The equity courts of our ancestors

The English Legal system comprises of criminal law and civil law. Civil law encompasses several areas such as common law (established from cases and judgements of the courts), family law, wills and probate, the law of tort, law of contract, law of trusts and equity and so on.

Prior to 1875 different areas of civil law were administered by separate courts: The Court of Chancery, the Court of Exchequer, the Court of Queen’s Bench[1], the Court of Common Pleas and the High Court of Admiralty. There was no Court of Appeal.

Several other courts had existed in the earlier centuries but ceased to exist before 1875: The Court of Augmentation, the Court of Star Chamber, the Court of Requests, the General Eyre, the Court of Wards and Liveries, and the Palace Court. Away from Westminster there were courts in the Palatines (Chester, Durham and Lancaster) and the court of the Duchy of Lancaster which had the same functions as the central Westminster courts, in their own areas.

The common law courts of the Court of King/Queen’s Bench and the Court of Common Pleas established in the 12th Century had, overall only one means of legal redress, that of financial compensation. This would not solve an issue such as trespass or rights of use of land where what was required was an injunction. Common law courts could also not enforce trusts which by the 14th and 15th centuries were growing in use, particularly in connection with land and inheritance. Courts of Equity therefore began to be established to address the faults with the common law system.

Each court developed at different times and had different functions although there was some overlap between several courts in the types of cases they would hear.

The Courts

General Eyre (12th to 14th Century)

This was essentially the senior criminal court dealing with serious crimes (and some civil matters) which were beyond the jurisdiction of the manorial courts. It was a hearing of the King’s Judges who were sent out from London every few years (an average of every seven but often less frequent) to hear civil cases such as trespass, debts and cases against the Crown; and to hear criminal cases of those accused of felonies, that is crimes which held a sentence of imprisonment or death.

The Coroner was a key figure in General Eyre proceedings, presenting the Justices with rolls of inquests into suspicious or unnatural deaths and collating records of the crimes and events taken place between each General Eyre.

The General Eyre was also responsible for overseeing local administration, presentments made by juries and the general behaviour of the community. Failure to comply with the complex and convoluted legal procedures was punished by the levying of large fines both on individuals and entire communities.

The General Eyre were essentially the ‘eyes, ears and enforcers’ of the Crown maintaining law, order and civility across the country.

High Court of Admiralty (1160 to 1875)

Being an Island, England has a long history as a seafaring nation, little is it any wonder that piracy was once a significant problem and that disputes arose in the maritime industry. The High Court of Admiralty was established around 1160 and had both criminal and civil jurisdiction, dealing with criminal matters such as piracy and murder alongside civil matters such as the condemnation and sale of enemy ships (‘prize cases’) including those captured by privateers under Letters of Marque first issued in 1293 and abolished in 1856 (although only usually issued in times of war). 

They also dealt with civil disputes such as collisions between ships and the damage caused including loss and damage to cargo; salvage of ships; seaman’s wages; seizures of ships and cargo by customs officers; and chartering of ships.

From the 17th Century, the criminal jurisdiction of the High Court of Admiralty, particularly in cases of piracy and murder, was transferred to Admiralty sessions at the Old Bailey and in 1834 to the Central Criminal Court. In addition, in the 17th Century ‘prize cases’ were heard in separate Prize Courts.

Appeals in civil dispute cases (other than ‘prize cases’) from the High Court of Admiralty were heard by the High Court of Delegates between 1535 and 1833. The High Court of Delegates[2] was a court in which appeals were made to the Crown in Chancery where they were heard by Commissioners appointed by letters patent under the Great Seal.

Also established from the 17th Century were Vice-Admiral Courts in nineteen maritime counties around England and in the British Colonies which represented the High Court of Admiralty in those areas and dealt with local admiralty cases. Appeals from these courts were to the High Court of Admiralty.

Court of the King/Queen’s Bench (12th Century to 1875)

This along with the Court of Common Pleas was the oldest and highest common law court in England[3], although it did also deal with criminal matters, dealing with matters which either affected the Crown in person on the King/Queen’s peace. They also supervised the lower courts and had a local jurisdiction in Middlesex. The court was presided over by the Lord Chief Justice.  

On the Crown side (criminal law) the court would deal with the most severe crimes such as treason, breaches of the peace, highway robbery, felonies and misgovernment. They would also hear appeal cases; were it was claimed there was an error in a conviction by the lower courts.

On the Plea side (civil law) they would deal again with the more serious cases such as fraud, breach of contract, abuse of power by public officials and writs of habeus corpus (seeking freedom from alleged illegal imprisonment).

Being the highest common law court, there was no means of appeal to the Court’s decision in civil proceedings. Until 1830, the King’s Bench acted as a court of appeal for the Court of Exchequer (see below), Court of Common Pleas, Eyre circuits, Assize courts and local courts.

