Civil Justice under Henry II in United Kingdom

Developments

Henry’s innovations under this head were equally important than in the Criminal Justice. See Criminal Justice under Henry II here

In his reign justice, it is sometimes said, was pigeon–holed. Much attention was bestowed on the formalities of litigation; while pleas began to be classified into stereotyped groups, each form of grievance having its appropriate remedy, to be obtained only by means of the appropriate writ.

The Writ System

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 system.” From an early date, much attention was directed to the devising of forms of writ applicable to various cases.

The system, somewhat inflexible from the first, had become absolutely rigid long before the close of the thirteenth century. If a proper writ was not selected, or if no such writ had been invented, the wronged individual had no remedy in the King’s courts of common law. Registers of writs were drawn up, copied and enlarged, and transmitted from one generation to another.

Control of Feudal Courts

Whether devised for that purpose or not, this writ system proved a useful instrument for diverting the stream of litigation from the barons’ courts to the curia regis. Henry, if we may credit Glanvill, succeeded in establishing the somewhat astounding rule that no plea concerning land could be commenced in any court without the authority of a royal writ. Even if such writs were issued as matter of course, the mere need of asking for them would supply Henry with information doubly valuable in relation to certain other expedients still to be explained.

That King, applying to his own needs procedure known to the Carolingian Kings, secured an effective means of evoking suits regarding freehold from the seignorial courts to his own. This was done by procedure initiated by two types of writs: “writs of right” addressed to the holder of a court, bidding him do justice under penalty of interference by the royal court; and “writs praecipe” addressed to the sheriff, bidding him require the holder of a piece of land to hand it over to a claimant or explain to the King why he has not done so.

It is probable that even in 1215 the Crown had not fully developed the consequences afterwards seen to be involved in the writ of right, properly so called; but Henry II. and his sons seem freely to have used the writ praecipe in such a manner as to cause their barons to lose their jurisdiction—an abuse struck at by chapter 34 of Magna Carta.

See Feudal Courts under Henry II

Royal Pleas and Common Pleas

The mass of new business made it necessary to increase the staff of judges and apportion the work. A natural division was that between ordinary (or common) pleas and pleas of the Crown. This distinction is recognized in many separate chapters.2 Thus two groups of judges were formed which, in later years, developed into separate courts—the Court of Common Pleas (known as “the Bench,” that is, the ordinary Bench), and the King’s Bench (known earlier as the court Coram Rege, supposed to be held in the King’s presence).

The Petty Assizes

Special procedure for determining titles to land or rights of possession was also invented by Henry to supersede trial by battle. These Assizes, as they were called, are fully discussed elsewhere.3 While the Grand Assize is not mentioned in Magna Carta, its abuse was indirectly struck at by the clause concerning writs praecipe in chapter 34: the Petty Assizes, however, would seem to have won favour with the barons, who in chapter 18 demanded that regular sessions for hearing them should be held four times a year.

Civil Justice under Henry II and the Feudal Justice

These were the chief innovations that enabled Henry II to effect a revolution in the relations of royal to feudal justice. As time went on, new writs were continually devised to meet new types of cases; and litigants flocked 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).

Source: Part II. Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).

Civil Justice under Henry II