III. Reforms of Henry II. in Law Courts and Legal Procedure. It was reserved for Henry of Anjou to inaugurate an entirely new era in the relations of the three classes of courts. He was the first king deliberately to plan the overthrow of the feudal jurisdictions by insidiously undermining them, if not yet by open attack. He was the first king to reduce the old district courts so thoroughly under the control of royal officials as to turn them practically into royal courts. He was the first king also to throw open the doors of his own courts of law to all-comers, to all freemen, that is to say, for the despised villein had for centuries still to seek redress in the court of that very lord of the manor who was too often his oppressor.
In brief, then, Henry’s policy was twofold: to convert the County Courts practically into Royal Courts, since in them royal officials now dispensed royal justice according to the same rules as prevailed at the King’s own Curia; and to reduce all manorial or private courts to insignificance by diverting pleas to his own Curia, and leaving the rival tribunals to die gradually from inanition. Both branches of this policy met ultimately with complete success, although the event hung in the balance until long after his death. The barons, though partially deceived by the gradual and insidious nature of Henry’s reforms, did what they could to thwart him; but the current of events was against them and with the Crown. Royal justice steadily encroached upon feudal justice. One of the last stands made by the barons has left its traces plainly written in several chapters of Magna Carta.[[151]]
These contain what seem, at first sight, to be merely trivial alterations of technical points of court procedure; but inextricably bound up with them are principles of wide political and constitutional importance. Henry’s policy was to disguise radical reforms until they looked like small changes of procedure; it follows that the framers of Magna Carta, while appearing merely to seek the reversal of these trivial points, were really seeking to return to the totally different conditions which had prevailed prior to the reforms of Henry.
A short account of the main outlines of that monarch’s new system of procedure forms a necessary preliminary to a complete comprehension of these important chapters of Magna Carta. Such an account falls naturally into two divisions.
(1) Criminal Justice. (a) By his Assizes of Clarendon and Northampton Henry strictly reserved all important crimes for the exclusive consideration of his own judges either on circuit or at his court; and he demanded entry for these judges into franchises, however powerful, for that purpose. In this part of his policy, the King was completely successful; heinous crimes were, in the beginning of the thirteenth century, admitted on all hands to be “pleas of the Crown” (that is, cases exclusively reserved for the royal jurisdiction); and Magna Carta made no attempt to reverse this part of the Crown’s policy. The change was accepted as inevitable. All that was attempted in 1215 was to obtain a promise that these functions, now surrendered to the Crown forever, should be discharged by the Crown’s officials in a proper manner.[[152]]
(b) Henry’s usual good sense, in this matter stimulated by some notable miscarriages of justice, led him to question the equity of the procedure usually adopted in criminal pleas, namely, by “appeal” or formal accusation by the injured party, or his nearest surviving relative. He substituted, whenever possible, communal accusation for individual accusation; that is, the duty of proclaiming (or indicting) the suspected criminals of each district before the King’s Justices was no longer left to private initiative, but was laid on a body of neighbours specially selected for that purpose—the predecessors of the Grand Jury of later days. This new procedure, it is true, supplemented rather than superseded the older procedure; yet it marked a distinct advance. Appeals were discouraged and exact rules laid down restricting the right of accusation to certain cases and individuals.[[153]]
(c) A necessary complement of the discouragement of appeals was the discouragement of “trial by combat” also, since that formed the natural sequel. An ingenious device was invented and gradually extended to an increasing number of cases; an accused individual might apply for a writ known as de odio et atia, and thus avoid the duellum altogether by having his guilt or innocence determined by what was practically a jury of neighbours.[[154]]
(2) Civil Justice. Henry’s innovations under this head were equally important.
(a) An unflinching rule was established that no case could be brought before the royal court until a writ had been obtained from chancery. This had to be paid for, sometimes at a fixed rate, and sometimes at whatever sum the Crown demanded. The whole procedure in the royal courts, which followed the issuing of such a writ, came to be known as “the writ process.” Once it was issued, all proceedings in other courts must stop. One special form of writ (known as praecipe), in particular, became a royal instrument for removing before the King’s own Curia cases pending in the manorial courts of mesne lords. To do this was to enrich the King at the expense of some baron or other freeman, by bringing to the Exchequer fees which otherwise would be paid to the owner of the private court. This was plainly "to cause a freeman to lose his court"—an abuse specially struck at by chapter 34 of the Great Charter.
(b) The mass of new business attracted to the King’s Courts made it necessary to increase, the staff of judges and to distribute the work among them. A natural division was that ordinary pleas (or common pleas) should be tried before one set of judges, and royal pleas (or pleas of the Crown) before another. This distinction is recognized in many separate chapters.[[155]] Thus two groups of judges were formed, each of which was at first rather a committee of the larger Curia as a whole than an independent tribunal; but, in later years, the two rapidly developed into entirely separate courts—the Court of Common Pleas (at first known as the Bench, that is, the ordinary Bench), and the Court of King’s Bench (that is, the royal Bench, known also at first as the court Coram Rege, since it was always supposed to be held in the King’s presence).