The term Exchequer of Pleas describes an aspect of the Court of Exchequer: a 'collateral and derivative department of its jurisdiction', namely its function as a Court of Common Law for the adjudication of Civil Pleas. For much of its history the Exchequer had a threefold jurisdiction: as a Court of Revenue, a Court of Civil Pleas and a Court of Equity. The 'Plea side' of the Court was administered by the Office of the Clerk of the Pleas in the Exchequer.
The Exchequer was, in origin, a Court of Crown Revenue, which had split from the in the 1190s. The extension of its jurisdiction from collecting and protecting the revenues of the Crown to cover the adjudication of civil pleas (i.e. lawsuits between individuals) was described in the 19th century as 'obviously and confessedly grounded on usurpation, now confirmed by immemorial usage, founded on a tacit but universal acknowledgment of its utility and convenience'.
From its foundation, the Exchequer had by royal prerogative exercised a limited jurisdiction in civil pleas (particularly in cases where the resolution of a civil suit might serve to expedite the main business of the court), but it lost much of its common law jurisdiction after the formation of the Court of Common Pleas. Subsequently, however, a legal fiction was employed (the writ of quominus), which allowed the Exchequer to look at "common" cases between subject and subject; this discretionary area was soon significantly expanded, and the Exchequer soon regained its standing in common law matters.
By the end of the 15th century, the Exchequer was exercising a threefold jurisdiction: as well as functioning as a Court of Revenue and as a Court of Common Pleas, it had begun to function also as a Court of Equity. The 'Equity side' of the Exchequer was separate from the 'Plea side'; it sat within the Office of the King's Remembrancer, rather than the Office of the Clerk of the Pleas. Equity, a set of legal principles based on natural law and common law, was properly the remit of the Court of Chancery; however the latter's reputation for tardiness and expense resulted in much of its business transferring to the Exchequer. Cases in equity were nominally taken by the Chancellor of the Exchequer, but in practice were heard by the Barons of the Exchequer (and latterly by the Chief Baron of the Exchequer sitting alone in the Exchequer Chamber).
The Court of Exchequer in Equity and the Court of Chancery, having 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 in 1841, though it retained its remaining jurisdiction (on the 'Revenue side' and the 'Plea side') and continued as such to function as a judicial body. Following the passing of the Judicature Acts of 1873 and 1875, the Court of Exchequer was consolidated together with other ancient Courts in England to form the Supreme Court of Judicature: initially, the officers and business of the old court were transferred to an Exchequer Division of the new High Court but, by an Order in Council on 16 December 1880, both the Exchequer Division was merged, along with the Common Pleas Division, into the Queen's Bench Division and the old Exchequer office of Lord Chief Baron was abolished.
History
Origins It was originally claimed that the Exchequer was based on a similar Norman court. 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 I, 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.Thomas (1848) p.1 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.Thomas (1848) p.2
By the late 12th century it had taken to sitting in a fixed location, the one body of government in England to do so.Kemp (1973) p.561 By the 1170s it was possible to distinguish the Exchequer's work from that of the other parts of the curia regis,Kemp (1973) p.565 although the king of the time considered the Exchequer to simply be an element of the curia.Kemp (1973) p.568 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.The Green Bag (1899) p.341
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 was 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.Kemp (1973) p.572 Although the Exchequer of Pleas was the first common law court, it was the last to separate from the curia regis.Baker (2002) p.47
Increasing work and transformation
There are few records known to date from before 1580, as bills were not dated before then.Bryson (2008) p.2 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 Bench and 10,000 in the Court of Common Pleas.Guth (2008) p.149 Under the Tudors, 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.Guth (2008) p.150
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.Guth (2008) p.152 The Exchequer was 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.Bryson (2008) p.22
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.Bryson (2008) p.25
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 dependent on the Seal for its authority.Bryson (2008) p.25 After the War ended there were only two equity courts remaining, the Exchequer and Court of Chancery. The Court of Chancery was publicly reviled for its slow pace and because it was led by the Lord Chancellor John Finch, a political figure who had been intimately involved in the conflict.Bryson (2008) p.26 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.Bryson (2008) p.27
Loss of equity jurisdiction and dissolution
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.Bryson (2008) p.160
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.Bryson (2008) p.161 The Court of Chancery, however, had long had an established method of appealing to the Lords,Kerly (1890) p.168 and later introduced an intermediary appellate court – the Court of Appeal in Chancery.Lobban (Spring 2004) p.390
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.Bryson (2008) p.163 As a result, the Administration of Justice Act 1841 formally dissolved the equitable jurisdiction of the court.Bryson (2008) p.162
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 common law courts (the Court of Queen's Bench and the Court of Common Pleas) 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.Brougham (1828) p.10