An ancient system
When you see a judge or magistrate sitting in court, you are actually looking at the result of 1,000 years of legal evolution.
It’s doubtful that anyone asked to design a justice system would choose to copy the English and Welsh model. It’s contradictory in places, and rather confusing. However, the judiciary is still changing and evolving to meet the needs of our society, and despite its oddities it is widely regarded as one of the best and most independent in the world.
A real ordeal
Justice for the Anglo-Saxons and even after the Norman invasion of 1066 was a combination of local and royal government. Local courts were presided over by a lord or one of his stewards. The King’s court – the Curia Regis – was, initially at least, presided over by the King himself.
Today, going on trial in an English and Welsh court is not exactly a comfortable experience. But it’s far better than trial by ordeal, used until almost the end of the 12th century to determine guilt or innocence in criminal cases.
Under this system, the accused would be forced to pick up a red hot bar of iron, pluck a stone out of a cauldron of boiling water, or something equally painful and dangerous.
If their hand had begun to heal after three days they were considered to have God on their side, thus proving their innocence. The number of ‘not guilty’ verdicts recorded by this system is not known.
Another, extremely popular ‘ordeal’ involved water; the accused would be tied up and thrown into a lake or other body of water. If innocent, he or she would sink.
There were two problems with this method, which was often used to try suspected witches: the accused was tied right thumb to left toe, left thumb to right toe, which made it almost impossible to sink; and opinion is divided as to whether those who did sink were fished out afterwards.
William II (1087-1100) eventually banned trial by ordeal – reportedly because 50 men accused of killing his deer had passed the test – and it was condemned by the Church in 1216.
Fighting for freedom?
Criminal and civil disputes could also be decided by trial by combat, with a win held to prove either innocence or the right to whatever property was being disputed. Either side could employ their own champions, so the system wasn’t perhaps as fair as it might be.
Trial by combat gradually fell into disuse for civil cases, although it wasn’t until someone involved in a dispute in 1818 tried to insist on it that it was realised this was still, technically, an option. Trial by combat was quickly banned, forcing litigants to rely on more conventional routes.
The earliest judges
During this period judges gradually gained independence from the monarch and the government. The very first judges, back in the 12th century, were court officials who had particular experience in advising the King on the settlement of disputes. From that group evolved the justices in eyre, who possessed a mixed administrative and judicial jurisdiction.
The justices in eyre were not, to put it mildly, popular. In fact, they came to be regarded as instruments of oppression.
The seeds of the modern justice system were sown by Henry II (1154-1189), who established a jury of 12 local knights to settle disputes over the ownership of land. When Henry came to the throne, there were just 18 judges in the country – compared to more than 40,000 today.
In 1178, Henry II first chose five members of his personal household – two clergy and three lay - "to hear all the complaints of the realm and to do right”.
This, supervised by the King and “wise men” of the realm, was the origin of the Court of Common Pleas.
Eventually, a new permanent court, the Court of the King’s Bench, evolved, and judicial proceedings before the King came to be seen as separate from proceedings before the King’s Council.
Seeds of change
In 1166, Henry issued a Declaration at the Assize of Clarendon (an assize was an early form of the King´s Council; the term later became the name for a sitting of a court).
The Assize of Clarendon ordered the remaining non-King's Bench judges to travel the country – which was divided into different circuits – deciding cases.
To do this, they would use the laws made by the judges in Westminster, a change that meant many local customs were replaced by new national laws. These national laws applied to everyone and so were common to all. Even today, we know them as the ‘common law’.
The system of judges sitting in London while others travelled round the country became known as the ‘assizes system’. Incredibly, it survived until 1971.
Changes evolved slowly; even in the middle of the 14th century, under Edward III, there could be close collaboration between the Court of King’s Bench and the King’s Council. A third common law court of justice, the Court of Exchequer, eventually emerged as the financial business of the Royal Household was split off to a specialist group of officials.
The first professional judges and magistrates
Martin de Pateshull, Archdeacon of Norfolk and Dean of St Paul’s, became a Justice of the bench in 1217. By the time he died in 1229 he was known as one of the finest lawyers in England; even 60 years after his death, his judgments were being searched for precedents.
