A Concise History of the Common Law. Theodore F. T. Plucknett

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