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
Westminster Hall, where the King's Bench sat until its abolition
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.[2] 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.[3] 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,[4] and would hear cases on the King's behalf in the "lesser curia regis".[5]
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".[6] 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.[7]
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:
learned that the land and the men of the land were burdened by so great a number of justices, for there were, eighteen, chose with the counsel of the wise men of his Kingdom five only, two clerks three and laymen, all of his private family, and decreed that these five should hear all complaints of the Kingdom and should do right and should not depart from the king's court but should remain there to hear the complaints of men, with this understanding that, if there should come up among them any question which could not be brought to a conclusion by them, it should be presented to a royal hearing and be determined by the king and the wiser men of the kingdom".[8]
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.[6] 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.[9] 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.[10] 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.[11] Like the Common Pleas, the King's Bench sat in Westminster Hall until its dissolution.[12]
Reform
The Court of Chancery, a competitor to the King's Bench and other common law courts during the 15th and 16th centuries
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.[13]
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.[14]
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.[15]
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.[16] 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.[17]
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.[14] 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.[18]
The troubles during this period are best illustrated by Slade's Case.[19] 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.[19] 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.[20]
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.[21] 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.[22]
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".[23] 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.[23]
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 Middlessex disclosed the true cause of action, satisfying the 1661 statute, but did not require a valid complaint.[23] 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.[24]
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.[25] In 1828, Henry Brougham complained that:
The Court of King's Bench at work in Westminster Hall in the early 19th century
[t]he jurisdiction of the Court of King's Bench, for example, was originally confined to pleas of the Crown, and then extended to actions where violence was used – actions of trespass, by force; but now, all actions are admissible within its walls, through the medium of a legal fiction, which was adopted for the purpose of enlarging its authority, that every person sued is in the custody of the marshal of the court and may, therefore, be proceeded against for any personal cause of actions. Thus, by degrees, this court has drawn over to itself actions which really belong to...the Court of Common Pleas. The Court of Common Pleas, however...never was able to obtain cognizance of – the peculiar subject of King's Bench jurisdiction – Crown Pleas... the Exchequer has adopted a similar course for, though it was originally confined to the trial of revenue cases, it has, by means of another fiction – the supposition that everybody sued is a debtor to the Crown, and further, that he cannot pay his debt, because the other party will not pay him, – opened its doors to every suitor, and so drawn to itself the right of trying cases, that were never intended to be placed within its jurisdiction.[26]
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".[26]
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.[27] The report disposed of the previous idea of merging the common law and equity, and instead suggested a single Supreme Court capable of using both.[28]
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.[29] After Hatherly was replaced by Lord Selborne in September 1872, a second bill was introduced after consultation with the judiciary; although along the same lines, it was far more detailed.[30]
The Act, passed as the Supreme Court of Judicature Act 1873, merged the Common Pleas, Exchequer, Queen's Bench and Court of Chancery into one body, the High Court of Justice, with the divisions between the courts to remain.[31] The Queen's Bench thus ceased to exist, holding its last session on 6 July 1875,[32] except as the Queen's Bench Division of the High Court.[33] The existence of the same courts as divisions of one unified body was a quirk of constitutional law, which prevented the compulsory demotion or retirement of Chief Justices. Thus all three Chief Justices (Lord Chief Justice Sir Alexander Cockburn, Chief Justice of the Common Pleas Lord Coleridge and Chief Baron of the Exchequer Sir Fitzroy Kelly) continued in post. Kelly and Cockburn died in 1880, allowing for the abolition of the Common Pleas Division and Exchequer Division by Order in Council on 16 December 1880. The High Court was reorganised into the Chancery Division, Queen's Bench Division and the Probate, Divorce and Admiralty Division.[34]
Jurisdiction
English courts prior to 1830
Due to a misunderstanding by Sir Edward Coke in his Institutes of the Lawes of England, academics thought for a long time that the King's Bench was primarily a criminal court. This was factually incorrect; no indictment was tried by the King's Bench until January 1323, and no record of the court ordering the death penalty is found until halfway through Edward II's reign. The court did have some criminal jurisdiction, with a royal ordinance in 1293 directing conspiracy cases to be brought to the King's Bench and the court's judges acting in trailbaston commissions around the country.[7]