Like Martin, many judges of this era were members of the clergy – although this did not necessarily mean they were parish priests, performing services, weddings and christenings. In an era when the church was rich and the King poor, joining the clergy was often just seen as a sensible means of support.
By the middle of the 13th century, knights had begun to join clerics on the bench. The first professional judges were appointed from the order of serjents-at-law. These were advocates who practised in the Court of Common Pleas. Lawrence de Brok, a serjeant, became a judge in 1268, starting the tradition, which lasted until 1875, of serjeants being the group from which judges were chosen.
This was important, because it meant that the judiciary now had real professional experience of the law before moving on to the bench.
Over the years, serjeants were overtaken in popularity by barristers and solicitors, and even today, these are the groups from which the judiciary is appointed.
Growth of independence
During this era bribes and payments were common, but even so, in the middle of the 13th century the judiciary was openly accused of corruption.
In 1346, judges were obliged to swear that "they would in no way accept gift or reward from any party in litigation before them or give advice to any man, great or small, in any action to which the King was a party himself".
Judicial salaries were also increased, possibly to make them less dependent on other forms of income.
This didn’t always help: in 1350 the Chief Justice of the King’s Bench, William de Thorpe, was sentenced to death for bribery (he was later pardoned, but demoted).
The first magistrates’ courts
Meanwhile, a new type of court began to evolve – that which we now recognise as the magistrates’ court. Magistrates' courts hark back to the Anglo-Saxon moot court and the manorial court, but their official birth came in 1285, during the reign of Edward I, when ‘good and lawful men’ were commissioned to keep the King’s peace.
From that point, and continuing today, Justices of the Peace have undertaken the majority of the judicial work carried out in England and Wales (today, about 95 per cent of criminal cases are dealt with by magistrates).
Until the introduction of our modern system of councils in the 19th century, JPs also governed the country at a local level.
Problems with politics
The 14th century saw members of the judiciary still involved in politics to some extent – for example, for ten years, Edward III’s Chancellors were common-law judges.
In 1387, six judges advised Richard II that a parliamentary commission set up to limit his own powers was ‘invalid and traitorous’. They were all impeached, convicted and sentenced to death, although only one was actually executed; the rest were banished to Ireland.
Unsurprisingly, for two centuries after this the judiciary kept almost entirely away from politics.
Moving away from politics
During the turbulent 15th century – the Wars of the Roses – judges stood apart from both Royalists and parliamentarians, and were largely unaffected by the changes in government.
From 1540 onwards, Henry VIII had no judges in his Privy Council. His son Edward VI and daughter Mary I did include judges on their own Privy Councils, but Elizabeth I excluded them for 40 years.
In 1553, Mary I also removed three judges from office, but Elizabeth I made no changes on assuming the throne – although she did remove one later during her reign. The judiciary were becoming separate from the executive. Although it was generally accepted at this time that even the King was subject to the laws of the land, the Reformation added to the sovereign’s powers; the state had taken over the Church's privilege to define the laws of God, and had removed the influence of the Pope as the ultimate arbiter on Earth.
So the King remained principal law-maker, with the judges as interpreters of that law; a potentially uneasy relationship.
Meanwhile, by the Elizabethan and early Stuart periods, assize judges on the six circuits in England were mainly dealing with the most serious crimes not normally handled by the local Quarter Sessions, run by JPs.
They also took a role in local administration, although this was much reduced following the English Civil War.
A risky business
On the face of it, the judiciary was becoming steadily more independent: in 1642, Charles I was forced to agree to the appointment of judges "during good behaviour", and their salaries were raised from under £200 to £1,000 a year in 1645.
On the restoration of the monarchy in 1660, all judges – and there were just 12 at this point, four in each of the common law courts - remained in office.
But in 1668 the system of appointments "during pleasure" was reintroduced, and in the last 11 years of his reign Charles II sacked 11 of his judges. The next king, Charles’s brother James II, sacked 12 in just three years.
This was bound to affect the quality of the judiciary: judges knew very well their jobs were at risk if the sovereign did not like their judgments.
A new independence…
The day after the House of Commons resolved that James II had abdicated, a parliamentary committee drew up Heads of Grievances to be presented to the new King, William III.
