the Court of Chancery,” in Family Law in the Late Middle Ages, ed. DeLloyd J. Guth (Toronto, forthcoming, 1997).
135. Petitioners: Sample II, 16.1 percent of the total number of female principals; Sample VII, 3.9 percent. Respondents: Sample II, 21.8 percent; Sample VII, 16.9 percent.
136. William Paston (William I, 1378-1444) appears first in Sample I (C 1/5, no 52) as a petitioner-feoffee in a case involving messuages in Lynn, Norfolk, and again in Sample II (C 1/ 12, no 28), this time as a respondent, in the first of three cases concerning the affairs of Sir John Fastolf; here the issue is a manor in Norfolk enfeoffed by Fastolf. John Paston, esquire, (John I, 1421-66) appears in Sample III (C 1/29, no 277) as a respondent and feoffee of Fastolf concerning a Surrey holding, and John Paston, knight, (most likely John II, 1442-79) is found in Sample IV (C 1/52, no 90) petitioning over yet other Fastolf holding in Norfolk. Another case in Sample IV (C 1/54, no 304) completes the appearance of the early Pastons, with William (William II, 1436-96) bringing a case over a Norfolk manor. William Paston IV (c. 1479-1554) is found in Sample VI-William Paston, knight, respondent in a case about an official's fees and expenses (C 1/383, no 4), and William Paston, esquire, feoffee-respondent in a dispute with his co-feoffees (C 1/408, no 30; this is clearly the earlier case)-and in Sample VII-William Paston, knight, an executorrespondent in a claim of debts due for the boarding of a lady, her servants, and her family, and of a ward, and for the making of a closet over a chapel so that the lady could see Mass (C 1/671, no 18). See Paston Letters and Papers of the Fifteenth Century, ed. N. Davis, part 1 (Oxford, 1971), lii-lxiv.
137. C 1/28, no 448.
138. For Tables 2, 3, 5, and 6, the numbers in each single sample column are percentages of that particular sample and are calculated to the nearest 0.5 percent; any value less than 2.0 percent has not been included; column totals are the sum of the percentages given, demonstrating how small a proportion the remaining items constitute. For Tables 2 and 5, the numbers in columns I-VII are percentages of the entire sample. For Tables 3 and 6, the numbers in columns IVII are percentages of the entire sample for the specific subject or action area only.
139. There is an even steeper decline in the real property cases, 57 percent, if the calculation is made from the 1430s to 1510s (Samples II-VI) and a much higher rise in the instrument cases.296 percent. The change over Samples II-VII is more significant than that over Samples I-VII, as Sample I is very small and consequently the proportions less reliable than those for the other periods.
140. Subject areas smaller than 2 percent have not been included in the analysis; see There is an even steeper decline in the real property cases, 57 percent, if the calculation is made from the 1430s to 1510s (Samples II-VI) and a much higher rise in the instrument cases., n.160.
141. It was noted earlier that men as respondents are especially prominent in Sample III because of their role as feoffees to uses (see Subject areas smaller than 2 percent have not been included in the analysis;, 289 and n.153).
142. Baker, English Legal History, 289-94.
143. Because of the detail in the cases it will be some years before there is confirmation that all “holdings” are indeed real property governed by arrangements other than uses. But even if more uses appear than the data at present indicate, this should modify the findings only minimally.
144. For Stafford and the other chancellors, see the relevant entries in E. B. Emden, A Biographical Register of the University of Oxford to A.D. 1500, 3 vols. (Oxford, 1957-59); A Biographical Register of the University of Cambridge to 1500 (Oxford, 1963). See also the Dictionary of National Biography, 21 vols., eds. Leslie Stephen and Sidney Lee (London, 1908-9).
145. In the closing sentence of her article Avery points to Stafford's long term of office, noting that he was a man with civilian training and that he provided “an essential continuity of administration at a decisive period in the development of Chancery” (“History,” 144).
146. Bartolus de Saxoferrato, Super prima parte Codicis; Super secunda pane Codicis; Super prima parte Infortiati; Super secunda parte lnfortiati; Super prima parte Digesti noui; Super secunda parte Digesti noui; Super seconda [sic] parte Digesti veleris; Questiones disputatae. Dominicus de S. Geminiano, Super vi Decretalium pars i. Andreas Barbatia, De officiis judicis delegati, legati et judicis ordinarii. Baldus de Ubaldis, Lecture super i-iii Codicis. Nicholeus de Tudeschis, Lecture super i Decretalium, pars i et ii; Lecture super ii Decretalium, pars i; Lecture super ii Decretalium, pars Hi; Lecture super Hi Decretalium; Lecture super iv et v Decretalium. Ludovicus Pontanus, Singularia juris.
147. Baldus de Ubaldis, Super Codicem; Generates regulae statutorum. Prosodocimus [here Prothodoximus] de Comitibus, In Decretalium librum secundum Lectura.
148. Jason de Mayno, Super Infortiati i-iii; Super Digesto Vetere; Super Tit. de actionibus. Johannes de Imola, Super primam parlem Digesti noui; Lectura Sexti et Clementinarum. Ph. Decius, Super Decretales. Bartolus de Saxoferrato, Consilia. Andreas Barbatia, Deforo competenti. Baldus de Ubaldis, Circa materiam statutorum, etc.; Super digesto nouo; Super primo, secundo el tertio codicis. Prosodocimus de Comitibus, Lectura super Decretalium libri secundi partem primam. Ludovico Pontanus, In Digestum Novum et Codicem. Hostiensis, Super Decretalia and as H. de Segusio, Super Decretales.