Bill of Middlesex
Encyclopedia
The Bill of Middlesex was a legal fiction
used by the Court of King's Bench
to gain jurisdiction over cases traditionally in the remit of the Court of Common Pleas
. Hinging on the King's Bench's remaining criminal jurisdiction over the county of Middlesex
, the Bill allowed it to take cases traditionally in the remit of other common law courts by claiming that the defendant had committed trespass in Middlesex. Once the defendant was in custody, the trespass complaint would be quietly dropped and other complaints (such as debt or detinue
) would be substituted. Part of a large reform movement to prevent equitable courts such as the Court of Chancery
undermining their business, the Bill was far cheaper and faster than the older equivalents used by the Chancery and Common Pleas, leading to a drop in their business and an increase in that of the King's Bench. As such, the Chancery issued injunctions in an ineffective attempt to prevent its use. The Bill was finally abolished by the Uniformity of Process Act 1832.
As a result of reforming actions such as the Bill of Middlesex, the Common Pleas became increasingly conservative and resistant to King's Bench changes because of the impact they had on the business of the Common Pleas. This was best emphasised by Slade's Case
, a struggle between the old and new forms of suing for breach of contract; although an equilibrium between the common law courts was finally reached, it eventually led to their dissolution with the Supreme Court of Judicature Act 1873
, and merger into a single High Court of Justice
.
courts in England and Wales from the 13th century until their dissolution in 1875. The Common Pleas' jurisdiction was over "common pleas," cases where the king had no interest. This in practice meant cases between subject and subject, including all actions taken under praecipe
to recover debts or property, which made up the vast majority of civil cases. The Jurisdiction of the King's Bench, on the other hand, was over "pleas of the crown"; cases which involved the king in some way. With the exception of revenue matters, which were handled by the Exchequer of Pleas
, the King's Bench held exclusive jurisdiction over these cases. Crucially, it retained some criminal jurisdiction over all cases in Middlesex
, the county where it sat.
During the 15th century, the traditional superiority of the common law courts was challenged by ecclesiastical courts and the equitable jurisdiction of the Lord Chancellor
, exercised through the Court of Chancery. These courts were more attractive to the common lawyers because of their informality and the simple method used to arrest defendants. The bills of complaint
and subpoena
used by the Chancery made court procedure far faster, and from 1460 to 1540 there was a steep decline in the number of cases in the common law courts, coinciding with a sharp increase in cases in the newer courts. This loss of business was quickly recognised by the King's Bench, which was urged by Fairfax J
in 1501 to develop new remedies so that "subpoenas would not be used as often as they are at present". From 1500 the King's Bench began reforming to increase its business and jurisdiction, with the tide finally turning in their favour by 1550. The King's Bench significantly reformed its mode of practice in response, and one of the developments was the Bill of Middlesex.
would have to be issued, with different writs depending on the issue. If A wished to sue B for trespass, debt and detinue
, the court would have to issue an individual writ for each action, with associated delays and costs for A, and then ensure that B appeared in court. Bills, on the other hand, were traditionally used against court officials and the court's prisoners; as such, the defendant was assumed to already be in the court's custody and presence in court was unnecessary. Thus a legal fiction
arose; if A wished to sue B for trespass, debt and detinue, he would have a writ issued for trespass. B would be arrested as a result, and the detinue and debt actions undertaken by bill after he had been detained. Eventually it became even more fictitious; if A wished to sue B merely for debt and detinue, a trespass writ would be obtained and then quietly dismissed when B was detained in custody. This was originally undertaken through getting a writ of trespass from the Chancery, but eventually a shorter workaround was used; as the King's Bench retained criminal jurisdiction over Middlesex, the trespass (which was fictitious anyway) would be said to have occurred in that county, allowing the King's Bench to issue its own bill of arrest. This became known as the Bill of Middlesex, and undermined the jurisdiction of the Court of Common Pleas, which normally dealt with such civil cases.
