Front Page Titles (by Subject) CHAPTER SEVENTEEN. - Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction
Return to Title Page for Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER SEVENTEEN. - Misc (Magna Carta), Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction 
Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Communia placita non sequantur curiam nostram sed teneantur in aliquo loco certo.
Common pleas shall not follow our court, but shall be held in some fixed place.
An attempt was here made to render royal justice cheaper and more accessible. Law–suits in which the Crown had no special interest, common pleas, were to be held in some pre–appointed spot, and no longer to follow the King from place to place. The full extent of this boon will be better appreciated after a short consideration of the method of dispensing justice adopted by Henry II. and his sons.
The Curia Regis as a Court of Law.
The evil complained of was a characteristically medieval one, and arose from the fact that all departments of government were centred in the King’s household. This Curia Regis, indeed, united in itself the functions of the modern Cabinet, of the administrative departments (such as the Home Office, the Foreign Office, and the Admiralty), and of the various legal tribunals. It was the parent inter alia of the Court at St. James’s and the courts at Westminster. Nothing could be done outside of the royal household, and that household never tarried long in any one spot. Everything was focussed to one point, but to a point constantly in motion. Wherever the King went, there the Curia Regis, with all its departments, went also. The entire machinery of royal justice followed Henry II., as he passed, sometimes on the impulse of the moment, from one of his favourite hunting seats to another. Crowds thronged after him in hot pursuit, since it was difficult to transact business of moment elsewhere.
This meant intolerable delay, annoyance, and expense. The case of Richard of Anesty is often cited in illustration. His own account is a graphic record of his journeyings in search of justice, throughout a period of five years, during which he visited in the King’s wake most parts of England, Normandy, Aquitaine, and Anjou. The plaintiff, although ultimately successful, paid dearly for his legal triumph. Reduced to borrow from the Jews to meet enormous outlays, mostly travelling expenses, he had to discharge his debts with accumulations of interest at the ruinous rate of 86⅔ per cent.1
Common Pleas and Royal Pleas.
Long before 1215, litigations conducted before the King’s courts had come to be divided roughly into two classes, according as the royal interests were or were not specially affected by the issue. Those on one side of this fluctuating line were known as royal pleas, or “pleas of the Crown,” provisions for holding which are contained in chapter 24, those on the other side as ordinary or “common pleas,” to which alone the present chapter refers. As these ordinary suits did not require to be determined in the royal presence, it was possible to appoint a bench of judges to sit permanently in some fixed spot, selected to suit the convenience of litigants. No town was named in Magna Carta; but Westminster, even then the natural home of law, was probably intended from the first. It is Westminster that Sir Frederick Pollock has in mind when he writes: “We may also say that Magna Carta gave England a capital.”1 The barons in 1215, in asking this reform, were not insisting on any startling innovation, but demanding merely the observance of a rule long recognized. During most of John’s reign, a court did sit at Westminster dispensing justice, with more or less regularity; and there most “common pleas” were tried, unless John ordered otherwise.2 Magna Carta confirmed the understanding that “common pleas” should not dance attendance on the King, though it did not name any one fixed place where they should be tried.3
Influences of Magna Carta on genesis of Courts of Common Law.
The ultimate consequences of this reform reached further than was foreseen. Intended to remove a practical grievance, it had important effects on the development of the English Constitution. By securing for common pleas a permanent home, it gave an impetus to the disintegrating tendencies already at work within the many–sided household of the King. It helped forward the cleavage destined to divide completely the future Courts of Westminster from the Court of St. James’s and from Downing Street. Nor was this all: the special treatment accorded to “common pleas” emphasized the distinction between them and royal pleas, and so contributed to the splitting up of the same Curia Regis, on its judicial side, into two distinct tribunals. One little group of judges were set apart for hearing common pleas, and known as “the King’s Judges of the Bench,” or more briefly as “the Bench,” and at a later date as the Court of Common Pleas. A second group, reserved for royal pleas, became the court Coram Rege, known subsequently as the Court of King’s Bench. There were thus two benches: a common bench for common pleas and a royal bench for pleas of the Crown.1
The double process, by which these two small courts separated slowly from the parent court and from each other, began long prior to Magna Carta, and was not completed before the close of the thirteenth century. These benches were also closely linked with a third bench, known for centuries as the Court of Exchequer, which was in its origin merely one department of that government bureau, the King’s financial Exchequer in which money was weighed and tested and the royal accounts drawn up. Many disputes or pleas affecting Crown debts had to be there decided, and a group of officials were set aside to try these. These men, called “barons of the exchequer,” formed what was in fact, though not in name, a third bench or court of justice.