A. T. Carter, in his History of English Legal Institutions, defines the early King's Bench jurisdiction as "to correct all crimes and misdemeanours that amounted to a breach of the peace, the King being then plaintiff, for such were in derogation of the Jura regalia; and to take cognizance of everything not parcelled out to the other courts".[35] By the end of the 14th century much of the criminal jurisdiction had declined, although the court maintained a criminal jurisdiction over all cases in Middlesex, the county where Westminster Hall stood. The King's Bench's main jurisdiction was over "pleas of the crown"; cases which involved the King in some way. With the exception of revenue matters, which were handled by the Exchequer of Pleas, the King's Bench held exclusive jurisdiction over these cases.[36]
The Court of King's Bench did act as an appellate body, hearing appeals from the Court of Common Pleas, eyre circuits, assize courts and local courts, but was not a court of last resort; its own records were sent to Parliament to be signed off on. The creation of the Court of Exchequer Chamber in 1585 created a court from which King's Bench decisions could be appealed to, and with the expansion of the Exchequer Chamber's jurisdiction in 1830 the King's Bench ceased to be an appellate court.[37] Thanks to the Bill of Westminster and other legal fictions, the King's Bench gained much of the Common Pleas's jurisdiction, although the Common Pleas remained the sole place where real property claims could be brought.[13]
Officials
The head of the court was the Chief Justice of the King's Bench, a position established by 1268. From the 14th century onwards, the Chief Justice was appointed by a writ, in Latin until 1727 and in English from then on. The Chief Justice was the most senior judge in the superior courts, having superiority over the Chief Justice of the Common Pleas and Chief Baron of the Exchequer, and from 1612 the Master of the Rolls. Unlike other Chief Justices, who were appointed to serve "during the King's Pleasure", the appointment as Chief Justice of the King's Bench "did not usually specify any particular tenure".[38]
This practice ended in 1689, when all of the Chief Justices became appointed to serve "during good behaviour". The initial salary was £40 a year, with an additional £66 in 1372 and an increase to a total of £160 in 1389. An ordinance of 1646 set a fixed salary of £1,000, increased to £2,000 in 1714, £4,000 in 1733, and finally peaked at £10,000 a year in 1825.[39] Pension arrangements were first made in 1799, peaking at £4,000 a year in 1825. The position remains to this day; after the dissolution of the Court of King's Bench, the Chief Justice has instead been the Lord Chief Justice of England and Wales,[40] now the head of the Judiciary of England and Wales.[41]
A Chief Justice of the King's Bench was assisted in his work by a number of Justices of the King's Bench. Occasionally appointed before 1272, the number fluctuated considerably between 1 and 4; from 1522, the number was fixed at 3. Provisions for a fourth were established in 1830, and a fifth in 1868. Following the dissolution of the Court of King's Bench, the remaining Justices because Justices of the Queen's Bench Division of the High Court of Justice.[42] Justices were originally paid £26 a year, increasing to £66 in 1361, and £100 in 1389.[43] An ordinance of 1645 increased this to £1,000, with the salary peaking at £5,500 in 1825. As with the Chief Justice, pension arrangements were formally organised in 1799, starting at £2,000 a year and peaking at £3,500 in 1825.[43]
Bonner, George A. (1933). "The History of the Court of King's Bench". Journal of the Law Society's School of Law. 11 (1). The Law Society. OCLC703607923.
Turner, Ralph V. (1977). "The Origins of Common Pleas and King's Bench". The American Journal of Legal History. 21 (3). Temple University: 238–254. doi:10.2307/844792. ISSN0002-9319. JSTOR844792.
Manchester, A. H. (1980). Modern Legal History. Butterworths. ISBN0-406-62264-7.
Polden, Patrick (2002). "Mingling the waters: personalities, politics and the making of the Supreme Court of Judicature". Cambridge Law Journal. 61 (3). Cambridge University Press. doi:10.1017/S0008197302001745. ISSN0008-1973. S2CID144219482.
Sainty, John (1993). The Judges of England 1272–1990: a list of judges of the superior courts. Oxford: Selden Society. OCLC29670782.
Sayles, George Osborne (1971). Select cases in the Court of King's Bench under Richard II, Henry IV and Henry V. Vol. 7. Quaritch. OCLC60042997.
Simpson, A. W. B. (2004). Allen D. Boyer (ed.). The Place of Slade's Case in the History of Contract. Law, Liberty and Parliament: Selected Essays on the Writings of Sir Edward Coke. Liberty Fund. ISBN0-86597-426-8.
Washburn, Emory (1876). "King's Bench and Growth of the Law". Stanford Law Review. 1 (1). ISSN0038-9765.
Wiener, Frederick Bernays (1973). "Tracing the Origins of the Court of King's Bench". ABA Journal. 59 (1). ISSN0747-0088.
King's Bench, the highest Court of Common Law in England, is so called, because the King sometimes sat there in person on an high bench, and the Judges, to whom the judicature belongs in his absence, on a low bench at his feet: or because this Court determines pleas between the Crown and the subject of treasons, felonies, and other pleas, which properly belong to the King: and also in whatsoever relates to the loss of life or member of any subject, in which the King is concerned, as he is a sufferer by the loss of the life or limbs of his subjects. Here likewise are tried breaches of peace, oppression, and misgovernment; and this Court corrects the errors of all the Judges and Justices of England, in their judgments and proceedings, not only in pleas of the Crown, but in all pleas, real, personal, and mix'd; except only pleas in the Exchequer. This Court is general, and extends to all England; and where ever it is held the law supposes the Sovereign to be there in person. In this Court there commonly sit four Judges, the first of which is stiled the Lord Chief Justice of the King's Bench; and sometimes the Lord Chief Justice of England; whose salary is 4000l. a year, and the puisne Judges 1500l. a year each. Chamberlain's Present State. The Court of King's Bench in Westminster Hall is in the south east corner ---London and Its Environs Described. R. Dodsley, 1761.
