Court of King's Bench (England)
Encyclopedia
The Court of King's Bench (or Court of Queen's Bench during the reign of a female monarch), formally known as The Court of the King Before the King Himself, was an English
court of common law
in the English legal system. Created in the late 12th to early 13th century from the curia regis
, initially following the monarch on his travels, the King's Bench finally joined the Court of Common Pleas
and Exchequer of Pleas
in Westminster Hall in 1318, making its last travels in 1421. As one of the two principal common law courts along with the Common Pleas, the King's Bench's jurisdiction and caseload was significantly challenged by the rise of the Court of Chancery
and equitable doctrines in the 15th and 16th centuries. To recover, the King's Bench undertook a scheme of revolutionary reform, creating less expensive, faster and more versatile types of pleading in the form of bills as opposed to the more traditional writ
s. Although not immediately stemming the tide, in the long term it helped the King's Bench not only recover but increase its workload. While there was a steep decline in business from 1460 to 1540, as the new reforms began to take effect the King's Bench's business was significantly boosted; between 1560 and 1640, it rose tenfold.
While good for the King's Bench, the Common Pleas became suspicious of the new developments, as legal fictions such as the Bill of Middlesex
damaged its own business. Fighting against the King's Bench in a reactionary and increasingly conservative way, an equilibrium was eventually reached in the 17th century. Reaching an acceptable medium with the Common Pleas and Exchequer of Pleas proved to be the downfall of all three courts; with several courts of near-identical jurisdiction, there was little need for separate bodies, and the superior courts of Westminster were merged by the Supreme Court of Judicature Act 1873
into a single High Court of Justice
. The King's Bench thus ceased to exist, except as the King's Bench (now Queen's Bench) Division of the High Court.
During its existence the King's Bench's jurisdiction initially covered a wide range of criminal matters, something significantly reduced later on, along with any business not claimed by the other courts, and any cases which concerned the monarch. It also acted as a court of appeal for the Exchequer of Pleas and Common Pleas, although it was not a court of last resort and required Parliament to sign off on its decisions. The creation of the Court of Exchequer Chamber
in 1585 created a court from which King's Bench decisions could be appealed to, and with the expansion of the Exchequer Chamber's jurisdiction in 1830 the King's Bench ceased to be an appellate court. Thanks to the Bill of Westminster and other legal fictions, the King's Bench gained much of the Common Pleas's jurisdiction, although the Common Pleas remained the sole place where real property claims could be brought. The King's Bench was staffed by one Chief Justice, now the Lord Chief Justice of England and Wales, and a variable number of puisne justices
; normally three, there were five serving when the King's Bench was dissolved. Those who chose not to retire became Justices of the High Court on the King's Bench's dissolution.
Originally, the sole "court" was the curia regis
, one of the three central administrative bodies along with the Exchequer
and Chancery, from which the Court of Chancery
formed. This curia was the King's court, composed of those advisers and courtiers who followed the King as he travelled around the country. This was not a dedicated court of law, instead a descendant of the witenagemot
. In concert with the curia regis, eyre circuits
staffed by itinerant judges dispensed justice throughout the country, operating on fixed paths at certain times. These judges were also members of the curia, and would hear cases on the King's behalf in the "lesser curia regis". Because the curia travelled with the King, it caused problems with the dispensation of justice; if the King went out of the country, or as Richard I
did spent much of his career there, the curia followed. To remedy this a central "bench" was established, with the Court of Common Pleas
, initially split from the Exchequer of Pleas
, receiving official recognition in Magna Carta
so that common pleas could be heard in "some fixed place". There were thus two common law
courts; the curia, which followed the King, and the Common Pleas, which sat in Westminster Hall. The curia eventually became known as the King's Bench, with the King himself required for the court to sit.
There is some controversy over whether the original fixed court was the Common Pleas or King's Bench. In 1178, a chronicler recorded that when Henry II
:
This was originally interpreted as the foundation of the King's Bench, with the Court of Common Pleas not coming into existence until the signing of the Magna Carta
. The later theory was that Henry II's decree created the Court of Common Pleas, not the King's Bench, and that the King's Bench instead split from the Common Pleas at some later time. The first records of an independent King's Bench come from 1234, when distinct plea rolls
are found for each court. Modern academics give 1234 as the founding date for the King's Bench as a fully independent tribunal, considering it part of the law reform which took place from 1232 to 1234. Under Edward I
, the presence of the King in the court became more and more irregular, and by 1318 the court sat independent of the monarch. Its last travels around the country were in 1414 to Leicestershire
, Staffordshire
and Shropshire
, and a visit to Northamptonshire
in 1421. From then onwards, the King's Bench became a fixed court rather than one that followed the King. Like the Common Pleas, the King's Bench sat in Westminster Hall until its dissolution.
, exercised through the Court of Chancery. These courts were more attractive to the common lawyers because of their informality and the simple method used to arrest defendants. The bills of complaint
and subpoena
used by the Chancery made court procedure far faster, and from 1460 to 1540 there was a steep decline in the number of cases in the common law courts, coinciding with a sharp increase in cases in the newer courts. This loss of business was quickly recognised by the King's Bench, which was urged by Fairfax J
in 1501 to develop new remedies so that "subpoenas would not be used as often as they are at present". From 1500 the King's Bench began reforming to increase its business and jurisdiction, with the tide finally turning in their favour by 1550.