All three of the Courts of Common Law were thus offshoots of the King’s household. In theory, each of these ought to have confined itself to a special class of suits—royal pleas, common pleas, and exchequer pleas respectively; but, by a process known to law–courts in all ages, each encroached on the jurisdictions and fees appropriate to the others, until they became, for most purposes, three sister courts of co–ordinate authority. They were bound to decide all suits according to the technical and inflexible rules of common law; and their jurisdiction required a supplement, which was supplied by the genesis of the Court of Chancery, dispensing, not common law, but equity, which professed to give (and, for a short time, actually did give) redress on the merits of each case as it arose, unrestrained by precedents and legal subtleties.
The Evolution of the Court of Common Pleas.
The comment usually made upon the present chapter is that we have here the origin of the Court of Common Pleas. Now, legal institutions do not spring, full–fledged, into being: the Common Pleas, like its sister Courts of King’s Bench and Exchequer, was the result of a long process of bifurcation from a common stem.
Three stages may be emphasized. (1) The earliest trace of a definite bench, set apart for common pleas, is to be found in 1178. Henry II., returning from Normandy, found that there had been irregularities. To prevent their recurrence, he effected changes, the exact nature of which is matter of dispute. A contemporary writer1 relates how Henry chose two clerks and three laymen from the officials of his own household, and gave to these five men authority to hear all complaints and to do right “and not to recede from his court.” It was long thought that this marked the origin of the King’s Bench,2 but Mr. Pike3 has conclusively proved that the bench thus established was the predecessor, not of the royal bench, but rather of the bench for common pleas.
In 1178, then, these five judges were set apart to hear ordinary suits; but they were specially directed not to leave Henry’s court; so that common pleas still “followed the King,” even ordinary litigants in non–royal pleas having to pursue the King in quest of justice as he passed from place to place in quest of sport or business.
It must not be supposed that the arrangement thus made settled the practice for the whole period of thirty–seven years preceding the grant of Magna Carta. On the contrary, it was merely one of many experiments tried by that restless reformer, Henry of Anjou; and the separate bench then instituted may have been pulled down and set up again many times. It had probably, at best, a fitful and intermittent existence. There is evidence, however, that some such court did exist and did try common pleas in the reigns of Richard and John.1 On the other hand, this tribunal had in John’s reign ceased to follow the King’s movements habitually, and established itself at Westminster.2 It was in 1215 considered an abuse for John to try a common plea elsewhere.
(2) Magna Carta, in 1215, gave authoritative sanction to this understanding, and thus marks a stage in the evolution of the Court of Common Pleas.3 Ordinary pleas were no longer to follow the King.4 Young Henry renewed this promise, and his minority favoured its strict observance: a mere boy could not make progresses through the land dispensing justice as he went. Accordingly, all pleas continued for some twenty years to be heard at Westminster. The same circumstance may have temporarily arrested the process of cleavage between the two benches.
(3) About 1234, Henry began to follow the precedent, set by his ancestors, of moving through his realm with judges in his train. While one group went with him, another remained at Westminster: some method of allocating business had therefore to be found. Common pleas, in accordance with Magna Carta, remained stationary; while pleas of the Crown went on their travels. The split between the two benches now became absolute: from the year 1234, two continuous series of distinct rolls can be traced, known respectively as rotuli placitorum coram rege and rotuli placitorum de banco. If any date in the history of one law court, which is in process of becoming two, can be reckoned as marking the point of separation, it should be that at which separate rolls appear. The court’s memory lies in its records, which are thus closely associated with its identity. The common bench and the royal bench had become distinct.1 While Henry and his justices sat in judgment at Worcester, in 1238, a litigant protested against his suit being tried before them. It was a “common plea” and therefore, he argued, ought not to follow the King, in violation of Magna Carta. At Westminster only, not at Worcester or elsewhere, could his case be heard.2
With royal pleas it was different: for long they continued to follow the King’s person without any protest being raised; and the Court of King’s Bench did not finally settle at Westminster for nearly a century after the Court of Common Pleas had been established there. It is doubtful whether, even in 1258, a separate royal bench had been constituted.3 So late as 1300, Edward I. ordained, by the Articuli super cartas, that “the Justices of his Bench” (as well as his Chancellor) should follow him, so that he might have at all times near him “some sages of the law, which be able duly to order all such matters as shall come into the Court at all times when need shall require.”4 The matters here referred to were royal pleas: common pleas were tried at Westminster.
Common Pleas and the Exchequer.
Records speak of the curia regis meeting for legal business ad scaccarium (that is, in the room where the business of the Exchequer of Accounts was normally transacted) long before the genesis of a separate Court of Exchequer.5
Formal sessions of the Exchequer for auditing the Sheriffs’ accounts could only be held at Westminster, where the necessary apparatus was kept; but “the Exchequer,” using that elastic word in a somewhat different sense, with much of its impedimenta of writs and tallies, would accompany the King on his progresses through the realm. In 1210, for example, the Exchequer was at Northampton; in 1266, at St. Paul’s; in 1277, at Shrewsbury; and in 1299, at York.1
Now, the Exchequer, when it sat as a Court of law, was ever willing—for a consideration—to place its potent procedure, devised for the King’s use, at the disposal of private creditors, treating “common pleas” as “exchequer pleas.” Ordinary debtors, summoned to answer for their debts before the barones scaccarii were subjected to more rapid pressure than they would have experienced elsewhere. Debtors were thus as anxious to escape the jurisdiction of the Exchequer, as creditors were to invite it.
