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Court of Common Pleas (England)
Encyclopedia
The Court of Common Pleas, or Common Bench, was a common law
court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas
, the Common Pleas served as one of the central English courts for around 600 years. Authorised by the Magna Carta
to sit in a fixed location, the Common Pleas sat in Westminster Hall for its entire existence, joined by the Exchequer of Pleas and Court of King's Bench
.
The court's jurisdiction was gradually undercut by the King's Bench and Exchequer of Pleas with legal fiction
s, the Bill of Middlesex
and Writ of Quominus
respectively. The Common Pleas maintained its exclusive jurisdiction over matters of real property
until its dissolution, and due to its wide remit was considered by Sir Edward Coke
to be the "lock and key of the common law". It was staffed by one Chief Justice
and a varying number of puisne justices
, who were required to be Serjeants-at-Law
, and until the mid 19th century only Serjeants were allowed to plead there.
As one of the two principal common law courts with the King's Bench, the Common Pleas fought to maintain its jurisdiction and caseload, in a way that during the 16th and 17th centuries was categorised as conservative and reactionary. Reaching an acceptable medium with the King's Bench and Exchequer of Pleas proved to be the downfall of all three courts; with several courts of near-identical jurisdiction, there was little need for separate bodies, and the superior courts of Westminster were merged by the Supreme Court of Judicature Act 1873
into a single High Court of Justice
. With an Order in Council issued on 16 December 1880, the Common Pleas Division of the High Court ceased to exist, marking the end of the Court of Common Pleas.
Originally, the sole fixed "court" was the curia regis
, one of the three central administrative bodies along with the Exchequer
and Chancery, from which the Court of Chancery
formed. This curia was the king's court, composed of those advisers and courtiers who followed the king as he travelled around the country. This was not a dedicated court of law, instead a descendant of the witenagemot
. In concert with the curia regis, eyre circuits
staffed by itinerant judges dispensed justice throughout the country, operating on fixed paths at certain times. These judges were also members of the curia, and would hear cases on the king's behalf in the "lesser curia regis". Gradually, the curia split into two distinct branches, the coram rege (King's Bench
) and de banco (Common Bench, or Common Pleas). Much academic discussion occurs over the circumstances and times of their founding. In 1178, a chronicler recorded that when Henry II
:
This was originally interpreted as the foundation of the King's Bench, with the Court of Common Pleas not coming into existence until the signing of the Magna Carta
, which mandated in Section 17 that common pleas (cases between subject and subject, as opposed to cases involving the king) be heard in "some fixed place". This ensured that rather than the source of justice moving from place to place as the king did, there would be a fixed location that claimants and defendants could travel to that would address their problems. The later theory was that Henry II's decree created the Court of Common Pleas, not the King's Bench, and that the King's Bench instead split from the Common Pleas at some later time. In the 20th century, with better access to historical documents, legal historians have come to a different conclusion. Rather than the Common Pleas being created out of the curia regis directly, it instead arose out of the Exchequer of Pleas
, another body split from the curia regis. By the beginning of the 13th century, a split began; chronicles from 1201 identify the "bench" and "exchequer" as distinct bodies, and records of Barons of the Exchequer and Justices of the Common Pleas show a distinct lack of overlap.
The Court of Common Pleas, along with the other superior courts, sat in Westminster Hall from its creation. Due to the provisions in the Magna Carta, it was bound to sit there; an apocryphal story says that Orlando Bridgeman refused to move the court a few feet to avoid the draught from the north entrance, fearing that to do so would be to infringe on the Magna Carta. The court sat in a space marked off by a wooden bar (which counsel stood behind) with the court officials sitting at a large oak table covered in green cloth and the justices on a raised platform (or "bench") at the rear of the court.
During the 15th century, the common law courts were challenged by the civil law
and equity found in the Chancery and similar courts. These courts and legal methods were much faster than the common law courts, so lawyers and claimants flocked to them. This was perceived as a threat to the common law courts, for good reason; between 1460 and 1540, the business of the common law courts significantly dropped, while the Chancery's cases rose massively in number. In reaction to this, the Court of King's Bench developed its own, faster system, intent on winning cases back, and through procedures such as the Writ of Quominus
and Bill of Middlesex
acquired a wider jurisdiction. While this succeeded in forming an equilibrium between the old common law courts and the new courts, it was viewed with suspicion by the Common Pleas, who became highly reactionary to the changes the King's Bench attempted to introduce. When the King's Bench attempted to use the Bill of Middlesex to widen its jurisdiction, the Common Pleas became increasingly conservative in its attempts to avoid ceding cases. This was limited by the fact that the three Common Pleas prothonotaries
could not agree on how to cut costs, leaving the court both expensive and of limited malleability while the King's Bench became faster, cheaper and more varied in its jurisdiction.
The troubles during this period are best illustrated by Slade's Case
. Under the medieval common law, claims seeking the repayment of a debt or other matters could only be pursued through a writ of debt in the Common Pleas, a problematic and archaic process. By 1558 the lawyers had succeeded in creating another method, enforced by the Court of King's Bench, through the action of assumpsit
, which was technically for deceit. The legal fiction
used was that by failing to pay after promising to do so, a defendant had committed deceit, and was liable to the plaintiff. The conservative Common Pleas, through the appellate court
the Court of Exchequer Chamber, began to overrule decisions made by the King's Bench on assumpsit, causing friction between the courts. In Slade's Case, the Chief Justice of the King's Bench, John Popham, deliberately provoked the Common Pleas into bringing an assumpsit action to a higher court where the Justices of the King's Bench could vote, allowing them to overrule the Common Pleas and establish assumpsit as the main contractual action. After the death of Edmund Anderson, the more activist Francis Gawdy
became Chief Justice of the Common Pleas
, which briefly led to a less reactionary and more revolutionary court.