. Historically, cases now covered by the Bill of Middlesex had been handled by the Common Pleas, using a specialist writ drafted by the Chancery. This writ was very expensive, and as such brought large amounts of revenue to the Chancery and the Common Pleas. Costs varied depending on the amount of money being claimed from the defendant; it was 6 shillings and 8 pence to claim £40, 10 shillings for £100, and £5 for £1,000. In return, the Chancery began to bring injunctions against those who claimed Bills of Middlesex, "whereby [the judges] are hindered of their fine which should have been paid in [the Chancery] upon the original of the said case". These injunctions were only temporary; "once the fine had been paid there was nothing to prevent a continuation of proceedings in King’s Bench". Relatively few injunctions were issued, and thanks to technical loopholes "it was a weapon too infrequently used, and too easily parried" to have any long-term impact. The issuing of injunctions finally ended in 1590, after an ordinance passed by James I
increased the costs of King's Bench proceedings. The Bill of Middlesex itself was finally abolished by the Uniformity of Process Act 1832.
As a longer term and more significant development, the Bill of Middlesex was one of several revolutionary developments by the King's Bench met with a conservative reaction from the Common Pleas, fearful of losing its own caseload. The troubles during this period are best illustrated by Slade's Case
. Under the medieval common law, claims seeking the repayment of a debt or other matters could only be pursued through a writ of debt in the Common Pleas, a problematic and archaic process. By 1558 the lawyers had succeeded in creating another method, enforced by the Court of King's Bench, through the action of assumpsit
, which was technically for deceit. The legal fiction
used was that by failing to pay after promising to do so, a defendant had committed deceit, and was liable to the plaintiff. The conservative Common Pleas, through the appellate court
the Court of Exchequer Chamber, began to overrule decisions made by the King's Bench on assumpsit, causing friction between the courts. In Slade's Case, the Chief Justice of the King's Bench, John Popham, deliberately provoked the Common Pleas into bringing an assumpsit action to a higher court where the Justices of the King's Bench could vote, allowing them to overrule the Common Pleas and establish assumpsit as the main contractual action. After the death of Edmund Anderson, the more activist Francis Gawdy
became Chief Justice of the Common Pleas
, which briefly led to a less reactionary and more revolutionary Common Pleas.
An equilibrium between the courts was eventually reached, but the result was three common law courts (the Exchequer of Pleas, Common Pleas and King's Bench) with near-identical jurisdictions. By the 18th century, it was customary to speak of the "twelve justices" of the three courts, not distinguishing them, and assize cases were shared equally between them. In 1828, Henry Brougham
complained in Parliament that
The result was the Supreme Court of Judicature Act 1873
, which unified the Common Pleas, Exchequer, King's Bench and Court of Chancery into one body, the High Court of Justice
, with the divisions between the courts to remain. Thus, while the reform epitomised by the Bill of Middlesex aided the King's Bench in the short term, it eventually led to its dissolution.
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
used by 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...
to gain jurisdiction over cases traditionally in the remit 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...
. Hinging on the King's Bench's remaining criminal jurisdiction over the county of Middlesex
Middlesex
Middlesex is one of the historic counties of England and the second smallest by area. The low-lying county contained the wealthy and politically independent City of London on its southern boundary and was dominated by it from a very early time...
, the Bill allowed it to take cases traditionally in the remit of other common law courts by claiming that the defendant had committed trespass in Middlesex. Once the defendant was in custody, the trespass complaint would be quietly dropped and other complaints (such as debt or detinue
Detinue
In tort law, detinue is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor...
) would be substituted. Part of a large reform movement to prevent equitable courts such as 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...
undermining their business, the Bill was far cheaper and faster than the older equivalents used by the Chancery and Common Pleas, leading to a drop in their business and an increase in that of the King's Bench. As such, the Chancery issued injunctions in an ineffective attempt to prevent its use. The Bill was finally abolished by the Uniformity of Process Act 1832.
As a result of reforming actions such as the Bill of Middlesex, the Common Pleas became increasingly conservative and resistant to King's Bench changes because of the impact they had on the business of the Common Pleas. This was best emphasised by Slade's Case
Slade's Case
Slade's Case was a case in English contract law that ran from 1596 to 1602. Under the medieval common law, claims seeking the repayment of a debt or other matters could only be pursued through a writ of debt in the Court of Common Pleas, a problematic and archaic process...
