The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• A Table of British Regnal Years
• Select Essays In Anglo - American Legal History: Volume Ii History of Particular Topics
• Part I.: Sources
• 22.: Heinrich Brunner, the Sources of English Law 1
• 23.: Frederick William Maitland, Materials For the History of English Law 1
• 24.: William Searle Holdsworth, the Year Books 1
• 25.: Van Vechten Veeder, the English Reports, 1537-1865 1
• Appendix A: Edward Jenks, List of Principal Sources of Mediaeval European Law 1
• Supplementary List of References 1
• Appendix B: Paul Samuel Reinsch, a Short Bibliography of American Colonial Law 1
• 26.: The Commissioners, an Historical Survey of Ancient English Statutes 1
• Part II.: The Courts, Their Organization and Jurisdiction
• 27.: Frederick Andrew Inderwick, the Common Law Courts As Established Under Edward I 1
• 28.: George Spence, the History of the Court of Chancery 1
• 29.: William Searle Holdsworth, the Ecclesiastical Courts and Their Jurisdiction 1
• 30.: Thomas Lambert Mears, the History of the Admiralty Jurisdiction 1
• Part III.: Procedure
• 31.: James Bradley Thayer, the Older Modes of Trial 1
• 32.: Sir Frederick Pollock, the King’s Peace In the Middle Ages 1
• 33.: Hubert Hall, the Methods of the Royal Courts of Justice In the Fifteenth Century 1
• 34.: Sir James Fitzjames Stephen, Criminal Procedure From the Thirteenth to the Eighteenth Century 1
• 35.: Edward Jenks, the Story of the Habeas Corpus 1
• 36.: Frederick William Maitland, the History of the Register of Original Writs 1
• 37.: Luke Owen Price, an Action At Law In the Reign of Edward III. 1
• 38.: William Searle Holdsworth, the Development of Written and Oral Pleading 1
• 39.: Charles Mcguffey Hepburn, the Historical Development of Code Pleading In America and England 1
• 40.: John Henry Wigmore, a General Survey of the History of the Rules of Evidence 1
• Part IV.: Equity
• 41.: Oliver Wendell Homes, Early English Equity 1
• 42.: Luke Owen Price, Common Law and Conscience In the Ancient Court of Chancery 1
• 43.: James Barr Ames, the Origin of Uses and Trusts 1
• 44.: Christopher Columbus Langdell, the Development of Equity Pleading From Canon Law Procedure 1
• 45.: Solon Dyke Wilson, Courts of Chancery In the American Colonies 1
• 46.: Sidney George Fisher, the Administration of Equity Through Common Law Forms In Pennsylvania. 1

27.

THE COMMON LAW COURTS AS ESTABLISHED UNDER EDWARD I1

By Frederic Andrew Inderwick2

IN 1196, under Richard I., there were numerous appointments of judges to the Curia Regis, including those of Hubert Walter, Archbishop of Canterbury, the Bishops of London and Rochester, and several laymen; and similar appointments continued to be made, both to the Curia Regis and to the Justices Itinerant, until the 52nd Henry III. (ad 1268), when the system was again altered.

In the meantime, however, dissatisfaction had arisen with the proceedings of the Curia Regis itself. This Court followed the King not only theoretically but actually. Where the King went to hold a Court there also went the Curia in both departments; the Curia Regis with the Justiciar, the Chancellor and the Justices, and the Exchequer with the Treasurer, the Chamberlain, the officers and the treasure. And thus the King in his progresses was accompanied not only by his great and smaller officers of State, but by carts and wagons loaded with bullion,3 with gold and silver plate, with jewels, and all the personal treasures of the King not deposited in the Abbey or in the treasury at Winchester. Numerous hanapers, or hampers of plaited rushes or straw, formed part of the baggage, and held the writs, the records, and the tallies necessary for carrying on the business of the courts. And thither in the wake of the King followed the suitors whose plaints waited determination in the King’s Court. These perambulations of the monarch reached their culminating point in the reign of King John. When he was out of the kingdom, Archbishop Hubert Walter acted as Chancellor and sat in the King’s place at Westminster. When he was at home, he was in constant progress through the country, and in the year 1211 it is said that he sat at no less than twenty-four separate towns.1 To all these resting-places the unhappy suitors followed, or lost the chance of their causes being tried. And accordingly it was provided, by the 17th clause of Magna Carta, that for the future, common pleas, or causes between party and party, as distinguished from Crown and Revenue cases, should not follow the King in his wanderings, but should be heard and determined in some ascertained and well-known place. “Communia placita non sequantur curiam nostram, sed teneantur in aliquo loco certo.” This ascertained place was Westminster Hall, and the Court of Common Pleas retained the name, down to its abolition as a separate jurisdiction in 1875, of The Court of Common Pleas at Westminster.

