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CHAPTER 5: THE ORIGINS OF THE CENTRAL COURTS - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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THE ORIGINS OF THE CENTRAL COURTS
So far we have discussed the local courts, both communal and seignorial, and the contacts which took place between them and the royal authority, and particularly the most important of these contacts, the jury. It now remains to sketch the rise of the central courts at Westminster.
THE ROYAL HOUSEHOLD
During the Anglo-Saxon age there was nothing which could be described as a central royal court of law, although there were certainly central royal institutions. Their formation is the product of two elements, the one being the royal household and the other the national assembly. It is to the royal household that we must look for the origins of the administrative machinery of the Anglo-Saxon monarchy. The principal household officers inevitably acquired political influence and took a part in public affairs. Similarly the group of clergy attached to the King’s chapel naturally formed the nucleus of a secretariat which in time will be called the Chancery. It was only natural that the King should surround himself with men whose advice he valued, frequently placing them in high positions in the household. The household therefore consisted not merely of the King’s domestic servants but also of men of an official class whose assistance was useful in the daily task of government.1 When there was added to them the body of King’s clerks there was all that was required for the day-to-day business of government. This system of household government survived long after the Anglo-Saxon times. The Norman kings systematised it; in the thirteenth century portions of it became separated from the household, and in the fourteenth century developed into independent offices of State closely resembling the modern civil service. But this machinery was still controlled by the household, and bitter constitutional struggles were constantly occurring as the nobility at large endeavoured to curb the activities of the household officials. The Exchequer, for example, at a very early date, had achieved a completely independent existence, and yet to the end of the fifteenth century the effective control of finance was in the hands of the household, working through the offices of the Wardrobe and the Chamber. So, too, the Chancery very soon became an independent office for the management of the Great Seal, and yet its policies were controlled either by the Council working through the Privy Seal office, or else by an inner group of household officials (especially the chamberlain of the household) working through the office of the Signet.1 The effective power wielded by the holders of the signet can be seen by the rapid rise to importance of the Secretary who was its official custodian. In the sixteenth century he becomes a “Secretary of State”, and at the present day English secretaries of state are created by the delivery of the signets, which are handed to them by the King himself as symbols of their office. The household, therefore, is not merely the original germ of our central institutions, but has continued all through the middle ages to occupy a central position of effective political control, even over those departments of state which in former times had separated from it.
THE NATIONAL ASSEMBLY
The second element in the growth of these institutions may be described as that of the national assembly. The household was adequate enough for the ordinary daily business, but from time to time questions arose which required the advice of a larger number of people representing more varied interests. The effective political public for a long time coincided with the small class of great nobles and great ecclesiastics. Matters of grave importance would naturally be discussed at a somewhat large meeting of the most notable men of the nation. There is no need to apply precise terms and definitions to such assemblies, or to seek for exact rules as to their competence. Still less is it appropriate to ask questions as to what matters must be done with the concurrence of such an assembly and what matters could be done without it. There was nothing in the Anglo-Saxon age, or for a long time afterwards, which could be described as a body of public law. Conferring with the magnates of the realm was not a legal necessity, but a dictate of political prudence. It was only natural that the Crown should take counsel upon grave matters with those magnates whose co-operation was necessary if a policy was to be carried out. When we speak, therefore, of the national assembly under the Anglo-Saxon kings—“Witan” as they called it—we must not expect to describe its composition and powers as if it were a modern congress or parliament. There were some persons who certainly expected to be summoned when important matters were on the table; the position of others was less definite and varied with circumstances; but in any case it would be misleading to speak of anyone having a right to attend. On the contrary, for many centuries attendance at assemblies and Parliaments was a burden rather than a privilege, and people considered themselves lucky if they could obtain the royal privilege of not being summoned to Parliaments. The national assembly, therefore, was not a body of fixed composition or definite powers. Sometimes it seems hardly larger than the household itself, while at others we find a very imposing array of nobles and prelates.
THE RESULT OF THE CONQUEST
It is after the Norman Conquest that these institutions take a more definite form. The household continues to be the real political centre, and beside it, or perhaps within it, there develops a small council consisting of clerks and minor officials who are continually at hand for the transaction of daily business. The national assembly, on the other hand, begins to take a different complexion. It was one of the main features of feudalism that a lord could demand counsel from his tenants, and that those tenants were legally bound to attend their lord upon demand and to sit as a court in order to give him advice, to pass legal judgment upon fellow tenants, and to grant financial and moral support to the lord. The old national assembly therefore became a court with comparatively definite powers, and a well-defined obligation of attendance. For the time being it is true that its business was principally what we may describe as feudal. But in the eleventh and twelfth centuries feudal matters were of first-rate importance. Feudal custom regulated the position of the Crown with respect to the great nobles, and therefore supplied the place of a body of public law. The King’s Court, therefore, is not merely the Anglo-Saxon consultative assembly, but also a body entrusted with the power of applying such constitutional law as then existed.
