Court of Common Pleas (England): Wikis


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The Court of Common Pleas in 1822

The Court of Common Pleas, also known as the Common Bench or Common Place, was a common law court in the English legal system. Created to relieve pressure on what later became the Court of King's Bench, the Court of Common Pleas stood as the third highest common law court for over 600 years until its abolition in 1875. For centuries the court served as a place of innovation, with the judges presiding over influential legal cases and the court itself introducing procedural changes which later caught on in other courts. The beginning of the 16th century, however, saw an innovative drought that led to the court being swiftly overtaken by the other common law courts, and by the time the court was abolished much of the court's power, influence and exclusive jurisdiction had been stripped and reassigned to the other common law courts.[1]



The court was created by Henry II after complaints about the unusual number of eyres, as recorded by Abbas Benedictus:

"By the counsel of the wise men of his realm, he selected five men only, two clerks and three laymen, who were all of his own household. And he ordained that these five men should hear all the suits of the realm, and adjudicate upon them, and that they should not depart from the Curia Regis, but should remain there to hear men's suits; provided that if any question arose among them which they could not solve it should be reserved for the King's hearing, and should be settled as seems good to him and the wiser men of the realm"[2]

Henry II of England, creator of the Court of Common Pleas

The creation of the court was undoubtedly designed to relieve case-load pressure on the court Coram Rege (meaning "in the presence of the King", later to develop into the Court of King's Bench) by assigning all common pleas (matters between subject and subject) and mundane cases to a separate court, leaving more difficult litigations for the King and Council.[3][4][5][6] The Court of Common Pleas remained part of the Curia Regis, however, rather than a separate court, and as such was mandated from the beginning to follow the King as he travelled about the realm.[5]


Split from the King's court

The split in the Curia Regis began in 1178, where evidence shows that fines were levied sometimes Coram Rege and sometimes by justices of the Common Bench. However, there were not yet distinct tribunals, as shown by the Curia Regis plea rolls, which remained grouped as one rather than divided into separate rolls for the Common Pleas and King's Bench.[7] Under Richard and John the decision of whether the case was heard Coram Rege or by the justices of the Common Bench often rested simply on the happenstance of the King's presence. In the absence of the King (and therefore the cessation of activity in the Court of King's Bench) the justices of the Common Pleas dealt with all cases, including pleas of the crown. At this point in John's reign there are no separate entities in the Curia Regis, but with the institution of Itinerant Justices and of a separate bench that did not require the presence of the King to sit there is evidence of a growing divide; according to Maitland, "the King's Court of John's reign shows no cleft, though it does show a well-marked line of cleavage".[8]

Despite the original intent of the Common Pleas to following the King as part of the Curia Regis, there is evidence it had a fairly common presence in the Bench at Westminster, which had itself separated from the roaming courts of the Exchequers in the mid 1190s[9] This is noted by Glanvil's treatise Tractatus de legibus et consuetudinibus regni Anglia.[5] In Magna Carta (1215), it was provided that the communia placita (common pleas) should be held "in a certain place" and would no longer follow the King.[5][10] Specifically, the 17th clause held that "Common Pleas should not follow [the King's] court but should be held in some distinct place", establishing the Common Bench as a purely judicial court and separating it from the King's Bench, which was required to follow the King. This was not a complete revolution, nor something novel; the "certain place" was Westminster where the Common Pleas had been located since 1187 and continued to sit until the court's abolition in 1875.[11] Occasionally, the Common Pleas would sit outside London, such as during times of disease, but also moved on other occasions; the monarch reserved the right to select where it would sit, and as such the Court also convened at York in 1337 and 1392, St Albans in 1544 and Hertford in 1581.[12]

The separation of the two courts was abated during the minority reign of Henry III. Since a court could not sit "in the presence of the King" the two were merged to allow both common and crown pleas to be heard. When Henry reached his majority in 1224 the distinction again appeared, arguably to a greater extent, as from 1234 separate Plea rolls were used for each court; De Banco (of the Bench) for the Common Pleas and Coram Rege for the King's Bench.[13] As early as 1237 there are cases specifying the plea of "common pleas" as opposed to "coram rege", showing a growing distinction between the two.[11][14] The resolution of the Second Barons' War clearly established the Court of Common Pleas as a separate entity to the King's Bench through a renewed recognition of Magna Carta. This was done to solve the problem of the absence of the King; the Curia Regis had been suspended between 1209 and 1214 due to John's frequent foreign trips, leaving no high court.[15] The separation was finalised in 1272 with the appointment of a separate Chief Justice for the Common Pleas. Previously, the Chief Justice of the Common Pleas had simply been the most senior or respected of the courts justices rather than an appointed position, and the creation of a Chief Justice to stand with the Chief Justice of the King's Bench and the Chief Baron of the Exchequer firmly entrenched its position as a separate entity. After 1272, the Common Pleas ceased to directly try any criminal cases.[11]