Here then we have the origin of the Court of Common Pleas, for although that Court was not actually constituted at the time of King John, nor was there any prohibition against common pleas being heard by the Curia and by the Exchequer, as had hitherto been the practice, yet the provision of the Charter involved the continued retention in London, or in the ascertained place to be afterwards fixed, of a sufficient number of justices and barons to compose a court for the hearing of the subjects’ causes. And thus it frequently happened that one division of the Curia was sitting at Westminster while another division was travelling about the country, either with or without the King, as the case might be; the Justiciar being sometimes with the judges in the county and sometimes with the judges in London.1 Numerous instances also occurred where, the Justiciar being absent, questions of law were left for him to decide on his arrival, or were sent to be discussed before him at Westminster. One of the questions so reserved was whether on proof of his ancestor’s absence for twenty years, an heir at law could enter upon the land of the missing owner, and take possession of the freehold, on the presumption that his ancestor was dead.2

Henry III. confirmed the Charter of his father in this as in other respects, and instituted a Court of Common Bench with duly qualified justices to sit perpetually at Westminster to hear causes between parties and to have exclusive jurisdiction in regard to certain claims. It had no criminal jurisdiction, did not follow the Sovereign in his peregrinations, and gradually absorbed all the private business of the country. In 1235, Thomas de Muleton3 was appointed Chief Justice of the Common Bench, being the first Chief Justice of either of the Courts of Common Law, and from this period personal actions gradually ceased to be heard either in the Curia Regis or in the Exchequer. To enforce this procedure Edward I.,4 after the abolition of the Curia, expressly declared that the hearing of common pleas in the Exchequer or elsewhere out of the Common Bench, was contrary to the provisions of the Great Charter.

The natural dissatisfaction which was felt with the Curia Regis rapidly extended to the appointment of Chief Justiciar. The position of this great officer of State was that of a politician and a soldier as well as, or perhaps more than, that of a creator and administrator of the law. Many statesmen of great eminence had held the post. Odo of Bayeux was the first, Hubert de Burgh was among the last. Henry, Duke of Normandy, afterwards Henry the Second, during the later years of King Stephen, was Chief Justiciar and sat regularly in the court. Henry III. also sat in person and delivered a judgment, which is reported.1 Ranulph de Glanvil, and possibly Henry de Bracton, also occupied the post of Chief Justiciar. Latterly, however, the office had fallen into less competent hands, and when the latter years of King Henry III. showed the scandal of two Chief Justiciars, one appointed by the king and one appointed by the barons, professing to exercise judicial functions at one and the same time as they were leading armies against each other in the field, it was felt that the moment had arrived when the office, with its inconsistent combination of statesman, soldier, lawgiver, and judge, should be brought to an end. Philip Bassett and Hugh le Despencer were the two so contending, and after the death of le Despencer on the field of Evesham, in 1265, and the subsequent resignation of Bassett, the King’s nominee, the Curia Regis and the Chief Justiciar ceased to exist.