It was also a peculiarity of feudalism that these matters of public law—the prerogative of the Crown, the rights and duties of the baronage, the means of extraordinary taxation and so on—were intimately connected with land. From this it resulted, first, that the King’s Court had to pay special attention to the law of land upon which these public rights and duties were based, and secondly, that these matters of essentially public law came to be regarded from the point of view of private property law. Political rights and privileges, the powers of particular officers and the like were treated as if they were land—or at least incorporeal hereditaments, which mediaeval law hardly distinguished from land. In this way there grew up the habit of regarding political and constitutional rights as sharing the specially sacred character of private property. As long as the common law controlled political thought, this attitude of mind persisted. No doubt there were grave disadvantages in the feudal view which treated governmental powers as private property—for one thing, they were apt to be regarded as private resources to be exploited to the limit; yet, on the other hand, the English constitution and the common law itself owed a good deal of their stability and continuity to the fact that all the sanctity which attached to private property could be invoked to protect the liberty of the subject. It is only when the modern theory of the State appears after the Reformation and the Renaissance that this point of view is theoretically attacked. This does not mean to say, of course, that the Crown never violated the rights of private liberty and property; as we shall see, more than once encroachments were made upon privileges which were the property rights of local magnates. Nevertheless, the theory was universally admitted, and in times of stress played an important rôle. As late as the fifteenth century many important questions of public law, such as the relations of Crown and Parliament, the theory of taxation, and so on, were discussed entirely from the point of view of a real property lawyer.1 All this, therefore, was the direct result of the feudal character of the King’s Court as it appears after the Conquest.
THE MEANING OF THE WORD “COURT”
Before we discuss further the character and development of the King’s Court (which historians usually refer to by its old Latin style of the Curia Regis) it may be well to examine the various meanings of the word “court” or “curia”. The original sense of the word is the rectangular open space around which the mediaeval house was built; the usual plan was that of a hollow square of buildings, the inside space of which was called the court. The colleges at Oxford and Cambridge are all built upon this plan, which was originally that of the ordinary dwelling-house, and in Cambridge their interior spaces are still called courts. The next development is to extend the word “court” to the house itself, and many famous houses in England are still called courts—Hampton Court, for example. Then the word “court” can also be used of the household and personal attendants of a king or great noble. Upon certain festivals during the year kings and nobles were accustomed to gather around them a particularly large company, and this event, too, becomes known as a court; the word will serve furthermore to designate the persons who were present on such an occasion. At Christmas and Easter the Anglo-Norman kings held courts of this character. The word was also applied to those assemblies at which attendance was compulsory as a feudal duty, and thence by a natural transition to any assembly for the purpose of transacting important public business; the Bank of England is governed by a court, and the Commonwealth of Massachusetts by a General Court. Finally, the word “court” is particularly used of such assemblies when they are engaged in judicial business. In mediaeval usage the word “court” may bear any of these different meanings singly or in combination, and if mediaeval institutions are to be understood properly it must be remembered that a court might be at the same time legislative, judicial, deliberative, and even festive.
It was all the more easy to combine these different functions in one body because early courts were very different from modern ones. The central figure of a court to-day is the judge, but, as we shall see later,1 it required some time before English law developed this office. Feudal courts seem generally to have consisted not of judges but of a number of “suitors” with whom rested the decision. The lord of the court indeed presided in person or more usually by his steward, but the president was in no sense a judge as the word is understood to-day. Under the Norman kings, we have descriptions of trials where it plainly appears that the king himself demanded of his barons in the court to pronounce a judgment.2 His lords, as we have seen, had courts of their own. Like the royal courts, these seignorial courts could sometimes take a political appearance, and from time to time we find lords holding assemblies of tenants like little parliaments in order to obtain grants of money.3 The House of Lords when sitting as a criminal court preserved, at least in theory, this old conception of a court of many suitors who are judges, irrespective of their being professional lawyers, and exactly reproduced an old feudal court of barons who are judges, while the presiding officer (the steward of the lord—in this case the King’s Lord High Steward) is merely chairman.4
THE ANGLO-NORMAN CURIA REGIS
The court of the Anglo-Norman kings consisted, therefore, of the Anglo-Saxon Witan, which was essentially deliberative in character, radically transformed by the infusion of Norman ideas. There is a long and somewhat fruitless discussion as to whether the Norman Curia Regis is or is not the same institution as the Anglo-Saxon Witan; in this form the question can hardly be answered. It seems rather to have been the fact that the formless and indefinite Witan was so thoroughly transformed by the Norman kings that it is purely a matter of fancy whether one describes the product as a new institution or as a modification of the old one.
There are cases to be found where the Witan, under the Anglo-Saxon kings, exercised quasi-judicial functions; it is perfectly clear, however, that the Witan did not entertain the ambition of becoming a national court. The whole spirit of Anglo-Saxon law made for the maintenance of local institutions, and more than once we find laws prohibiting parties to appeal to the King unless there has been a grave default of justice in the regular courts. When judicial matters do appear before the King and the Witan they are apt to be treated as political disputes requiring a political solution by negotiation, compromise, and royal mediation rather than a strictly judicial treatment. With the Norman Conquest we begin to find the transformation of the deliberative Witan into the judicial court. The transformation was, of course, slow, and even after the conquest there are proceedings in the King’s Court of the more ancient type. Still, the feudal idea of a court of tenants-in-chief was sufficient to supply the model of a supreme royal court, and it was from that model that the judicial system of the common law later developed.
