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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 England and Wales 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 in the world.

A real ordeal

Justice for the Anglo-Saxons and even after the Norman invasion of 1066 was part of general government, with courts presided over by a lord or one of his stewards. The King’s court would have been placed on a similar footing, making the monarch the country’s senior judge.

Today, going on trial in an English or 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 traditional routes.

Seeds of change

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.

He ordered five of these judges to remain in London and take over the King’s traditional task of deciding cases. These judges became known as the King’s Bench, and were based in Westminster.

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.

The first 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.

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.

The first professional judges

Serjeants-at-law were originally advocates in the Court of Common Pleas. Lawrence de Brok, a serjeant, became a judge in 1268, starting a tradition 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.

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. The judiciary were becoming separate from the executive.

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.

When common law failed

The common law system was an improvement on what had gone before, but it was still slow, highly technical – making trivial 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.

And another thing…

The latest major change to affect the judiciary has been described as the most significant since Magna Carta. On April 3, 2006, the Constitutional Reform Act 2005 comes into force.

This reforms the office of Lord Chancellor, a government appointment with ministerial powers, and establishes the Lord Chief Justice as head of the judiciary of England and Wales. For the first time in its 1,000-year history, the judiciary is fully and officially independent of the government.

Bibliography

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

©2008 Judicial Communications Office