Chapter VIII: Part II: Feudal Grievances and Magna Carta (3)

(_a_) An unflinching rule was established that no case could be brought before the royal court until a writ had been obtained from chancery. This had to be paid for, sometimes at a fixed rate, and sometimes at whatever sum the Crown demanded. The whole procedure in the royal courts, which followed the issuing of such a writ, came to be known as “the writ process.” Once it was issued, all proceedings in other courts must stop. One special form of writ (known as _praecipe_), in particular, became a royal instrument for removing before the King’s own _Curia_ cases pending in the manorial courts of mesne lords. To do this was to enrich the King at the expense of some baron or other freeman, by bringing to the Exchequer fees which otherwise would be paid to the owner of the private court. This was plainly "to cause a freeman to lose his court"—an abuse specially struck at by chapter 34 of the Great Charter.

(_b_) The mass of new business attracted to the King’s Courts made it necessary to increase, the staff of judges and to distribute the work among them. A natural division was that ordinary pleas (or common pleas) should be tried before one set of judges, and royal pleas (or pleas of the Crown) before another. This distinction is recognized in many separate chapters.[155] Thus two groups of judges were formed, each of which was at first rather a committee of the larger _Curia_ as a whole than an independent tribunal; but, in later years, the two rapidly developed into entirely separate courts—the Court of Common Pleas (at first known as the Bench, that is, the ordinary Bench), and the Court of King’s Bench (that is, the royal Bench, known also at first as the court _Coram Rege_, since it was always supposed to be held in the King’s presence).

Footnote 155:

See _infra_, under chapters 17 and 24.

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(_c_) Special procedure for determining pleas of disputed titles to land or rights of possession was also invented by Henry to take the place of the ancient method of trial by battle. These Assizes, as they were called, are fully discussed elsewhere.[156] The Grand Assize was looked on with suspicion by the barons as a procedure competent only before the royal courts, and therefore closely bound up with the King’s other devices for substituting his own jurisdiction for that of the private courts. The petty assizes, on the contrary, met with a ready acceptance, and the barons in 1215, far from objecting to their continuance, demanded that they should be held in regular sessions four times a year in each county of England.

Footnote 156:

See _infra_, under chapter 18.

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These were the chief innovations which enabled Henry, while instituting many reforms urgently required and gladly welcomed by the mass of his subjects, at the same time to effect a revolution in the relations of royal justice to feudal justice. As time went on, new royal writs and remedies were being continually devised to meet new types of cases; and litigants flocked more and more readily to the King’s Courts, leaving the seignorial courts empty of business and of fees. Nor was this the only grievance of the barons. When one of their own number was amerced or accused of any offence involving loss of liberty or lands, he might be compelled by the Crown, under Henry and his sons, to submit to have the amercement assessed or the criminal proceedings conducted by one of the new Benches (by a tribunal composed of some four or five of the King’s officials), in place of the time-honoured judgment of his peers assembled in the _Commune Concilium_ (the predecessor of the modern Parliament).

Can we wonder that the barons objected to be amerced and judged by their inferiors?[157] Can we wonder that they resented the complete though gradual supersession of their own profitable jurisdictions by the royal courts?[158] or that they looked with suspicion on every new legal development of the royal justice? Can we wonder that, when they seemed to have King John for the moment in their power, they demanded redress of this group of grievances, as well as of those connected with arbitrary increase of feudal burdens?

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Footnote 157:

See _infra_, under chapters 21 and 39.

Footnote 158:

See _infra_, under chapter 34.

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The cause for wonder rather is that their demands in this respect were not more sweeping and more drastic. It was one thing for their fathers to have endured the encroachments of so strong a King as Henry II.—far too wise a statesman to show clearly whither his innovations were ultimately tending, and (some lapses notwithstanding) a just ruler on the whole, using his increased prerogatives with moderation and for national ends. It was quite another thing to endure the same encroachments (or worse) from an unpopular King like John, discredited and in their power, who had neither disguised his arrogance nor made good use of his prerogatives. Royal justice, as dispensed by John, was in every way inferior to royal justice as dispensed under his father’s vigilant eye. Yet the exasperated barons, in the hour of their triumph, actually accepted, and accepted cordially, one half of royal justice; while they sought to abolish only the other half. The chapters bearing on the question of jurisdiction may thus be arranged in two groups, some reactionary, and some favourable to Henry’s reforms. On the one hand, no lord of a manor shall be robbed of his court by the King evoking before the royal courts pleas between two freeholders of the lord’s manor;[159] no freeman shall be judged or condemned by the King’s officials, but only before the full body of his peers (that is, of his fellow earls and barons, if he be an earl or baron, and of his fellow tenants of the manor, if he holds of a mesne lord);[160] earls and barons must be amerced only by their equals.[161] On the other hand, in prescribing remedies for various abuses connected with numerous branches of legal procedure recently introduced into the royal courts, the barons accepted by implication this new procedure itself and the royal encroachments implied therein. For example, the Crown’s right to hold “Common Pleas” was impliedly admitted, when the barons asked and obtained a promise that these should be tried in some certain place (that is, at Westminster).[162] Yet these very pleas, ordinary ones in which the Crown had no special interest, as opposed to Pleas of the Crown in which it had, must have included many cases which, prior to Henry II.’s reforms, would not have been tried in a royal court. Again, in regulating the various Petty Assizes, chapters 18 and 19 admit the Crown’s right to hold them. Such Assizes must be taken henceforth four times a year. Here, as in chapter 40, the ground of complaint is not that there is too much of royal justice, but rather that there is too little of it; it is henceforth to be neither delayed nor denied. Further, the encroachments made by Henry II. in 1166 on the rights of private franchises in the matter of criminal jurisdiction are homologated by acquiescence in the King’s definition of “Pleas of the Crown” implied in chapter 24.

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Footnote 159:

c. 34

Footnote 160:

c. 39.

Footnote 161:

c. 21.

Footnote 162:

c. 17.

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These, then, are the two clearly contrasted groups into which the innovations made by Henry and his sons, within the province of justice, naturally fell as viewed by John’s opponents in 1215: some of them had now come to be warmly welcomed, and these, it was insisted, must be continued by the Crown; while some of them still excited as bitter opposition as ever, and these, it was insisted, must be utterly swept away.