Its own decisions and records were sent to Parliament to be signed off although from 1585 and the creation of the Court of Exchequer Chamber (see below), King’s Bench decisions could be appealed and following the expansion of the jurisdiction of the Exchequer Chamber in 1830, the King’s Bench ceased to be an appellate court.

Court of Common Pleas (12th Century to 1875)

This court developed in the 12th Century from the King’s Council (Curia Regis) evolving from unlimited jurisdiction to a purely common law court. Typical cases concerned land or debt between individuals, cases which did not concern or affect the Crown. It was presided over by the Lord Chief Justice of Common Pleas and a varying number of puisne justices (who were usually Barristers).

The Court of Common Pleas was gradually superseded by the King’s Bench and Court of Exchequer (see below) because its methods and procedures were much slower than those of the King’s Bench and Exchequer courts. But it maintained its dominance in the jurisdiction of real property disputes until 1875.

Privy Council (14th Century to 1875)

The Privy Council developed from the Curia Regis and was a legislative, judicial and administrative body, essentially an advisory court of the Crown.

The Privy Council was made up of the Crown’s most important officials including ministers such as the Lord Chancellor and Treasurer, bishops and household officials, conducting most of its business through committees (one of which is now the cabinet) which were concerned with matters of foreign affairs, royal grants of land, pardons and tax. Judicial matters of public order such as treason, rebellion, heresy and petitions received from individuals and communities to resolve local matters, were in time, referred to the Court of Star Chambers (see below) and Court of Chancery (see below) respectively. In those matters, the Privy Council remained the final court of appeal through its Judicial Committee, the High Court of Delegates.

Appeals were also heard by the Privy Council from the Admiralty Courts (see above), the Isle of Man, Channel Islands, Crown colonies, dominions and later Commonwealth Countries.

The Court of Chancery (14th Century to 1875)

This was (and remains as a division of the High Court) the oldest equity court in England being established in the 14th Century, originating in the Reign of Richard II (1377-99). The court was presided over by Chancellors, who were originally church men dealing with matters of ‘conscience’ rather than ‘law’, i.e. what was fair and just or ‘equitable’. It was not until the mid-16th Century in the reign of Henry VIII that the first Chancellor with a legal background was appointed, Sir Thomas More.

The Court of Chancery dealt with all manner of cases which either:

  1. Did not come under the jurisdiction of common law, such as cases involving trusts, mortgages, where an injunction or similar order was required to prevent an action or enforce an action, recovery of a debt against a deceased estate; or
  2. Could be dealt with by common law but no appropriate or fair remedy could be obtained, such as a plaintiff being too poor to afford an action in the common law courts, or there was an imbalance of power between the parties (such as a tenant bringing a claim against a landlord); or
  3. Where there was a possibility of oppressive or fraudulent use of the common law because of prejudice within a jury, local corruption or fear of harm from the defendant; or
  4. Where the case involved a plaintiff, who had fraudulently been deprived of monies owed or had been so deprived by duress.

Most cases before both the common law and Chancery courts involved land disputes, the main difference between the types of land cases they dealt with: The common law dealt with ownership of land whilst equity law was concerned with possession of or the right to use land. As many more people had the right to use/possess land (as tenants etc) than owned land, the Chancery Courts became the primary court for civil disputes.

However, there were limits to its jurisdiction. Chancery Courts did not hear cases concerning land or inheritance outside of England and Wales or within the palatinate counties. Neither did they hear inheritance cases which affected the interests of the Crown.

Judgements in the Court of Chancery could be appealed to the House of Lords, save between 1851 and 1875 when there was a Court of Appeal in Chancery.

The Court of Exchequer Chamber (14th Century to 1875)

This was essentially an ‘umbrella term’ used by four separate courts which heard appeals from common law courts – the King’s Bench, the Court of Exchequer (see below) and from 1830, the Court of Common Pleas directly.

Appeals were presided over by four judges belonging to the two courts other than the court the matter had originate in. Where the appeal was to determine an important point of law, twelve common law judges may sit, the matter being referred to the original court once with point of law had been determined.

A judgment of the Exchequer Chamber was usually considered the authoritative statement of the law although further appeal to the House of Lords was possible.

Court of Requests (1483 to 1640’s)

This court was essentially the Court of Chancery for the poor man, also known as ‘the poor man’s court’. It was established to enable those whose cases were below the threshold of £10 set by the Court of Chancery.

The types of cases dealt with included land enclosure disputes, rights over common land, customs of the manor disputes, annuities and marriage contracts. Although its jurisdiction was mainly civil law, it could also hear some minor criminal and admiralty cases.

Its procedures where much simpler and quicker than other courts which made it a popular court, particularly with female litigants who may otherwise be discouraged from bringing a case.

Because of its procedures the court soon became unpopular with common law judges who during the late 16th century became angry at the number of cases being brought before the Court of Requests. The 1590’s was perhaps the start of their downfall when the higher courts began overwriting many of the Court of Request decisions and prevented the Court of Requests from imposing prison sentences.

