England Common Law Appellate Courts (National Institute)
The original content for this article was contributed by The National Institute for Genealogical Studies in June 2012. It is an excerpt from their course English: Court Records-Criminal, Civil and Ecclesiastical by Dr. Penelope Christensen. The Institute offers over 200 comprehensive genealogy courses for a fee ($).
Introduction[edit | edit source]
The common law originated from the justice of the king rather than the customary law exercised in the old shire and hundred courts, or the feudal law of the manorial courts. The itinerant justices of the curia regis (king’s court) heard cases transferred by or appealed from lower courts and gradually the common law was built up through the decisions of these courts. The central courts, which gradually settled at Westminster, were used to resolve conflicts within families, between neighbours, amongst trading partners, or between landlords and tenants—in short, conflicts about every dimension of human experience (Hey).
It should be noted that it was quite normal for a suit to be fought in several different courts, perhaps at the same time, in order to wear down the opposition or gain some advantage. For example in the 16th and early 17th century a defendant in a suit in one court might commence a suit in another in order to inhibit, by injunction, the litigation started in the first; for an example see Pinhorn (1983). There was a wide range of courts available, each becoming more rigid in its procedures with time, so that dissatisfied litigants appealed to the king, his council or one of his senior councillors (often the chancellor) for justice (see Hey has a good discussion on central courts). During the 13th century the curia regis developed into three entities -Common Pleas, King’s Bench and Exchequer.
These were common law courts in which the plaintiff commenced proceedings by the purchase of a writ and pleadings took place orally before a jury. Later in this book we discuss equity courts which employed English bill procedure where the plaintiff presented a written bill or petition of grievances which, after the collection of evidence, was determined by a judge. The essential difference between the two types of law was that common law was concerned with facts, whereas equity cared more about reconciling the parties.
Curia Regis[edit | edit source]
The records from 5 Richard I to 56 Henry III, that is 1194-1272, are at TNA in class KB 26. Plaintiffs often submitted their pedigrees to the court in order to establish their right as free subjects to plead. An introduction to the curia regis rolls 1199-1230 was written by Flower (Introduction to the Curia Regis Rolls 1199-1230 AD. Selden Society volume 62. FHL film 1414824, who transcribed and indexed many of them—two examples are shown in the reference section. All sorts and conditions of men, and women, appear in these rolls as they were caught in the meshes of the law.
|A certain Richard who lost money playing dice with Henry II and had to mortgage his manor in Northamptonshire to pay him. |
|The defendant in a case of an alleged stolen mare claimed he was given it and some pigs in exchange for teaching him fencing.|
King's or Queen's Bench[edit | edit source]
The court of king’s bench had developed from the curia regis by 1268 with its own records, the coram rege rolls. The legal process was very methodical with the king literally sitting on a wooden bench among his judges at whatever place the court was convened. This court became free of the obligation to follow the king around the country in the early 14th century and settled at Westminster Hall. Owing to the absence of a monarch, King’s Bench was known as the upper bench during the interregnum and it was absorbed into the Supreme Court in 1873-75.
King’s Bench at first only tried cases directly affecting the king but later developed two functions:
- Crown Side dealing with criminal offences, where it had unlimited jurisdiction throughout the realm and was similar, but superior in dignity, to the other common law courts.
- Plea Side dealing with civil business such as trespass, appeals of felony and suits brought to correct errors in other courts, with an expansion into other areas by the 16th century.
Records of King’s Bench Crown Side 1675-1875 are at TNA in class KB and TNA research guide L34 gives copious information. Criminal cases were prosecuted by information or indictment and there are indexes for defendants for London and Middlesex 1673-1843, and for the Provinces 1638-1704, and 1765-1843, and records are in the indictment files which are of several types.
Non-criminal actions came to court by means of a prerogative writ where the key documents are in the recorda files. Writs are of several types:
- Writ of habeas corpus for custody disputes such as a runaway apprentice, wife, child or alleged lunatic.
- Writ of mandamus for disputes about appointments to various offices, or about local taxes.
- Writ of certiorari for a disputed administrative order, especially the removal of a pauper.
Once a case has been identified the family historian will find much detail in the relevant depositions, which can often give quite a history of relations between the parties involved as well as incidental detail of their lives.
