[532]. Walter of Hemingburgh, II. 121. Cf., on the whole subject of foreign services, supra, 154.
[533]. Supra, 72–86.
CHAPTER SEVENTEEN.
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 one, fixed, pre-appointed spot, and must no longer follow the king as he moved about from place to place. The full extent of the boon conferred by this reform will be better appreciated after a short consideration of the method of dispensing justice adopted by Henry II. and his sons.
I. 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 originally centred in the king and his household, or Curia Regis, which performed royal and national business of every kind. 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. One result of throwing so many and miscellaneous duties on a small body of hard-worked officials was to produce a congestion of business. 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 entailed intolerable delay, annoyance, and expense upon litigants who brought their pleas for the king’s decision. The case of Richard d’Anesty is often cited in illustration of the hardships which this system inflicted upon suitors. His own account is extant and gives 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 his enormous outlays, mostly travelling expenses, he had to discharge his debts with accumulations of interest at the ruinous rate of 86⅔ per cent.[[534]]
II. Common Pleas and Royal Pleas. Long before 1215 all 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 pleas 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 therefore possible to appoint a special bench of judges to sit permanently in some fixed spot, to be selected once for all as likely 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 in reference to this chapter: “We may also say that Magna Carta gave England a capital.”[[535]] The barons in 1215, however, in asking this reform, were not insisting on any startling innovation, but demanding merely the strict 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.[[536]] Magna Carta insisted that all exceptions must cease; the rule of law must supersede the royal caprice.
III. Effects of Magna Carta on the genesis of the three Courts of Common Law. The ultimate consequences of the accomplishment of this reform reached further than was foreseen. Intended merely to remove from litigants a practical grievance of frequent occurrence, it had important indirect 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 contributed somewhat to the slow process whereby the Curia Regis, as an administrative organ, was differentiated from the same Curia as the dispenser of justice. 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 were 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.[[537]]