THE TRAVELLING COURT: JUSTICES IN EYRE
It was a feature of mediaeval life that the King and his court were constantly travelling through the length and breadth of the kingdom, and that in the course of these journeys a general supervision would be effected over the conduct of royal officers, the working of local institutions, the collection of revenue and the redress of grievances. It was only natural that the idea should be extended, and that kings should send out some trusted officer to conduct similar progresses through the country for the same general purposes. Charlemagne in the early ninth century had developed a regular system of such missi dominici,1 and very soon after the Conquest, as we have already seen,2 a similar device is found in England. At the head of this travelling group of officials were the Justiciars—and it must be remembered that their title does not imply that their duties were primarily judicial, but merely that they were the direct personal representatives of the King.3 The King’s Court was thus enabled to be in several places at once; besides the principal body, which was always in the presence of the King himself, there might be several groups of officials touring the country as Justices in Eyre, as they soon came to be called. In this way the custom and practice of the King’s Court was made more familiar by being spread over the country, and by being brought into contact with local institutions. During the reign of Henry II these Eyres are very frequent, and Bracton and his successors treat them as a separate judicial jurisdiction.1 The experiment was so successful that Philip Augustus soon set up a similar system in France.2 There can be no doubt that there was much important legislation effected (which is now largely lost) by means of instructions to the justices as they set out upon their Eyre.
Their jurisdiction varied; in the early years of Henry III they might be commissioned “ad omnia placita”, and then their impressive “general eyre” (as Maitland called it3 ) became in effect the court of common pleas on circuit, instead of at Westminster. These justices with their “roll of secrets” and their “book of death”4 undoubtedly struck terror into the country,5 but as their organisation became more refined they became more and more an engine of oppression. Technical errors in legal and administrative procedure, slight inaccuracies in matters of detail were made the excuse for fines upon the whole vill or county. In the thirteenth century Eyres were frequent6 and the financial yield considerable: in 1227 a judge reckoned a profit of 40 marks a day for the king, and in 1301 Edward I “caused justice to be done on malefactors” in order to recoup the expenses of twenty years of war, and thereby “amassed great treasure”.7 In the early fourteenth century we have a full report of an Eyre which visited Kent in 1313 from which every detail of its work can be traced.8 Already protests against general Eyres appear in Parliament and after the middle of the century Eyres ceased to be commissioned. For a time it seemed as if the new device of constant tours by the King’s Bench from the middle of the fourteenth century onwards might serve the same purposes as an eyre,9 but in the end it was seen that they were in fact no longer necessary, for (as we shall see in the next chapter) newer means were being developed which put local institutions under an even more effective control, while the rise of parliamentary taxation provided a more satisfactory source of revenue.
THE LINES OF SEPARATION
The King’s Court, however, still remained constantly at work in his presence, and the development of the jurisdiction of the Eyre did not seriously diminish the powers exercisable in the King’s Court proper. It soon became evident, however, that convenience required a certain amount of specialisation within the Curia Regis.1 It is curious to remark, however, that the divisions were not made along strictly functional lines; in the end a rough allocation of duties was made whereby finance went to the Exchequer, legislation to Parliament, judicature to the courts and executive duties to the Council, but this classification of powers was never very strictly carried out. Parliament and Exchequer both had considerable judicial business. The courts did a certain amount of administrative work, and the Council had a large share in judicature as well as in legislation. The development of these different bodies, therefore, was not dictated primarily by any idea of the classification, and still less of the separation, of powers. It seems rather that the growth of these new institutions was determined along lines of administrative procedure. Types of business of frequent occurrence would necessarily encourage the development of a routine, which would enable subordinate officials (if properly instructed in a well-planned procedure) to do the work in a regular, though somewhat mechanical way. The bulk of their duties consisted in following a preordained mode of practice, and it is only in exceptional cases that they would find it necessary to invoke the discretion of the whole of the King’s Court. We therefore find very soon the development of certain courses of administrative practice, and around these practices there naturally gathered a group of officials who were skilled in the conduct of them. It is such a group of officials, adept in a particular body of procedural rules, which forms the first beginnings of new departments or institutions. The reason for their existence and the key to their activities is therefore a body of administrative procedure rather than a theoretical analysis of the powers of government. In the course of time a number of such procedures appear, gather around them a little group of officials, and finally give rise to new institutions.
THE OLDEST OFF-SHOOT: THE EXCHEQUER
The first of these was the Exchequer, which represents the oldest routine of government. Its beginnings had been primitive.
“Edward the Confessor kept his treasure in his bedroom so that the thief, who aspired to rob the national treasury, had to wait until the king took an after dinner nap before he could venture into the royal chamber, and extract from the king’s treasure chest some portion of its precious contents.”1
Within a century there was a well-organised department, and in the reign of Henry II the Exchequer, with its formal departmental seal, had become the first separate government department in Europe.2 About the year 1179 it was possible to write a very substantial treatise upon Exchequer procedure.3 That procedure was primarily designed to do the King’s book-keeping and to watch his financial interests, but it was inevitable that many other matters should also arise. In the Exchequer twice a year all the great officials of the realm sat together to supervise the whole of the financial machinery. At its head sat the Justiciar, and when that office became extinct he was replaced by the Treasurer; the Chancellor also attended and brought with him some of his clerks who issued process “from the Chancery in the Exchequer”. At the close of the twelfth century the Chancellor’s office had become so important in other directions that for the future he is only represented in the Exchequer by a deputy, the Chancellor of the Exchequer. With such a great array of high officials at the solemn meeting of the Exchequer, it was natural that any great difficulty could be immediately settled, for the highest authorities in the land were sitting around the table. In this way, a good deal of important government business of a general character was apt to take place on the occasion of a great Exchequer meeting, especially at Michaelmas term, when besides all the high officials there were also in attendance all the sheriffs who were present for the examination of their accounts.
