Court Of King's Bench (England)
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The Court of King's Bench, formally known as The Court of the King Before the King Himself, was a court of
common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
in the English legal system. Created in the late 12th to early 13th century from the '' curia regis'', the King's Bench initially followed 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. The King's Bench was merged into the
High Court of Justice The High Court of Justice in London, known properly as His Majesty's High Court of Justice in England, together with the Court of Appeal (England and Wales), Court of Appeal and the Crown Court, are the Courts of England and Wales, Senior Cour ...
by the Supreme Court of Judicature Act 1873, after which point the King's Bench was a division within the High Court. The King's Bench was staffed by one Chief Justice (now the
Lord Chief Justice of England and Wales The Lord or Lady Chief Justice of England and Wales is the head of the judiciary of England and Wales and the president of the courts of England and Wales. Until 2005 the lord chief justice was the second-most senior judge of the English and ...
) and usually three Puisne Justices. In the 15th and 16th centuries, the King's Bench's jurisdiction and caseload was significantly challenged by the rise of the
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 a slow pace of change and possible harshness (or "inequity") of the Common law#History, common law. The Chancery had jurisdiction over ...
and equitable doctrines as one of the two principal common law courts along with the Common Pleas. 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 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. Warrant (legal), Warrants, prerogative writs, subpoenas, and ''certiorari'' are commo ...
s. Although not immediately stemming the tide, it helped the King's Bench to recover and increase its workload in the long term. 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. The Common Pleas became suspicious of the new developments, as
legal fiction A legal fiction is a construct used in the law where a thing is taken to be true, which is not in fact true, in order to achieve an outcome. Legal fictions can be employed by the courts or found in legislation. Legal fictions are different from ...
s 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 until the merger in 1873. The King's Bench's jurisdiction initially covered a wide range of criminal matters, any business not claimed by the other courts, and any cases concerning the monarch. Until 1830, the King's Bench acted as a court of appeal for the Exchequer of Pleas and Common Pleas, and required Parliament to sign off on its decisions. From 1585, the Court of Exchequer Chamber served for appeals of King's Bench decisions.


History


Origins

Originally, the sole "court" was the '' curia regis'', one of the three central administrative bodies along with the
Exchequer In the Civil Service (United Kingdom), civil service of the United Kingdom, His Majesty's Exchequer, or just the Exchequer, is the accounting process of central government and the government's ''Transaction account, current account'' (i.e., mon ...
and Chancery, from which the
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 a slow pace of change and possible harshness (or "inequity") of the Common law#History, common law. The Chancery had jurisdiction over ...
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 ''curia ducis'' and partly 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, there were problems with the administration of justice. For example, if the King left the country for an extended period of time (as Richard I, who spent the vast majority of his reign overseas did), the ''curia'' followed, making hearings difficult to hold. To remedy this, a central "bench" was established; the Court of Common Pleas, initially split from the Exchequer of Pleas, received official recognition in the
Magna Carta (Medieval Latin for "Great Charter"), sometimes spelled Magna Charta, is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by the Archbishop of Canterbury, Cardin ...
so that common pleas could be heard in "some fixed place". Thus, there were two
common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
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 to be present for the court to sit.Wiener (1973) p. 754 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 grant of
Magna Carta (Medieval Latin for "Great Charter"), sometimes spelled Magna Charta, is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by the Archbishop of Canterbury, Cardin ...
.Hamlin (1935) p. 202 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 Leicestershire ( ) is a Ceremonial counties of England, ceremonial county in the East Midlands of England. It is bordered by Derbyshire, Nottinghamshire and Lincolnshire to the north, Rutland to the east, Northamptonshire to the south-east, Warw ...
, Staffordshire and
Shropshire Shropshire (; abbreviated SalopAlso used officially as the name of the county from 1974–1980. The demonym for inhabitants of the county "Salopian" derives from this name.) is a Ceremonial counties of England, ceremonial county in the West M ...
, 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.


Reform

During the 15th century, the traditional superiority of the common law courts was challenged by
ecclesiastical courts In organized Christianity, an ecclesiastical court, also called court Christian or court spiritual, is any of certain non-adversarial courts conducted by church-approved officials having jurisdiction mainly in spiritual or religious matters. Histo ...
and the equitable jurisdiction of the Lord Chancellor, 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.Baker (2002) p. 40 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 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. Warrant (legal), Warrants, prerogative writs, subpoenas, and ''certiorari'' are commo ...
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 A legal fiction is a construct used in the law where a thing is taken to be true, which is not in fact true, in order to achieve an outcome. Legal fictions can be employed by the courts or found in legislation. Legal fictions are different from ...
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.Baker (2002) p. 41 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. 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 () is a form of lawsuit in common law jurisdictions 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 valu ...
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.