The Interregnum granted some respite to the Common Pleas, which abolished fines on original writs, hurting the King's Bench, but in 1660 the fines were reinstated and "then the very attorneys of the Common Pleas boggled at them and carried all their finable business to the King's Bench". In 1661 the Common Pleas attempted to reverse this by pushing for an Act of Parliament to abolish latitat
s based on legal fictions, forbidding "special bail" in any case where "the true cause of action" was not expressed in the process. The King's Bench got around this in the 1670s; the Act did not say that the process had to be true, so the court continued to use legal fictions, simply ensuring that the true cause of action was expressed in the process, regardless of whether or not it was correct. The Bill of Middlessex disclosed the true cause of action, satisfying the 1661 statute, but did not require a valid complaint. This caused severe friction within the court system, and Francis North
, Chief Justice of the Common Pleas, eventually reached a compromise by allowing such legal fictions in the Common Pleas as well as the King's Bench.
The unintended outcome of these compromises was that by the end of Charles II
's reign, all three common law courts had a similar jurisdiction over most common pleas, with similar processes. By the 18th century, it was customary to speak of the "twelve justices" of the three courts, not distinguishing them, and assize cases were shared equally between them. In 1828, Henry Brougham
complained that
The purpose of Brougham's speech was to illustrate that three courts of identical jurisdiction were unnecessary, and further that it would create a situation where the best judges, lawyers and cases would eventually go to one court, overburdening that body and leaving the others near-useless. In 1823, 43,465 actions were brought in the King's Bench, 13,009 in the Common Pleas and 6,778 in the Exchequer of Pleas. Not surprisingly, the King's Bench judges were "immoderately over burdened", the Common Pleas judges were "fully occupied in term, and much engaged in vacation also" and the Barons of the Exchequer were "comparatively little occupied either in term or vacation".
In response to this and the report of a committee investigating the slow pace of the Court of Chancery
, the Judicature Commission was formed in 1867, and given a wide remit to investigate reform of the courts, the law, and the legal profession. Five reports were issued, from 25 March 1869 to 10 July 1874, with the first (dealing with the formation of a single Supreme Court of Judicature) considered the most influential. The report disposed of the previous idea of merging the common law and equity, and instead suggested a single Supreme Court capable of utilising both. In 1870 the Lord Chancellor, Lord Hatherly
, attempted to bring the recommendations into law through an Act of Parliament, but did not go to the trouble of consulting the judiciary or the leader of the Conservatives, who controlled the House of Lords
. The bill ran into strong opposition from lawyers and judges, particularly Alexander Cockburn
. After Hatherly was replaced by Lord Selbourne
in September 1872, a second bill was introduced after consultation with the judiciary; although along the same lines, it was far more detailed.
The Act, finally passed as the Supreme Court of Judicature Act 1873
, merged the Common Pleas, Exchequer, King's Bench and Court of Chancery into one body, the High Court of Justice
, with the divisions between the courts to remain. The Court of Common Pleas thus ceased to exist, except as the Common Pleas Division of the High Court. The existence of the same courts under one unified head was a quirk of constitutional law, which prevented the compulsory demotion or retirement of Chief Justices. By sheer chance, both the Chief Justice of the Common Pleas
and Chief Baron of the Exchequer died in 1880, allowing for the abolition of the Common Pleas Division and Exchequer Division by Order in Council on 16 December 1880. The High Court was reorganised into the Chancery Division, King's Bench Division and the Probate, Divorce and Admiralty Division; the Court of Common Pleas ceased to exist in any form.
The Common Pleas' jurisdiction was over "common pleas," cases where the king had no interest. This in practice meant cases between subject and subject, including all actions taken under praecipe
to recover debts or property, which made up the vast majority of civil cases. As such, the Common Pleas "was the court which more than any other shaped the medieval common law". It was the court where most students went to learn, and the majority of the early case reports come from the Common Pleas. The court was called "the lock and key of the common law" by Sir Edward Coke
, since throughout its history it was the only court where claims involving real property
could be brought, giving it a wider remit to set precedent than the other courts. For almost all of its history, Serjeants at Law and King's Serjeants were the only advocates given rights of audience
in the Court of Common Pleas. As part of the Court of Common Pleas the Serjeants also performed some judicial duties, such as levying fines. In 1834 Lord Brougham
issued a mandate which opened up pleading in the Court of Common Pleas to every barrister
, Serjeant or not, and this was followed for six years until the Serjeants successfully petitioned the Queen to overturn it as invalid. The Serjeants only enjoyed their returned status for another six years, however, before Parliament intervened. The Practitioners in Common Pleas Act 1846, from 18 August 1846, allowed all barristers to practice in the Court of Common Pleas.
From the 13th century onwards, the Court of Common Pleas could issue its own writ
s, and was not dependant on the Court of Chancery, where such documents usually originated. These were sealed with the Great Seal of the King until at least 1338, along with the seal of the justices; the Chancery writs had their own independent seal. Documents were, from 1350, considered acceptable if only marked with the seal of the justices. In 1344, the king created a separate seal for the Common Pleas, allowing them to process cases without involving the Chancery or the king. The court stood on an equal footing with the Exchequer of Pleas, Court of Chancery and King's Bench in relation to transferring cases between them. Any errors on the part of the Common Pleas would be corrected by the King's Bench through a separate action brought there. Thanks to the Bill of Middlesex and other legal fictions, the King's Bench gained much of the Common Pleas's jurisdiction, although the Common Pleas remained the sole place where real property claims could be brought.
The Common Pleas was staffed by a number of Justices, under one Chief Justice. The number of Justices at any one time varied; between 1377 and 1420 there were generally four, switching to five from 1420 to 1471. From 1471 onwards, the number was fixed at 3. This changed in the 19th century; provisions were made for the appointment of a Fourth Justice and Fifth Justice in 1830 and 1868 respectively. From the start of the 14th century, Justices were appointed via letters patent
made under the Great Seal, and held their appointments "under the pleasure of the King". Justices received the same remuneration as judges of the Exchequer of Pleas
and Court of King's Bench
; £1,000 in 1660, increased to £2,000 in 1759 and £4,000 in 1809. From 1799, pensions were also awarded to retiring Justices. The Chief Justice was one of the highest judicial officials in England
, behind only the Lord High Chancellor and the Lord Chief Justice of the King's (or Queen's) Bench. Initially the position of Chief Justice was not an appointment; of the justices serving in the court, one would become more respected than his peers, and was therefore considered the "chief" justice. The position was formalised in 1272 with the raising of Sir Gilbert of Preston
to Chief Justice, and from then on it was considered a formally appointed role similar to the positions of Chief Justice of the King's Bench and Chief Baron of the Exchequer.
Both the puisne
and Chief justices were required to be Serjeants-at-Law, and were appointed by letters patent
. The Serjeant would then be greeted by the Lord Chancellor, who would inform him of his new position; the letters patent would then be read out in court, and the new justice would swear an oath to do "justice without favour, to all men pleading before him, friends and foes alike", not to "delay to do so even though the king should command him by his letters or by word of mouth to the contrary" or "receive from anyone except the king any fee or other pension or livery nor take any gift from the pleaders before him, except food and drink of no great price". The innovation of appointment by letters patent was a scheme of Edward III
's to avoid the potential for bribery, by providing a method through which judges could be paid. This income was supplemented through work on commissions of assize, goal deliveries, and oyer and terminer
. The justice would also receive fees from the parties in court, through the costs of judicial writs.
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The justices were assisted by a staff of over 50 officials, most of whom sat in Westminster Hall but also kept offices at the various Inns of Court
. The Chief Clerk was the Custos Brevium
, appointed by the crown, but in practice clerking matters were handled by his deputy, as the office was a royal favour rather than a serious judicial appointment. The crown also appointed the court chirographer
, responsible for noting final concords and filing records of fines. Another high-ranking clerk was the Clerk of the Outlawries, an under-clerk of the Attorney General for England and Wales
, who was tasked with recording recognizance
s to protect the interests of the King in common law matters. In 1541 his position was replaced with the office of Clerk of the King's Process. Other offices created during the reign of Henry VIII
include the Clerk of the Recognizances in 1432, who recorded debts secured by recognizances and the office of Receiver of Debts, who was tasked with receiving and recording money coming into the court via debts and fines, and was first appointed in 1536.
Due to their technical knowledge, the most important officers were the three Prothonotaries
, the first and third of whom were appointed by the Chief Justice and the second by the Chief Justice on the advice of the Custos Brevium. They were responsible for enrolling records of litigation, including anything that raised a point of law, and were often consulted by the court due to their detailed technical knowledge. The Chief Justice also appointed the Clerk of the Warrants, Clerk of the Treasury (also known as the Clerk of Hell), the Keeper of the Seal, the Clerk of Essoins and the Clerk of Acknowledgments of Fines and Recoveries (who was officially the Chief Justices own clerk, rather than that of the court), as well as other officials. The Custos Brevium appointed the Clerk of the Juries, responsible for issuing writs of Habeas Corpus.
There were four Exigenters tasked with issuing and controlling the process of declaring someone an Outlaw
, with each Exigenter assigned a set of counties. The most valuable of the Exigenterships was that for London, Middlesex, Sussex, Kent, Dorset, Somerset, Devon, Cambridgeshire, Huntingdonshire, Bristol and Exeter due to the number of processes each year, with London alone handling over 100 documents a year by the mid-1550s. By tradition the Exigenter for Yorkshire and the other northern counties was also Filazer for Northumberland, Westmorland, Cumberland and Newcastle, and Clerk of the King's Silver for the entire country. There were also thirteen Filazers, who shared counties between them according to historical divisions, and were tasked with filing judicial writs for their counties and transferring them to the Custos Brevium for filing. A fourteenth Filazer was appointed for Monmouthshire in 1542, but other than this there were no changes to the position until the abolition of the court.