A contemporary view of Palace of Westminster is given by Cosmo, the future Grand Duke of Turin, who visited the law courts and the Commons' and Lords' chambers. I've standardized the spelling of names I know, corrected scanning errors I could figure out, and increased the number of paragraphs. I apologize if they are wrong:
On 21/31 May, 1669, having finished his religious duties, his highness rode out in his carriage with the Chevalier Castiglioni and Colonel Gascoyne, and went to the Palace of Westminster, which was formerly a college of canons, re-established by Edward III, and is now used for the judicial meetings of the two houses, the upper and the lower, which together constitute the Parliament of the kingdom.
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Having crossed the square which corresponds with a gate upon the Thames, his highness entered into the large hall of Westminster, a place of considerable size, whose form shews it to have been built rather for a church than for the functions of justice.
At the head of it on the right is the Court of Chancery, on the left the tribunal called the King's Bench, because the king used to sit in it to decide causes that concerned the crown; the other courts are separate and distinct from these; the remainder of the hall, which is left free and unoccupied by tribunals, serves for the people who assemble there on the business of the law-suits, and for the accommodation of many moveable shops which are placed round it.
In this room, the judges assemble four times every year (which are the terms in which the courts are open) for the decision of civil and criminal causes; and when the courts close, they go through the provinces of the kingdom to determine the causes which take place among the people of the several jurisdictions.
When the courts of law are open, the judges who preside are drest in black gowns lined with ermine, and turned up with the same round the neck, like the episcopal dress.
Besides the Parliament, there are not wanting, in England, other judicial assemblies and tribunals, to which belong, by the peculiar custom of this kingdom, the cognizance of distinct branches of business; and amongst the smaller courts of the large hall of Westminster, that which is called the King's Bench is considered the highest, in which it is still the custom (a custom introduced with so great advantage by the ancient Normans) to try not only the crown causes, but the more important criminal ones.
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In the criminal causes, the business is carried on in public, the court being open to whoever chooses to enter.
The charges having been heard privately, and the evidence against the accused person collected, on the day appointed for trying the cause, the chief justice of England (who, as well as the ordinary judges, is appointed by the king) as being the principal judge of this court, appears in his magisterial habit of scarlet, being the handsomest and noblest dress that is used in the kingdom, accompanied by his four assessors or colleagues, in the midst of whom he sits down, the other officers of less account being distributed in their several posts according to their respective functions.
Without, and close to the bar which surrounds the place in which the judges and officers sit, the prisoner stands (unless, in consideration of his birth, or rank, or natural weakness, he is permitted to sit down) surrounded by the executioners, all armed for the purpose of guarding him, and by the people, who assemble together to hear the proofs of his guilt.
A common crier cites the prisoner by name, and the cause is proposed at length to be decided by 24 persons, whom he names. Of these, the chief justice chooses 12, asking the prisoner if there be any amongst them whom he suspects or mistrusts; and if one or more are objected to as such, he appoints such others of them as he thinks fit, the accused having still the satisfaction of approving them himself.
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These 12, who, from the oath which they take to judge according to truth and to their conscience, are called jurymen, represent the people, who stand as mediators betwixt the king and the prisoner, to support the cause of the former when he has been aggrieved, or of the latter if he has been wrongly accused; and on this account, for the most part, all the common people, or the greater part of them, being of the same rank, take part with the accused person.
The office of the jurymen is to ascertain the simple fact, from the proofs which are brought forward for or against the prisoner, leaving to the advocates the discussion of the question of law.
The facts being heard, the jurymen retire into a room, where they are shut up, and confer amongst themselves about the evidence; nor are they allowed to go out till they are all of one opinion.
Having agreed in their verdict, they return into court, and the foreman announces with a loud voice, saying, when they have found him guilty, Guilty, or Not Guilty when he is innocent; and according to this report the chief justice is obliged to regulate his sentence.
[IF] these proceedings succeed, after a short interval of time, the act of passing judgment, to the end that the attorney-general may be able to deduce anything else he may have against the accused in furtherance of his condemnation; accordingly, on the day on which sentence is to be pronounced, he is admitted along with the rest within the bar, which incloses the chief justice with his judges, and the 12 who are chosen to decide upon the fact.
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The common crier again calls the prisoner into court, into the presence of the judges, he replying to the summons, and at the same time holding up his hand; and almost immediately one of the officers reads to him the accusations which appear against him; which having been denied and repelled by him in the aggregate as false; then the chief justice turning to the prisoner, adds, “To whom wilt thou commit the decision of thy cause?" and the accused, in case of pleading "Not Guilty" to the crime with which he is charged, has, by a provision of the ancient laws of the kingdom, the choice of two methods: he may either reply that he wishes for the judgment of God, in which case the trial is finished; for, guilty or not, he is irreparably doomed to death; yet this does not render his family infamous, as he has not been declared guilty; and on that account the customary public method of punishment is not made use of with him, nor are his effects confiscated, but descend to the natural heir.