The justices of the court in the 12th and early 13th century were usually royal clerks, following Henry II's proclamation that the justices be "of his own household", but in the late 13th century these clerks began to be replaced by professional lawyers; of the 19 justices under Edward II, eight or nine were royal clerks and the rest practicing barristers. The ascent of the barristers is shown by the fact that, other than Hervey de Stanton, appointed Chief Justice in 1326, no clerical judge was appointed after 1316.[16] In 1316 the order of Serjeants-at-law was created, made up of the leading barristers of the Kingdom, and naturally when the selection of royal clerks as justices stopped they instead began to be selected from the order of Serjeants. In time only Serjeants-at-law were allowed to become justices of the Common Bench, and to get around any possible difficulties involving potential justices not part of the order of Serjeants, it became typical to make any prospective justice a Serjeant merely so he could be raised to the bench.[17] The practice of appointing only Serjeants as justices was adopted by the King's Bench in the 14th century and the Exchequer of Pleas in the 16th, and was not removed until the Supreme Court of Judicature Act 1873.[18] After the 14th century, the Common Pleas appears to have sat in two Benches. One settled oral pleadings which are fully reported in the Year Books, and the other sat with a jury and decided cases.[11]

The three Common Law courts were in competition due to their proximity to each other (all sited in Westminster) and their independent origin.[19] From the 14th century onwards the jurisdiction of the Court of Common Pleas was encroached on by the King's Bench and Exchequer of pleas using various legal fictions, such as the Bill of Middlesex and Writ of Quominus. Plaintiffs were happy to go along with such fictions; the Common Pleas, with its various powers to fine debtors, was the most expensive of courts for the defendant if he lost, and could also be expensive for the plaintiff since there was a limited opportunity to appeal to the King's Bench, increasing the length (and therefore the cost) of the case. After 1830 appeal was allowed direct to the Court of Exchequer Chamber.[20][21]


The Chief Justiceship of Sir Thomas Bryan between 1471 and 1500 saw the court slip behind the other common law courts in terms of power, a position it was never to recover. Bryan served for 29 years, the longest of any Chief Justice, and while the King's Bench was becoming more powerful due to the reforms of John Fineux, Bryan's period as Chief Justice was characterised by conservatism and actions that were more reactionary than revolutionary.[22] With the exception of Thomas Frowyk, who served for only four years, the following Chief Justices continued Bryan's legacy of staid conservatism.[22]

The court was slightly revived under the leadership of Sir Edward Montagu, who had previously been Chief Justice of the King's Bench and transferred several of the King's Bench innovations to the Common Bench. He was not reappointed by Queen Mary when she came to the throne on 1 October 1553, and the court failed to continue modernising after he left. The court did reform to some extent, however, making greater use of the special verdict and reintroducing the action of ejectment, and by the 1550s the court plea rolls had over 1000 leafs.[22]


English common law courts before the Judicature Acts

By the end of the reign of Charles II, all three common law courts had acquired comparable jurisdiction over most common pleas, thanks to the legal fictions used by the King's Bench and the Exchequer of Pleas; they developed procedures that, although different in form and cost, were very similar. By the 1700s it was typical to speak of the 'twelve judges' (four of each court) as equal.[1] However, although jurisdiction was equal, case load was not; records show declining litigation at Westminster between 1680 and 1750, and when it picked up again the King's Bench captured the majority of the work thanks to the strong personality of Lord Mansfield, while Common Pleas was nicknamed the 'sleepy hollow'.