The recovery of the King's Bench was thanks to its use of Chancery-like procedure; centrally, the system of bills. Prior to this, a writ
would have to be issued, with different writs depending on the issue. If A wished to sue B for trespass, debt and detinue
, the court would have to issue an individual writ for each action, with associated time delays and costs for A, and then ensure that B appeared in court. Bills, on the other hand, were traditionally used against court officials and the court's prisoners; as such, the defendant was assumed to already be in the court's custody and presence in court was not needed. Thus a legal fiction
arose; if A wished to sue B for trespass, debt and detinue, he would have a writ issued for trespass. B would be arrested as a result, and the covenant, detinue and debt actions undertaken by bill after he had been detained. Eventually it became even more fictitious; if A wished to sue B merely for debt and detinue, a trespass writ would be obtained and then quietly dismissed when B was detained in custody. This was originally undertaken through getting a writ of trespass from the Chancery, but eventually a shorter workaround was used; since the King's Bench retained criminal jurisdiction over Middlesex, the trespass (which was fictitious anyway) would be said to have occurred there, allowing the King's Bench to issue a bill of arrest on its own. This became known as the Bill of Middlesex
, and undermined the jurisdiction of the Court of Common Pleas, which would normally deal with such civil cases.
The advantages to this method were that bills were substantially cheaper, and unlike writs did not tie the plaintiff down; once the case came to court the bill could be amended to include any action or actions the plaintiff wanted to enforce. In addition, by avoiding the Chancery writ, the case was substantially cheaper. The result of this was substantial; between 1560 and 1640, the King's Bench's business rose tenfold. This period also saw a substantial broadening of the remedies available in the common law. The main remedy and method was action on the case, which justices expanded to encompass other things. In 1499 it enabled the enforcement of parol promises, which rendered Chancery subpoenas obsolete; later developments included the recovery of debts, suing for defamatory words (previously an ecclesiastical matter) and action on the case for trover
and conversion
. Most of this reform took place under Fineux CJ
, who never lived to see the results of his work; it took over 100 years for the reforms to fully reverse the decline in business.
could not agree on how to cut costs, leaving the court both expensive and of limited malleability while the King's Bench became faster, cheaper and more varied in its jurisdiction.
The troubles during this period are best illustrated by Slade's Case
. Under the medieval common law, claims seeking the repayment of a debt or other matters could only be pursued through a writ of debt in the Common Pleas, a problematic and archaic process. By 1558 the lawyers had succeeded in creating another method, enforced by the Court of King's Bench, through the action of assumpsit
, which was technically for deceit. The legal fiction
used was that by failing to pay after promising to do so, a defendant had committed deceit, and was liable to the plaintiff. The conservative Common Pleas, through the appellate court
the Court of Exchequer Chamber, began to overrule decisions made by the King's Bench on assumpsit, causing friction between the courts. In Slade's Case, the Chief Justice of the King's Bench, John Popham, deliberately provoked the Common Pleas into bringing an assumpsit action to a higher court where the Justices of the King's Bench could vote, allowing them to overrule the Common Pleas and establish assumpsit as the main contractual action. After the death of Edmund Anderson, the more activist Francis Gawdy
became Chief Justice of the Common Pleas
, which briefly led to a less reactionary and more revolutionary Common Pleas.
The struggle continued even after this point. The Interregnum granted some respite to the Common Pleas, which abolished fines on original writs, hurting the King's Bench, but in 1660 the fines were reinstated and "then the very attorneys of the Common Pleas boggled at them and carried all their finable business to the King's Bench". In 1661 the Common Pleas attempted to reverse this by pushing for an Act of Parliament to abolish latitat
s based on legal fictions, forbidding "special bail" in any case where "the true cause of action" was not expressed in the process. The King's Bench got around this in the 1670s; the Act did not say that the process had to be true, so the court continued to use legal fictions, simply ensuring that the true cause of action was expressed in the process, regardless of whether or not it was correct. The Bill of Middlessex disclosed the true cause of action, satisfying the 1661 statute, but did not require a valid complaint. This caused severe friction within the court system, and Francis North
, Chief Justice of the Common Pleas, eventually reached a compromise by allowing such legal fictions in the Common Pleas as well as the King's Bench.
The unintended outcome of these compromises was that by the end of Charles II
's reign, all three common law courts had a similar jurisdiction over most common pleas, with similar processes. By the 18th century, it was customary to speak of the "twelve justices" of the three courts, not distinguishing them, and assize cases were shared equally between them. In 1828, Henry Brougham
complained that
The purpose of Brougham's speech was to illustrate that three courts of identical jurisdiction were unnecessary, and further that it would create a situation where the best judges, lawyers and cases would eventually go to one court, overburdening that body and leaving the others near useless. In 1823, 43,465 actions were brought in the King's Bench, 13,009 in the Common Pleas and 6,778 in the Exchequer of Pleas. Not surprisingly, the King's Bench judges were "immoderately over burdened", the Common Pleas judges were "fully occupied in term, and much engaged in vacation also" and the Barons of the Exchequer were "comparatively little occupied either in term or vacation".
