The double process by which these two small courts separated themselves 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—that office in which money was weighed and tested and the royal accounts drawn up. Many disputes or pleas affecting Crown debts and debtors had to be there decided, and in due time a special group of officials were set aside to try these. These men, called, not judges, but “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—the Court of King’s Bench, the Court of Common Pleas, and the Court of Exchequer—were thus offshoots of the king’s household. In theory, each of these ought to have confined itself to the special class of suits to which it owed its origin—to royal pleas, common pleas, and exchequer pleas respectively; but by a process well known to lawyers and law-courts in all ages, each of them eagerly encroached on the jurisdictions and the fees appropriate to the others, until they became, for most purposes, three sister courts of similar and co-ordinate authority. They were bound to decide all suits according to the technical and inflexible rules of common law; and their jurisdiction thus 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.
IV. 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 Court of Common Pleas, like its sister Courts of King’s Bench and Exchequer, was the result of a long process of gradual separation from a common parent stem. Prior to 1215 several tentative efforts seem to have been made towards establishing each of these. On the other hand, it is probable, nay certain, that long after 1215 the Court of Common Pleas did not completely shake off either its early dependence upon the Curia Regis, or yet its close connection with its sister tribunals.
Three stages in the process of evolution may be emphasized. (1) The earliest trace of the existence of a definite bench of judges, set apart for trying common pleas, is to be found in 1178, not in 1215. When Henry II. returned from Normandy in the former year, he found that there had been irregularities in his absence. To prevent their recurrence, he effected certain changes in his judicial arrangements, the exact nature of which is matter of dispute. A contemporary writer[[538]] 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 Court of King’s Bench, but Mr. Pike[[539]] 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.
It must not be supposed that the arrangement thus made in 1178 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 court then instituted may have been pulled down and set up again many times. The bench which appears in 1178 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.[[540]] On the other hand, this tribunal had in John’s reign ceased to follow the king’s movements habitually (thus disregarding the decree of 1178), and had established itself at Westminster.[[541]] It was in 1215 considered an abuse for John to try a common plea elsewhere. Times had changed since his father had granted as a boon that a set of judges should remain constantly at “his court” to try such cases.
(2) Magna Carta in 1215 gave authoritative sanction to the already recognized rule that common pleas should be tried at Westminster, instead of moving with the king. No exceptions were henceforth to be allowed. Young Henry renewed this promise, and the circumstance of his minority favoured its strict observance. A mere boy could not make royal progresses through the land dispensing justice as he went. Accordingly, all pleas continued for some twenty years to be heard at Westminster. The same circumstances, which thus emphasized the stability of common pleas (along with all other kinds of pleas) in one fixed place, may have arrested the process of cleavage between the two benches. All the judges of both courts sat at Westminster, and therefore there was the less need for allocating the business between them with any exactitude. The two benches were in danger of coalescing.
(3) About the year 1234 a third stage was reached. Henry began to follow the precedent, set by his ancestors, of moving through his realm with judges in his train, hearing pleas wherever he stopped. While one group of judges went with him, another remained at Westminster. Some way of allocating the 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. Each provided itself with separate records. 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 specially 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. In 1234 the common bench and the royal bench had become distinct.[[542]] Evidence drawn from a few years later proves that a definition of common pleas had been arrived at and that the rule which required them to be held “in a fixed place” was insisted on. 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.[[543]]
With royal pleas, however, it was very 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. 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.”[[544]]
V. Erroneous Views. In the reign of Edward I. the real motive of this chapter of Magna Charta—so quickly had the organization of the law courts progressed—had already been lost sight of. The day of wandering common pleas, such as that of Richard d’Anesty, had been long forgotten. Some litigants of Edward’s time had, however, a different grievance of their own, connected with the hearing of their suits. The Court of Exchequer was willing, for an adequate consideration, to place its specially potent machinery, devised originally for the king’s exclusive use, at the disposal of private creditors, thus treating “common pleas” as “exchequer pleas.” Ordinary debtors, summoned as defendants before the barones scaccarii, were subjected to harsher treatment than they would have experienced elsewhere. It was not unnatural that defendants who found themselves thus hustled should read the words of Magna Carta relative to “common pleas” as precisely suited to their own case. They made this mistake the more readily as the original motive had been forgotten. The Charter was thus read as preventing the stationary Court of Exchequer (not the constantly moving King’s Bench) from hearing ordinary suits. This erroneous view received legislative sanction. The Articuli super cartas in 1300 declared that no common pleas should thenceforth be held in the Exchequer “contrary to the form of the Great Charter.”[[545]]