In search of the custom of the exchequer

In search of the custom of the exchequer The problem The heyday of the exchequer as a court of law came early in its existence. At the time described in the Dialogue when the justiciar presided1 it has been argued that it was the most important legal institution in the country. Changes in the thirteenth century prohibited the exchequer from hearing party and party cases and focused legal interest primarily on the courts of common pleas and king's bench. Subsequendy, historians of the common law have displayed very little interest in its practices.2 Even the magisterial and authoritative John Baker slips into error when summarising its history.3 Apart from Bryson's work on equity,4 with which w e are not dealing, Lloyd Guth and David Lidington on penal statutes,5 and some work on the specialised history of exchequer of pleas, an aspect of the court which is peripheral to the main question with which we are here concerned, it has been neglected by historians in the Tudor and early Dialogus De Scaccario The Course of the Exchequer by Richard FitzNigel, ed. and trans, the late Charles Johnson, with corrections by F. E. L. Carter and D. E. Greenway, Oxford, 1983, p. 26. *• W . Hamilton Bryson, 'The Court of Exchequer comes of age', in Tudor Rule and Revolution: essays for G. R. Elton from his American friends, ed. DeLloyd J. G u m and John W . McKenna, N e w York, 1982, p. 149ff., suggests that from the thirteenth century to the beginning of the Tudor period the court saw little change in function or status, but limits its judicial business to that covered by the exchequer of pleas. 3 In the third and most recent edition of his Introduction to Legal History, London, 1990, p. 22, Baker describes the lord treasurer's remembrancer's office as the exchequer of receipt—thus confusing the lord treasurer's clerk in the upper exchequer or exchequer of audit with his clerk in the lower exchequer or exchequer of receipt. He also implies that the clerk of the pleas dealt with all judicial business whereas his office was restricted to the party and party cases brought under exchequer privilege. He does not recognise that in the sixteenth century there were only four barons. In his The Legal Profession and the Common Law, London, 1986, p. 81, Baker implies that most officers on the revenue side were not directly concerned with litigation which is at best misleading. 4 W . H. Bryson, The Equity Side of the Exchequer, Cambridge, 1975. English bill procedure does not become visible until the reign of Elizabeth and exchequer equity is not mentioned in such articles as J. A. Guy's 'The development of Equitable Jurisdictions 1450-1550', in Law, Litigants and the Legal Profession, ed. E. W . Ives and A. H. Manchester, London, 1983. 5 DeLloyd J. Guth, 'Enforcing late Medieval Law: patterns in Litigation during Henry VII'sreign',in Legal Records and the Historian, ed. J. H. Baker, 1978, pp. 84ff., and his unpublished P h D dissertation, 'Exchequer Penal Law Enforcement 1485-1509', University of Pittsburgh, 1967; also D. R. Lidington, 'Mesne Process in Penal Actions at the Elizabethan Exchequer', Journal Of Legal History (JLH) 5.3 (1984), 33-38. P A R E R G O N ns.11.2, December 1993 90 S. Jack Stuart period although R. M . Ball, who is primarily interested in the postrestoration period, has cast an eye backwards.6 This paper seeks to establish what constituted the 'law', the 'course' and the 'custom' of the exchequer and in what ways the barons may have been seen as different from the judges in those courts. Throughout the sixteenth century the course or custom of the exchequer was routinely presented as the cure for all contemporary evil practices which affected the monarch's revenue.7 The argument in such memoranda generally turns on financial management so that it is often forgotten that the whole practice of the exchequer was essentially legal. Contemporaries had a different view. The basis of exchequer process was legal even though in most instances the outcome was not a formal sentence. The accountants appear...