In response to this and the report of a committee investigating the slow pace of the Court of Chancery
, the Judicature Commission was formed in 1867, and given a wide remit to investigate reform of the courts, the law, and the legal profession. Five reports were issued, from 25 March 1869 to 10 July 1874, with the first (dealing with the formation of a single Supreme Court of Judicature) considered the most influential. The report disposed of the previous idea of merging the common law and equity, and instead suggested a single Supreme Court capable of utilising both. In 1870 the Lord Chancellor, Lord Hatherly
, attempted to bring the recommendations into law through an Act of Parliament, but did not go to the trouble of consulting the judiciary or the leader of the Conservatives, who controlled the House of Lords
. The bill ran into strong opposition from lawyers and judges, particularly Alexander Cockburn
. After Hatherly was replaced by Lord Selborne
in September 1872, a second bill was introduced after consultation with the judiciary; although along the same lines, it was far more detailed.
The Act, finally passed as the Supreme Court of Judicature Act 1873
, merged the Common Pleas, Exchequer, King's Bench and Court of Chancery into one body, the High Court of Justice
, with the divisions between the courts to remain. The King's Bench thus ceased to exist, holding its last session on 6 July 1875, except as the King's Bench Division of the High Court. The existence of the same courts under one unified head was a quirk of constitutional law, which prevented the compulsory demotion or retirement of Chief Justices. By sheer chance, both the Chief Justice of the Common Pleas
and Chief Baron of the Exchequer died in 1880, allowing for the abolition of the Common Pleas Division and Exchequer Division by Order in Council on 16 December 1880. The High Court was reorganised into the Chancery Division, King's Bench Division and the Probate, Divorce and Admiralty Division; the King's Bench (now Queen's Bench) division remains to this day.
in his Institutes of the Lawes of England
, academics thought for a long time that the King's Bench was primarily a criminal court. This was factually incorrect; no indictment was tried by the King's Bench until January 1323, and no record of the court ordering the death penalty is found until halfway through Edward II
's reign. The court did have some criminal jurisdiction, with a royal ordinance in 1293 directing conspiracy cases to be brought to the King's Bench and the court's judges acting in trailbaston
commissions around the country. A.T. Carter, in his History of English Legal Institutions, defines the early King's Bench jurisdiction as "to correct all crimes and misdemeanours that amounted to a breach of the peace, the King being then plaintiff, for such were in derogation of the Jura regalia; and to take cognizance of everything not parcelled out to the other courts". By the end of the 14th century much of the criminal jurisdiction had declined, although the court maintained a criminal jurisdiction over all cases in Middlesex
, the county where Westminster Hall stood. The King's Bench's main jurisdiction was over "pleas of the crown"; cases which involved the King in some way. With the exception of revenue matters, which were handled by the Exchequer of Pleas, the King's Bench held exclusive jurisdiction over these cases.
The Court of King's Bench did act as an appellate body, hearing appeals from the Court of Common Pleas, eyre circuits, assize courts
and local courts, but was not a court of last resort; its own records were sent to Parliament to be signed off on. The creation of the Court of Exchequer Chamber
in 1585 created a court from which King's Bench decisions could be appealed to, and with the expansion of the Exchequer Chamber's jurisdiction in 1830 the King's Bench ceased to be an appellate court. Thanks to the Bill of Westminster and other legal fictions, the King's Bench gained much of the Common Pleas's jurisdiction, although the Common Pleas remained the sole place where real property claims could be brought.
and Chief Baron of the Exchequer, and from 1612 the Master of the Rolls
. Unlike other Chief Justices, who were appointed to serve "during the King's Pleasure", the appointment as Chief Justice of the King's Bench "did not usually specify any particular tenure". This practice ended in 1689, when all of the Chief Justices became appointed to serve "during good behaviour". The initial salary was £40 a year, with an additional £66 in 1372 and an increase to a total of £160 in 1389. An ordinance of 1646 set a fixed salary of £1,000, increased to £2,000 in 1714, £4,000 in 1733, and finally peaked at £10,000 a year in 1825. Pension arrangements were first made in 1799, peaking at £4,000 a year in 1825. The position remains to this day; after the dissolution of the Court of King's Bench, the Chief Justice has instead been the Lord Chief Justice of England and Wales
, now the head of the Judiciary of England and Wales
.
A Chief Justice of the King's Bench was assisted in his work by a number of Justices of the King's Bench
. Occasionally appointed before 1272, the number fluctuated considerably between 1 and 4; from 1522, the number was fixed at 3. Provisions for a fourth were established in 1830, and a fifth in 1868. Following the dissolution of the Court of King's Bench, the remaining Justices because Justices of the Queen's Bench Division of the High Court of Justice. Justices were originally paid £26 a year, increasing to £66 in 1361, and £100 in 1389. An ordinance of 1645 increased this to £1,000, with the salary peaking at £5,500 in 1825. As with the Chief Justice, pension arrangements were formally organised in 1799, starting at £2,000 a year and peaking at £3,500 in 1825.
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
court of common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
in the English legal system. Created in the late 12th to early 13th century from the curia regis
Curia Regis
Curia regis is a Latin term meaning "royal council" or "king's court."- England :The Curia Regis, in the Kingdom of England, was a council of tenants-in-chief and ecclesiastics that advised the king of England on legislative matters...