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 prothonotaries 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 A legal fiction is a construct used in the law where a thing is taken to be true, which is not in fact true, in order to achieve an outcome. Legal fictions can be employed by the courts or found in legislation. Legal fictions are different from ...
used was that by failing to pay after promising to do so, a defendant had committed deceit, and was liable to the plaintiff.Simpson (2004) p. 70 The conservative Common Pleas, through the
appellate court An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to hear a case upon appeal from a trial court or other lower tribunal. Appel ...
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 The chief justice of the common pleas was the head of the Court of Common Pleas, also known as the Common Bench, which was the second-highest common law Common law (also known as judicial precedent, judge-made law, or case law) is the body ...
, which briefly led to a less reactionary and more revolutionary Common Pleas. The struggle continued even after this point. The
Interregnum An interregnum (plural interregna or interregnums) is a period of revolutionary breach of legal continuity, discontinuity or "gap" in a government, organization, or social order. Archetypally, it was the period of time between the reign of one m ...
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 latitats based on legal fictions, forbidding "special bail" in any case where "the true cause of action" was not expressed in the process.Baker (2002) p. 46 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.Baker (2002) p. 46 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.


Dissolution

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 The assizes (), or courts of assize, were periodic 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. The assizes ex ...
cases were shared equally between them. In 1828, Henry Brougham complained that:
e jurisdiction of the Court of King's Bench, for example, was originally confined to pleas of the Crown, and then extended to actions where violence was used – actions of trespass, by force; but now, all actions are admissible within its walls, through the medium of a legal fiction, which was adopted for the purpose of enlarging its authority, that every person sued is in the custody of the marshal of the court and may, therefore, be proceeded against for any personal cause of actions. Thus, by degrees, this court has drawn over to itself actions which really belong to...the Court of Common Pleas. The Court of Common Pleas, however...never was able to obtain cognizance of – the peculiar subject of King's Bench jurisdiction – Crown Pleas... the Exchequer has adopted a similar course for, though it was originally confined to the trial of revenue cases, it has, by means of another fiction – the supposition that everybody sued is a debtor to the Crown, and further, that he cannot pay his debt, because the other party will not pay him, – opened its doors to every suitor, and so drawn to itself the right of trying cases, that were never intended to be placed within its jurisdiction.Manchester (1980) p. 130
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 Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid a slow pace of change and possible harshness (or "inequity") of the Common law#History, common law. The Chancery had jurisdiction over ...
, 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 using 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 House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...
. 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, passed as the Supreme Court of Judicature Act 1873, merged the Common Pleas, Exchequer, Queen's Bench and Court of Chancery into one body, the
High Court of Justice The High Court of Justice in London, known properly as His Majesty's High Court of Justice in England, together with the Court of Appeal (England and Wales), Court of Appeal and the Crown Court, are the Courts of England and Wales, Senior Cour ...
, with the divisions between the courts to remain. The Queen's Bench thus ceased to exist, holding its last session on 6 July 1875, except as the Queen's Bench Division of the High Court. The existence of the same courts as divisions of one unified body was a quirk of constitutional law, which prevented the compulsory demotion or retirement of Chief Justices. Thus all three Chief Justices (Lord Chief Justice Sir Alexander Cockburn, Chief Justice of the Common Pleas Lord Coleridge and Chief Baron of the Exchequer Sir Fitzroy Kelly) continued in post. Kelly and Cockburn died in 1880, allowing for the abolition of the Common Pleas Division and Exchequer Division by
Order in Council An Order in Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom, this legislation is formally made in the name of the monarch by and with the advice and consent of the Privy Council ('' ...
on 16 December 1880. The High Court was reorganised into the Chancery Division, Queen's Bench Division and the Probate, Divorce and Admiralty Division.


Jurisdiction

Due to a misunderstanding by Sir Edward Coke 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 Middlesex (; abbreviation: Middx) is a Historic counties of England, former county in South East England, now mainly within Greater London. Its boundaries largely followed three rivers: the River Thames, Thames in the south, the River Lea, Le ...
, 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.


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 Pleas The chief justice of the common pleas was the head of the Court of Common Pleas, also known as the Common Bench, which was the second-highest common law Common law (also known as judicial precedent, judge-made law, or case law) is the body ...
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 The Lord or Lady Chief Justice of England and Wales is the head of the judiciary of England and Wales and the president of the courts of England and Wales. Until 2005 the lord chief justice was the second-most senior judge of the English and ...
, 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.Sainty (1993) p. 19 Justices were originally paid £26 a year, increasing to £66 in 1361, and £100 in 1389.Sainty (1993) p. 20 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.


See also

* King's Bench Prison


Notes


References


Bibliography

* * * * * * * * * * * * * * * {{Authority control Former courts and tribunals in England and Wales Legal history of England 1870s disestablishments in England Courts and tribunals disestablished in 1875