He is then stretched upon the ground oil his back, having a stone underneath him, which raises his loins upwards, and is covered with a table loaded with heavy stones, which are not all laid upon him together to crush him at once, but one after another, so as to prolong his death to a great length of time.
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Or he may demand that his cause should be tried by God and his country; and the chief justice in this case replied, "God and thy country, represented by us and the 12 jurymen, shall be thy judges."
The recorder then reads the examination of the accused that has been tak^it'ttf pri^dftj the king's attorney-general haranguing against him. The witnesses also are brought against him, and make their depositions in public, the prisoner endeavoring to rebut their evidence; after which, the chief justice briefly sums up all that has been alleged for or against the prisoner for the information of the jury, who retiring to consult if they declare him guilty, the attorney-general presses the chief justice for sentence.
The latter then asks the prisoner if he has anything else to bring for his defense, or can assign any reason why sentence should not be passed upon him, and if he does not assign any substantial or efficacious reasons, he passes sentence of condemnation, consigning him to the sheriff of London, or to the under-sheriffs, who superintend the execution of justice.
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It is thus that the more important causes and capital offences are expedited in the King's Bench; and the same formalities and publicity are also substantially observed in the inferior courts, both in London and in the provinces, with greater or less solemnity on the part of the judges, who are despatched from Westminster to make the circuit of the kingdom, for this purpose.
From: TRAVELS OF COSMO THE THIRD, GRAND DUKE OF TUSCANY, THROUGH ENGLAND, DURING THE REIGN OF KING CHARLES THE SECOND (1669) TRANSLATED FROM THE ITALIAN MANUSCRIPT https://archive.org/stream/travel…
His highness, Cosmo, must be considered only as a traveler. Under his direction, the narrator of the records was Count Lorenzo Magalotti, afterwards Secretary to the Academy del Cimento, and one of the most learned and eminent characters of the court of Ferdinand II.
In 1650, the Rump Parliament passed an Act criminalizing adultery, and made the act punishable by death. Thomas shows that this legislation was an attempt to unify a wide array of religious groups. 51 51 K. Thomas, ‘The Puritans and Adultery: The Act of 1650 Reconsidered’, in Puritans and Revolutionaries, Oxford 1978, pp. 257 – 282.
The Act provided for harsher punishment for women than for men. This was inevitable, because in the perceptions of the age, a woman committing adultery was committing a worse act than a man doing the same thing. The contemporary concept of adultery showed that when the husband was in the wrong, he filled his wife’s heart with grief and jealousy and shame, while a woman in adultery risked introducing bastards into the family, depriving lawful heirs of their rightful inheritance. 52 52 K. Thomas, ‘The Puritans and Adultery: The Act of 1650 Reconsidered’, in Puritans and Revolutionaries, ed. D. Pennington and K. Thomas, Oxford 1978, pp. 259-60.
For many reasons the Act couldn't be well implemented, it was part of 16th - 17th Century efforts at social control by the elite. But efforts at social control could be subverted.
John Milton’s "The Doctrine and Discipline of Divorce" shows that Milton wanted to give the right of divorce solely to men. Hill sees this as a tool of social control, and a way to introduce new social patterns on the easy-going sexual habits of society. This was aimed at increasing the rights of men. Milton explained that unless this right to divorce existed, adultery and brothels would increase.
When Mrs. Attaway used John Milton’s logic to leave her husband, it was a radical subversion of Milton’s idea of control. 53 53 S. Davies, Unbridled Spirits, pp.108-9.
Following a series of attempts to legislate against adultery in Parliament which failed, the Rump Parliament passed the Commonwealth (Adultery) Act in May 1650, inter alia imposing the death penalty for adultery, that was defined as sexual intercourse between a married woman and a man other than her husband. Both partners would be liable for death sentence in such case. If a man (married or unmarried) had sex with an unmarried woman (including widow), that would be fornication, punishable only by 3 months for first offenders (applicable to both partners).
However, like all legislation passed by the Commonwealth, the act was repealed following the Restoration of the Monarchy in 1660. https://www.academia.edu/1305291/…
A more lasting change during the Early Modern period was that it became possible to prosecute for adultery in English common law due to developments in the common-law concept of loss of consortium, which made it possible for a cuckold to bring a civil case against an adulterer under tort law. https://en.wikipedia.org/wiki/Adu…
George Fox appeared before the King's Bench in November, 1660, accused of plotting against Charles II. This is his retelling of the experience:
'Next day I appeared at the King’s Bench bar at the hour appointed, Robert Widders, Richard Hubberthorn, and Esquire Marsh going with me. I was brought into the middle of the court; and as soon as I came in, was moved to look round, and, turning to the people, say, “Peace be among you.” The power of the Lord spread over the court.
'The charge against me was read openly. The people were moderate, and the judges cool and loving; and the Lord’s mercy was to them. But when they came to that part which said that I and my friends were embroiling the nation in blood, and raising a new war, and that I was an enemy to the King, etc., they lifted up their hands.