Both before and after Magna Carta, it would appear that common pleas were sometimes tried at sessions of the Exchequer, held not only at Westminster but also during its wanderings in the King’s train. It was natural enough that defendants who found themselves hustled by the stringent Exchequer process should seek shelter under the present chapter of the Great Charter. That they did so is proved by the words of the Articuli super Cartas of 1300, which declared that no common pleas should henceforth be held in the Exchequer “contrary to the form of the Great Charter.”2
The implication of this clause of the statute of 1300 has sometimes been accepted literally.3 Magna Carta, however, in set terms at least, contains no such prohibition. If the present chapter excludes common pleas from the jurisdiction of a travelling Exchequer equally as from that of a travelling King’s bench, its words cannot be so stretched as to apply to normal sessions of the Exchequer held at Westminster. The Articuli super Cartas, however, attempted what the Charter of 1215 did not. After 1300 it was clearly illegal to hold any pleas in the Exchequer, unless such as affected the Crown and its ministers. Subsequent statutes confirmed this; but their plain intention was always defeated by the ingenious use of legal fictions and the connivance of the barons of Exchequer, who welcomed the increase of fees that kept pace with the increase of business.1
[1 ]Cf. J. F. Stephen, Hist. of Crim. Law, I. 88–9.
[1 ]Jurisprudence and Ethics, 209. Sometimes, however, another “fixed place” was substituted. The Court of Common Pleas sat once at York under Edward III. and once at Hertford under Elizabeth. See Maitland, Select Pleas of the Crown, xiii. The statute 2 Edward III. c. 11 enacted that it should not be removed to any new place without due notice.
[2 ]See Prof. Maitland, Select Pleas of the Crown, xiii.–xvi.
[3 ]See Pollock, Expansion of Common Law, 63 n. Cf. Holdsworth, I. 75.
[1 ]Cf. supra, 90.
[1 ]Author of Gesta Regis Henrici, I. 207.
[2 ]Bigelow, Proceaure, 89; Stubbs, Gesta Regis Henrici, I. lxxi.
[3 ]House of Lords, 32. See also Poole, Exchequer, 180, and Adams, Origin, 136 ff.
[1 ]See Prof. Maitland, Sel. Pl. Crown, xiii.–xvi.; see also in Pipe Roll, 7 John (cited Madox, I. 791) how money was paid that a plea pending before the Justiciarii de banco might be heard coram rege. This entry proves the existence in 1205 of the de banco as distinct from the coram rege.
[2 ]See Maitland, ibid.
[3 ]Cf. Poole, Exchequer, 183, who insists, however, that “it said nothing about a distinct court.”
[4 ]For attempts to evade this prohibition on the ground of the special character of particular pleas, see Bracton’s Note–book, Nos. 1213 and 1220.
[1 ]See Maitland, Sel. Pl. Crown, xviii.
[2 ]See Placitorum Abbreviatio (p. 105), 21 Henry III., cited Pike, House of Lords, p. 41 Cf. also Bracton’s Note–book, pleas Nos. 1213 and 1220.
[3 ]Poole, Exchequer, 183.
[4 ]28 Edward I. c. 5.
[5 ]For stages in this genesis in 1234, 1236, and 1317, see Poole, Exchequer, 183.
[1 ]Stubbs, Const. Hist., II. 281 n.
[2 ]See 28 Edward I. c. 4. Many previous attempts had been made to keep common pleas out of the Exchequer, e.g. the writs of 56 Henry III. and 5 Edward I. (cited Madox, II. 73–4), and the so–called statute of Rhuddlan (12 Edward I.), see Statutes of Realm, I. 70.
[3 ]Thus Madox (II. 73–4) holds that c. 17 relates to the Exchequer; so does Mr. Bigelow (History of Procedure, 130–1), who explains the grievance as a difficulty of getting speedy justice at the Exchequer, because the barons refused to sit after their fiscal business had been finished. This seems to be an error: the Barons of Exchequer made no difficulty about hearing pleas: quite the contrary. Plaintiffs were equally eager to purchase the writs which they were keen to sell: it was only defendants (debtors) who objected to the rapid and stringent procedure for enforcing payment adopted by this efficient court. The sheriffs and others waiting to render accounts before the Exchequer also protested against the congestion of business produced at the Exchequer by the eagerness of litigants who pressed there for justice. See Madox, II. 73. Plaintiffs had no reason to complain.
[1 ]The fiction of “Crown debtors” is well known: plaintiffs obtained a hearing in the exchequer for their common pleas by alleging that they wished to recover debts due to them “in order to enable them to answer the debts they owed to the king.” See Madox, II. 192.