professional persons for some time continued to sit in the King's Court, yet in the next generation the professional Judges greatly exceeded the others in numbers. The earliest known instance in which mention is made of Justices "in banco residentibus," occurs in Glanville,* and of Justices "de banco" in a record of the second year of King John. The latest date at which the terms Justicer and Baron are used indiscriminately seems to be the sixth year of Richard the First. Prior to the accession of the Plantagenets all the Judges belonged to the Baronial order. Under Henry the Second and his sons there were in all thirty-six professional Justicers and seventy Barons. Under Henry the Third the Barons were only eleven, and the professional Judges amounted to eighty-nine.§ The Bench of Henry the Second seems to have been a single homogeneous body. In the reign of John a differentiation became apparent. In order to remedy the inconvenience arising from the restless habits of John, who changed his Court in some years twelve times and in one year (the eleventh of his reign) had sat in twenty-four different places, the seventeenth section of John's Charter provided that Common Pleas should not follow the King, but should be held in some place certain. This provision was retained in the subsequent charters, and the place was understood to be Westminster. The rest of the Curia Regis continued to attend the King. In the Articuli Super Chartas of Edward the First,¶ it is provided that "the King will that the Chancellor and Justices of his Bench shall follow him, so that he may have at all times near unto him some sages of the law which may be able duly to order all such matters as shall come unto the Court at all times when need shall require." * Foss's Judges, ii. 166. § Ib., iii. 3. + Ib., 170. Zb., ii. 4. Ib., i. 334. The Curia under the Thus the Bench was divided into two parts: one stationary, the other following the Royal person. The latter retained the original name, and was styled Bancum Nostrum or Bancum Regis. The former, which was as it were the offshoot, was known as the Bancum Commune. But the difference between them was for some time by no means clearly marked. In the reign of Henry the Third common pleas were brought before the Curia Regis, and pleas of the Crown were sometimes heard before the Justices of the Bench. Even so late as the thirty-fifth year of the same King the distinction was not complete.* Towards the close, however, of that reign, about two centuries after the conquest, and nearly one century after that event which I have described as the establishment of the Bench, the two Benches distinctly assumed their present form. Regis had hitherto under all its forms been presidency of the Chief Justiciar of England. was in effect a Viceroy. In the King's absence he exercised all the powers of royalty. When the King was in England, he was his principal and most confidential attendant. The less frequent absences of the King, after the great continental dominions of the Plantagenets had been reduced, may have removed the chief occasion for the services of the Viceroy. The concentration of such and so varied powers in a single office may during the troubles that marked the middle of the thirteenth century have been found inconvenient. It is certain that from the end of the reign of Henry the Third the office fell into abeyance. The transition from the Baronial Viceroy to the professional Chief Justices of modern times dates from the year 1268. The first of this honoured line bore the noble name of De Bruce. He can scarcely be regarded as This officer *Foss's Judges, ii. 178. + Madox's Hist. Ex., i. 31. one of the sages of the law, but both in title and in salary there was a marked difference between him and his immediate predecessors. De Bruce was styled not Capitalis Justitiarius Angliæ," but "Capitalis Justitiarius ad placita coram nobis tenenda." What was more significant, his salary was but one hundred marks, while that of the Chief Justiciar had been * a thousand. In the following year we find Gilbert de Preston presiding in the Common Pleas, with the same salary as De Bruce and on his reappointment on the accession of Edward the First De Preston is styled Chief Justice of the Common Pleas† From that time the two courts became distinctly separated as well from each other as from the other parts of Government. In the reign of Edward the Third the Court of King's Bench became, like the Common Pleas, stationary ;+ and the organization of our judicial system was complete. Such seems to me to have been the origin of our Common Law Courts as they existed prior to the passing of the Judicature Acts. They sprang from the Magnum Concilium, the Great National Assembly of England, of which they exercised the authority and by which their judgments were revised. They were established with the concurrence of that body, and as a single tribunal. For that tribunal and for its members distinctive appellations, the Bench and Justices of the Bench, came into use. The single tribunal of the Bench, by the same authority as that which created it, was subsequently divided, for the better despatch of business, into two parts. These Benches exercised the original jurisdiction of the Great Council. The limits of that jurisdiction were defined by the Original Writs. Whatever jurisdiction the King's Court exercised, as expressed in these writs, was exercised by the two * Foss's Judges, ii. 155. † Zb., iii. 142. Spence, Eq. Jur., 340. Benches, and was on a writ of error reviewed in the Great Court itself, or, as we now term it, the House of Lords. The system of jurisprudence thus administered was the Common Law, the law which concerned all the freemen of England, and was founded upon their free customs; but it did not notice or provide for any cases not directly affecting these persons or connected only with the peculiar and separate interests or powers of the Crown. $ 4. The Second Council which in early times was in attendance on the King is known by several designations. It is variously called the Ordinary, the Continual, The Ordinary and the Secret or Privy Council. The first of Council. these names seems to have been the most in use under our earlier Kings: the last is said to have become its usual appellation about the reign of Henry the Sixth. Whatever may have been its designation or its developments, the original principle of this Council seems to have been sufficiently simple. It was the body of confidential advisers who were in constant attendance upon the King and assisted him in the performance of his daily business. Such a body must be formed almost from the necessity of the case; but a precedent, if it were needed, might be found in the Consistorium of Imperial Rome. This council would naturally be formed of the principal servants of the Crown, and, if any further assistance were required, of such persons of rank and influence as might in a peculiar degree possess the Royal confidence and be honoured with the Royal commands. It might further be expected that the persons thus related to the Crown would either be members of the Great Council; or, if such were not the case, that the King, when he met the magnates of his realm, would require the attendance of his confidential servants to communicate to the Great Council proper information and to assist it with the results of their experience. We find, accordingly, that the Privy Council was composed of the great officers and ministers of state, the great officers of the Household, and the Judges, Barons of the Exchequer, Justices itinerant, King's Sergeant and Attorney-General, and other law officers of the Crown.* When all these officers were called together, the assembly was described as a full council. When the business was of a special nature, those members only who were familiar with that particular kind of business were summoned. It further appears that this council attended upon the Great Council, but that those members of it who did not happen to be also members of the Great Council were merely assistants of that body. The form of the writ to the members of the Privy Council was different from that to the Lords of Parliament; the place which they occupied in the House was different; and their power was consultative only, and not decisive. The Judges and the Masters in Chancery still attend upon the House of Lords either to give information on questions of law or occasionally to assist in ceremonials. The functions of this council seem to have been co-extensive with the functions of the Crown. Its consent appears to have been deemed necessary to every important act of the King in the exercise of his legislative as well as of his executive powers. By its advice the legislature was and still is convened. By its advice the Royal assent was in earlier times given to or withheld from the proposals of Parliament. With its assistance exclusively the King dealt with those cases, whatever might be their nature, that were supposed to belong to the prerogative only, and not to concern those persons who owed suit and service in the * Hale's Jurisd. of Lords' House, 5. + lb., 12. + Lords' Report, 452; Hallam's Middle Ages, iii. 142. |