The Curia Regis had thus been the Royal Court of England for a period of about 200 years. It sprang into being when the object of the Conqueror was to establish an autocratic power and to stifle the existing system of self-government, and it came to an end when the combination of the Barons had curbed the power of the Crown, and the growth of a National Parliament had re-asserted in a modified form the antient rights of self-government. From that time to the present the judicial has been definitely severed from the military and executive power, and succeeding Chief Justices have been lawyers and lawyers alone.

The accession of Edward I. (ad 1272-1307) found the Courts of King’s Bench, Common Bench and Exchequer sitting in Westminster Hall. No Act of Parliament or royal edict had abolished the Curia Regis, but it had come to an end, like many another English institution, because it had done its work and was no longer suitable to the times. The Constitutions of Clarendon (ad 1165) had recognised the Curia Regis as a tribunal of common resort,2 where the Bishops sat with the Justiciars and the Barons until cases of blood required them to depart. But since then its jurisdiction as a Supreme Court had been much impaired. The distribution of its business over the country, through the appointment of itinerant justices, who sat in their several counties as justices of the Curia Regis,1 had tended to this result, and at the same time the prerogative of the Chief Justiciar had been gradually encroached upon by the growing power of the Chancellor as a lawyer and a statesman. Its end was gradual, and the exact moment of its termination cannot be ascertained, for it actually overlapped the new system. The Justiciar and his colleagues held office for some years after the description of the King’s justices had been changed from the general appellation of justiciars to the limited title they still hold of justices assigned to hold pleas, coram rege, before the King.

The courts thus established, which from that time forward for six hundred years, under the familiar title of the Courts of Common Law, transacted the business of the country, reflected the condition of the English people at the period of their institution. The Normans, who had invaded but not overrun the country, impressed upon its surface their thoughts and traditions; but the Norman Inquisition had only emphasized the Anglo-Saxon practice of open trial by freemen and neighbours. Inter-marriages and territorial settlements had, also, by this time amalgamated the two races into one, so that there was no longer any recognised distinction between Norman and Anglo-Saxon, but all were equally English. And though the Norman blood was thought the more noble, and those families whose ancestors came over with the Conqueror regarded themselves as of a more patrician class, yet the great mass of the people were still of the Anglo-Saxon strain, whose manners and customs still survived. The language of the country was also in a state of transition—Latin was specially that of the learned, English was that of the common people, while French was gradually coming into use by all classes. The polyglot jargon of the courts and the law books belongs to a later date. Thus though the Norman system of Chief Justices and trained lawyers as Presidents of courts was accepted as safe and satisfactory in principle, yet the Anglo-Saxon method of local trials and the judgment of neighbours remained undisturbed, and was recognised as an essential feature of the new procedure. As the county in the Anglo-Saxon times was the unit for judicial administration, so also it remained under the Normans. And as the shire-gemote, formerly presided over by the Sheriff, who convened the suitors and arranged the details of business, was held twice in the year as the Supreme Court of the district for the trial of causes and of criminals, so also under the new system the county remained the unit, the Sheriff summoned the jurors and witnesses and arranged the business, and twice in the year the King’s justices, superseding the Sheriff in his office of President, visited each county and tried all causes and offences arising within its limits. Hither also came the witnesses and the suitors, collected from the county, who judged the law and the facts, and found their verdicts from their knowledge of the party’s reputation, and of the circumstances into which they had to inquire.

In the 52nd Henry III. (ad 1268) Robert de Brus (grandfather of Robert the Bruce, King of Scotland) was appointed the first Chief Justice of the King’s Bench. He was a man of noble lineage and of good fortune, who was a lawyer by education and by profession. He had acted for some years as a Justiciar, and had gone several circuits. His position, however, as Chief Justice was limited to the administration of justice: he was no longer a statesman or a viceroy, and the salary, which was 1,000 marks when the Chief of the Court was also Chief Justiciar, was reduced to 100 marks when the office was solely that of Chief Justice of the King’s Bench.1 In other words, £15,000 a year to the Chief Justiciar was reduced to £1,500 a year to the Chief Justice.