, initially following the monarch on his travels, the King's Bench finally joined the Court of Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...
and Exchequer of Pleas
Exchequer of pleas
The Exchequer of Pleas or Court of Exchequer was a court that followed equity, a set of legal principles based on natural law, and common law, in England and Wales. Originally part of the curia regis, or King's Council, the Exchequer of Pleas split from the curia during the 1190s, to sit as an...
in Westminster Hall in 1318, making its last travels in 1421. As one of the two principal common law courts along with the Common Pleas, the King's Bench's jurisdiction and caseload was significantly challenged by the rise of the Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
and equitable doctrines in the 15th and 16th centuries. To recover, the King's Bench undertook a scheme of revolutionary reform, creating less expensive, faster and more versatile types of pleading in the form of bills as opposed to the more traditional writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
s. Although not immediately stemming the tide, in the long term it helped the King's Bench not only recover but increase its workload. While there was a steep decline in business from 1460 to 1540, as the new reforms began to take effect the King's Bench's business was significantly boosted; between 1560 and 1640, it rose tenfold.
While good for the King's Bench, the Common Pleas became suspicious of the new developments, as legal fictions such as the Bill of Middlesex
Bill of Middlesex
The Bill of Middlesex was a legal fiction used by the Court of King's Bench to gain jurisdiction over cases traditionally in the remit of the Court of Common Pleas...
damaged its own business. Fighting against the King's Bench in a reactionary and increasingly conservative way, an equilibrium was eventually reached in the 17th century. Reaching an acceptable medium with the Common Pleas and Exchequer of Pleas proved to be the downfall of all three courts; with several courts of near-identical jurisdiction, there was little need for separate bodies, and the superior courts of Westminster were merged by the Supreme Court of Judicature Act 1873
Supreme Court of Judicature Act 1873
The Supreme Court of Judicature Act 1873 was an Act of Parliament by the Parliament of the United Kingdom in 1873...
into a single High Court of Justice
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
. The King's Bench thus ceased to exist, except as the King's Bench (now Queen's Bench) Division of the High Court.
During its existence the King's Bench's jurisdiction initially covered a wide range of criminal matters, something significantly reduced later on, along with any business not claimed by the other courts, and any cases which concerned the monarch. It also acted as a court of appeal for the Exchequer of Pleas and Common Pleas, although it was not a court of last resort and required Parliament to sign off on its decisions. The creation of the Court of Exchequer Chamber
Court of Exchequer Chamber
The Court of Exchequer Chamber was an English appellate court for common law civil actions, prior to the reforms of the Judicature Acts of 1873-1875....
in 1585 created a court from which King's Bench decisions could be appealed to, and with the expansion of the Exchequer Chamber's jurisdiction in 1830 the King's Bench ceased to be an appellate court. Thanks to the Bill of Westminster and other legal fictions, the King's Bench gained much of the Common Pleas's jurisdiction, although the Common Pleas remained the sole place where real property claims could be brought. The King's Bench was staffed by one Chief Justice, now the Lord Chief Justice of England and Wales, and a variable number of puisne justices
Puisne Justice
A Puisne Justice or Puisne Judge is the title for a regular member of a Court. This is distinguished from the head of the Court who is known as the Chief Justice or Chief Judge. The term is used almost exclusively in common law jurisdictions such as England, Australia, Kenya, Canada, Sri Lanka,...
; normally three, there were five serving when the King's Bench was dissolved. Those who chose not to retire became Justices of the High Court on the King's Bench's dissolution.
Origins
Curia Regis
Curia regis is a Latin term meaning "royal council" or "king's court."- England :The Curia Regis, in the Kingdom of England, was a council of tenants-in-chief and ecclesiastics that advised the king of England on legislative matters...
, one of the three central administrative bodies along with the Exchequer
Exchequer
The Exchequer is a government department of the United Kingdom responsible for the management and collection of taxation and other government revenues. The historical Exchequer developed judicial roles...
and Chancery, from which the Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
formed. This curia was the King's court, composed of those advisers and courtiers who followed the King as he travelled around the country. This was not a dedicated court of law, instead a descendant of the witenagemot
Witenagemot
The Witenagemot , also known as the Witan was a political institution in Anglo-Saxon England which operated from before the 7th century until the 11th century.The Witenagemot was an assembly of the ruling class whose primary function was to advise the king and whose membership was...
. In concert with the curia regis, eyre circuits
Eyre (legal term)
An Eyre or Iter was the name of a circuit traveled by an itinerant justice in medieval England, or the circuit court he presided over , or the right of the king to visit and inspect the holdings of any vassal...
staffed by itinerant judges dispensed justice throughout the country, operating on fixed paths at certain times. These judges were also members of the curia, and would hear cases on the King's behalf in the "lesser curia regis". Because the curia travelled with the King, it caused problems with the dispensation of justice; if the King went out of the country, or as Richard I
Richard I of England
Richard I was King of England from 6 July 1189 until his death. He also ruled as Duke of Normandy, Duke of Aquitaine, Duke of Gascony, Lord of Cyprus, Count of Anjou, Count of Maine, Count of Nantes, and Overlord of Brittany at various times during the same period...
did spent much of his career there, the curia followed. To remedy this a central "bench" was established, with the Court of Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...
, initially split from the Exchequer of Pleas
Exchequer of pleas
The Exchequer of Pleas or Court of Exchequer was a court that followed equity, a set of legal principles based on natural law, and common law, in England and Wales. Originally part of the curia regis, or King's Council, the Exchequer of Pleas split from the curia during the 1190s, to sit as an...
, receiving official recognition in Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
so that common pleas could be heard in "some fixed place". There were thus two common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
courts; the curia, which followed the King, and the Common Pleas, which sat in Westminster Hall. The curia eventually became known as the King's Bench, with the King himself required for the court to sit.
