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A History of English Lawcourts

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A History of English Lawcourts English Studies ISSN: 0013-838X (Print) 1744-4217 (Online) Journal homepage: http://www.tandfonline.com/loi/nest20 A history of English Lawcourts E. Kruisinga To cite this article: E. Kruisinga (1920) A history of English Lawcourts, English Studies, 2:1-6, 97-135, DOI: 10.1080/00138382008596399 To link to this article: http://dx.doi.org/10.1080/00138382008596399 Published online: 13 Aug 2008. Submit your article to this journal Article views: 5 View related articles Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=nest20 Download by: [University of Cambridge] Date: 17 June 2016, At: 17:40 A History of English Lawcourts. In presenting a sketch of the history of English lawcourts to the readers of this periodical, whose chief business it is to study English language and literature and their history, it is not necessary to say much by way of introduction or defence. However strange and out of the way such a subject as the history of lawcourts might appear in a periodical devoted to the study of French or German, it is well-known to students of English, by painful or disagreeable experience, that the complete understanding of many a piece of literature has been marred by a lack of such apparently technical knowledge as the forms of English law or the organization of the lawcourts. Such a knowledge is naturally the more necessary the older the period of literature that is being studied. The student of Chaucer wishes to know something of the ecclesiastical courts, the archdeacon's e.g., when reading the Friar's Tale; such a knowledge would prevent him from inventing officials like church-reeves, as was done by Skeat1). It is by no means for the older period only, however, that a knowledge of English institutions is necessary; it is also necessary, if not quite so stringently necessary, for the most recent period, especially since the rise and progress of the novel. About Oldenglish law and procedure we know comparatively little. The standard work on the subject is Professor Felix Liebermann's Gesetze der Angelsachsen (3 volumes, containing text, translations with explanatory notes and glossary.) The present writer cannot pretend to any first-hand know- ledge of this period, and must refer those interested in the subject to Liebermann, and the older work by Bishop Stubbs: Constitutional History. The Norman Conquest brought a separation of church and state, as far as jurisdiction went. Whereas in Oldenglish times the bishop and the aldorman sat in the same court, there was after the Norman Conquest a strict division into ecclesiastical and secular courts. The ecclesiastical courts were the first to develop a regular system of procedure, based on the canon law which had been systematized before the statutebook began to be. It is even thought by some historians that the practice of the royal courts was copied direct from the courts ecclesiastical. It is also possible, however, that both the canon lawyers and the common lawyers borrowed from the civil (Roman) law. The organization of the secular courts dates from the Downloaded by [University of Cambridge] at 17:40 17 June 2016 times of Henry I. Both Henry I and Henry II were zealous in the adminis- tration of justice, for justitia magnum emolumentum: the more justice the king could draw from the old local courts, which had largely become feudalized, the greater was the revenue they could divert from the unruly barons into the royal exchequer2). By the end of the thirteenth century the old courts had been practically crushed by the new royal (central) courts and the new institution of local justices of the peace. If, for the present, we put aside the history of the ecclesiastical courts, whose history naturally belongs to a history of the church, our subject falls into two parts: (1) The Central Courts. •(2) The local Administration, of Justice. 1) The true meaning of chirche-reves, church-robberies, was pointed out by Kern, Neophilologus, II, 236. 2) Pollard, History of England, p. 49. 98 The Central Courts. For the following sketch of the history of the central royal courts I owe much to the following works: W. S. Holdsworth, A History of English Law. The first of the three volumes that have appeared up till now is entirely devoted to the history of English lawcourts. For the Oldenglish period the book is of little use; the author's knowledge of Oldenglish is sufficiently shown by his invariable practice of writing earldorman for ealdorman. For the post-Norman period it is very valuable. Pollock and Mattland, History of English Law before the time of Edward I. Jenks, A Short History of English Law. The royal courts were either courts of common law, or courts of equity ]). The courts of common law are developments of the King's Court (Curia Regis); the judges were officials of the king, and the court originally sat in the place where the king happened to be. As the kings often travelled abont the country, the necessity for suitors to follow them was felt to be a great hardship, for it would be a mistake to think that lawsuits lasting for years are a modern invention. Hence a clause in Magna Carta provided that common pleas, i.e. causes between private persons, as distinguished from Crown (criminal) and Revenue cases, should be held in a fixed place2). This ascertained place was Westminster Hall. In course of time the other royal courts came also to be settled at "Westminster Hall. Judges originally held their posts during the king's pleasure (durante beneplacito regis). But the interference with the administration of justice by the Stuarts led to a clause in the Act of Settlement (12 and 13 William 111 = 1701) which provided that the judges should hold office during good behaviour (quamdiu bene se gesserint) i.e. for life. For after this a judge could only be dismissed on an address by both Houses of Parliament. The Lord Chancellor's office, however, has remained a political one down to the present day; he takes office with his party and is an important member of the Cabinet, he also goes out when the Ministry resigns. Courts of Originally the superior Courts of Common Law were Common Law. chiefly three in number: 1) the Court of Common Pleas. 2) the Court of King's Bench. 3) the Court of Exchequer. The chief business of the Court of Common Pleass), as the name indicates, Downloaded by [University of Cambridge] at 17:40 17 June 2016 was the decision of suits between subjects, it was a court of civil procedure. The judges of this, as of the other superior courts of common law, had to be serjeants-at-law*), down to 1873. Sergeants were also the only barristers that had a right to plead in this court; this was changed by 9 and 10 Victoria c. 54, when the same right was given to Queen's Counsel and other barristers. It may be mentioned here that the judges of all courts of justice must be chosen from the practising barristers, down to the present 1) On common law and equity, see Ber. en Meded. Ver. her. Lev. Talen, no. 18. 2) "Communia placita non sequantur curiam nostram, sed teneantur in aliquo loco certo." (Magna Carta, clause 17.) 3) Also called Court of Common Bench, because the common Jaw judges used to sit on a padded and cushioned bench. It has been supplanted by the armchair of the Chancery judge. 4) These and other members of the legal profession have been dealt with in an essay on the Inns of Court (English Studies, I, no. 1). 9D day. The only exceptions are the courts whose judges need not be lawyers at all (e.g. the Court of Quarter Sessions). The Court of King's Bench, so called because originally the King presided in person, followed the king's court till the rejgn of Edward III, when it settled in Westminster. There was a separate court for matters affecting the persons of the King's household, chiefly in cases of crime and debt. This special jurisdiction of the Court s.of the Steward and the Marshal passed to the King's Bench J), but the prisoners of the King's Bench were in the custody of the Marshal. The Steward and the Marshal were deputies of the Lord Chief Justice, the president of the Court of King's Bench. Originally, the Court of King's Bench was a criminal court for the more important cases, and also a court of appeal; it had, what is called both an original and an appellate jurisdiction in criminal cases. But as the judges were formerly paid by the fees of the litigating parties, each court tried to obtain as much business as possible. The chief method of stealing the business that properly belonged to another court was by legal fiction. Thus if a person wanted to have a civil suit tried before the Court of King's Bench he obtained a Bill of Middlesex against the other party, accusing him of trespass vi et armis. The sheriff of Middlesex was then directed to arrest the defendant. If he could not be found in London a writ of Latitat was issued to the adjoining county sheriff. When the defendant appeared and gave securities he was supposed to be in the custody of the Marshal, and thus under the jurisdiction of the Court of King's Bench. When the defendant was once before the court the true civil suit could be substituted for the fictitious one, of which no-more was heard.
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