The Courts accordingly sat as the King’s Bench, the King’s Exchequer, and the Common Bench, otherwise the Common Pleas. The King’s Bench was presided over by the Lord Chief Justice with certain puisne or assistant judges, the Exchequer by the Lord Treasurer with the Chancellor of the Exchequer and other barons, and the Common Bench by the Chief Justice and other justices from time to time appointed by the King. It appears that for some time after the division of the Curia into these three separate courts, the Exchequer continued to try pleas between party and party, but in ad 1300 that court was ordered by Statute1 to refrain from hearing such causes as contrary to the Great Charter, and to confine itself to matters touching the King’s revenue. Shortly afterwards, in 1303, William de Carleton, a justice of the Common Pleas, was appointed Chief Baron of the Exchequer.2 This office he held concurrently with that of a puisne judge of the Common Bench, and was the first person so appointed. From this date, as vacancies in the office of Chief Baron from time to time occurred, they were usually but not invariably filled from the justices of the Common Bench. The justices so appointed continued to hold the two offices of Justice and Chief Baron, their duties at that period being in no way inconsistent, as the barons could not try causes or hear appeals, and the Common Bench had no jurisdiction over affairs of the revenue.

The business was divided in the following manner. The King’s Bench had exclusive jurisdiction in all pleas of the Crown, and in all appeals from inferior courts. The Common Bench had exclusive jurisdiction in all real actions or suits relating to land and in actions between private persons to try private rights, while the jurisdiction of the Exchequer was limited to causes touching the King’s revenue with which it had exclusive power to deal. All these judges went Circuit twice a year, the barons of the Exchequer only trying cases on the revenue side, and no baron being permitted to try a prisoner or a civil cause unless he happened also to be a justice of the Common Bench, when he tried prisoners and causes in the latter capacity. The Assizes were held in the County Courts, and those tribunals were for many years after the end of the Curia Regis constituted as before with bishops, abbots, earls, barons, knights and freeholders of the county, the reeve and the burgesses of each township in the county and all those who of old were accustomed to be summoned to attend the business of the court. Itinerant Justices were appointed from time to time for some generations after the accession of King Edward I., and they went circuits equally with the justices of the Courts of Common Law. But the practice was found to be inconvenient. All courts, including those of the Itinerant Justices, were closed so long as the King’s Judges of either Bench held their Justice Seat within the County. The Justices in Eyre had accordingly an inferior position and less authority, in public estimation, than the justices in the King’s Courts; there were great complaints of the expense and burthen cast upon the counties for the escort and entertainment of these numerous justices, and in 1335 they ceased to be appointed.

This division of the business of the courts, which was however much interfered with by various devices of the lawyers at a later period, had the inevitable result of throwing the greater portion of the work upon the Common Bench, which became, as it was called by Sir Edward Coke,1 “the lock and key of the Common Law,” or, more familiarly by Sir Orlando Bridgman, “the Common Shop for Justice.”2 Crown cases were limited in number, and the justices of the King’s Bench, after a time, were not only put into an easy position as regarded the work they were called upon to perform, but as in those days their principal source of income was from the suitors’ fees, they correspondingly suffered in pocket. The Common Bench, on the other hand, was always full of work, which rapidly increased, with the result that whereas the justices of the King’s Bench seldom numbered more than three or four, those of the Common Bench were frequently seven or eight and sometimes amounted to as many as nine. Thus under Edward I. there were at times four, five and six justices of the Common Bench in addition to the Chief.3 Under Edward II. the Court was ordered to sit in two divisions by reason of the multitude of pleas.4 Under Richard II. and under Henry IV. there were three justices of the King’s Bench and five of the Common Bench.1 Under Henry V. there were four justices of the King’s Bench and six of the Common Bench, in addition to the Chiefs.2 Under Henry VI. and Edward IV. there were four justices of the King’s Bench and seven3 and at one time eight4 of the Common Bench. The latter court had also this great advantage, that it sat always at Westminster, while the King’s Bench, the Exchequer, and the Chancery were liable to follow the progresses of the King. And although it soon became the practice to dispense with the attendance of the judges and the barons, unless the King had some special need for their assistance, yet when he was located for an indefinite period at some provincial town, and had there established his Royal Court, the King’s Bench and the Exchequer with their clerks, their secretaries, their treasure and their baggage moved from London in the wake of the Sovereign. Thus from 1277 to 1282 the Law Courts were at Shrewsbury,5 while the King was fighting in Wales, and from 1298 to 1305 they were at York,6 while the King was on his expeditions into Scotland. On the latter of these occasions a square chequer board with the necessary seats and fittings was erected in the yard of York Castle for the use of the barons and the accountants of the Exchequer.