Some examples of cases from King’s Bench include:
|The Selden Society has published a translation of select cases in the court of King’s Bench 1290-1300 in their volumes 55, 57 and 58 FHL film 1414823 and volume 88 contains selected cases 1377-1422 FHL book 942 p3ss v.80.|
|Titford has details of Burrow’s rare book on settlement cases at King’s Bench 1732-1776, with many examples.|
|A Richard Jupp was challenged as a juror in the trial of William Stone for High Treason at King’s Bench in January 1796 as he was not a freeholder. (From Thomson Gale website).|
|Newspapers reported the activities of the court with a great deal of relish, for example in The Times 26 Feb 1816 there is a long report of a smuggling case (The King v. Jupp) that took place near Brighthelmstone (now Brighton), Sussex involving 500 half ankers of spirits!|
|Dodgy horse-trading in Clapham came before King’s Bench in 1817 - this case is described in East Surrey FHS Journal vol 25 #1, page xv.|
|A nice example of a case heard at King’s Bench for grave robbery in 1828 in Yarmouth is given in Family Tree Magazine volume 8 #9, page 8.|
|Another Queen’s Bench case reported in The Times in Nov 1841 and Jan 1842 concerns a libel suit against Thomas Topping, publisher of The Hull Packet for some nasty remarks about his local magistrates!|
Court of Common Pleas[edit | edit source]
The court of common pleas; also known as the court of common bench, was one of the three courts of common law. It developed from the 12th century as a subdivision of the curia regis (king’s court), remaining in London while the king and his curia regis travelled around the country. It sat in a certain spot in Westminster Hall and decided controversies concerning civil cases between the king’s subjects, cases involving claims to land, trespass and debt. It was the busiest of the common law courts in the Middle Ages and its earlier records are called the de banco rolls after the bench of judges. The later records are called common rolls and all are in TNA in class CP. There does not seem to be much on film, except some translated and published Northumbrian ones 1273-1280 on FHL fiche 6073440-1(4). Below you can see how detailed the newspaper reports can be.
Chart: Newspaper Report of Case at Court of Common Pleas 1823
The Times 28 Jun 1823 (pg 6, issue 11910, col D)
|One of my (thankfully distant) relatives appeared at the Court of Common Pleas on 27 Jun 1823 in the case of Dashwood (clerk) v. Garnham. Mr. Dashwood, a Church of England clergyman from Suffolk, was the plaintiff and the defendant was a shopkeeper at Beccles, who was sued for damages for malicious arrest. The report begins by explaining how Mr Dashwood confiscated his wife’s private income, then gave her an allowance which had not been paid for three years.|
It appeared that Mr Dashwood was a man of a very strange and parsimonious disposition, and in the beginning of 1819 he forbade the defendant to give his wife credit. He and his wife did not separate, however, and are still living together, but not on the most agreeable terms. She was in the habit of dealing at the defendant’s shop, and between December 1819 and December 1821 she purchased various articles of dress for herself and her daughter (the latter a young lady of eighteen) which amounted to £54. Mrs Dashwood having no means of paying this, in consequence of the stoppage of her annual allowance, the defendant sent his bill to the plaintiff, who declined paying it.
The defendant sued out a writ against him and Mr Dashwood was put in gaol for two hours, the time it took to procure bail. This information was collected from Mr Dashwood’s own brother-in-law, Mr Farre, who stated that he was a disgrace to his family. After further details, the jury, without hesitation, found a verdict for the defendant.
Annoyingly, The Times does not give first names anywhere in the article, and the Norfolk branch of the Dashwoods has several clergymen. From other studies I know this is Rev Jarrett Dashwood who married Harriott Burton in 1802. They had three sons and a daughter, Harriet born 1804, and both parents died in Beccles in the 1850s. Such fascinating material for a life-history!
The court of common pleas was absorbed into the High Court of Justice by 1875, along with the courts of Queen’s Bench and Exchequer.
Star Chamber[edit | edit source]
The Star Chamber met in a chamber with a starred roof at Westminster from 1485 and lasted until 1641 as the judicial arm of the King’s Council It supervised other courts but also heard cases itself, primarily about land disputes (disguised as alleged public disorder, riot, forcible entry and assault), but also corruption by officials and juries, fraud, perjury, duels, municipal and trade disputes and disputes over the enclosure of land. Star chamber used chancery procedure, a description of which can be found under the section on Chancery.
The records are at TNA in series STAC and are easily found in the online catalogue with the assistance of TNA research guide L3. The Selden Society published a volume of select cases 1477-1509 translated into English (Leadam). Some examples of the titles of cases are shown below .
Chart: Some Cases in Star Chamber
|Mayor etc of Exeter v. Stoden and others
||Conflict between Gild of Tailor|
|Couper v. Gervais and others
||Illegal toll and violence|
|Idele v. Abbot of St. Bennet’s Holme
||Contempt of court and threats|
|Lead miners of Yorkshire v. Merchants of York
|Joyfull v. Warcoppe
||Riot and assault|
|Bishop of Worcester v. Thomas and others
||Riotous interference with election of constables|
Colthurst v. Gentlemen of Furnival’s Inn
||Cutting and wounding|
Lady Straunge v. Kenaston
|The Abbot v. the Bailiffs of Shrewsbury
||Municipal and abbatial franchise|
Palatinate and Duchy Courts[edit | edit source]
It should be briefly noted that there were also courts for:
- The palatinates of Chester, Durham and Lancaster which heard equity cases within their territories and sat locally.
- The Duchy of Lancaster which dealt with all matters within the royal duchy of Lancaster, which comprised estates in Lancashire and in most other counties, and sat in Westminster.
Information in this Wiki page is excerpted from the online course English: Court Records-Criminal, Civil and Ecclesiastical offered by The National Institute for Genealogical Studies. To learn more about this course or other courses available from the Institute, see our website. We can be contacted at email@example.com
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