In the first of these administrative routines, therefore, we see that a variety of functions were performed whose single bond of union was the fact that they arose in the course of one procedure, that of the Exchequer.
THE NEXT OFF-SHOOT: THE COURT OF COMMON PLEAS
We have already mentioned the very numerous Eyres which took place during Henry II’s reign. Indeed the popular complaint was that there were too many of them, and in 1178 we find a remarkable passage in a chronicler4 which tells us that—
“While he was staying in England, the King enquired whether the justices whom he had set up in England had treated the people fairly; and when he learned that the country and the people were much aggrieved by the number of justices (for there were eighteen of them), by the advice of the wise men of his realm he chose five only, two clergy and three laymen, all of his personal household, and decreed that these five should hear all the complaints of the realm, and do right, and not depart from the King’s court but remain there to hear the people’s complaints. And if any question should arise among them which they could not solve, they were to bring it up in the royal hearing for determination according to the pleasure of the King and the wiser men of the realm.”
The current interpretation of this passage, first suggested by Maitland and later modified by Pike and Adams, is that in 1178 Henry II by a deliberate act established a new court, which in later times became known as the Court of Common Pleas. Adams1 insists that the powers of this court, like those of its descendant, the later Court of Common Pleas, were strictly limited, and that it was expressly debarred from exercising that wide discretion which was the privilege of the Curia Regis. The “limitations”, however, were not of the sort we would associate to-day with the expression “limited jurisdiction”. As Holdsworth points out, in criticising Adams’ view, the new court in fact entertained every sort of business (including occasional pleas of the crown).2 The situation seems best described as the effective, but informal, subordination of the new justices to the king and his court of “wiser” men, rather than limitation to a precise list of powers. Its foundation was suggested by the experience of the Justices in Eyre, and was designed to render available all the time the judicial advantages of the intermittent or occasional Eyre, while, on the other hand, the high-handed action of certain of those justices was to be prevented by subjecting the new court to the supervision of the king’s council and by confining it within the limits of a procedure which was soon to become comparatively strict. The result was to give the public access to royal justice which was no longer mingled with the financial functions of the Eyre. The fact that this body of judges was erected as a separate court3 was not allowed to stand in the way of practical convenience, however, and if for any reason it became desirable to move a case backwards and forwards between the newly erected court and the body which met around the king himself, then there was nothing to prevent such a course. This event of 1178 must not be regarded as a sudden creation of a new court by an act of legislation, but rather as the culmination of a number of earlier experiments,4 which all had the general characteristic of subjecting the itinerant justices to the limitations set out in their commissions or instructions.1
Maitland discerned signs in the middle of the twelfth century of an old oral and traditional formalism,2 which by the end of the century has developed into a written and authoritative formalism—the writ-system of the common law which Glanvill described in some detail; and, as Professor Baldwin remarks, such limitations are appropriate to the new body of 1178, and not to the Curia Regis itself.
“It must be understood that the so-called formulaic and restrictive procedure began, and could begin, only in the courts held by the royal commissioners—that is, first by the itinerant justices and then the central court established on similar lines.”3
It was a notable feature of the new arrangement of 1178 that the justices were to remain with the King; that necessarily meant perpetual perambulation. On the other hand, the “chief court”, capitalis curia, whose practice is the subject of Glanvill’s treatise (written soon after 1187), seems fairly fixed at Westminster. Professor Sayles expresses a doubt whether the five justices of 1178 are indeed the same institution as that which Glanvill described, and suggests that the latter may be “a different creation”. It may be; there were indeed many “creations”. The difficulty largely disappears when one remembers that these “creations” were casual, temporary expedients, with no similarity to a “creation” of a court by a modern act of parliament. The repetition of these expedients slowly resulted in an institution, and its settlement at Westminster naturally resulted from Henry II’s absence abroad, which made it impossible to stay with the king and at the same time to hear the complaints of the realm. A generation later Magna Carta was to fix the Court of Common Pleas permanently at Westminster.4 The second administrative routine to become an institution is therefore largely a judicial one, and, after a period of experiment in the Eyres, it finally developed into the Court of Common Pleas, or “The Bench” as the older books call it.