There is some controversy over whether the original fixed court was the Common Pleas or King's Bench. In 1178, a chronicler recorded that when Henry II
Henry II of England
Henry II ruled as King of England , Count of Anjou, Count of Maine, Duke of Normandy, Duke of Aquitaine, Duke of Gascony, Count of Nantes, Lord of Ireland and, at various times, controlled parts of Wales, Scotland and western France. Henry, the great-grandson of William the Conqueror, was the...
:
This was originally interpreted as the foundation of the King's Bench, with the Court of Common Pleas not coming into existence until the signing of the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
. The later theory was that Henry II's decree created the Court of Common Pleas, not the King's Bench, and that the King's Bench instead split from the Common Pleas at some later time. The first records of an independent King's Bench come from 1234, when distinct plea rolls
Plea rolls
Plea rolls are parchment rolls recording details of legal suits or actions in a court of law in England.Courts began recording its proceedings in plea rolls and filing its writs from its foundation at the end of the 12th century....
are found for each court. Modern academics give 1234 as the founding date for the King's Bench as a fully independent tribunal, considering it part of the law reform which took place from 1232 to 1234. Under Edward I
Edward I of England
Edward I , also known as Edward Longshanks and the Hammer of the Scots, was King of England from 1272 to 1307. The first son of Henry III, Edward was involved early in the political intrigues of his father's reign, which included an outright rebellion by the English barons...
, the presence of the King in the court became more and more irregular, and by 1318 the court sat independent of the monarch. Its last travels around the country were in 1414 to Leicestershire
Leicestershire
Leicestershire is a landlocked county in the English Midlands. It takes its name from the heavily populated City of Leicester, traditionally its administrative centre, although the City of Leicester unitary authority is today administered separately from the rest of Leicestershire...
, Staffordshire
Staffordshire
Staffordshire is a landlocked county in the West Midlands region of England. For Eurostat purposes, the county is a NUTS 3 region and is one of four counties or unitary districts that comprise the "Shropshire and Staffordshire" NUTS 2 region. Part of the National Forest lies within its borders...
and Shropshire
Shropshire
Shropshire is a county in the West Midlands region of England. For Eurostat purposes, the county is a NUTS 3 region and is one of four counties or unitary districts that comprise the "Shropshire and Staffordshire" NUTS 2 region. It borders Wales to the west...
, and a visit to Northamptonshire
Northamptonshire
Northamptonshire is a landlocked county in the English East Midlands, with a population of 629,676 as at the 2001 census. It has boundaries with the ceremonial counties of Warwickshire to the west, Leicestershire and Rutland to the north, Cambridgeshire to the east, Bedfordshire to the south-east,...
in 1421. From then onwards, the King's Bench became a fixed court rather than one that followed the King. Like the Common Pleas, the King's Bench sat in Westminster Hall until its dissolution.
Reform
During the 15th century, the traditional superiority of the common law courts was challenged by ecclesiastical courts and the equitable jurisdiction of the Lord ChancellorLord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
, exercised through the Court of Chancery. These courts were more attractive to the common lawyers because of their informality and the simple method used to arrest defendants. The bills of complaint
Complaint
In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons that the filing party or parties In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties In...
and subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
used by the Chancery made court procedure far faster, and from 1460 to 1540 there was a steep decline in the number of cases in the common law courts, coinciding with a sharp increase in cases in the newer courts. This loss of business was quickly recognised by the King's Bench, which was urged by Fairfax J
Guy Fairfax
Sir Guy Fairfax , was an English judge.Fairfax was of a Yorkshire family, and third son of Richard Fairfax of Walton, by his wife, Anastasia, daughter of John Carthorpe. He is mentioned in 1421 as seised of the manor of Hameldene, being then very young. From his father he inherited the manor of...
in 1501 to develop new remedies so that "subpoenas would not be used as often as they are at present". From 1500 the King's Bench began reforming to increase its business and jurisdiction, with the tide finally turning in their favour by 1550.
The recovery of the King's Bench was thanks to its use of Chancery-like procedure; centrally, the system of bills. Prior to this, a writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
would have to be issued, with different writs depending on the issue. If A wished to sue B for trespass, debt and detinue
Detinue
In tort law, detinue is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor...
, the court would have to issue an individual writ for each action, with associated time delays and costs for A, and then ensure that B appeared in court. Bills, on the other hand, were traditionally used against court officials and the court's prisoners; as such, the defendant was assumed to already be in the court's custody and presence in court was not needed. Thus a legal fiction
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
arose; if A wished to sue B for trespass, debt and detinue, he would have a writ issued for trespass. B would be arrested as a result, and the covenant, detinue and debt actions undertaken by bill after he had been detained. Eventually it became even more fictitious; if A wished to sue B merely for debt and detinue, a trespass writ would be obtained and then quietly dismissed when B was detained in custody. This was originally undertaken through getting a writ of trespass from the Chancery, but eventually a shorter workaround was used; since the King's Bench retained criminal jurisdiction over Middlesex, the trespass (which was fictitious anyway) would be said to have occurred there, allowing the King's Bench to issue a bill of arrest on its own. This became known as the Bill of Middlesex
Bill of Middlesex
The Bill of Middlesex was a legal fiction used by the Court of King's Bench to gain jurisdiction over cases traditionally in the remit of the Court of Common Pleas...
, and undermined the jurisdiction of the Court of Common Pleas, which would normally deal with such civil cases.
