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 Pleas served as one of the central English courts for around 600 years. Authorised by Magna Carta to sit in a fixed location, the Common Pleas sat in Westminster Hall joined by the Exchequer of Pleas and Court of King's Bench.
The court's jurisdiction was gradually undercut by the King's Bench and Exchequer of Pleas with legal fictions, the Bill of Middlesex and Writ of Quominus respectively. The Common Pleas maintained its exclusive jurisdiction over matters of real property until its dissolution, and due to its wide remit was considered by Sir Edward Coke to be the "lock and key of the common law". It was staffed by one Chief Justice and a varying number of puisne justices, who were required to be Serjeants-at-Law, and until the mid 19th century only Serjeants were allowed to plead there.
As one of the two principal common law courts with the King's Bench, the Common Pleas fought to maintain its jurisdiction and caseload, in a way that during the 16th and 17th centuries was categorised as conservative and reactionary. Reaching an acceptable medium with the King's Bench 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 (36 & 37 Vict. c. 66) into a single High Court of Justice. With an Order in Council issued on 16 December 1880, the Common Pleas Division of the High Court ceased to exist, marking the end of the Court of Common Pleas.
History
Origin
Originally, the sole fixed court like body 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". Gradually, the curia split into two distinct branches, the coram rege (King's Bench) and de banco (Common Bench, or Common Pleas). Much academic discussion occurs over the circumstances and times of their founding. 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 granting of Magna Carta, which mandated in Section 17 that common pleas (cases between subject and subject, as opposed to cases involving the king) be heard in "some fixed place". This ensured that rather than the source of justice moving from place to place as the king did, there would be a fixed location that claimants and defendants could travel to that would address their problems. 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. In the 20th century, with better access to historical documents, legal historians have come to a different conclusion. Rather than the Common Pleas being created out of the curia regis directly, it instead arose out of the Exchequer of Pleas, another body split from the curia regis. By the beginning of the 13th century, a split began; chronicles from 1201 identify the "bench" and "exchequer" as distinct bodies, and records of Barons of the Exchequer and Justices of the Common Pleas show a distinct lack of overlap.
The Court of Common Pleas, along with the other superior courts, sat in Westminster Hall from its creation. Due to the provisions in Magna Carta, it was bound to sit there, although Richard II did move the court temporarily to York in a dispute with the City of London. An apocryphal seventeenth century story says that Orlando Bridgeman refused to move the court a few feet to avoid the draught from the north entrance, fearing that to do so would be to infringe on Magna Carta. The court sat in a space marked off by a wooden bar (which counsel stood behind) with the court officials sitting at a large oak table covered in green cloth and the justices on a raised platform (or "bench") at the rear of the court.
Struggle with the King's Bench
During the 15th century, the common law courts were challenged by the civil law and equity found in the Chancery and similar courts. These courts and legal methods were much faster than the common law courts, so lawyers and claimants flocked to them. This was perceived as a threat to the common law courts, for good reason; between 1460 and 1540, the business of the common law courts significantly dropped, while the Chancery's cases rose massively in number. In reaction to this, the Court of King's Bench developed its own, faster system, intent on winning cases back, and through procedures such as the Writ of Quominus and Bill of Middlesex acquired a wider jurisdiction.Baker (2002) p.40 While this succeeded in forming an equilibrium between the old common law courts and the new courts, it was viewed with suspicion by the Common Pleas, who became highly reactionary to the changes the King's Bench attempted to introduce.Baker (2002) p.41 When the King's Bench attempted to use the Bill of Middlesex to widen its jurisdiction, the Common Pleas became increasingly conservative in its attempts to avoid ceding cases. This was limited 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.Baker (2002) p.45
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.Simpson (2004) p.70 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.Simpson (2004) p.71 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.Boyer (2003) p.127 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 court.Ibbetson (1984) p.305
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, the (13 Cha. 2. St. 2. c. 2) 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. 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 Middlesex 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.Baker (2002) p.47
Unity and 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 cases were shared equally between them.Baker (2002) p.50 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.Manchester (1980) p.145 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.Polden (2002) p.575 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.Polden (2002) p.576 After Hatherly was replaced by Lord Selbourne in September 1872, a second bill was introduced after consultation with the judiciary; although along the same lines, it was far more detailed.Polden (2002) p.577