'Then, stretching out my arms, I said, “I am the man whom that charge is against; but I am as innocent as a child concerning the charge, and have never learned any war-postures. And,” said I, “do ye think that, if I and my friends had been such men as the charge declares, I would have brought it up myself against myself? Or that I should have been suffered to come up with only one or 2 of my friends with me? Had I been such a man as this charge sets forth, I had need to be guarded with a troop or 2 of horse. But the sheriff and magistrates of Lancashire thought fit to let me and my friends come up with it ourselves, nearly 200 miles, without any guard at all; which, ye may be sure, they would not have done, had they looked upon me to be such a man.”
'Then the Judge asked me whether it should be filed, or what I would do with it. I answered, “Ye are judges, and able, I hope, to judge in this matter; therefore, do with it what ye will; for I am the man these charges are against, and here ye see I have brought them up myself. Do ye what ye will with them; I leave it to you.” 'Then, Judge Twisden beginning to speak some angry words, I appealed to Judge Foster and Judge Mallet, who had heard me over-night. Thereupon they said they did not accuse me, for they had nothing against me. Then stood up Esquire Marsh, who was of the King’s bedchamber, and told the judges it was the King’s pleasure that I should be set at liberty, seeing no accuser came up against me. They asked me whether I would put it to the King and Council. I said, “Yes, with a good will.”
'Thereupon they sent the sheriff’s return, which he had made to the writ of habeas corpus, containing the matter charged against me in the mittimus, to the King, that he might see for what I was committed. The return of the sheriff of Lancaster was as follows:
“By virtue of His Majesty’s writ, to me directed, and hereunto annexed, I certify that before the receipt of the said writ George Fox ... was committed to His Majesty’s jail at the Castle of Lancaster, in my custody, by a warrant from Henry Porter, Esq., one of His Majesty’s justices of peace within the county palatine aforesaid, bearing date the fifth of June now last past; for that he, ..., was generally suspected to be a common disturber of the peace of this nation, an enemy of our sovereign lord the King, and a chief upholder of the Quakers’ sect; and that he, together with others of his fanatic opinion, have of late endeavored to make insurrections in these parts of the country, and to embroil the whole kingdom in blood. And this is the cause of his taking and detaining. Nevertheless, the body of the said George Fox I have ready before Thomas Mallet, knight, one of His Majesty’s justices, assigned to hold pleas before His Majesty, at his chamber in Sergeants’ Inn, in Fleet Street, to do and receive those things which his Majesty’s said justice shall determine concerning him in this behalf, as by the aforesaid writ is required. “George Chetham, Esq., Sheriff”
'On perusal of this, and consideration of the whole matter, the King, being satisfied of my innocency, commanded his secretary to send an order to Judge Mallet for my release, which he did thus: “It is his Majesty’s pleasure that you give order for releasing, and setting at full liberty the person of George Fox, late a prisoner in Lancaster jail, and commanded hither by an habeas corpus. And this signification of his Majesty’s pleasure shall be your sufficient warrant. Dated at Whitehall, the 24th of October, 1660. Edward Nicholas. “For Sir Thomas Mallet, knight, one of the justices of the King’s Bench”
'When this order was delivered to Judge Mallet, he forthwith sent his warrant to the marshal of the King’s Bench for my release; which warrant was thus worded: “By virtue of a warrant which this morning I have received from the Right Honorable Sir Edward Nicholas, knight, one of his Majesty’s principal secretaries, for the releasing and setting at liberty of George Fox, late a prisoner in Lancaster jail, and thence brought hither by habeas corpus, and yesterday committed unto your custody; I do hereby require you accordingly to release and set the said prisoner George Fox at liberty: for which this shall be your warrant and discharge. Given under my hand the 25th day of October, in the year of our Lord God 1660. THOMAS MALLET” “To Sir John Lenthal, knight, marshal of the King’s Bench, or his deputy.”
'Thus, after I had been a prisoner somewhat more than 20 weeks, I was freely set at liberty by the King’s command, the Lord’s power having wonderfully wrought for the clearing of my innocency, and Porter, who committed me, not daring to appear to make good the charge he had falsely suggested against me.' https://ccel.org/ccel/fox_g/autob…
_p244_-_The_Court_of_King%27s_Bench,_Westminster_(cropped).jpg)
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9 Annotations
Second Reading
Bill • Link
King's Bench, the highest Court of Common Law in England, is so called, because the King sometimes sat there in person on an high bench, and the Judges, to whom the judicature belongs in his absence, on a low bench at his feet: or because this Court determines pleas between the Crown and the subject of treasons, felonies, and other pleas, which properly belong to the King: and also in whatsoever relates to the loss of life or member of any subject, in which the King is concerned, as he is a sufferer by the loss of the life or limbs of his subjects. Here likewise are tried breaches of peace, oppression, and misgovernment; and this Court corrects the errors of all the Judges and Justices of England, in their judgments and proceedings, not only in pleas of the Crown, but in all pleas, real, personal, and mix'd; except only pleas in the Exchequer. This Court is general, and extends to all England; and where ever it is held the law supposes the Sovereign to be there in person. In this Court there commonly sit four Judges, the first of which is stiled the Lord Chief Justice of the King's Bench; and sometimes the Lord Chief Justice of England; whose salary is 4000l. a year, and the puisne Judges 1500l. a year each. Chamberlain's Present State. The Court of King's Bench in Westminster Hall is in the south east corner
---London and Its Environs Described. R. Dodsley, 1761.
