The origin of Sub poena


Just as the bill or petition was originally a prayer for administrative intervention, so the next step in the process, the sub poena, was also drawn from administrative origins. This threat of a penalty had been used by the government to stimulate the activity of officials as early as 1232; even the common law courts occasionally used a sub poena clause; in 1302 Justice Berrewyk ordered a party to bring an infant before the court “under the pain of one hundred pounds”.

In the middle of the fourteenth century the Council produced an effective writ by adding the clause of sub poena to the somewhat older writ of certis de causis, which was in effect a simple summons to appear before the Council “for certain reasons”. Quibusdam certis de causis is at least as old as 1346, and closely resembles the summons sent to a peer on the calling of a parliament. The great objection which common lawyers made to writs in this form was their failure to mention the cause of the summons. It was a principle of the common law that a party should not be brought into court without due notice of the matters which he would have to answer, and there is no doubt that the sub poena gave no such warning. Protests in parliament became frequent.

On the other hand, it must be remembered that in most cases the party must have known the real reason for his summons, for litigation as a rule is preceded by private negotiations, and in any case, having appeared, he was given ample time to prepare his defence. The best justification, however, for the Chancery’s practice, must no doubt be sought in the fact that the common law was a warning example of the mischief which might result if a plaintiff were compelled to state in detail his cause of action in the originating writ, with the almost inevitable consequence that he was unable to make any change once the writ was issued. It was, no doubt, the deliberate policy of the Chancery to avoid this situation, and this policy is constantly adhered to, as witness the freedom with which Chancery pleadings could be amended.


Persons who desired extraordinary relief addressed themselves to the King and his Council. As the ultimate source of jurisdiction the King had long been accustomed to receive complaints from persons who alleged that they were unable, in law or in fact, to obtain redress in the usual courts. It has been suggested1 that Edward I was glad to encourage these approaches, but was compelled by their numbers, and by the need of checking the handling of them by his subordinates, to insist that they be presented in writing, as petitions. In doing this, he was following papal practice, and like the popes, soon found it necessary to devise a procedure by which the easy cases were dispatched to the departments and dealt with by officials, while difficult matters came before him and the Council, in order to prevent the work of Parliament being obstructed by their number. It soon became normal for large panels of “receivers” and “triers” of petitions to be set up at the beginning of every parliament. When Parliaments were less frequent, it seems that these applications (which continued to increase rapidly during the later fourteenth century), finally constituted a large and steady charge upon the Council’s time.

Just as one part of the local enforcement problem was attacked by setting up the new institution of justices of the peace for local matters, so the deficiencies of the central courts were being supplied by the King’s Council. For a time, Parliament had occasionally served as a court of royal discretion, but by the middle of the fourteenth century Parliament itself had become an institution which to some extent could be regarded as separate from the Council.3 The Council nevertheless remained in its ancient position of a small group of officials, household officers, clerks and advisers, continually attendant upon the King, and therefore exercising in his name that residuum of discretion and equity which was inseparable from the royal person. As Parliament became more settled in its powers, petitioners who sought extraordinary relief addressed themselves to the Council; and in any case, even if their petitions had been presented in Parliament, it was most likely that it would be the Council which actually passed upon them.

Indeed, a variety of addresses occur in the petitions of the middle and later fourteenth century. Sometimes they are sent to the King, sometimes to the Council or the Parliament, and sometimes to the Chancellor or some household official. In any case it was the Council which generally took action, irrespective of the address upon the petition. The administrative and political duties of the Council were already exceedingly heavy, and the mass of petitions which streamed in every day immensely increased its task. Then, too, besides petitions, the Council itself would sometimes initiate proceedings of a semi-judicial character by calling upon some local magnate who was too powerful to be reached by the ordinary courts, to appear before the Council under the penalty (sub poena) of a sum of money to answer for his misdeeds—which were  usually some form of oppression or disorder. The Council therefore found itself burdened with a growing mass of semi-judicial business; some of it could be transferred to the courts of common law, but some of it had to be considered by the Council itself, either because unusual relief was necessary, or because the parties were too influential to be amenable to the ordinary process of the courts. The problem arose of how to deal with this business. The same solution was found as in previous cases. A routine was established and officials were assigned for its working, only in this case an already existing institution, the Chancery, was used to carry out these new duties.

In 1415 the writ sub poena was denounced as a subtlety invented in the previous reign by John Waltham, and the examination of parties and witnesses without lawyers and without records and the use of civil and canon law forms were again vigorously denounced. The petition was bluntly rejected by the King. Another in 1421 which alleged that a sub poena was not “due process” was likewise refused.

Source: Theodore Frank Thomas Plucknett, A Concise History of the Common Law [1956] 

%d bloggers like this: