The History of English Law before the Time of Edward I. Frederic William Maitland

are the “coram rege rolls.” A litigant summoned before the one is told to come “before our justices at Westminster”; if summoned before the other, he must appear “before us wheresoever we shall be in England.” And then the Great Charter has decreed that “common pleas” are not to follow the king, but are to be heard in some certain place.¹¹⁷ Thus “the bench” has become the appropriate tribunal for ordinary civil suits between subject and subject. The complementary rule, which assigns the “pleas of the crown” to the court held coram rege, seems to grow up gradually and not to be the outcome of legislation.¹¹⁸ The court held coram rege is superior to, for it can correct the errors of, “the [p.178] bench.”¹¹⁹ Then early in Edward I.’s reign “the bench,” though in formal documents it will keep its old name and until 1875 be simply “the bench,” begins to be called the Common Bench, and the name of King’s Bench is given to the court that is held coram rege, or rather to one offshoot of it.¹²⁰

Council, parliament and benches.We have to state the matter thus, for the court that during Henry’s reign is held coram rege breaks into segments. For ordinary purposes it is a court held by a few professional justices; but at any moment it may become a fuller and grander tribunal; the king may be there with his councillors; all the prelates and barons of the realm may be assembled. But whatever form it takes, it seems to be considered as essentially but one tribunal, “the court of our lord the king held before the king himself.” In modern terms we might say that the court held before the king in parliament and the court held before the king in council are the court of king’s bench raised to a higher power. In Edward I.’s reign there comes a further change. The term “king’s bench” is brought into use to signify the court held theoretically coram rege by the professional justices, and just about the same time a third set of plea rolls begins to appear. Besides the “de banco rolls” and the “coram rege rolls” there are those records which we know as the “parliament rolls”; the earliest extant roll comes from the year 1290. For some time to come, however, the cleft is not very deep; the same plea that is found on a parliament roll may be found also on a coram rege roll.¹²¹ For judicial purposes the parliamentary sessions of the council can be conceived as strengthened, as “afforced,” sessions of the king’s bench. [p.179] All the justices and all the chiefs of the great offices, all the masters in chancery and so forth, are members of the council, and, if they are not wanted elsewhere, will be summoned to those plenary sessions of the council that are known as “parliaments.” There remain in suspense many questions as to the composition and jurisdiction of this highest of all tribunals. Is that tribunal to be the assemblage of prelates and barons, or is it to be the king’s council; is it to be but a court of second instance, or is it to have any original jurisdiction? The fourteenth century must answer these questions; the thirteenth leaves them open.¹²²

Itinerant justices.As to the courts held in the king’s name by men who are acting under temporary commissions, men who in a large sense of the term are “itinerant justices,” we must say but little, though were we to descend to details much might be said, for the king’s power to issue commissions has hardly a limit in law, but few limits in custom, and new needs are being ever and anon met by new devices. But we may distinguish the main types of these commissions. What seems treated as the humblest is the commission to deliver a gaol. This in the latter part of Henry III.’s reign is done very frequently; generally it is done by some three or four knights of the shire, and thus, long before the institution of justices of the peace, the country knights had been accustomed to do high criminal justice.¹²³ In order to dispose of the possessory assizes of novel disseisin and mort d’ancestor, a vast number of commissions were issued in every year. Early in Henry’s reign this work was often entrusted to four knights of the shire; at a later time one of the permanent justices would usually be named and allowed to associate some knights with himself. Apparently a justice of assize had often to visit many towns or even villages in each county; his work was not all done at the county town.¹²⁴ It must have been heavy, for these actions were [p.180] extremely popular. In the second year of Edward’s reign some two thousand commissions of assize were issued.¹²⁵ Just at that time the practice seems to have been to divide England into four circuits and to send two justices of assize round each circuit; but a full history of the circuits would be intricate and wearisome. Above all the other commissions ranked the commission for an iter ad omnia placita, or more briefly for an iter or eyre. An eyre was by this time a long and laborious business. In the first place, if we suppose an eyre in Cambridgeshire announced, this has the effect of stopping all Cambridgeshire business in the bench. Litigants who have been told to appear before the justices at Westminster will now have to appear before the justices in eyre at Cambridge. There is no business before the bench at Westminster if an eyre has been proclaimed in all the counties.¹²⁶ Then, again, the justices are provided with a long list of interrogatories (capitula itineris) which they are to address to local juries. Every hundred, every vill in the county must be represented before them. These interrogatories—their number increases as time goes on—ransack the memories of the jurors and the local records for all that has happened in the shire since the last eyre took place some seven years ago; every crime, every invasion of royal rights, every neglect of police duties must be presented.¹²⁷ The justices must sit in the county town from week to week and even from month to month before they will have got through the tedious task and inflicted the due tale of fines and amercements.¹²⁸ Three or four of the permanent judges will be placed in the commission; with them will be associated some of the magnates of the district; bishops and even abbots, to the scandal of strict churchmen, have [p.181] to serve as justices in eyre.¹²⁹ Probably it was thought expedient that some of the great freeholders of the county should be commissioned, in order that no man might say that his judges were not his peers. An eyre was a sore burden; the men of Cornwall fled before the face of the justices;¹³⁰ we hear assertions of a binding custom that an eyre shall not take place more than once in seven years.¹³¹ Expedients were being adopted which in course of time would enable the justices of assize to preside in the country over the trial of actions which were pending before the benches; thus without the terrors of an eyre, the trial of civil actions would take place in the counties and jurors would no longer be called to Westminster from their remote homes. But these expedients belong for the more part to Edward’s reign; under his father a jury wearily travelling from Yorkshire or Devonshire towards London must have been no very uncommon sight.¹³²

Triumph of royal justice.The king’s courts have been fast becoming the only judicial tribunals of any great importance. Throughout the reign the bulk of their plea rolls increased at a rapid rate. Every term the bench at Westminster entertained a multitude of causes. The litigants who came before it were often men of lowly rank who were quarrelling about small parcels of land. Though we hear some bad stories of corrupt and partial judges,¹³³ it is plain that this powerful, central tribunal must have been well trusted by the nation at large. Rich and poor alike would go to it if they could. The local courts were being starved, and this result we cannot ascribe altogether to the ambition or greed of the lawyers at Westminster. Of his own free will the small freeholder passed by his lord’s court and the county [p.182] court on his way to the great hall. He could there obtain a stronger and better commodity than any that was to be had elsewhere, a justice which, as men reckoned in those days, was swift and masterful; he could there force his adversary to submit to a verdict instead of finding that his claim was met by some antique oath with oath-helpers. The voice of the nation, or what made itself heard as such, no longer, as in 1215, demanded protection for the seignorial courts;¹³⁴ it asked that the royal court should be endowed with yet new and anti-feudal powers; it was to be in all temporal causes supreme.¹³⁵ Men were fast coming to the opinion that it ought to be, in Bentham’s phrase, “omnicompetent,” and that for every wrong there should be a remedy in the court of their lord the king. This is not an idea that is imposed from above upon an unwilling people. Bracton himself, the royal judge, the professional lawyer, does not thrust it forward