THE COURT OF KING’S BENCH
The five justices who at first constituted the new court were expressly subordinated to the magnates and wiser men to whom difficult cases were to be referred. For some years the highest law court consisted, therefore, of these greater and wiser men who were in constant attendance upon the King. It is a frequent recurrence in all this judicial and constitutional history that the group of advisers in the immediate presence of the King should exercise in his name a wide discretion, and that these powers should in no way be diminished by the successive developments of the Exchequer and the Court of Common Pleas. Just as the Exchequer had formed round the financial routine, and the Court of Common Pleas was to grow up with the common law forms of action, so the constant occupation of the King’s immediate advisers with matters referred to them from the Common Pleas, and also with matters particularly touching the King, gave rise to a new body of procedure, and soon to a new court—the Court of King’s Bench, or, in its full mediaeval title, “The Justices assigned for the holding of Pleas before the King himself”.1 Normally, such pleas would have been heard literally “before the King himself”, but that was impossible with an absentee King such as Richard I. The court coram rege appears under John, but vanishes when he goes to the continent. The minority of Henry III again made it impossible to speak of pleas coram rege, but by this time the need for such a jurisdiction was so great that it was determined by way of compromise to hold some pleas coram consilio, the rest being deferred until the King should come of age. Hence in its early days it is often impossible to distinguish these judicial proceedings before the King (Coram Rege) from proceedings before the Council, and the early rolls of the court sometimes contain miscellaneous acts of the Council. The procedures around which it finally developed were the correction of error in the Common Pleas, and the trial of those pleas of the Crown which were of exceptional concern to the King.2
There are rolls still in existence, bearing the proceedings of both branches of the Curia Regis, beginning in the year 1194; a separate series of common plea rolls (technically called de banco rolls) begins in the year 1234, and in 1237 a defendant in a plea coram rege is found objecting that the case ought to have been brought in the common pleas.3
THE CONNECTION BETWEEN KING’S BENCH AND THE COUNCIL
For a long time it was a striking feature of the court before the King himself (Coram Rege) that it was closely associated with the Council. Many magnates might attend its solemn sessions; for less important business a small group of officials was sufficient. Although the two procedures which we have mentioned very soon appear (jurisdiction in error from the Common Pleas, and the trial of the more important pleas in which the Crown was concerned), they are for a long time mingled with the political and administrative duties of the Council. In the end, these two procedures were both entrusted to a small group of professional justices who were specially commissioned “to hold pleas before the King himself”. In other words, the King’s Bench becomes a separate institution, early in the reign of Edward I. For long after that date, however, there still remained a close connection between the King’s Bench and the parent body. Just as in earlier times a piece of private litigation in the King’s Bench, which raised a difficult point as to whether trial by battle lay or not, was adjourned “because there were not enough members of the King’s Council present”,1 so “the recurrence of pleas before the King and his council, Coram Rege et consilio suo, in this manner, can hardly be said to be discontinued until the reign of Edward III”.2 In the reign of Edward I, therefore, although the King’s Bench had its own establishment, working its own procedure, and may therefore be regarded as a separate institution, there nevertheless existed a good deal of intimate contact both then and later between it and the Council.
COUNCIL AND PARLIAMENT
In the thirteenth century this central group of officials and advisers who remained constantly in the King’s presence was described by a variety of names; a chronicler will usually call it “the Council”; a law-writer such as Bracton, who is mainly interested in its judicial duties, will call it the King’s Court or Curia Regis. As for those occasional meetings when this body is enlarged by the addition of numerous magnates, the chroniclers will usually call them a “colloquy”, and such is at first the usual official term. In common speech, however, such meetings were often referred to as “parliaments”. For a time this word was popular rather than official; it could be used of any sort of conference or meeting; even a disorderly assembly could be called a parliament, and in 1267 Henry III forbade the assembly of parliaments or other meetings in breach of the peace. In early days, therefore, the word “parliament” does not mean an institution but an event.3 Any unusually large meeting of the King’s Council will be popularly described as a parliament. A variety of influences began to work in the direction of giving more definite shape to these occasional parliaments. As time goes on, the King’s Bench will become as closely confined within the common law forms of procedure as the Court of Common Pleas itself, and it will be necessary to provide some other means for the exercise of equity and discretion and for the handling of cases which fall outside of those limits. This task naturally fell to the Council, whose mission during a great part of the middle ages was to act as an extraordinary court of unlimited jurisdiction, both original and appellate.
These discretionary powers of the Council covered a wide variety of subjects. Some could be settled at the discretion of skilled official councillors, while others demanded the attention of a larger body of magnates; and so their work naturally falls into two groups—matters which could be handled by the Council continually attending the King, and matters upon which they preferred to take the advice of the magnates at large. An important discussion, whether of judicial matters or political might equally be called a parliament, whether it actually took place in the smaller Council or in the larger assembly surrounding it.
With the reign of Edward I we find a new series of rolls appear for the first time, and these are the Parliament Rolls.1 Much of the business on the early Parliament Rolls is of a judicial character, although not all of it is in the forms of the common law. By this time the King’s Bench had lost much of its early discretionary power and contented itself with working the common law system of writs and its own particular procedure; it was therefore Parliament which now undertook to wield some of the discretionary powers which the King’s Bench had resigned—and herein we see the origin of the appellate jurisdiction of the House of Lords. Indeed, in the fourteenth century a case might move backwards and forwards between the King’s Bench, the Council and a Parliament of the Council with the greatest ease.2 The judges of the King’s Bench were in frequent attendance, both at the continual Council and at Parliaments. But besides this common law business, the Council was continually receiving a large number of petitions from individuals, churches, cities, counties and others, which were of the utmost variety. Some simply prayed for relief which was already to be had in the regular law courts; others, if the Council approved them, were transferred to the law courts, and the Council’s endorsement served to supply any lack of jurisdiction which might otherwise have prevented them from giving a remedy; others merely demanded favours which the administration might grant or withhold, while others might raise very difficult questions upon which the Council would wish to take the advice of the magnates of the realm. Those petitions which the Council did not deal with alone were held over until one of the Parliaments, which were frequently held.
