page_title: Court of King's Bench (England)
section_title: Struggle with the Common Pleas
hierarchical_section_title: Court of King's Bench (England) / History / Struggle with the Common Pleas
caption_attribution_description: English: (Image shown on this file apparently reversed) Text from HLS website (http://www.law.harvard.edu/news/bulletin/backissues/summer99/article8.html) The portrait of Sir John Popham, chief justice of the King’s Bench during the reign of Queen Elizabeth I, returned to the HLS Art Collection this spring (i.e. 1999) after extensive restoration, his scarlet robe redder than it has been in years. Popham, whose likeness now hangs in the Caspersen Room in Langdell Hall, presided over some of the most notable political cases of his day, including the treason trials of the Earl of Essex (1601) and Sir Walter Raleigh (1603). The oil-on-panel portrait (one of three paintings of Popham known to exist) was completed in 1602 by an unknown artist, and acquired in 1931 for HLS by Dean Roscoe Pound. When the painting was sent to the Straus Center for Conservation at the Fogg Art Museum, the paint was flaking, and the varnish was badly discolored. Previous cleanings had worn away layers of paint and scoured away detail, some of which cannot be retrieved. But painting conservator Teri Hensick removed layers of discolored varnish and overpaint and "knit back together the image" using watercolors and other "reversible" paints. The eighteenth-century Kent frame was given new life by conservator Susan Jackson, who replaced missing rosettes and applied new gold leaf.
context_page_description: The Court of King's Bench, formally known as The Court of the King Before the King Himself, was a court of common law in the English legal system. Created in the late 12th to early 13th century from the curia regis, the King's Bench initially followed the monarch on his travels. The King's Bench finally joined the Court of Common Pleas and Exchequer of Pleas in Westminster Hall in 1318, making its last travels in 1421. The King's Bench was merged into the High Court of Justice by the Supreme Court of Judicature Act 1873, after which point the King's Bench was a division within the High Court. The King's Bench was staffed by one Chief Justice and usually three Puisne Justices.
  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.
context_section_description: 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. 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.
  The troubles during this period are best illustrated by Slade's Case. 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. 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. 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. 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.
  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". 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. 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. 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.
caption: John Popham, the Chief Justice of the King's Bench who brought the Common Pleas and King's Bench into conflict over assumpsit
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