The advantages to this method were that bills were substantially cheaper, and unlike writs did not tie the plaintiff down; once the case came to court the bill could be amended to include any action or actions the plaintiff wanted to enforce. In addition, by avoiding the Chancery writ, the case was substantially cheaper. The result of this was substantial; between 1560 and 1640, the King's Bench's business rose tenfold. This period also saw a substantial broadening of the remedies available in the common law. The main remedy and method was action on the case, which justices expanded to encompass other things. In 1499 it enabled the enforcement of parol promises, which rendered Chancery subpoenas obsolete; later developments included the recovery of debts, suing for defamatory words (previously an ecclesiastical matter) and action on the case for trover
Trover
Trover is a form of lawsuit in common-law countries for recovery of damages for wrongful taking of personal property. Trover belongs to a series of remedies for such wrongful taking, its distinctive feature being recovery only for the value of whatever was taken, not for the recovery of the...
and conversion
Conversion (law)
Conversion is a common law tort. A conversion is a voluntary act by one person inconsistent with the ownership rights of another. It is a tort of strict liability...
. Most of this reform took place under Fineux CJ
John Fineux
Sir John Fineux was an English judge and Chief Justice of the King’s Bench.-Early life and career:Fineux was the son of William Fyneux of Swingfield, Kent, his mother's name being Monyngs. The family of Fyneux or Fineux was of great antiquity in Kent...
, who never lived to see the results of his work; it took over 100 years for the reforms to fully reverse the decline in business.
Struggle with the Common Pleas
While these reforms succeeded in forming an equilibrium between the old common law courts and the new courts, they were viewed with suspicion by the Common Pleas, who became highly reactionary to the changes the King's Bench attempted to introduce. While the King's Bench was more revolutionary, the Common Pleas became increasingly conservative in its attempts to avoid ceding cases. The disparity between the reformist King's Bench and conservative Common Pleas was exacerbated by the fact that the three Common Pleas prothonotariesProthonotary
The word prothonotary is recorded in English since 1447, as "principal clerk of a court," from L.L. prothonotarius , from Greek protonotarios "first scribe," originally the chief of the college of recorders of the court of the Byzantine Empire, from Greek protos "first" + Latin notarius ; the -h-...
could not agree on how to cut costs, leaving the court both expensive and of limited malleability while the King's Bench became faster, cheaper and more varied in its jurisdiction.
The troubles during this period are best illustrated by Slade's Case
Slade's Case
Slade's Case was a case in English contract law that ran from 1596 to 1602. Under the medieval common law, claims seeking the repayment of a debt or other matters could only be pursued through a writ of debt in the Court of Common Pleas, a problematic and archaic process...
. Under the medieval common law, claims seeking the repayment of a debt or other matters could only be pursued through a writ of debt in the Common Pleas, a problematic and archaic process. By 1558 the lawyers had succeeded in creating another method, enforced by the Court of King's Bench, through the action of assumpsit
Assumpsit
Assumpsit is a form of action at common law for the recovery of damages caused by the breach or non-performance of a simple contract, either express or implied, and whether made orally or in writing....
, which was technically for deceit. The legal fiction
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
used was that by failing to pay after promising to do so, a defendant had committed deceit, and was liable to the plaintiff. The conservative Common Pleas, through the appellate court
Appellate court
An appellate court, commonly called an appeals court or court of appeals or appeal court , is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal...
the Court of Exchequer Chamber, began to overrule decisions made by the King's Bench on assumpsit, causing friction between the courts. In Slade's Case, the Chief Justice of the King's Bench, John Popham, deliberately provoked the Common Pleas into bringing an assumpsit action to a higher court where the Justices of the King's Bench could vote, allowing them to overrule the Common Pleas and establish assumpsit as the main contractual action. After the death of Edmund Anderson, the more activist Francis Gawdy
Francis Gawdy
Sir Francis Gawdy QS was a British judge. He was the third son of Thomas Gawdy, and was baptised Thomas Gawdy, as were his two older half-brothers. Francis then had his name changed at his Confirmation, establishing legal precedent that a name given at baptism could be changed at confirmation...
became Chief Justice of the Common Pleas
Chief Justice of the Common Pleas
The Court of Common Pleas, also known as the Common Bench or Common Place, was the second highest common law court in the English legal system until 1880, when it was dissolved. As such, the Chief Justice of the Common Pleas was one of the highest judicial officials in England, behind only the Lord...
, which briefly led to a less reactionary and more revolutionary Common Pleas.
The struggle continued even after this point. The Interregnum granted some respite to the Common Pleas, which abolished fines on original writs, hurting the King's Bench, but in 1660 the fines were reinstated and "then the very attorneys of the Common Pleas boggled at them and carried all their finable business to the King's Bench". In 1661 the Common Pleas attempted to reverse this by pushing for an Act of Parliament to abolish latitat
Latitat
A latitat is a legal device, namely a writ, that is "based upon the presumption that the person summoned was hiding", see Blackstone. The word "latitat" is Latin for "he lurks."...
s based on legal fictions, forbidding "special bail" in any case where "the true cause of action" was not expressed in the process. The King's Bench got around this in the 1670s; the Act did not say that the process had to be true, so the court continued to use legal fictions, simply ensuring that the true cause of action was expressed in the process, regardless of whether or not it was correct. The Bill of Middlessex disclosed the true cause of action, satisfying the 1661 statute, but did not require a valid complaint. This caused severe friction within the court system, and Francis North
Francis North, 1st Baron Guilford
Francis North, 1st Baron Guilford PC KC was the third son of the 4th Baron North, and was created Baron Guilford in 1683, after becoming Lord Keeper of the Great Seal in succession to Lord Nottingham....