THE ADDITION OF THE COMMONS
At the same time a remarkable development was taking place which was to modify profoundly the political aspect of Parliament. The strong, centralised monarchy of the thirteenth century was never tired of devising means for keeping in closer contact with local institutions. The annual visits of the sheriffs to the Exchequer and the frequent visits of Justices in Eyre to the various counties were still not enough; what the Crown particularly desired was an independent check upon the activities of its local officers, and a means of treating directly with the people. Various experiments were therefore made in the course of the thirteenth century with this end in view. They were in fact simply an extension of machinery which had existed for many years. It was a familiar occurrence for every hundred, vill and borough to send representatives to the county court, where a general investigation would be made into local government and apparently even a vote of taxes might occasionally be made.1 Nothing was more simple than to extend this time-honoured system to the whole nation. Just as hundreds and vills appeared by representatives in the county court (more especially when the King’s Justices in Eyre were present) so it was possible to call upon the county courts (together with the more important boroughs) to send representatives to meet the King himself when he and his Council were holding a Parliament.2 Such representatives later on brought with them numerous grievances, which they laid before the Council in the form of petitions, and this accounts for a large number of petitions which appear upon the Parliament Rolls—to say nothing of many more which were never enrolled at all. By Edward I’s reign, therefore, a Parliament of the Council may consist of a number of elements. There may be a greater or less number of magnates and prelates; there may or may not be a collection of representatives of the various communities of the land (who will afterwards be called the Commons, or in French Communes); at the same time it was customary for the lower clergy also to be represented by proctors, and these (together with the prelates, who are also summoned to the parliament) will form the later convocation. But in the centre of all this, controlling and directing all the proceedings, is the King’s Council. It is the King’s Council which is the motive force in the Parliament; the lords, the commons and the clergy merely attend to answer the Council’s questions, to advise it upon points referred to them, and to present humble petitions for the redress of their grievances. It required a powerful monarchy to organise such an institution. It is a constant observation in the middle ages that it is only the strongest kings who can compel their subjects, be they lords or commons, to give them advice, to attend their courts, and to take part in the work of government. Centuries later Parliament will become an instrument, first in the hands of the lords and later of the commons, which can be turned against the King himself and his Council. But this is far in the future; Parliament was not intended to play that rôle when it first took rise. In its earliest days it was a sign of royal strength and not of royal weakness, and this can be seen from the fact that the weaker kings had great difficulty in collecting a Parliament at all.
The future of Parliament may be political, but its origin was legal and administrative. In its origin and throughout the middle ages it deserved its later title of the “High Court of Parliament”—and in this expression it must be remembered that the word “court” must be taken in the broadest mediaeval sense.
We have insisted that the real centre of Parliament in the middle ages was the King’s Council. Fleta expresses this idea when he says that “the king has his court in his council in his parliaments”,1 and even as late as the fifteenth century it is abundantly clear that the Council was still the moving force in Parliament; even at so late a date a chronicler will speak of a “Parliament of the Council”, and we constantly find official documents which say that “the King by the advice of his Council in Parliament” has taken certain action. Even at the present day the brilliant ceremonial with which the King opens Parliament bears witness to this fact. The proceedings take place in the House of Lords. The King on his throne is surrounded by the councillors standing on the steps of the throne; immediately in front are the judges (and in former times the law officers of the Crown); this little group of the King and his councillors and judges (who anciently were active members of his Council) is the core of the Parliament. At a greater distance are assembled the peers of the realm and the prelates, and so we see Fleta’s phrase visually expressed, “the King is in his Council in his Parliament”. Right at the bottom of the room is a bar, and outside of the bar are the latest additions to the constitution of Parliament, the Commons. They are always standing—the older pictures show them kneeling—and at their head is the Speaker. He derives his title from the fact that of all the Commons present the Speaker alone has the right of raising his voice in the Parliament. To safeguard both himself and the Commons in case he should speak erroneously on their behalf, he made a sort of protestation or petition at the opening of parliament. At first it is only a prayer that he may have permission to correct his mistakes if he should make any; later, in the reign of Henry VIII, he became more bold, and prayed for the allowance of the Commons’ privileges.1 This ceremonial faithfully reproduces the appearance of a Parliament of the early fourteenth century. Whatever deliberations the Commons or Lords may make among themselves are merely their private concern; the proceedings in Parliament take place when the Council is present, attended by the lords, and in those proceedings the Council plays a dominant part.
With the close of the middle ages the position of the judges in Parliament becomes less important. They attend upon ceremonial occasions, and give advice when called upon by the Crown or by the lords, but no longer take a regular part in its general business except for the purpose of handling certain types of petition, and soon this too becomes obsolete.
