Magna Carta: A Commentary on the Great Charter of King John: With an Historical IntroductionMcKechnie, William Sharp
History
Magna Carta: A Commentary on the Great Charter of King John: With an Historical Introduction
McKechnie, William Sharp
Constitutional history -- England -- Sources; Law -- England -- History; Law -- England -- Sources; Magna Carta
In 1178, then, these five judges were set apart to hear ordinary suits;
but they were specially directed not to leave Henry’s court; so that
common pleas still “followed the king,” even ordinary litigants in
non-royal pleas having to pursue the king in quest of justice as he
passed from place to place in quest of sport.
It must not be supposed that the arrangement thus made in 1178 settled
the practice for the whole period of thirty-seven years preceding the
grant of Magna Carta. On the contrary, it was merely one of many
experiments tried by that restless reformer, Henry of Anjou; and the
separate court then instituted may have been pulled down and set up
again many times. The bench which appears in 1178 had probably, at best,
a fitful and intermittent existence. There is evidence, however, that
some such court did exist and did try common pleas in the reigns of
Richard and John.[540] On the other hand, this tribunal had in John’s
reign ceased to follow the king’s movements habitually (thus
disregarding the decree of 1178), and had established itself at
Westminster.[541] It was in 1215 considered an abuse for John to try a
common plea elsewhere. Times had changed since his father had granted as
a boon that a set of judges should remain constantly at “his court” to
try such cases.
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Footnote 540:
See Prof. Maitland, _Sel. Pl. Crown_, xiii.-xvi.; see also in _Pipe
Roll_, 7 John (cited Madox, I. 791) how money was paid that a plea
pending before the _Justiciarii de banco_ might be heard _coram rege_.
This entry proves that in 1205 there were two distinct courts, one
known as _de banco_ and the other as _coram rege_.
-----
Footnote 541:
See Maitland, _Ibid._
-----
(2) Magna Carta in 1215 gave authoritative sanction to the already
recognized rule that common pleas should be tried at Westminster,
instead of moving with the king. No exceptions were henceforth to be
allowed. Young Henry renewed this promise, and the circumstance of his
minority favoured its strict observance. A mere boy could not make royal
progresses through the land dispensing justice as he went. Accordingly,
all pleas continued for some twenty years to be heard at Westminster.
The same circumstances, which thus emphasized the stability of common
pleas (along with all other kinds of pleas) in one fixed place, may have
arrested the process of cleavage between the two benches. All the judges
of both courts sat at Westminster, and therefore there was the less need
for allocating the business between them with any exactitude. The two
benches were in danger of coalescing.
Public-domain text, read in full here on John Shaqi.
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