The decadence of the smaller courts in the various counties and the scandals arising therefrom led to a new departure in the administration of justice, and in the reign of Edward III. (about 1327) Justices of the Peace for each county were first appointed. In or about 1350 they were ordered to hold Sessions quarterly to try breaches of the Statute of Labourers.7 About 1359-608 they were empowered to try crimes and misdemeanours committed in their county, and by a Statute of Edward IV.9 they were empowered to sit regularly in Quarter Sessions for general business.

The immediate reason for the permanent establishment of Quarter Sessions, as recited in the preamble to the Statute, appears to have been the misconduct of the sheriffs, who packed the juries, compelled the payment of excessive fees, and by various extortionate devices held unhappy suitors to ransom. And here again, the Anglo-Saxon system of self-government seems to have been recognised, by the removal of these trials from the Sheriff or officer of the Crown to the resident gentry and landowners of the county.

The story of the Courts of Common Law from the closure of the Curia Regis to the end of the civil wars is a history rather of individual judges than of any substantial changes in legal procedure.

[1 ]This essay forms part of Chapters II and III of “The King’s Peace; a Historical Sketch of the English Law Courts,” 1895, pp. 68-72, 77-85 (London: Swan Sonnenschein & Co.). The earlier history of the Curia Regis, up to the period of Henry II, is dealt with in Mrs. Green’s Essay (ante, Vol. I, No. 4).

[2 ]1835-1904. B. A. Trinity College, Cambridge; Barrister of the Inner Temple, 1858; Queen’s Counsel, 1874; Bencher of the Inner Temple, 1877; Master of the Library, 1897.

Other Publications: Side Lights on the Stuarts; The Interregnum; King Edward and New Winchelsea (The Edification of a Mediæval Town); A Prisoner of War; Introduction to the Records of the Inner Temple; and various articles in learned periodicals.

[3 ]Hall’s Antiquities of the Exchequer.

[1 ]Foss’ Judges, vol. ii. p. 4.

[1 ]Selden Society, vol. 3, p. xviii. Foss’ Judges, vol. ii. p. 160.

[2 ]Selden Society, vol. 3, p. 79.

[3 ]Dugdale’s Chronica Series, fol. 11.

[4 ]28 Edward I., ad 1300.

[1 ]47 Henry III. Coram Rege Rolls de tempore Ph. Bassett Justiciarii Angliae; Madox, vol. i. p. 100.

[2 ]Stubbs’ Constitutional History, vol. i. p. 503.

[1 ]Stephen’s History of the Criminal Law, vol. i. p. 99.

[1 ]Foss’ Judges, vol. ii. p. 155.

[1 ]28 Edward I.

[2 ]Dugdale, Chronica Series, fol. 32.

[1 ]Institutes, vol. iv. p. 78.

[2 ]“Trial of Regicides,” State Trials, vol. v. p. 993.

[3 ]Foss’ Judges, vol. iii. p. 22.

[4 ]Ibid., p. 195.

[1 ]Ibid., vol. iv. pp. 21, 134.

[2 ]Ibid., p. 190.

[3 ]Ibid., p. 226.

[4 ]Ibid., p. 390.

[5 ]Foss’ Judges, vol. iii. p. 22.

[6 ]Ibid., p. 23.

[7 ]25 Edward III.

[8 ]24 Edward III.

[9 ]1 Edward IV. c. 2. Reeve’s History, vol. iii. p. 9.