San Diego Sarah • Link
A contemporary view of Palace of Westminster is given by Cosmo, the future Grand Duke of Turin, who visited the law courts and the Commons' and Lords' chambers.
I've standardized the spelling of names I know, corrected scanning errors I could figure out, and increased the number of paragraphs. I apologize if they are wrong:
On 21/31 May, 1669, having finished his religious duties, his highness rode out in his carriage with the Chevalier Castiglioni and Colonel Gascoyne, and went to the Palace of Westminster, which was formerly a college of canons, re-established by Edward III, and is now used for the judicial meetings of the two houses, the upper and the lower, which together constitute the Parliament of the kingdom.
333
Having crossed the square which corresponds with a gate upon the Thames, his highness entered into the large hall of Westminster, a place of considerable size, whose form shews it to have been built rather for a church than for the functions of justice.
At the head of it on the right is the Court of Chancery, on the left the tribunal called the King's Bench, because the king used to sit in it to decide causes that concerned the crown; the other courts are separate and distinct from these; the remainder of the hall, which is left free and unoccupied by tribunals, serves for the people who assemble there on the business of the law-suits, and for the accommodation of many moveable shops which are placed round it.
In this room, the judges assemble four times every year (which are the terms in which the courts are open) for the decision of civil and criminal causes; and when the courts close, they go through the provinces of the kingdom to determine the causes which take place among the people of the several jurisdictions.
When the courts of law are open, the judges who preside are drest in black gowns lined with ermine, and turned up with the same round the neck, like the episcopal dress.
San Diego Sarah • Link
PART 2
LATER
Besides the Parliament, there are not wanting, in England, other judicial assemblies and tribunals, to which belong, by the peculiar custom of this kingdom, the cognizance of distinct branches of business; and amongst the smaller courts of the large hall of Westminster, that which is called the King's Bench is considered the highest, in which it is still the custom (a custom introduced with so great advantage by the ancient Normans) to try not only the crown causes, but the more important criminal ones.
339
In the criminal causes, the business is carried on in public, the court being open to whoever chooses to enter.
The charges having been heard privately, and the evidence against the accused person collected, on the day appointed for trying the cause, the chief justice of England (who, as well as the ordinary judges, is appointed by the king) as being the principal judge of this court, appears in his magisterial habit of scarlet, being the handsomest and noblest dress that is used in the kingdom, accompanied by his four assessors or colleagues, in the midst of whom he sits down, the other officers of less account being distributed in their several posts according to their respective functions.
Without, and close to the bar which surrounds the place in which the judges and officers sit, the prisoner stands (unless, in consideration of his birth, or rank, or natural weakness, he is permitted to sit down) surrounded by the executioners, all armed for the purpose of guarding him, and by the people, who assemble together to hear the proofs of his guilt.
A common crier cites the prisoner by name, and the cause is proposed at length to be decided by 24 persons, whom he names. Of these, the chief justice chooses 12, asking the prisoner if there be any amongst them whom he suspects or mistrusts; and if one or more are objected to as such, he appoints such others of them as he thinks fit, the accused having still the satisfaction of approving them himself.
340
These 12, who, from the oath which they take to judge according to truth and to their conscience, are called jurymen, represent the people, who stand as mediators betwixt the king and the prisoner, to support the cause of the former when he has been aggrieved, or of the latter if he has been wrongly accused; and on this account, for the most part, all the common people, or the greater part of them, being of the same rank, take part with the accused person.
The office of the jurymen is to ascertain the simple fact, from the proofs which are brought forward for or against the prisoner, leaving to the advocates the discussion of the question of law.
San Diego Sarah • Link
PART 3
The facts being heard, the jurymen retire into a room, where they are shut up, and confer amongst themselves about the evidence; nor are they allowed to go out till they are all of one opinion.
Having agreed in their verdict, they return into court, and the foreman announces with a loud voice, saying, when they have found him guilty, Guilty, or Not Guilty when he is innocent; and according to this report the chief justice is obliged to regulate his sentence.
[IF] these proceedings succeed, after a short interval of time, the act of passing judgment, to the end that the attorney-general may be able to deduce anything else he may have against the accused in furtherance of his condemnation; accordingly, on the day on which sentence is to be pronounced, he is admitted along with the rest within the bar, which incloses the chief justice with his judges, and the 12 who are chosen to decide upon the fact.
