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
(3) About the year 1234 a third stage was reached. Henry began to follow
the precedent, set by his ancestors, of moving through his realm with
judges in his train, hearing pleas wherever he stopped. While one group
of judges went with him, another remained at Westminster. Some way of
allocating the 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. Each provided itself with separate records. 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 specially 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. In 1234 the common bench and the royal bench had
become distinct.[542] Evidence drawn from a few years later proves that
a definition of common pleas had been arrived at and that the rule which
required them to be held “in a fixed place” was insisted on. 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.[543]
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Footnote 542:
See Maitland, _Sel. Pl. Crown_, xviii.
Footnote 543:
See _Placitorum Abbreviatio_ (p. 105) 21 Henry III., cited Pike,
_House of Lords_, p. 41. Cf. also Bracton’s _Note Book_, pleas Nos.
1213 and 1220.
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With royal pleas, however, it was very 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. 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.”[544]
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Footnote 544:
28 Edward I. c. 5.
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Public-domain text, read in full here on John Shaqi.
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