The Warden of the Fleet Prison, who was also keeper of Westminster Hall, was tasked with keeping it clean and letting the shops and booths along the sides. Despite acting as gaoler to the Exchequer of Pleas
, Court of Chancery
and Star Chamber
as part of his duties the Warden was considered an officer of the Court of Common Pleas. All court officers were appointed for life, and could only be removed for misbehaviour. Despite this, the sheer number of positions meant that several came up for reappointment in each Chief Justice's tenure, and selling them could be very profitable.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas
Exchequer of pleas
The Exchequer of Pleas or Court of Exchequer was a court that followed equity, a set of legal principles based on natural law, and common law, in England and Wales. Originally part of the curia regis, or King's Council, the Exchequer of Pleas split from the curia during the 1190s, to sit as an...
, the Common Pleas served as one of the central English courts for around 600 years. Authorised by the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
to sit in a fixed location, the Common Pleas sat in Westminster Hall for its entire existence, joined by the Exchequer of Pleas and Court of King's Bench
Court of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...
.
The court's jurisdiction was gradually undercut by the King's Bench and Exchequer of Pleas with legal fiction
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
s, the Bill of Middlesex
Bill of Middlesex
The Bill of Middlesex was a legal fiction used by the Court of King's Bench to gain jurisdiction over cases traditionally in the remit of the Court of Common Pleas...
and Writ of Quominus
Writ of Quominus
The Writ of Quominus, or Writ of Quo Minus, was a writ and legal fiction which allowed the Court of Exchequer to obtain a jurisdiction over cases normally brought in the Court of Common Pleas...
respectively. The Common Pleas maintained its exclusive jurisdiction over matters of real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
until its dissolution, and due to its wide remit was considered by Sir Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
to be the "lock and key of the common law". It was staffed by one Chief Justice
Chief Justice of the Common Pleas
The Court of Common Pleas, also known as the Common Bench or Common Place, was the second highest common law court in the English legal system until 1880, when it was dissolved. As such, the Chief Justice of the Common Pleas was one of the highest judicial officials in England, behind only the Lord...
and a varying number of puisne justices
Justice of the Common Pleas
Justice of the Common Pleas was a puisne judicial position within the Court of Common Pleas of England and Wales, under the Chief Justice. The Common Pleas was the primary court of common law within England and Wales, dealing with "common" pleas...
, who were required to be Serjeants-at-Law
Serjeant-at-law
The Serjeants-at-Law was an order of barristers at the English bar. The position of Serjeant-at-Law , or Sergeant-Counter, was centuries old; there are writs dating to 1300 which identify them as descended from figures in France prior to the Norman Conquest...
, and until the mid 19th century only Serjeants were allowed to plead there.
As one of the two principal common law courts with the King's Bench, the Common Pleas fought to maintain its jurisdiction and caseload, in a way that during the 16th and 17th centuries was categorised as conservative and reactionary. Reaching an acceptable medium with the King's Bench and Exchequer of Pleas proved to be the downfall of all three courts; with several courts of near-identical jurisdiction, there was little need for separate bodies, and the superior courts of Westminster were merged by the Supreme Court of Judicature Act 1873
Supreme Court of Judicature Act 1873
The Supreme Court of Judicature Act 1873 was an Act of Parliament by the Parliament of the United Kingdom in 1873...
into a single High Court of Justice
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
. With an Order in Council issued on 16 December 1880, the Common Pleas Division of the High Court ceased to exist, marking the end of the Court of Common Pleas.
Origin
Curia Regis
Curia regis is a Latin term meaning "royal council" or "king's court."- England :The Curia Regis, in the Kingdom of England, was a council of tenants-in-chief and ecclesiastics that advised the king of England on legislative matters...
, one of the three central administrative bodies along with the Exchequer
Exchequer
The Exchequer is a government department of the United Kingdom responsible for the management and collection of taxation and other government revenues. The historical Exchequer developed judicial roles...
and Chancery, from which the Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
formed. This curia was the king's court, composed of those advisers and courtiers who followed the king as he travelled around the country. This was not a dedicated court of law, instead a descendant of the witenagemot
Witenagemot
The Witenagemot , also known as the Witan was a political institution in Anglo-Saxon England which operated from before the 7th century until the 11th century.The Witenagemot was an assembly of the ruling class whose primary function was to advise the king and whose membership was...
. In concert with the curia regis, eyre circuits
Eyre (legal term)
An Eyre or Iter was the name of a circuit traveled by an itinerant justice in medieval England, or the circuit court he presided over , or the right of the king to visit and inspect the holdings of any vassal...
staffed by itinerant judges dispensed justice throughout the country, operating on fixed paths at certain times. These judges were also members of the curia, and would hear cases on the king's behalf in the "lesser curia regis". Gradually, the curia split into two distinct branches, the coram rege (King's Bench
Court of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...
) and de banco (Common Bench, or Common Pleas). Much academic discussion occurs over the circumstances and times of their founding. In 1178, a chronicler recorded that when Henry II
Henry II of England
Henry II ruled as King of England , Count of Anjou, Count of Maine, Duke of Normandy, Duke of Aquitaine, Duke of Gascony, Count of Nantes, Lord of Ireland and, at various times, controlled parts of Wales, Scotland and western France. Henry, the great-grandson of William the Conqueror, was the...
:
This was originally interpreted as the foundation of the King's Bench, with the Court of Common Pleas not coming into existence until the signing of the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
, which mandated in Section 17 that common pleas (cases between subject and subject, as opposed to cases involving the king) be heard in "some fixed place". This ensured that rather than the source of justice moving from place to place as the king did, there would be a fixed location that claimants and defendants could travel to that would address their problems. The later theory was that Henry II's decree created the Court of Common Pleas, not the King's Bench, and that the King's Bench instead split from the Common Pleas at some later time. In the 20th century, with better access to historical documents, legal historians have come to a different conclusion. Rather than the Common Pleas being created out of the curia regis directly, it instead arose out of the Exchequer of Pleas
Exchequer of pleas
The Exchequer of Pleas or Court of Exchequer was a court that followed equity, a set of legal principles based on natural law, and common law, in England and Wales. Originally part of the curia regis, or King's Council, the Exchequer of Pleas split from the curia during the 1190s, to sit as an...
, another body split from the curia regis. By the beginning of the 13th century, a split began; chronicles from 1201 identify the "bench" and "exchequer" as distinct bodies, and records of Barons of the Exchequer and Justices of the Common Pleas show a distinct lack of overlap.
The Court of Common Pleas, along with the other superior courts, sat in Westminster Hall from its creation. Due to the provisions in the Magna Carta, it was bound to sit there; an apocryphal story says that Orlando Bridgeman refused to move the court a few feet to avoid the draught from the north entrance, fearing that to do so would be to infringe on the Magna Carta. The court sat in a space marked off by a wooden bar (which counsel stood behind) with the court officials sitting at a large oak table covered in green cloth and the justices on a raised platform (or "bench") at the rear of the court.
Struggle with the King's Bench
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
and equity found in the Chancery and similar courts. These courts and legal methods were much faster than the common law courts, so lawyers and claimants flocked to them. This was perceived as a threat to the common law courts, for good reason; between 1460 and 1540, the business of the common law courts significantly dropped, while the Chancery's cases rose massively in number. In reaction to this, the Court of King's Bench developed its own, faster system, intent on winning cases back, and through procedures such as the Writ of Quominus
Writ of Quominus
The Writ of Quominus, or Writ of Quo Minus, was a writ and legal fiction which allowed the Court of Exchequer to obtain a jurisdiction over cases normally brought in the Court of Common Pleas...
and Bill of Middlesex
Bill of Middlesex
The Bill of Middlesex was a legal fiction used by the Court of King's Bench to gain jurisdiction over cases traditionally in the remit of the Court of Common Pleas...
acquired a wider jurisdiction. While this succeeded in forming an equilibrium between the old common law courts and the new courts, it was viewed with suspicion by the Common Pleas, who became highly reactionary to the changes the King's Bench attempted to introduce. When the King's Bench attempted to use the Bill of Middlesex to widen its jurisdiction, the Common Pleas became increasingly conservative in its attempts to avoid ceding cases. This was limited by the fact that the three Common Pleas prothonotaries
Prothonotary
The word prothonotary is recorded in English since 1447, as "principal clerk of a court," from L.L. prothonotarius , from Greek protonotarios "first scribe," originally the chief of the college of recorders of the court of the Byzantine Empire, from Greek protos "first" + Latin notarius ; the -h-...
could not agree on how to cut costs, leaving the court both expensive and of limited malleability while the King's Bench became faster, cheaper and more varied in its jurisdiction.
The troubles during this period are best illustrated by Slade's Case
Slade's Case
Slade's Case was a case in English contract law that ran from 1596 to 1602. Under the medieval common law, claims seeking the repayment of a debt or other matters could only be pursued through a writ of debt in the Court of Common Pleas, a problematic and archaic process...
. Under the medieval common law, claims seeking the repayment of a debt or other matters could only be pursued through a writ of debt in the Common Pleas, a problematic and archaic process. By 1558 the lawyers had succeeded in creating another method, enforced by the Court of King's Bench, through the action of assumpsit
Assumpsit
Assumpsit is a form of action at common law for the recovery of damages caused by the breach or non-performance of a simple contract, either express or implied, and whether made orally or in writing....
, which was technically for deceit. The legal fiction
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
used was that by failing to pay after promising to do so, a defendant had committed deceit, and was liable to the plaintiff. The conservative Common Pleas, through the appellate court
Appellate court
An appellate court, commonly called an appeals court or court of appeals or appeal court , is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal...
the Court of Exchequer Chamber, began to overrule decisions made by the King's Bench on assumpsit, causing friction between the courts. In Slade's Case, the Chief Justice of the King's Bench, John Popham, deliberately provoked the Common Pleas into bringing an assumpsit action to a higher court where the Justices of the King's Bench could vote, allowing them to overrule the Common Pleas and establish assumpsit as the main contractual action. After the death of Edmund Anderson, the more activist Francis Gawdy
Francis Gawdy
Sir Francis Gawdy QS was a British judge. He was the third son of Thomas Gawdy, and was baptised Thomas Gawdy, as were his two older half-brothers. Francis then had his name changed at his Confirmation, establishing legal precedent that a name given at baptism could be changed at confirmation...
became Chief Justice of the Common Pleas
Chief Justice of the Common Pleas
The Court of Common Pleas, also known as the Common Bench or Common Place, was the second highest common law court in the English legal system until 1880, when it was dissolved. As such, the Chief Justice of the Common Pleas was one of the highest judicial officials in England, behind only the Lord...
, which briefly led to a less reactionary and more revolutionary court.
The Interregnum granted some respite to the Common Pleas, which abolished fines on original writs, hurting the King's Bench, but in 1660 the fines were reinstated and "then the very attorneys of the Common Pleas boggled at them and carried all their finable business to the King's Bench". In 1661 the Common Pleas attempted to reverse this by pushing for an Act of Parliament to abolish latitat
Latitat
A latitat is a legal device, namely a writ, that is "based upon the presumption that the person summoned was hiding", see Blackstone. The word "latitat" is Latin for "he lurks."...
s based on legal fictions, forbidding "special bail" in any case where "the true cause of action" was not expressed in the process. The King's Bench got around this in the 1670s; the Act did not say that the process had to be true, so the court continued to use legal fictions, simply ensuring that the true cause of action was expressed in the process, regardless of whether or not it was correct. The Bill of Middlessex disclosed the true cause of action, satisfying the 1661 statute, but did not require a valid complaint. This caused severe friction within the court system, and Francis North
Francis North, 1st Baron Guilford
Francis North, 1st Baron Guilford PC KC was the third son of the 4th Baron North, and was created Baron Guilford in 1683, after becoming Lord Keeper of the Great Seal in succession to Lord Nottingham....
, Chief Justice of the Common Pleas, eventually reached a compromise by allowing such legal fictions in the Common Pleas as well as the King's Bench.
Unity and dissolution
Charles II of England
Charles II was monarch of the three kingdoms of England, Scotland, and Ireland.Charles II's father, King Charles I, was executed at Whitehall on 30 January 1649, at the climax of the English Civil War...
's reign, all three common law courts had a similar jurisdiction over most common pleas, with similar processes. By the 18th century, it was customary to speak of the "twelve justices" of the three courts, not distinguishing them, and assize cases were shared equally between them. In 1828, Henry Brougham
Henry Brougham, 1st Baron Brougham and Vaux
Henry Peter Brougham, 1st Baron Brougham and Vaux was a British statesman who became Lord Chancellor of Great Britain.As a young lawyer in Scotland Brougham helped to found the Edinburgh Review in 1802 and contributed many articles to it. He went to London, and was called to the English bar in...
complained that
The purpose of Brougham's speech was to illustrate that three courts of identical jurisdiction were unnecessary, and further that it would create a situation where the best judges, lawyers and cases would eventually go to one court, overburdening that body and leaving the others near-useless. In 1823, 43,465 actions were brought in the King's Bench, 13,009 in the Common Pleas and 6,778 in the Exchequer of Pleas. Not surprisingly, the King's Bench judges were "immoderately over burdened", the Common Pleas judges were "fully occupied in term, and much engaged in vacation also" and the Barons of the Exchequer were "comparatively little occupied either in term or vacation".
In response to this and the report of a committee investigating the slow pace of the Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
, the Judicature Commission was formed in 1867, and given a wide remit to investigate reform of the courts, the law, and the legal profession. Five reports were issued, from 25 March 1869 to 10 July 1874, with the first (dealing with the formation of a single Supreme Court of Judicature) considered the most influential. The report disposed of the previous idea of merging the common law and equity, and instead suggested a single Supreme Court capable of utilising both. In 1870 the Lord Chancellor, Lord Hatherly
William Wood, 1st Baron Hatherley
William Page Wood, 1st Baron Hatherley PC, QC was a British lawyer and statesman who served as a Liberal Lord Chancellor between 1868 and 1872 in William Ewart Gladstone's first ministry.-Background and education:...
, attempted to bring the recommendations into law through an Act of Parliament, but did not go to the trouble of consulting the judiciary or the leader of the Conservatives, who controlled the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
. The bill ran into strong opposition from lawyers and judges, particularly Alexander Cockburn
Sir Alexander Cockburn, 12th Baronet
Sir Alexander James Edmund Cockburn, 12th Baronet Q.C. was a Scottish lawyer, politician and judge. A notorious womaniser and socialite, as Lord Chief Justice he heard some of the leading causes célèbres of the 19th century.-Life:Cockburn was born in Alţâna, in what is now Romania and was then...
. After Hatherly was replaced by Lord Selbourne
Roundell Palmer, 1st Earl of Selborne
Roundell Palmer, 1st Earl of Selborne PC , was a British lawyer and politician. He served twice as Lord Chancellor of Great Britain.-Background and education:...
in September 1872, a second bill was introduced after consultation with the judiciary; although along the same lines, it was far more detailed.
The Act, finally passed as the Supreme Court of Judicature Act 1873
Supreme Court of Judicature Act 1873
The Supreme Court of Judicature Act 1873 was an Act of Parliament by the Parliament of the United Kingdom in 1873...
, merged the Common Pleas, Exchequer, King's Bench and Court of Chancery into one body, the High Court of Justice
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
, with the divisions between the courts to remain. The Court of Common Pleas thus ceased to exist, except as the Common Pleas Division of the High Court. The existence of the same courts under one unified head was a quirk of constitutional law, which prevented the compulsory demotion or retirement of Chief Justices. By sheer chance, both the Chief Justice of the Common Pleas
Chief Justice of the Common Pleas
The Court of Common Pleas, also known as the Common Bench or Common Place, was the second highest common law court in the English legal system until 1880, when it was dissolved. As such, the Chief Justice of the Common Pleas was one of the highest judicial officials in England, behind only the Lord...
and Chief Baron of the Exchequer died in 1880, allowing for the abolition of the Common Pleas Division and Exchequer Division by Order in Council on 16 December 1880. The High Court was reorganised into the Chancery Division, King's Bench Division and the Probate, Divorce and Admiralty Division; the Court of Common Pleas ceased to exist in any form.
Jurisdiction
Praecipe
In law in the United States, a praecipe is document that either commands a defendant to appear and show cause why an act or thing should not be done; or requests the clerk of court to issue a writ and to specify its contents...
to recover debts or property, which made up the vast majority of civil cases. As such, the Common Pleas "was the court which more than any other shaped the medieval common law". It was the court where most students went to learn, and the majority of the early case reports come from the Common Pleas. The court was called "the lock and key of the common law" by Sir Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
, since throughout its history it was the only court where claims involving real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
could be brought, giving it a wider remit to set precedent than the other courts. For almost all of its history, Serjeants at Law and King's Serjeants were the only advocates given rights of audience
Rights of audience
In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client. In English law, there is a fundamental distinction between barristers, who have a right of audience, and solicitors, who traditionally do not ; there is no such...
in the Court of Common Pleas. As part of the Court of Common Pleas the Serjeants also performed some judicial duties, such as levying fines. In 1834 Lord Brougham
Henry Brougham, 1st Baron Brougham and Vaux
Henry Peter Brougham, 1st Baron Brougham and Vaux was a British statesman who became Lord Chancellor of Great Britain.As a young lawyer in Scotland Brougham helped to found the Edinburgh Review in 1802 and contributed many articles to it. He went to London, and was called to the English bar in...
issued a mandate which opened up pleading in the Court of Common Pleas to every barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
, Serjeant or not, and this was followed for six years until the Serjeants successfully petitioned the Queen to overturn it as invalid. The Serjeants only enjoyed their returned status for another six years, however, before Parliament intervened. The Practitioners in Common Pleas Act 1846, from 18 August 1846, allowed all barristers to practice in the Court of Common Pleas.
From the 13th century onwards, the Court of Common Pleas could issue its own writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
s, and was not dependant on the Court of Chancery, where such documents usually originated. These were sealed with the Great Seal of the King until at least 1338, along with the seal of the justices; the Chancery writs had their own independent seal. Documents were, from 1350, considered acceptable if only marked with the seal of the justices. In 1344, the king created a separate seal for the Common Pleas, allowing them to process cases without involving the Chancery or the king. The court stood on an equal footing with the Exchequer of Pleas, Court of Chancery and King's Bench in relation to transferring cases between them. Any errors on the part of the Common Pleas would be corrected by the King's Bench through a separate action brought there. Thanks to the Bill of Middlesex and other legal fictions, the King's Bench gained much of the Common Pleas's jurisdiction, although the Common Pleas remained the sole place where real property claims could be brought.
Justices
Letters patent
Letters patent are a type of legal instrument in the form of a published written order issued by a monarch or president, generally granting an office, right, monopoly, title, or status to a person or corporation...
made under the Great Seal, and held their appointments "under the pleasure of the King". Justices received the same remuneration as judges of the Exchequer of Pleas
Exchequer of pleas
The Exchequer of Pleas or Court of Exchequer was a court that followed equity, a set of legal principles based on natural law, and common law, in England and Wales. Originally part of the curia regis, or King's Council, the Exchequer of Pleas split from the curia during the 1190s, to sit as an...
and Court of King's Bench
Court of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...
; £1,000 in 1660, increased to £2,000 in 1759 and £4,000 in 1809. From 1799, pensions were also awarded to retiring Justices. The Chief Justice was one of the highest judicial officials in England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
, behind only the Lord High Chancellor and the Lord Chief Justice of the King's (or Queen's) Bench. Initially the position of Chief Justice was not an appointment; of the justices serving in the court, one would become more respected than his peers, and was therefore considered the "chief" justice. The position was formalised in 1272 with the raising of Sir Gilbert of Preston
Gilbert of Preston
Sir Gilbert of Preston was a British justice. He was the son of Walter of Preston, who was High Sheriff of Northamptonshire between 1206 and 1208...
to Chief Justice, and from then on it was considered a formally appointed role similar to the positions of Chief Justice of the King's Bench and Chief Baron of the Exchequer.
Both the puisne
Puisne
Puisne is a legal term of art used mainly in British English meaning "inferior in rank." It is pronounced like the word puny, and the word, so spelled, has become an ordinary adjective meaning weak or undersized.The judges and barons of the common law courts at...
and Chief justices were required to be Serjeants-at-Law, and were appointed by letters patent
Letters patent
Letters patent are a type of legal instrument in the form of a published written order issued by a monarch or president, generally granting an office, right, monopoly, title, or status to a person or corporation...
. The Serjeant would then be greeted by the Lord Chancellor, who would inform him of his new position; the letters patent would then be read out in court, and the new justice would swear an oath to do "justice without favour, to all men pleading before him, friends and foes alike", not to "delay to do so even though the king should command him by his letters or by word of mouth to the contrary" or "receive from anyone except the king any fee or other pension or livery nor take any gift from the pleaders before him, except food and drink of no great price". The innovation of appointment by letters patent was a scheme of Edward III
Edward III of England
Edward III was King of England from 1327 until his death and is noted for his military success. Restoring royal authority after the disastrous reign of his father, Edward II, Edward III went on to transform the Kingdom of England into one of the most formidable military powers in Europe...
