Catalogue description Records of Chancery: Common Law Side

There are references to Chancery as a court (curia) before the end of the thirteenth century, but it was at that date only beginning to be a court in any judicial sense. However, the chancellor had two responsibilities which touched on a judicial role: the administration of his department of clerks, at a time when the other great institutions of government, the Exchequer, and the common law courts, were reserving to themselves jurisdiction over their own officers; and the handling of petitions to the king to do right in cases of injustice (normally between subject and subject, but not infrequently claims against the Crown).

In both these circumstances the chancellor, in Chancery, began to exercise a common law jurisdiction which, though never very extensive, was nonetheless both important and long-lived. Because Chancery (in common with the other common law courts) used Latin as the written language for these types of proceedings until 1733, rather than the French and English used in equity proceedings, these common law proceedings were characterised as the 'Latin Side' of the court.

The areas of Chancery's common law jurisdiction were very varied. Probably the original, and generally the smallest, common law business involved personal actions brought by, or against, officers of the court in their private capacities. They could claim the privilege of having their cases heard in their own court, although this was somewhat diluted because, as in all common law cases heard in Chancery, issues of fact (as distinct from issues of law) had to be referred to the court of King's Bench because the chancellor had no power to summon a jury.

It was in issues of law that Chancery's common law jurisdiction was most commonly invoked, in relation to its own administrative activities, most of which arose from the work of the clerks of the Petty Bag. Challenges to the findings of inquisitions post mortem, which could be traversed by interested parties, often required decisions on the legal status of estates. Queries on the legality of royal grants of estates or offices also came within the cognisance of Chancery, as the department from which the originating documents were issued; and, by extension, pleas relating to disputes between holders of royal grants and others claiming against them could also be heard. It was in Chancery that proceedings were brought to annul or repeal letters patent, usually under writ of scire facias requiring the grantee to appear to defend the grant or lose it by default; and the same procedure was used (until the abolition of feudal tenures in 1660) to determine cases affecting royal wards or dower.

The common law side was also used to seek redress against the Crown, since the king could not be sued in his own courts; such actions were normally brought by a petition of right (monstrans de droit) which, though provided as a form of writ by statute, was technically a petition for royal grace rather than a suit against the king. These were usually cases in which the plaintiff alleged a pre-existing right to lands or office which, through the default of an intervening tenant, might otherwise revert to the Crown.

In the early generations of this jurisdiction there is no ascertainable allocation of the administrative business to any particular department of Chancery, but by the fifteenth century it was clearly seen as a function of the clerks of the Petty Bag, and from 1485 onwards the common law proceedings are records of that office. The jurisdiction declined in the seventeenth and eighteenth centuries, and passed to the Supreme Court of Judicature in 1875.