In 1828 Henry Brougham complained in Parliament that as long as there were three courts unevenness was inevitable, saying that "It is not in the power of the courts, even if all were monopolies and other restrictions done away, to distribute business equally, as long as suitors are left free to choose their own tribunal", and that there would always be a favourite court, which would therefore attract the best lawyers and judges and entrench its position.[23] After his exposure of various defects in the justice system a commission was appointed to investigate the practice and procedure of the courts of law. The most obvious reform was the abolition of the Welsh courts in 1830, with the issues of the central courts not touched.

John Coleridge, last Chief Justice of the Common Pleas and the first Lord Chief Justice of England and Wales.

In 1867 a commission was finally created to look into issues with the central courts, and the outcome was the Supreme Court of Judicature Act 1873, under which all the central courts were made part of a single Supreme Court of Judicature, with the three central courts becoming three of the five divisions of the Supreme Court; this was not designed to be permanent, but rather to avoid having to retire or demote two of the three Chief Justices to allow a single head of the Supreme Court, as this would have violated the constitutional principle that senior justices were irremovable. By sheer chance Fitzroy Kelly and Alexander Cockburn, Lord Chief Baron of the Exchequer and Lord Chief Justice of England and Wales respectively both died in 1880, allowing the abolition of the old three-part system and the creation of a single High Court of Justice under John Coleridge by an order in council of 16 December 1880.[24]


The court had four branches of jurisdiction. The first and most important was the jurisdiction over common pleas; Sir Edward Coke observed that "this court is the lock and key of the common law in common pleas".[25] It was the only court of common law in which personal actions of account, covenant, debt and detinue could be begun, and its jurisdiction could only be removed or passed to another court via a direct charter. Its monopoly on such actions lasted until the judicial reforms enacted between 1833 and 1873, but long before their official abolition most of the personal actions had either become outdated and been replaced by actions under the jurisdiction of the King's Bench or fallen victim to the growing encroachment of the King's Bench and Exchequer of pleas on the exclusive jurisdiction of the Common Bench.[26]

The court also had jurisdiction to supervise and correct the errors of older local courts. By the writ of pone it could order a case transferred to itself from the County, Hundred or Baron's Courts, and by various writs of false judgement (recordari facias, accedas ad hundrendum or accedas ad curiam) they could correct these errors.[27] In the 13th and 14th centuries this was an important part of the Court's jurisdiction, but gradually lost relevance as the local courts declined in importance; their place was taken by the Justices of the Peace, which were controlled by the King's Bench.[28] A controversial topic was whether the Court of Common Pleas had jurisdiction to correct via a writ of error, and as a result of the controversy most parties chose to bring any writs of error before the King's Bench, since any judgement of the Court of Common Pleas might then be brought before the King's Bench anyway via such a writ. John Vaughan, Chief Justice of the Common Pleas, wrote that "no man will advise his client to bring it here, but instead to the Kings bench where it is final".[29]

In the 17th century the court was given the power to unilaterally issue the writ of prohibition and the writ of habeas corpus.[30] The court had had the power to issue writs of prohibition since the 15th century under certain conditions, but a 1610 decision between the King's Bench and Court of the Exchequer confirmed the right of the Court to issue them without such conditions.[31] The court had also been issuing writs of habeas corpus since their invention, but was only permitted to when it wished to bring a prisoner involved in an action of the court before itself or when that prisoner could only be sued through the Court of Common Pleas, not under any other circumstances. The court regularly used legal fiction to permit the release of other prisoners, but their ability to do so without such fiction was confirmed first by the Habeas Corpus Act 1640, which gave the court power to issue such writs to prisoners of the Council, and the Habeas Corpus Act 1679 which gave all three common law courts the ability to issue general writs.[32][33]

The fourth area of jurisdiction was that, like all common law courts, the Court of Common Pleas had jurisdiction over its own officials and any other person privileged to sue and be sued before it. If the official or permitted person was the plaintiff, the action was begun via an attachment of privilege. If he was the defendant, it was done by bill.[34]


The court was made up of one Chief Justice and a varying number of puisne justices, starting at five, then four, then three from 1487, an arrangement that lasted over 300 years.[35] In the late 1860s numbers began to increase again, most likely due to the large number of cases, and by the time the court was abolished in 1875 it had eight justices working for it. The justices were assisted by a staff of over 50 officials, most of whom sat in Westminster Hall but also kept offices at the various Inns of Court.[36] The Chief Clerk was the Custos Brevium, appointed by the crown, but in practice clerking matters were handled by his deputy, as the office was a royal favour rather than a serious judicial appointment.[36] The crown also appointed the court chirographer, responsible for noting final concords and filing records of fines. Another high-ranking clerk was the Clerk of the Outlawries, an under-clerk of the Attorney General for England and Wales, who was tasked with recording recognizances to protect the interests of the King in common law matters. In 1541 his position was replaced with the office of Clerk of the King's Process.[36] Other offices created during the reign of Henry VIII include the Clerk of the Recognizances in 1432, who recorded debts secured by recognizances and the office of Receiver of Debts, who was tasked with receiving and recording money coming into the court via debts and fines, and was first appointed in 1536.[37]

An interesting position was that of Warden of the Fleet Prison, who was also keeper of Westminster Hall, tasked with keeping it clean and letting the shops and booths along the sides. Despite acting as gaoler to the Exchequer of Pleas, Court of Chancery and Star Chamber as part of his duties the Warden was considered an officer of the Court of Common Pleas.[37]

Due to their technical knowledge, the most important officers were the three Prothonotaries, the first and third of whom were appointed by the Chief Justice and the second by the Chief Justice on the advice of the Custos Brevium.[38] They were responsible for enrolling records of litigation, including anything that raised a point of law, and were often consulted by the court due to their detailed technical knowledge.[39] The Chief Justice also appointed the Clerk of the Warrants, Clerk of the Treasury (also known as the Clerk of Hell), the Keeper of the Seal, the Clerk of Essoins and the Clerk of Acknowledgments of Fines and Recoveries (who was officially the Chief Justices own clerk, rather than that of the court), as well as the Exigenters and Filazers. The Custos Brevium appointed the Clerk of the Juries, responsible for issuing writs of Habeas Corpus.[40]

There were four Exigenters tasked with issuing and controlling the process of declaring someone an Outlaw, with each Exigenter assigned a set of counties. The most valuable of the Exigenterships was that for London, Middlesex, Sussex, Kent, Dorset, Somerset, Devon, Cambridgeshire, Huntingdonshire, Bristol and Exeter due to the number of processes each year, with London alone handling over 100 documents a year by the mid-1550s.[40] By tradition the Exigenter for Yorkshire and the othern northern counties was also Filazer for Northumberland, Westmorland, Cumberland and Newcastle, and Clerk of the King's Silver for the entire country.[40]

There were initially thirteen Filazers, who shared counties between them according to historical divisions, and were tasked with filing judicial writs for their counties and transferring them to the Custos Brevium for filing. A fourteenth Filazer was appointed for Monmouthshire in 1542, but other than this there were no changes to the position until the abolition of the court.[40]

All clerks were appointed for life, and could only be removed for misbehavior. Despite this, the sheer number of positions meant that several came up for reappointment in each Chief Justice's tenure, and selling them could be very profitable.[40]


The Court of Common Pleas was described by John Baker as "the court which, more than any other, shaped the medieval common law".[41] It was the court most apprentices-at-law attended in order to learn the practice of law and the workings of the legal system, with every note from a judge or serjeant written down for future reference; Year Books were collected from the cases of the Common Pleas from 1268, a practice that did not start in the other high courts until the 15th century.[42]

The court created a large number of structural precedents and procedures which were later used in the King's Bench and Exchequer of Pleas. In addition to the system of Year Books, the Common Bench also established the principle of professional lawyers and Serjeants-at-Law as justices; the separation of Serjeants from common attorneys (only Serjeants, for example, were allowed to directly plead in court) led to the differentiation between Barristers and Solicitors in the fifteenth century.[43] The court also presided over cases of fundamental importance to the English legal system, such as Bushel's Case in 1670.[44]

Similar courts, based on the English model, were established in Ireland and several British colonies. As of 2008, courts called "common pleas" remain in existence in several U.S. states, including Pennsylvania and Ohio.