341
The common crier again calls the prisoner into court, into the presence of the judges, he replying to the summons, and at the same time holding up his hand; and almost immediately one of the officers reads to him the accusations which appear against him; which having been denied and repelled by him in the aggregate as false; then the chief justice turning to the prisoner, adds, “To whom wilt thou commit the decision of thy cause?" and the accused, in case of pleading "Not Guilty" to the crime with which he is charged, has, by a provision of the ancient laws of the kingdom, the choice of two methods: he may either reply that he wishes for the judgment of God, in which case the trial is finished; for, guilty or not, he is irreparably doomed to death; yet this does not render his family infamous, as he has not been declared guilty; and on that account the customary public method of punishment is not made use of with him, nor are his effects confiscated, but descend to the natural heir.
He is then stretched upon the ground oil his back, having a stone underneath him, which raises his loins upwards, and is covered with a table loaded with heavy stones, which are not all laid upon him together to crush him at once, but one after another, so as to prolong his death to a great length of time.
342
Or he may demand that his cause should be tried by God and his country; and the chief justice in this case replied, "God and thy country, represented by us and the 12 jurymen, shall be thy judges."
The recorder then reads the examination of the accused that has been tak^it'ttf pri^dftj the king's attorney-general haranguing against him. The witnesses also are brought against him, and make their depositions in public, the prisoner endeavoring to rebut their evidence; after which, the chief justice briefly sums up all that has been alleged for or against the prisoner for the information of the jury, who retiring to consult if they declare him guilty, the attorney-general presses the chief justice for sentence.
San Diego Sarah • Link
PART 4
The latter then asks the prisoner if he has anything else to bring for his defense, or can assign any reason why sentence should not be passed upon him, and if he does not assign any substantial or efficacious reasons, he passes sentence of condemnation, consigning him to the sheriff of London, or to the under-sheriffs, who superintend the execution of justice.
343
It is thus that the more important causes and capital offences are expedited in the King's Bench; and the same formalities and publicity are also substantially observed in the inferior courts, both in London and in the provinces, with greater or less solemnity on the part of the judges, who are despatched from Westminster to make the circuit of the kingdom, for this purpose.
@@@
For his description the same day of the HOUSE OF LORDS and the HOUSE OF COMMONS see https://www.pepysdiary.com/encycl…
From:
TRAVELS OF COSMO THE THIRD, GRAND DUKE OF TUSCANY,
THROUGH ENGLAND,
DURING THE REIGN OF KING CHARLES THE SECOND (1669)
TRANSLATED FROM THE ITALIAN MANUSCRIPT
https://archive.org/stream/travel…
His highness, Cosmo, must be considered only as a traveler. Under his direction, the narrator of the records was Count Lorenzo Magalotti, afterwards Secretary to the Academy del Cimento, and one of the most learned and eminent characters of the court of Ferdinand II.
Third Reading
San Diego Sarah • Link
The King's Bench dealt with matters of divorce:
In 1650, the Rump Parliament passed an Act criminalizing adultery, and made the act punishable by death. Thomas shows that this legislation was an attempt to unify a wide array of religious groups. 51
51 K. Thomas, ‘The Puritans and Adultery: The Act of 1650 Reconsidered’, in Puritans and Revolutionaries, Oxford 1978, pp. 257 – 282.
The Act provided for harsher punishment for women than for men. This was inevitable, because in the perceptions of the age, a woman committing adultery was committing a worse act than a man doing the same thing. The contemporary concept of adultery showed that when the husband was in the wrong, he filled his wife’s heart with grief and jealousy and shame, while a woman in adultery risked introducing bastards into the family, depriving lawful heirs of their rightful inheritance. 52
52 K. Thomas, ‘The Puritans and Adultery: The Act of 1650 Reconsidered’, in Puritans and Revolutionaries, ed. D. Pennington and K. Thomas, Oxford 1978, pp. 259-60.
For many reasons the Act couldn't be well implemented, it was part of 16th - 17th Century efforts at social control by the elite. But efforts at social control could be subverted.
John Milton’s "The Doctrine and Discipline of Divorce" shows that Milton wanted to give the right of divorce solely to men. Hill sees this as a tool of social control, and a way to introduce new social patterns on the easy-going sexual habits of society. This was aimed at increasing the rights of men. Milton explained that unless this right to divorce existed, adultery and brothels would increase.
When Mrs. Attaway used John Milton’s logic to leave her husband, it was a radical subversion of Milton’s idea of control. 53
53 S. Davies, Unbridled Spirits, pp.108-9.
Following a series of attempts to legislate against adultery in Parliament which failed, the Rump Parliament passed the Commonwealth (Adultery) Act in May 1650, inter alia imposing the death penalty for adultery, that was defined as sexual intercourse between a married woman and a man other than her husband. Both partners would be liable for death sentence in such case.
If a man (married or unmarried) had sex with an unmarried woman (including widow), that would be fornication, punishable only by 3 months for first offenders (applicable to both partners).