, Chief Justice of the Common Pleas, eventually reached a compromise by allowing such legal fictions in the Common Pleas as well as the King's Bench.
Dissolution
Charles II of England
Charles II was monarch of the three kingdoms of England, Scotland, and Ireland.Charles II's father, King Charles I, was executed at Whitehall on 30 January 1649, at the climax of the English Civil War...
's reign, all three common law courts had a similar jurisdiction over most common pleas, with similar processes. By the 18th century, it was customary to speak of the "twelve justices" of the three courts, not distinguishing them, and assize cases were shared equally between them. In 1828, Henry Brougham
Henry Brougham, 1st Baron Brougham and Vaux
Henry Peter Brougham, 1st Baron Brougham and Vaux was a British statesman who became Lord Chancellor of Great Britain.As a young lawyer in Scotland Brougham helped to found the Edinburgh Review in 1802 and contributed many articles to it. He went to London, and was called to the English bar in...
complained that
The purpose of Brougham's speech was to illustrate that three courts of identical jurisdiction were unnecessary, and further that it would create a situation where the best judges, lawyers and cases would eventually go to one court, overburdening that body and leaving the others near useless. In 1823, 43,465 actions were brought in the King's Bench, 13,009 in the Common Pleas and 6,778 in the Exchequer of Pleas. Not surprisingly, the King's Bench judges were "immoderately over burdened", the Common Pleas judges were "fully occupied in term, and much engaged in vacation also" and the Barons of the Exchequer were "comparatively little occupied either in term or vacation".
In response to this and the report of a committee investigating the slow pace of the Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
, the Judicature Commission was formed in 1867, and given a wide remit to investigate reform of the courts, the law, and the legal profession. Five reports were issued, from 25 March 1869 to 10 July 1874, with the first (dealing with the formation of a single Supreme Court of Judicature) considered the most influential. The report disposed of the previous idea of merging the common law and equity, and instead suggested a single Supreme Court capable of utilising both. In 1870 the Lord Chancellor, Lord Hatherly
William Wood, 1st Baron Hatherley
William Page Wood, 1st Baron Hatherley PC, QC was a British lawyer and statesman who served as a Liberal Lord Chancellor between 1868 and 1872 in William Ewart Gladstone's first ministry.-Background and education:...
, attempted to bring the recommendations into law through an Act of Parliament, but did not go to the trouble of consulting the judiciary or the leader of the Conservatives, who controlled the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
. The bill ran into strong opposition from lawyers and judges, particularly Alexander Cockburn
Sir Alexander Cockburn, 12th Baronet
Sir Alexander James Edmund Cockburn, 12th Baronet Q.C. was a Scottish lawyer, politician and judge. A notorious womaniser and socialite, as Lord Chief Justice he heard some of the leading causes célèbres of the 19th century.-Life:Cockburn was born in Alţâna, in what is now Romania and was then...
. After Hatherly was replaced by Lord Selborne
Roundell Palmer, 1st Earl of Selborne
Roundell Palmer, 1st Earl of Selborne PC , was a British lawyer and politician. He served twice as Lord Chancellor of Great Britain.-Background and education:...
in September 1872, a second bill was introduced after consultation with the judiciary; although along the same lines, it was far more detailed.
The Act, finally passed as the Supreme Court of Judicature Act 1873
Supreme Court of Judicature Act 1873
The Supreme Court of Judicature Act 1873 was an Act of Parliament by the Parliament of the United Kingdom in 1873...
, merged the Common Pleas, Exchequer, King's Bench and Court of Chancery into one body, the High Court of Justice
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
, with the divisions between the courts to remain. The King's Bench thus ceased to exist, holding its last session on 6 July 1875, except as the King's Bench Division of the High Court. The existence of the same courts under one unified head was a quirk of constitutional law, which prevented the compulsory demotion or retirement of Chief Justices. By sheer chance, both the Chief Justice of the Common Pleas
Chief Justice of the Common Pleas
The Court of Common Pleas, also known as the Common Bench or Common Place, was the second highest common law court in the English legal system until 1880, when it was dissolved. As such, the Chief Justice of the Common Pleas was one of the highest judicial officials in England, behind only the Lord...
and Chief Baron of the Exchequer died in 1880, allowing for the abolition of the Common Pleas Division and Exchequer Division by Order in Council on 16 December 1880. The High Court was reorganised into the Chancery Division, King's Bench Division and the Probate, Divorce and Admiralty Division; the King's Bench (now Queen's Bench) division remains to this day.
Jurisdiction
Due to a misunderstanding by Sir Edward CokeEdward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
in his Institutes of the Lawes of England
Institutes of the Lawes of England
The Institutes of the Lawes of England are a series of legal treatises written by Sir Edward Coke. They were first published, in stages, between 1628 and 1644. They are widely recognized as a foundational document of the common law. They have been cited in over 70 cases decided by the Supreme Court...
, academics thought for a long time that the King's Bench was primarily a criminal court. This was factually incorrect; no indictment was tried by the King's Bench until January 1323, and no record of the court ordering the death penalty is found until halfway through Edward II
Edward II of England
Edward II , called Edward of Caernarfon, was King of England from 1307 until he was deposed by his wife Isabella in January 1327. He was the sixth Plantagenet king, in a line that began with the reign of Henry II...
