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 Common Pleas, like its sister Courts of King’s Bench and Exchequer, was the result of a long process of bifurcation from a common stem.

Three stages may be emphasized. (1) The earliest trace of a definite bench, set apart for common pleas, is to be found in 1178. Henry II., returning from Normandy, found that there had been irregularities. To prevent their recurrence, he effected changes, the exact nature of which is matter of dispute. A contemporary writer 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 King’s Bench, but Mr. Pike 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 or business.

It must not be supposed that the arrangement thus made 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 bench then instituted may have been pulled down and set up again many times. It 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. On the other hand, this tribunal had in John’s reign ceased to follow the King’s movements habitually, and established itself at Westminster. It was in 1215 considered an abuse for John to try a common plea elsewhere.

(2) Magna Carta, in 1215, gave authoritative sanction to this understanding, and thus marks a stage in the evolution of the Court of Common Pleas. Ordinary pleas were no longer to follow the King. Young Henry renewed this promise, and his minority favoured its strict observance: a mere boy could not make progresses through the land dispensing justice as he went. Accordingly, all pleas continued for some twenty years to be heard at Westminster. The same circumstance may have temporarily arrested the process of cleavage between the two benches.

(3) About 1234, Henry began to follow the precedent, set by his ancestors, of moving through his realm with judges in his train. While one group went with him, another remained at Westminster: some method of allocating 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: 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 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. The common bench and the royal bench had become distinct. 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.

With royal pleas it was 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. It is doubtful whether, even in 1258, a separate royal bench had been constituted. 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.” The matters here referred to were royal pleas: common pleas were tried at Westminster.