, a struggle between the old and new forms of suing for breach of contract; although an equilibrium between the common law courts was finally reached, it eventually led to their dissolution with 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...
, and merger into 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...
.
Background
The Court of Common Pleas and Court of King's Bench were two of the central common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
courts in England and Wales from the 13th century until their dissolution in 1875. The Common Pleas' jurisdiction was over "common pleas," cases where the king had no interest. This in practice meant cases between subject and subject, including all actions taken under praecipe
Praecipe
In law in the United States, a praecipe is document that either commands a defendant to appear and show cause why an act or thing should not be done; or requests the clerk of court to issue a writ and to specify its contents...
to recover debts or property, which made up the vast majority of civil cases. The Jurisdiction of the King's Bench, on the other hand, was over "pleas of the crown"; cases which involved the king in some way. With the exception of revenue matters, which were handled by the Exchequer of Pleas
Exchequer of pleas
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...
, the King's Bench held exclusive jurisdiction over these cases. Crucially, it retained some criminal jurisdiction over all cases in Middlesex
Middlesex
Middlesex is one of the historic counties of England and the second smallest by area. The low-lying county contained the wealthy and politically independent City of London on its southern boundary and was dominated by it from a very early time...
, the county where it sat.
During the 15th century, the traditional superiority of the common law courts was challenged by ecclesiastical courts and the equitable jurisdiction 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...
, exercised through the Court of Chancery. These courts were more attractive to the common lawyers because of their informality and the simple method used to arrest defendants. The bills of complaint
Complaint
In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons that the filing party or parties In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties In...
and subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
used by the Chancery made court procedure far faster, and from 1460 to 1540 there was a steep decline in the number of cases in the common law courts, coinciding with a sharp increase in cases in the newer courts. This loss of business was quickly recognised by the King's Bench, which was urged by Fairfax J
Guy Fairfax
Sir Guy Fairfax , was an English judge.Fairfax was of a Yorkshire family, and third son of Richard Fairfax of Walton, by his wife, Anastasia, daughter of John Carthorpe. He is mentioned in 1421 as seised of the manor of Hameldene, being then very young. From his father he inherited the manor of...
in 1501 to develop new remedies so that "subpoenas would not be used as often as they are at present". From 1500 the King's Bench began reforming to increase its business and jurisdiction, with the tide finally turning in their favour by 1550. The King's Bench significantly reformed its mode of practice in response, and one of the developments was the Bill of Middlesex.
Bill
The Bill of Middlesex exploited the King's Bench's remaining criminal jurisdiction over Middlesex. Prior to the introduction of bills, a writWrit
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
would have to be issued, with different writs depending on the issue. If A wished to sue B for trespass, debt and detinue
Detinue
In tort law, detinue is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor...
, the court would have to issue an individual writ for each action, with associated delays and costs for A, and then ensure that B appeared in court. Bills, on the other hand, were traditionally used against court officials and the court's prisoners; as such, the defendant was assumed to already be in the court's custody and presence in court was unnecessary. Thus a legal fiction
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
arose; if A wished to sue B for trespass, debt and detinue, he would have a writ issued for trespass. B would be arrested as a result, and the detinue and debt actions undertaken by bill after he had been detained. Eventually it became even more fictitious; if A wished to sue B merely for debt and detinue, a trespass writ would be obtained and then quietly dismissed when B was detained in custody. This was originally undertaken through getting a writ of trespass from the Chancery, but eventually a shorter workaround was used; as the King's Bench retained criminal jurisdiction over Middlesex, the trespass (which was fictitious anyway) would be said to have occurred in that county, allowing the King's Bench to issue its own bill of arrest. This became known as the Bill of Middlesex, and undermined the jurisdiction of the Court of Common Pleas, which normally dealt with such civil cases.