THE JUDICIAL SYSTEM UNDER EDWARD I
And so by the reign of Edward I we have all the elements, save one,2 of the present judicial system of England. There was the Bench, or Court of Common Pleas, where the common law forms of action were developed and where the bulk of the important litigation of the country took place (with the exception of the smaller matters which went before the local courts). Then there was the King’s Bench which had a jurisdiction in error from the Common Pleas, and an original jurisdiction over the pleas of the Crown of unusual importance; it was the proper place for state trials and for matters which closely concern the King. Above the King’s Bench, and working in close harmony with it, was the King’s Council, ready to supply from the reserves of royal discretion at its command any defects of jurisdiction which might occur in the lower courts, and to take the advice of a Parliament, if necessary, to resolve their doubts and remove their difficulties. In the Council, in Parliament, and to some extent in the King’s Bench, there was, therefore, an ample source of equity, discretion and extraordinary power to meet any emergency. At the same time the King’s financial interests were controlled by the Court of Exchequer, and difficult legal questions could be informally discussed in the Exchequer or in Council by a full meeting of all the available legal talent. As for the ordinary criminal jurisdiction, there were many local authorities with summary powers, which were supplemented by numerous visits of commissioners of gaol delivery (who delivered the gaols of prisoners committed for trial), and commissioners of oyer and terminer, who had wide powers of holding pleas of the Crown. Both these classes of commission were in constant use and their activities were recorded upon hundreds of rolls. At the same time certain types of common plea concerning land, called “assizes” which were of very frequent occurrence were also heard locally by travelling commissioners of assize, who only reserved points of special difficulty for discussion at Westminster in the Court of Common Pleas. All these were in existence in Edward I’s reign.
FACTORS IN THE GROWTH OF THE COMMON LAW
At this point, moreover, it is well to remember the striking passage in Maitland’s Constitutional History where he indicates six principles which combined to increase the jurisdiction of the royal courts. They are briefly these:1
(1) Under the Norman kings the Crown by its writ of right supplied the real or imaginary defects of justice in the feudal courts.
(2) Under Henry II it was established that no man need answer for his freehold without a royal writ unless he cared to.2
(3) Henry II also ordained that a defendant in certain pleas of land in the King’s Court could have jury trial (grand assize) instead of battle if he chose.
(4) The possessory assizes established by Henry II deliberately ignored the feudal courts and by their swiftness immediately became very popular.
(5) The idea of contempt was used very effectively. The King would issue a writ ordering a subject to do right and justice, and if he refused, he was guilty of contempt of the King’s writ. The defendant in a writ of debt, for example, not only denies his liability, but also denies tort and force in resisting the King’s command.
(6) The idea of the King’s peace was not only the basis of criminal jurisdiction, but could also be used to enlarge the civil jurisdiction of the King’s Court. This was effected through the action of trespass, which although criminal in form was constantly becoming more and more a civil action.
See the account in J. E. A. Jolliffe, Constitutional History, 130 ff.
The struggle for the seals is described in Plucknett, Place of the Council in the Fifteenth Century, Transactions of the Royal Historical Society, 1918, pp. 176-183.
See above, p. 37.
Below, p. 232.
See the cases cited in Pollock and Maitland, i. 109 n.
Bracton’s Note Book, no. 1146.
Below, pp. 203, 232.
They are described by G. Seeliger in Cambridge Mediaeval History, ii. 682 ff.
Above, pp. 101-104.
On the spread of the office throughout Europe, and doubts on its Norman origin, see Madame J. Devieké-Navakas, L’Expansion du justiciarius sicilien, in Atti del Convegno Internazionale di Studi Fredericiani (Palermo, 1950), 481 ff.
Bracton, f. 105 b; Fletaii. 2; Britton, I, 1.
Ralf de Diceto, Opera Historica (ed. Stubbs, Rolls Series), ii. 7-8; C. V. Langlois, Doléances recuellies par les enquêteurs de saint Louis, Revue Historique, xcii. 1 (who observes that by 1226 they had ceased to wander, and became resident baillis); C. Petit-Dutaillis, Monarchie féodale, 206-207.
Maitland, Bracton’s Note Book, i. 54.
Maitland, Select Pleas of the Crown (Selden Society), no. 91; Lady Stenton, Eyre Rolls (Selden Society, 53), xvii-xviii; they also had the common pleas roll with them: C. A. F. Meekings in English Historical Review, lxv. 500.
In 1233 the men of Cornwall fled to the woods for fear of the justices; Pollock and Maitland, i. 202.
For a list see H. M. Cam, Studies in the Hundred Rolls, 109. For the rule that a county ought not to be visited by an Eyre more than once in seven years, see Treharne, Baronial Plan of Reform, 1258-1263, 398-406.
Royal Letters (ed. Shirley, Rolls Series), i. no. 350 (1227); Croniques de London (ed. G. J. Aungier, Camden Society), 28-29.
Eyre of Kent (Selden Society) 3 vols. There are similar reports (still unprinted) for the eyres of London (1321) and of Derby, Nottingham, Northampton and Bedford (1330-1331). For a lively and popular account of an Eyre see Bolland, The General Eyre (Cambridge, 1922).