Court of Star Chamber (1485 to 1641)

This court was established as a committee of councillors to deal with the judicial function of the Privy Council in matters which required the intervention of the Crown (see above). Their role was two-fold: to administer law directly and to supervise other courts.

From 1485 to 1560 the court dealt with both civil and criminal matters; from 1560 it dealt almost exclusively with criminal matters, such as “allegations of official corruption, abuse of legal procedure, alleged perjury, conspiracy, forgery, fraud, trespass, assault or riot”[4].Usually, they were cases involving prominent powerful individuals who were perhaps otherwise thought to be immune from criminal proceedings because the lower courts would not have the power to convict them.

In Tudor times (1485 to 1603) it also dealt with public disorder and rioting, perhaps such crimes were associated with acts of recusancy, heresy and even treason in the turbulent years after the dissolution of the monasteries and establishment of the Church of England.

The court was abolished by an Act of the Long Parliament in 1641 perhaps reflecting the fact that the court particularly concerned itself with and imposed unpleasant punishments on those who were thought to oppose the Crown.

Court of Augmentation (1536 to 1554)

This court was a ‘short-lived’ court created by Henry VIII following the dissolution of the monasteries to resolve land and property issues raised as a result of the sale of monastic land and to ensure the revenue from such sales was received.

The court had its own chancellor, treasurer, lawyers, receivers and auditors. Their main purpose and the collection of rent. Auditors would appraise monastic property and prepare particulars upon which the Court would then grant a warrant allowing the sale of the property, the Court being responsible for collecting the income from the sale.

Henry VIII established this court rather than having to go through the complex, lengthy procedures of the Court of Exchequer. Following his death in 1547 the court continued until it was abolished by Mary I in 1554 with the Court of Exchequer taking over its duties. This is perhaps not surprising given her attempt to reverse the Reformation.

Court of the Exchequer (16th Century to 1875)

The Court of Exchequer was originally established to oversee the collection of taxes but soon developed into an equity law court dealing with any cases where, it was accepted for the purposes of the law, it could be argued that the case affected or may affect the plaintiff’s ability to pay any debts or taxes he may owe to the Crown thus affecting the Crown’s revenue. Until 1649 “litigants had to have some genuine connection with the royal revenue, as officials or tenants of the Crown”[5].

This logic meant that virtually anyone could bring a claim in the Court of Exchequer and plaintiffs had a choice of bringing their case in either the Court of Chancery or Exchequer.

A plaintiff may choose to start proceedings in the Court of Exchequer instead of Chancery because it was thought the process in the Exchequer was quicker. However due to its popularity, overtime “its advantages disappeared, and the court became over-burdened”. Thus, from 1841 the equity cases were transferred to the Court of Chancery.

This court was presided over by four Barons who decided cases collectively hearing disputes over title of land, tithes, wills, trusts, mortgages, bonds, manorial rights and debts.

Court of Wards and Liveries (16th Century to 1660)

This court was another court established by Henry VIII essentially as another ‘easier’ means of revenue than the Court of Exchequer. Established as a result of statutes of 1540 and 1542, its role was to supervise and administer the estates of a tenant-in-chief following his death where the heir was a minor (21 for a boy, 14 for a girl) as well as the estates of lunatics. Such minors and lunatics were made ‘wards of court’. The Court was not only responsible for the financial management of the estate and collecting feudal dues, they were also responsible for the care and marriage of young heirs.

Wardships were frequently sold either to the next of kin or the highest bidder. They may also have been given to individuals as a reward for services.

The Court of Ward and Liveries was abolished in 1660 although feudal tenures had been abolished 15 years earlier, in 1645.

Palace Court (1630 to 1849)

The Palace Court was a minor civil law court which sat in Southwark with jurisdiction limited to within 12 miles of the Palace of Westminster, mainly hearing small debt claims with a value of below £5 (raised to £10 by the Frivolous Arrests Act 1725 and to £20 by the Imprisonment for Debt Act 1827), superior courts heard cases above this value. The figure of £5 was raised to £10 by the Frivolous Arrests Act 1725 and to £20 by the Imprisonment for Debt Act 1827. Its lower limit for the value of claims was 40 shillings. This court was abolished in 1849.

The civil court system since 1875 has been much simplified comprising: The High Court of Justice in London with law administered on a local level in County Courts; the Court of Appeal; and the Supreme Court of Judicature.  There are then the appeal courts: The Court of Appeal, the Privy Council (limited jurisdiction[6]) and the UK Supreme Court.


[1] As this was during the reign of Queen Victoria; known as King’s bench during the reign of a King

[2] So named by Privy Council Appeals Act 1832 being the Judicial Committee of the Privy Council (see below)

[3] For which there are records

[4] Herber Ancestral Trails page 563

[5] Moore Tracing your Ancestors through the Equity Courts page 9

[6] They hear appeals from UK overseas territories and Crown dependencies and those Commonwealth countries that have retained the appeal to Her Majesty in Council or, in the case of Republics, to the Judicial Committee.

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