The Court of King's Bench, formally known as The Court of the King Before the King Himself, was a court of common law 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 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) 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 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 writs. 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 fictions 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 and Chancery, from which the Court of Chancery formed.Baker (2002) p. 12 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.Baker (2002) p. 17 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,Baker (2002) p. 15 and would hear cases on the King's behalf in the "lesser curia regis".Kemp (1973) p. 572
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 so that common pleas could be heard in "some fixed place". Thus, there were two common law 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.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.Adams (1920) p. 799 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.Turner (1977) p. 248 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, Staffordshire and Shropshire, 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.Baker (2002) p. 39 Like the Common Pleas, the King's Bench sat in Westminster Hall until its dissolution.Baker (2002) p. 37
Reform
During the 15th century, the traditional superiority of the common law courts was challenged by ecclesiastical courts 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 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 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.Baker (2002) p. 42
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.Baker (2002) p. 43 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 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.Baker (2002) p. 44
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.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 Common Pleas.Ibbetson (1984) p. 305
The struggle continued even after this point. 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 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