B. H. Putnam, Proceedings before Justices of the Peace (Ames Foundation), lvii ff.
The similar developments in France furnish instructive parallels: see G. Viard, La Cour au commencement du XIVe. siècle, Bibliothèque de l’Ècole des Chartes, lxxvii. 74 and La Cour et ses “parlements”, ibid., lxxix. 60.
Tout, Place of Edward II, 44; but the incident must not be misunderstood. See the important comments in V. H. Galbraith, Studies in the Public Records, 43 ff.
Tout, op. cit., 45.
See above, p. 18. See the passages from it in Stubbs, Select Charters, the description in R. L. Poole, The Exchequer in the Twelfth Century, the text and translation edited by Crump, Hughes and Johnson (Edinburgh, 1955).
Stubbs, Select Charters.
Adams, Council and Courts in Anglo-Norman England, 214 ff.; Origin of the English Constitution, 136-143.
Holdsworth, i. 51 n. 6 (p. 52).
Its oldest title is simply “the Bench”; it was only later, when its jurisdiction had become even more limited in practice, that it was informally referred to as the Court of Common Pleas. Holdsworth, loc. cit.
This point is emphasised in the very valuable introduction by G. O. Sayles, Select Cases in King’s Bench (Selden Society), i, intro. xx-xxv.
The Assize of Northampton (1176), c. 7, is an example.
History of the Register of Writs, Harvard Law Review, iii. 97; Collected Papers, ii. 110; Select Essays in Anglo-American Legal History, ii. 560-561.
Baldwin, The King’s Council, 49.
Magna Carta (1215), c. 17; (1225), c. 11. The charter in fact only required the court to sit in “some certain place”, but in practice that place was nearly always Westminster. Exceptions were in the thirteenth century when the common pleas judges were all away on Eyre, and in the fourteenth when the seat of government moved to York when there was war with Scotland. King’s Bench, on the other hand, was constantly moving until well into the fifteenth century: B. H. Putnam, Justices of the Peace (Ames Foundation), 29.
Remember that old books, in speaking of “The Bench”, always mean the Court of Common Pleas, and not the King’s Bench.
The above is a necessarily simplified version of a complicated and obscure story; for details see Sayles, King’s Bench (Selden Society), i, intro. xxii ff.
Bracton’s Note Book, no. 1220. The exception failed, since although it was a plea of land yet the King was demandant.
Baldwin, The King’s Council, 53. Cf. Sayles, King’s Bench, ii, intro. lxv ff.
Baldwin, op. cit., 64. This need not mean the “substantial identity” of the two bodies, but merely that separate institutions were still capable of intimate collaboration upon occasion. In the king’s absence or minority the court coram rege could only be held coram consilio, as we have already seen.
H. G. Richardson, The Origins of Parliament, Transactions of the Royal Historical Society, 4th series, xi. 137.
See the classical discussion in Maitland, Memoranda de Parliamento, lxxix-lxxxi (largely reprinted in Maitland, Selected Papers, ed. H. D. Hazeltine, G. Lapsley and P. H. Winfield), with which cf. H. G. Richardson in Bulletin of the Institute of Historical Research, vi. 129, Plucknett, in English Government at Work, 1327-1336 (ed. J. F. Willard), i. 90 ff., and J. G. Edwards, Justice in Early English Parliaments, Bulletin of the Institute of Historical Research, xxvii. 35 (1954).
A famous example is Staunton v. Staunton (1341), Y.B. 13 & 14 Edward III (Rolls Series), xxxvii-xliv; Y.B. 14 & 15 Edward III (Rolls Series), 288-300.
Pollock and Maitland, i. 555.
The details of this process belong to constitutional rather than to legal history. Early experiments were made from 1213 onwards; Parliaments which some modern historians have called “Model” were held in 1275 and 1295. See Adams, Constitutional History of England; Pollard, Evolution of Parliament; Pasquet, Origins of the House of Commons, and Taswell-Langmead, Constitutional History (ed. Plucknett), 143-167.
“For the king has his court in his council in his parliaments, in the presence of the prelates, earls, barons, nobles and other experienced men, where doubtful judgements are decided, and new remedies are established as new wrongs arise, and where justice is done to everyone according to his deserts”: Fleta, lib. ii. c. 2, § 1. Cf. Maitland, Memoranda de Parliamento, lxxix-lxxxix.
See Neale, The Commons’ Privilege of Free Speech (in Tudor Studies presented to A. F. Pollard, 257-286).
Chancery was not yet a court of equity.
Maitland, Constitutional History, 111-114.
The rule is stated to be customary by Glanvill, xii. 25 (on which see Woodbine’s note; Adams, Origin of the English Constitution, 97 ff. finds it difficult to accept, and would explain it away as too “anti-feudal”. More recently Lady Stenton, in Cambridge Mediaeval History, v. 586, has traced the rule back to Henry I). In 1202 the royal judges based a decision on the rule (Earliest Northamptonshire Assize Rolls, ed. Stenton, 782). Half a century later, however, it was the insurgent barons themselves who first put the rule in statutory form in 1259, Provisions of Westminster, c. 18, re-enacted in the Statute of Marlborough (1267), c. 22. Cf. Plucknett, Legislation of Edward I, 25-29.