's to avoid the potential for bribery, by providing a method through which judges could be paid. This income was supplemented through work on commissions of assize, goal deliveries, and oyer and terminer
Oyer and terminer
In English law, Oyer and terminer was the Law French name, meaning "to hear and determine", for one of the commissions by which a judge of assize sat...
. The justice would also receive fees from the parties in court, through the costs of judicial writs.
Other offices
Inns of Court
The Inns of Court in London are the professional associations for barristers in England and Wales. All such barristers must belong to one such association. They have supervisory and disciplinary functions over their members. The Inns also provide libraries, dining facilities and professional...
. The Chief Clerk was the Custos Brevium
Custos Brevium
The Custos Brevium was an official in the Court of Common Pleas and Court of King's Bench. In the Court of Common Pleas the Custos Brevium served as Chief Clerk, in charge of the officials that supported the Justices of the Common Pleas in their business...
, appointed by the crown, but in practice clerking matters were handled by his deputy, as the office was a royal favour rather than a serious judicial appointment. The crown also appointed the court chirographer
Chirography
Chirography is the study of penmanship and handwriting in all of its aspects ....
, responsible for noting final concords and filing records of fines. Another high-ranking clerk was the Clerk of the Outlawries, an under-clerk of the Attorney General for England and Wales
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
, who was tasked with recording recognizance
Recognizance
In some common law nations, a recognizance is a conditional obligation undertaken by a person before a court. It is an obligation of record, entered into before a court or magistrate duly authorized, whereby the party bound acknowledges that he owes a personal debt to the state...
s to protect the interests of the King in common law matters. In 1541 his position was replaced with the office of Clerk of the King's Process. Other offices created during the reign of Henry VIII
Henry VIII of England
Henry VIII was King of England from 21 April 1509 until his death. He was Lord, and later King, of Ireland, as well as continuing the nominal claim by the English monarchs to the Kingdom of France...
include the Clerk of the Recognizances in 1432, who recorded debts secured by recognizances and the office of Receiver of Debts, who was tasked with receiving and recording money coming into the court via debts and fines, and was first appointed in 1536.
Due to their technical knowledge, the most important officers were the three Prothonotaries
Prothonotary
The word prothonotary is recorded in English since 1447, as "principal clerk of a court," from L.L. prothonotarius , from Greek protonotarios "first scribe," originally the chief of the college of recorders of the court of the Byzantine Empire, from Greek protos "first" + Latin notarius ; the -h-...
, the first and third of whom were appointed by the Chief Justice and the second by the Chief Justice on the advice of the Custos Brevium. They were responsible for enrolling records of litigation, including anything that raised a point of law, and were often consulted by the court due to their detailed technical knowledge. The Chief Justice also appointed the Clerk of the Warrants, Clerk of the Treasury (also known as the Clerk of Hell), the Keeper of the Seal, the Clerk of Essoins and the Clerk of Acknowledgments of Fines and Recoveries (who was officially the Chief Justices own clerk, rather than that of the court), as well as other officials. The Custos Brevium appointed the Clerk of the Juries, responsible for issuing writs of Habeas Corpus.
There were four Exigenters tasked with issuing and controlling the process of declaring someone an Outlaw
Outlaw
In historical legal systems, an outlaw is declared as outside the protection of the law. In pre-modern societies, this takes the burden of active prosecution of a criminal from the authorities. Instead, the criminal is withdrawn all legal protection, so that anyone is legally empowered to persecute...
, with each Exigenter assigned a set of counties. The most valuable of the Exigenterships was that for London, Middlesex, Sussex, Kent, Dorset, Somerset, Devon, Cambridgeshire, Huntingdonshire, Bristol and Exeter due to the number of processes each year, with London alone handling over 100 documents a year by the mid-1550s. By tradition the Exigenter for Yorkshire and the other northern counties was also Filazer for Northumberland, Westmorland, Cumberland and Newcastle, and Clerk of the King's Silver for the entire country. There were also thirteen Filazers, who shared counties between them according to historical divisions, and were tasked with filing judicial writs for their counties and transferring them to the Custos Brevium for filing. A fourteenth Filazer was appointed for Monmouthshire in 1542, but other than this there were no changes to the position until the abolition of the court.
The Warden of the Fleet Prison, who was also keeper of Westminster Hall, was tasked with keeping it clean and letting the shops and booths along the sides. Despite acting as gaoler to the Exchequer of Pleas
Exchequer of pleas
The Exchequer of Pleas or Court of Exchequer was a court that followed equity, a set of legal principles based on natural law, and common law, in England and Wales. Originally part of the curia regis, or King's Council, the Exchequer of Pleas split from the curia during the 1190s, to sit as an...
, Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
and Star Chamber
Star Chamber
The Star Chamber was an English court of law that sat at the royal Palace of Westminster until 1641. It was made up of Privy Counsellors, as well as common-law judges and supplemented the activities of the common-law and equity courts in both civil and criminal matters...
as part of his duties the Warden was considered an officer of the Court of Common Pleas. All court officers were appointed for life, and could only be removed for misbehaviour. Despite this, the sheer number of positions meant that several came up for reappointment in each Chief Justice's tenure, and selling them could be very profitable.