's reign. The court did have some criminal jurisdiction, with a royal ordinance in 1293 directing conspiracy cases to be brought to the King's Bench and the court's judges acting in trailbaston
Trailbaston
Trailbaston was a special type of itinerant judicial commission first created during the reign of Edward I of England and used many times thereafter during the reigns of Edward II and Edward III, primarily to punish felonies and trespass at the king's suit.The first trailbaston commissions date...
commissions around the country. A.T. Carter, in his History of English Legal Institutions, defines the early King's Bench jurisdiction as "to correct all crimes and misdemeanours that amounted to a breach of the peace, the King being then plaintiff, for such were in derogation of the Jura regalia; and to take cognizance of everything not parcelled out to the other courts". By the end of the 14th century much of the criminal jurisdiction had declined, although the court maintained a criminal jurisdiction over all cases in Middlesex
Middlesex
Middlesex is one of the historic counties of England and the second smallest by area. The low-lying county contained the wealthy and politically independent City of London on its southern boundary and was dominated by it from a very early time...
, the county where Westminster Hall stood. The King's Bench's main jurisdiction was over "pleas of the crown"; cases which involved the King in some way. With the exception of revenue matters, which were handled by the Exchequer of Pleas, the King's Bench held exclusive jurisdiction over these cases.
The Court of King's Bench did act as an appellate body, hearing appeals from the Court of Common Pleas, eyre circuits, assize courts
Assizes (England and Wales)
The Courts of Assize, or Assizes, were periodic criminal courts held around England and Wales until 1972, when together with the Quarter Sessions they were abolished by the Courts Act 1971 and replaced by a single permanent Crown Court...
and local courts, but was not a court of last resort; its own records were sent to Parliament to be signed off on. The creation of the Court of Exchequer Chamber
Court of Exchequer Chamber
The Court of Exchequer Chamber was an English appellate court for common law civil actions, prior to the reforms of the Judicature Acts of 1873-1875....
in 1585 created a court from which King's Bench decisions could be appealed to, and with the expansion of the Exchequer Chamber's jurisdiction in 1830 the King's Bench ceased to be an appellate court. Thanks to the Bill of Westminster and other legal fictions, the King's Bench gained much of the Common Pleas's jurisdiction, although the Common Pleas remained the sole place where real property claims could be brought.
Officials
The head of the court was the Chief Justice of the King's Bench, a position established by 1268. From the 14th century onwards, the Chief Justice was appointed by a writ, in Latin until 1727 and in English from then on. The Chief Justice was the most senior judge in the superior courts, having superiority over the Chief Justice of the Common PleasChief Justice of the Common Pleas
The Court of Common Pleas, also known as the Common Bench or Common Place, was the second highest common law court in the English legal system until 1880, when it was dissolved. As such, the Chief Justice of the Common Pleas was one of the highest judicial officials in England, behind only the Lord...
and Chief Baron of the Exchequer, and from 1612 the Master of the Rolls
Master of the Rolls
The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal...
. Unlike other Chief Justices, who were appointed to serve "during the King's Pleasure", the appointment as Chief Justice of the King's Bench "did not usually specify any particular tenure". This practice ended in 1689, when all of the Chief Justices became appointed to serve "during good behaviour". The initial salary was £40 a year, with an additional £66 in 1372 and an increase to a total of £160 in 1389. An ordinance of 1646 set a fixed salary of £1,000, increased to £2,000 in 1714, £4,000 in 1733, and finally peaked at £10,000 a year in 1825. Pension arrangements were first made in 1799, peaking at £4,000 a year in 1825. The position remains to this day; after the dissolution of the Court of King's Bench, the Chief Justice has instead been the Lord Chief Justice of England and Wales
Lord Chief Justice of England and Wales
The Lord Chief Justice of England and Wales is the head of the judiciary and President of the Courts of England and Wales. Historically, he was the second-highest judge of the Courts of England and Wales, after the Lord Chancellor, but that changed as a result of the Constitutional Reform Act 2005,...
, now the head of the Judiciary of England and Wales
Judiciary of England and Wales
There are various levels of judiciary in England and Wales — different types of courts have different styles of judges. They also form a strict hierarchy of importance, in line with the order of the courts in which they sit, so that judges of the Court of Appeal of England and Wales are generally...
.
A Chief Justice of the King's Bench was assisted in his work by a number of Justices of the King's Bench
Justice of the King's Bench
Justice of the King's Bench, or Justice of the Queen's Bench during the reign of a female monarch, was a puisne judicial position within the Court of King's Bench, under the Chief Justice. The King's Bench was a court of common law which modern academics argue was founded independently in 1234,...
. Occasionally appointed before 1272, the number fluctuated considerably between 1 and 4; from 1522, the number was fixed at 3. Provisions for a fourth were established in 1830, and a fifth in 1868. Following the dissolution of the Court of King's Bench, the remaining Justices because Justices of the Queen's Bench Division of the High Court of Justice. Justices were originally paid £26 a year, increasing to £66 in 1361, and £100 in 1389. An ordinance of 1645 increased this to £1,000, with the salary peaking at £5,500 in 1825. As with the Chief Justice, pension arrangements were formally organised in 1799, starting at £2,000 a year and peaking at £3,500 in 1825.