  1. ^ a b Baker p. 50
  2. ^ Holdsworth p. 51
  3. ^ Sayles, LV, S.S., p. xx
  4. ^ Plucknett p.148
  5. ^ a b c d Kiralfy, p. 120
  6. ^ Holdsworth p. 52
  7. ^ Madox, History of the Exchequer, pp. 788–789
  8. ^ F.W Maitland, ed. Select Pleas of the Crown. p. xvii.  
  9. ^ Turner, Ralph V.. Judges, Administrators and the Common Law in Angevin England. London: The Hambledon Press. pp. 23–24. ISBN 185285104X.  
  10. ^ 17 John, c. 17
  11. ^ a b c d Kiralfy, p. 121, ibid.
  12. ^ Wriothesley's Chronicle
  13. ^ Bracton's Note Book. Vol. I. pp. 56–59.  
  14. ^ Plac. Abbrev., 105a cited in H. E. L., I, p. 196; S. B. p. 46
  15. ^ Baker p. 19
  16. ^ Tout. the Place of Edward II in English History. p. 368.  
  17. ^ Holdsworth (Volume II) p.185
  18. ^ Holdsworth p. 197
  19. ^ Cornish & Clark (1989) p. 23
  20. ^ Cornish & Clark (1989) p. 25
  21. ^ Law Terms Act 1830, s.8
  22. ^ a b c Baker (2003) p.126
  23. ^ Brougham, Henry (1828). Present State of the Law. p. p. 10.  
  24. ^ Lord Mackay of Clashfern (ed.) (2002) Halsbury's Laws of England, 4th ed. Vol.10 (Reissue), "Courts", 603 'Divisions of the High Court'
  25. ^ Holdsworth, p. 198.
  26. ^ Hale: A discourse concerning the courts of King's Bench and Common Pleas, pp. 360–362.
  27. ^ Fitzherbert Appendix IX.
  28. ^ Fitzherbert Appendix X.
  29. ^ Vaughan, John (1706). Edward Vaughan. ed. The Reports and Arguments [1665-1674] of that Learned Judge, Sir John Vaughan, Kt., Late Lord Chief Justice of the Court of Common Pleas: Being All of Them Special Cases; and Many Wherein He Pronounced the Resolution of the Whole Court of Common-pleas. Great Britain Court of Common Pleas, England and Wales.  
  30. ^ Blackstone, p. 129-130.
  31. ^ Holdsworth, p. 202.
  32. ^ 'Charles II, 1679: An Act for the better secureing the Liberty of the Subject and for Prevention of Imprisonments beyond the Seas.', Statutes of the Realm: volume 5: 1628–80 (1819), pp. 935–38. URL: Date accessed: 26 September 2008.
  33. ^ Kiralfy, p. 122, ibid.
  34. ^ Report of Common Law Procedure Commissions. Parliamentary Papers. 1829. pp. 72–73.  
  35. ^ Baker (2003) p.125
  36. ^ a b c Baker (2003) p.127
  37. ^ a b Baker (2003) p.128
  38. ^ Holdsworth Appendix XXX
  39. ^ Baker (2003) p.129
  40. ^ a b c d e Baker (2003) p.130
  41. ^ Baker, p. 38.
  42. ^ Baker, p. 39.
  43. ^ Baker, p. 163.
  44. ^ Baker, p. 159.


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  • Baker, J.H (2002). An Introduction to English Legal History (fourth edition ed.). Bath Press. ISBN 0 406 93053 8.  
  • Blackstone. Blackstone's Commentaries (1st edition ed.).  
  • Cornish, W. R. & Clark, G. de N. (1989). Law and Society in England 1750-1950. London: Sweet & Maxwell. pp. 23–26, 75. ISBN 0421311509.  
  • Elton, G. R. (1982). The Tudor Constitution (2nd ed. ed.). London: Cambridge University Press.  
  • Fitzherbert. Natura Brevium (7th edition ed.).  
  • Holdsworth, William (1956). A.L Goodhart, H.G Hanbury. ed. A History of English Law In Sixteen Volumes (volume I). S.B Chrimes (7th edition ed.). Methuen & Co Ltd..  
  • Holdsworth, William (1956). A.L Goodhart, H.G Hanbury. ed. A History of English Law In Sixteen Volumes (Volume II). S.B Chrimes (7th edition ed.). Methuen & Co Ltd..  
  • Kinney, A. (2000). Tudor England: An Encyclopedia. Garland Science.  
  • Plucknett, Theodore (1956). Concise History of the Common Law. Boston: Little, Brown.  
  • Kiralfy, A.K.R (1962). Potter's Historical Introduction to English Law and Its Institutions. London: Sweet & Maxwell, Ltd..  


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