This document contained, among other things, items on paying judges’ salaries out of public funds, and preventing judges being removed or suspended from office, “unless by due cause of law”. These grievances eventually appeared in much the same form in the Act of Settlement (1701) and have remained in place ever since.
When common law failed
Mirroring developments in the role and independence of judges were changes to the avenues of redress open to aggrieved parties. The common law system was an improvement on what had gone before, but it was still slow, highly technical – making procedural mistakes that could ruin a case all too likely – and vulnerable to corruption, especially when juries were used.
Fortunately, those who felt they had been failed by the common law system could still petition the King with their grievances.
Gradually, these cases were delegated to the King’s council, and eventually to one individual – the Lord Chancellor.
Because of this, the Lord Chancellor came to be known as the ‘King’s conscience’, and began to preside over his own court, the Court of Chancery. This dealt only with civil disputes, for example property and contract cases, and applied the law of equity – even-handedness or fairness.
By the time of Henry VIII, the Court of Chancery had become a rival to the common law courts.
But as the years went by, the Court of Chancery began to be known for the same problems it had been set up to combat: expense and delay. Also, the Lord Chancellor was free to give whatever ruling he liked in a Chancery court, unbound by the law – which made it almost impossible for lawyers to advise their clients correctly.
Changes to the system
It was not until 1830 that there was any change to the nearly 300-year-old assize courts. By the Law Terms Act of that year, the Court of Great Sessions was abolished and the Welsh counties and Chester were brought into the general circuit system. Shortly afterwards, the new Central Criminal Court was set up, unifying the administration of justice in London and surrounding areas.
In 1856, judges of the Central Criminal Court were also given the right to hear cases outside the court’s ordinary jurisdiction, to ensure a fair trial where local prejudice existed or when it could offer an early trial and so avoid the delay involved in waiting for the next assizes.
County courts, dealing with civil cases, were created under the County Courts Act 1846.
The Judicature Act 1873 and after
In 1873, Parliament passed the Judicature Act which merged common law and equity. Although one of the Divisions of the High Court is still called Chancery, all courts could now administer both equity and common law – with equity to reign supreme in any dispute.
The same Act established the High Court and the Court of Appeal and provided a right of appeal in civil cases to the Court of Appeal. Criminal appeal rights remained limited until the establishment of a Court of Criminal Appeal under the Criminal Appeal Act 1907.
The Court of Criminal Appeal sat for nearly 60 years, until its existence as a separate body was ended by the Criminal Appeal Act 1966. Its jurisdiction passed to the Court of Appeal.
The Crown Court is created
Crown Courts as we know them today were not actually established until 1956, and then only in Liverpool and Manchester. These courts also took over the quarter sessions work in their cities.
The Royal Commission on Assizes and Quarter Sessions, 1966-1969, led to the abolition of courts of assize and quarter sessions and the establishment of a new Crown Court to deal with business from both, under the terms of the Courts Act 1971.
…But still not separate
Hundreds of years of evolution may have resulted in an independent judiciary – but that doesn’t mean they were entirely separated from government. Chief Justice Lord Mansfield was in the Cabinet between 1757 and 1765, for example and more recently Lord Cave was Home Secretary for a couple of months at the end of the First World War when he was also a serving Lord of Appeal in Ordinary, or Law Lord.
And until 2006, the Lord Chancellor was part of the executive, the legislature and the judiciary. The Lord Chancellor’s role changed drastically on April 3 2006 as a result of the Constitutional Reform Act 2005. This latest major change to affect the judiciary has been described as the most significant since Magna Carta. The Act establishes the Lord Chief Justice as President of the Courts of England and Wales and Head of its Judiciary, a role previously performed by the Lord Chancellor. For the first time an express statutory duty is placed on the Lord Chancellor and other Ministers of the Crown to protect the independence of the judiciary. For the first time in its 1,000-year history, the judiciary is officially recognised as a fully independent branch of the government.
Geoffrey Rivlin, Understanding the Law, Oxford, 2004
Theodore FT Plucknett, A Concise History of the Common Law, Butterworth & Co, 1956
Judy Hodgson (ed), The English Legal Heritage, Oyez Publishing, 1979
On 26 July 2007 the House of Lords’ Select Committee on the Constitution published a report, Relations between the executive, the judiciary and Parliament. The judiciary’s response was sent to the Committee on 18 October 2007.