However, like all legislation passed by the Commonwealth, the act was repealed following the Restoration of the Monarchy in 1660.
https://www.academia.edu/1305291/…
A more lasting change during the Early Modern period was that it became possible to prosecute for adultery in English common law due to developments in the common-law concept of loss of consortium, which made it possible for a cuckold to bring a civil case against an adulterer under tort law.
https://en.wikipedia.org/wiki/Adu…
San Diego Sarah • Link
George Fox appeared before the King's Bench in November, 1660, accused of plotting against Charles II. This is his retelling of the experience:
'Next day I appeared at the King’s Bench bar at the hour appointed, Robert Widders, Richard Hubberthorn, and Esquire Marsh going with me. I was brought into the middle of the court; and as soon as I came in, was moved to look round, and, turning to the people, say, “Peace be among you.” The power of the Lord spread over the court.
'The charge against me was read openly. The people were moderate, and the judges cool and loving; and the Lord’s mercy was to them. But when they came to that part which said that I and my friends were embroiling the nation in blood, and raising a new war, and that I was an enemy to the King, etc., they lifted up their hands.
'Then, stretching out my arms, I said, “I am the man whom that charge is against; but I am as innocent as a child concerning the charge, and have never learned any war-postures. And,” said I, “do ye think that, if I and my friends had been such men as the charge declares, I would have brought it up myself against myself? Or that I should have been suffered to come up with only one or 2 of my friends with me? Had I been such a man as this charge sets forth, I had need to be guarded with a troop or 2 of horse. But the sheriff and magistrates of Lancashire thought fit to let me and my friends come up with it ourselves, nearly 200 miles, without any guard at all; which, ye may be sure, they would not have done, had they looked upon me to be such a man.”
'Then the Judge asked me whether it should be filed, or what I would do with it. I answered, “Ye are judges, and able, I hope, to judge in this matter; therefore, do with it what ye will; for I am the man these charges are against, and here ye see I have brought them up myself. Do ye what ye will with them; I leave it to you.”
'Then, Judge Twisden beginning to speak some angry words, I appealed to Judge Foster and Judge Mallet, who had heard me over-night. Thereupon they said they did not accuse me, for they had nothing against me. Then stood up Esquire Marsh, who was of the King’s bedchamber, and told the judges it was the King’s pleasure that I should be set at liberty, seeing no accuser came up against me. They asked me whether I would put it to the King and Council. I said, “Yes, with a good will.”
'Thereupon they sent the sheriff’s return, which he had made to the writ of habeas corpus, containing the matter charged against me in the mittimus, to the King, that he might see for what I was committed. The return of the sheriff of Lancaster was as follows:
San Diego Sarah • Link
PART 2
“By virtue of His Majesty’s writ, to me directed, and hereunto annexed, I certify that before the receipt of the said writ George Fox ... was committed to His Majesty’s jail at the Castle of Lancaster, in my custody, by a warrant from Henry Porter, Esq., one of His Majesty’s justices of peace within the county palatine aforesaid, bearing date the fifth of June now last past; for that he, ..., was generally suspected to be a common disturber of the peace of this nation, an enemy of our sovereign lord the King, and a chief upholder of the Quakers’ sect; and that he, together with others of his fanatic opinion, have of late endeavored to make insurrections in these parts of the country, and to embroil the whole kingdom in blood. And this is the cause of his taking and detaining. Nevertheless, the body of the said George Fox I have ready before Thomas Mallet, knight, one of His Majesty’s justices, assigned to hold pleas before His Majesty, at his chamber in Sergeants’ Inn, in Fleet Street, to do and receive those things which his Majesty’s said justice shall determine concerning him in this behalf, as by the aforesaid writ is required.
“George Chetham, Esq., Sheriff”
'On perusal of this, and consideration of the whole matter, the King, being satisfied of my innocency, commanded his secretary to send an order to Judge Mallet for my release, which he did thus:
“It is his Majesty’s pleasure that you give order for releasing, and setting at full liberty the person of George Fox, late a prisoner in Lancaster jail, and commanded hither by an habeas corpus. And this signification of his Majesty’s pleasure shall be your sufficient warrant. Dated at Whitehall, the 24th of October, 1660.
Edward Nicholas.
“For Sir Thomas Mallet, knight,
one of the justices of the King’s Bench”
'When this order was delivered to Judge Mallet, he forthwith sent his warrant to the marshal of the King’s Bench for my release; which warrant was thus worded:
“By virtue of a warrant which this morning I have received from the Right Honorable Sir Edward Nicholas, knight, one of his Majesty’s principal secretaries, for the releasing and setting at liberty of George Fox, late a prisoner in Lancaster jail, and thence brought hither by habeas corpus, and yesterday committed unto your custody; I do hereby require you accordingly to release and set the said prisoner George Fox at liberty: for which this shall be your warrant and discharge. Given under my hand the 25th day of October, in the year of our Lord God 1660.
THOMAS MALLET”
“To Sir John Lenthal, knight,
marshal of the King’s Bench,
or his deputy.”
'Thus, after I had been a prisoner somewhat more than 20 weeks, I was freely set at liberty by the King’s command, the Lord’s power having wonderfully wrought for the clearing of my innocency, and Porter, who committed me, not daring to appear to make good the charge he had falsely suggested against me.'
https://ccel.org/ccel/fox_g/autob…
San Diego Sarah • Link
My apologies, this story happened in October 1660, not November.