1616 (III)
Bill Long 12/13/04
The Remainder of the Commissioners' Report
It appears from the records in 21 English Reports 62 that after the first question was answered, the Commission was sent back to work with an additional member (John Walter) and with another question. The question was given in the form of a hypothetical. It is not difficult to follow:
"A hath judgment and execution in the King's Bench or Common pleas, against B in an action of debt of one thousand pounds. And, in an ejectione firmae, of the manor of D, B complains in the Chancery to be relieved against those judgments according to conscience and equity, allowing the judgments to be lawful and good by the rigor and strict rules of the common laws....Questio. Whether the Chancery may relieve B in this or such like cases....; and if the Chancery be restrained by any statute of praemunire, & c."
The first question had been answered. Only the italicized question remained. If some Statute of Praemunire might restrain, the charge goes on to inquire in quite vivid language:
"by what statute, or by what words in any statute, is the Chancery so restrained, and conscience and equity banished, excluded and damned?"
The Statute(s) of Praemunire
Coke had asserted that the ancient law of Praemunire would prevent the assertion of Chancery jurisdiction when a matter was pending or decided in the Common Law courts. This statute was first enacted in 1353, with additions in 1393 and, relevant here, 1403 (or 1402). The "official" way to cite an English statute is by the regnal year and King or Queen. Thus, the 1353 statute was known as "27 Edward III," while the 1403(02) statute was "4 Henry IV." Got to know the regnal years of the English sovereigns to be facile in English legal history!
The Statute (the first word of it was "praemoneo"--to warn against, and was corrupted to "praemunire") was designed to prohibit Englishmen from appealing their convictions to "the courts of another" after judgment had been rendered in the King's court. I could quote the statute endlessly here, but suffice it to say that it required any who:
"take any one out of the kingdom in a plea of which the cognizance pertains to the king's court or in matters regarding which judgments have been rendered in the king's court, or who bring suit in the court of another to undo or impede the judgments rendered inthe king's court..." (Ordinance and Statute of Praemunire (1353))
to answer to the king's justices "regarding the contempt involved in such an action."
The Commission and the Statute of Praemunire
Coke had argued that the "court of another" in the 1353 statute referred to the Court of Chancery, thus depriving that body of jurisdiction when the Common Law courts were treating or had considered a matter. The Commission decided, on the contrary (and most modern scholars agree) that the major danger contemplated in 1353 was the danger of appeal to Rome. Pope Boniface VIII had only 50 years previously, in the Papal Bull Unam Sanctam, reasserted Roman authority over secular powers. Thus, the Commission concluded that the 1353 statute had nothing to do with Chancery.
I will only provide the first of nine paragraphs of the Commission's report, so that you can get the "feel" of the language. "1. First, Out of the mischief which the statute provides and recites, viz. that such suits and pleas (against which the statute is provided) were in prejudice and disinherison of the King and his crown, which cannot be applied to the Chancery; for the King cannot be disinherited of jurisdiction, but either by a foreigner, or by his subject; but never by his own Court." Italics added. Subsequent paragraphs also pointed out inconsistencies in language between the text of the statute and the assumption that Chancery might be in view. The whole statute "altogether savours of adhering to foreign jurisdictions."
The Praemunire Amendments of 1403(02)
The Praemunire statute was amended in the days of Richard II, but the other amendment at issue for the Commissioners was that enacted during the days of Henry IV. The relevant section provides:
"(2) it is ordained and stablished, that after judgment given in the courts of our lord the king, the parties and their heirs shall be therefore in peace, until the judgment be undone anew by attaint or by error, if there be error...." 4 H 4, ch. 32.
The Commission concluded likewise that "we doubt (it) was made against proceeding within the realm, and not against the foreign..." The central argument rested on only one word: the presence of "anew" in the statute. That is, the statute prohibited the King's subjects from bringing up the case "anew." The Commission commented:
"but when the cause is called into the Chancery only upon point of equity, there, as the point of equity was never in question in the Common Law Court, so the point of law or fact (as it concerns the law) is never in question in the Chancery, so the same thing is not twice in question, or is answered anew: for the Chancery doth supply the law, and not cross it (21 English Reports at 64-65)."
Though it is not quite as clear in the 1403 Praemunire that appeals to Rome are only in view, the likelihood is that the Court of Chancery was so ill-defined at this period that it would have been highly unlikely for Chancery's intervention after Common Law court judgment to be forbidden.
Conclusion
The effect of the work of the Commission was that equity triumphed, Coke was replaced as Chief Justice of King's Bench and James seemingly won a major victory. However, as is the case in most historical study, things are not that clear. Coke was elected to Parliament in the 1620s and worked to oppose the encroachments of royal power that James had asserted a decade earlier. And, when the great Civil War broke out in the 1640s it was because a lot more people than Coke alone objected to the royal arrogation of additional power.
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