Impact
As a result of the procedural changes, including the Bill of Middlesex, the King's Bench's business rose tenfold between 1560 and 1640. The simplicity and low cost of this procedure drove much business to the King's Bench, which had a negative impact on the Court of Common Pleas and Court of ChanceryCourt 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...
. Historically, cases now covered by the Bill of Middlesex had been handled by the Common Pleas, using a specialist writ drafted by the Chancery. This writ was very expensive, and as such brought large amounts of revenue to the Chancery and the Common Pleas. Costs varied depending on the amount of money being claimed from the defendant; it was 6 shillings and 8 pence to claim £40, 10 shillings for £100, and £5 for £1,000. In return, the Chancery began to bring injunctions against those who claimed Bills of Middlesex, "whereby [the judges] are hindered of their fine which should have been paid in [the Chancery] upon the original of the said case". These injunctions were only temporary; "once the fine had been paid there was nothing to prevent a continuation of proceedings in King’s Bench". Relatively few injunctions were issued, and thanks to technical loopholes "it was a weapon too infrequently used, and too easily parried" to have any long-term impact. The issuing of injunctions finally ended in 1590, after an ordinance passed by 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...
increased the costs of King's Bench proceedings. The Bill of Middlesex itself was finally abolished by the Uniformity of Process Act 1832.
As a longer term and more significant development, the Bill of Middlesex was one of several revolutionary developments by the King's Bench met with a conservative reaction from the Common Pleas, fearful of losing its own caseload. The troubles during this period are best illustrated by Slade's Case
Slade's Case
Slade's Case was a case in English contract law that ran from 1596 to 1602. Under the medieval common law, claims seeking the repayment of a debt or other matters could only be pursued through a writ of debt in the Court of Common Pleas, a problematic and archaic process...
. Under the medieval common law, claims seeking the repayment of a debt or other matters could only be pursued through a writ of debt in the Common Pleas, a problematic and archaic process. By 1558 the lawyers had succeeded in creating another method, enforced by the Court of King's Bench, through the action of assumpsit
Assumpsit
Assumpsit is a form of action at common law for the recovery of damages caused by the breach or non-performance of a simple contract, either express or implied, and whether made orally or in writing....
, which was technically for deceit. The legal fiction
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
used was that by failing to pay after promising to do so, a defendant had committed deceit, and was liable to the plaintiff. The conservative Common Pleas, through the appellate court
Appellate court
An appellate court, commonly called an appeals court or court of appeals or appeal court , is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal...
the Court of Exchequer Chamber, began to overrule decisions made by the King's Bench on assumpsit, causing friction between the courts. In Slade's Case, the Chief Justice of the King's Bench, John Popham, deliberately provoked the Common Pleas into bringing an assumpsit action to a higher court where the Justices of the King's Bench could vote, allowing them to overrule the Common Pleas and establish assumpsit as the main contractual action. After the death of Edmund Anderson, the more activist Francis Gawdy
Francis Gawdy
Sir Francis Gawdy QS was a British judge. He was the third son of Thomas Gawdy, and was baptised Thomas Gawdy, as were his two older half-brothers. Francis then had his name changed at his Confirmation, establishing legal precedent that a name given at baptism could be changed at confirmation...
became Chief Justice of the Common Pleas
Chief Justice of the Common Pleas
The Court of Common Pleas, also known as the Common Bench or Common Place, was the second highest common law court in the English legal system until 1880, when it was dissolved. As such, the Chief Justice of the Common Pleas was one of the highest judicial officials in England, behind only the Lord...
, which briefly led to a less reactionary and more revolutionary Common Pleas.
An equilibrium between the courts was eventually reached, but the result was three common law courts (the Exchequer of Pleas, Common Pleas and King's Bench) with near-identical jurisdictions. By the 18th century, it was customary to speak of the "twelve justices" of the three courts, not distinguishing them, and assize cases were shared equally between them. 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...
complained in Parliament that
The result 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...
, which unified the Common Pleas, Exchequer, King's Bench and Court of Chancery into one body, the 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...
, with the divisions between the courts to remain. Thus, while the reform epitomised by the Bill of Middlesex aided the King's Bench in the short term, it eventually led to its dissolution.