The records of the Court of Common Pleas are among the least used and least understood records in The National Archives. There are some good reasons for this. There are a lot of records for the Court; there are 61 series of common pleas records under the departmental code CP, 11 of which are unsorted. Many of the documents themselves are huge and extremely difficult to handle. They are in Latin until 1733, with the brief exception of the Commonwealth period. There’s a real lack of finding aids to these records, there’s very few for the medieval period and for the early modern period…there are contemporary ones but again they take a bit of getting used to. The records themselves can also be quite formulaic and many cases never came to a verdict.
Yet, the records for the Court of Common Pleas are a mine of useful information. Because it was the busiest central court for almost all the medieval and early modern period there are consistently more people named in the records of the Common Pleas than any other medieval or early modern source, with the possible exception of the Hearth Tax of the 1660s. This makes them a wonderful source to trace individuals. But they’re not just a good source for prosopographical or genealogical research, they can be used to study many other aspects of social and economic history, trade and mercantile business, law and its impact on society and specific places in the town and the country. And the structure of the records to some extent mitigates bulk and language issues and I will talk a bit later about the structure.
This will be a talk of two halves, the first will be some background to the Court over the seven centuries of its existence, a little bit of its history and the second half of the talk will be on the records themselves and how to approach them.
So, a little bit on the history of the court. The beginnings of the Court of Common Pleas can be found in the later 12th century. A central royal court sitting at Westminster for four terms in the year and enrolling its proceedings was in existence in the closing years of Henry II’s reign in the 1180s. It was clearly separate from other royal courts by the 1190s, its earliest surviving plea roll dates the Trinity Term of 1194. But it briefly ceased to exist as a separate entity between 1209 and 1214 during the reign of King John when it was subsumed within the king’s personal jurisdiction and cases it heard, or had been hearing instead followed the king himself who moved round his kingdom on a regular basis. And this was a considerable hardship for ordinary plaintiffs and defendants alike who had to travel long distances just to keep up with the itinerant royal court.
Thus, in the great reaction against John’s kingship or Angevin kingship, Magna Carta in 1215, in clause 17 King John agreed that: ‘Common pleas shall not follow our court but shall be held in some certain place’. Thereafter its sessions were normally held at Westminster although they could be held elsewhere; there were sessions held at Shrewsbury during Edward I’s Welsh wars and on many occasions at York during the Scottish wars of Edward I, Edward II and Edward III. After that date however sessions did tend to be fixed at Westminster and were held until 1875 broken only by very occasional civil disturbance or plague.
For the period 1194 to 1272 the records of Common Pleas are in fact mixed up with…the Court of King’s Bench and some local jurisdictions in the series KB 26. Now these records are nearly all in print until 1249 in a publication called the Curia Regis Rolls. But business in the Court of Common Pleas remained comparatively low although it did slowly increase during much of the 13th century.
Nonetheless, this is the period in which the court’s jurisdiction became finalised. It dealt with, obviously, common pleas and these are suits between one subject and another subject, Smith against Jones and did not involve the king’s direct interests.
It had a wide ranging jurisdiction, the court dealt with what is known as real property, that’s actually land; so cases relating to possession and ownership of land, what’s on the land, things like woodland and what was under the land so mineral rights and things like that.
It dealt with cases of debt, now these had to be more than 40 shillings to avoid too many very small claims in the court but nonetheless, this was a huge area of its business and perhaps two-thirds of all cases in Common Pleas in the 15th century were cases of debt.
It had jurisdiction over detinue which is the return of specific goods wrongly retained or their equivalent value. It dealt with cases of account which was an action brought for not rendering a proper account of profits (ie by a steward or an official or indeed between commercial partners).
The court had jurisdiction over covenant which is the breach of an agreement particularly one relating to a written obligation.
And the Court of Common Pleas had supervision over all inferior courts in these areas.
It also had joint jurisdiction over trespass which were minor criminal actions. This jurisdiction was shared with the Court of King’s Bench which was the senior criminal court. Felony, the serious criminal actions, could only be heard by King’s Bench from the 14th century but minor criminal actions, trespass, could be heard by Common Pleas or King’s Bench.
Taken together, these areas, property, debt, commercial cases and minor criminal actions, it’s a huge area of the law and this accounts for the fact that Common Pleas was much the busiest court by the end of the middle ages.
In 1450, Common Pleas was hearing about 10,000 cases per year, King’s Bench perhaps 2,000, 2,500. The Exchequer of Pleas which was a financial court was holding about 250 cases a year and the emerging jurisdiction of the Court of Chancery was still very much in its early stages and heard about 120 cases in a year. So, Common Pleas was by far the busiest court.
But the very high level of business meant jealousy from the other courts and the beginning of competition. Such competition between he courts was very real, not least because the income of the officials from clerks or judges was in a greater part dependant on the fees they received from litigants. So the more cases you heard, the wealthier you were. And it was as late as 1825 before judges for example were paid only by salary, as opposed to partly through the profits of the court. So the competition was real and it meant quite a lot to those involved.
The main competition initially came from the Court of King’s Bench. In 1421 King’s Bench finally settled in a fixed location, Westminster Hall. This meant it actually became the court of first instance for Middlesex for cases of trespass and debt. So it was a local court for Middlesex as well as a central criminal court for the whole country. And during the 15th century King’s Bench developed what is known as the Bill of Middlesex. Plaintiffs began a fictitious case alleging a trespass began in Middlesex, of course brought it straight to King’s Bench. Once, you know, the defendant was arrested brought into court, a writ know as a latitat was issued which contained the correct or genuine details of the case stating, you know, actually it happened in Essex or Herefordshire or Lincolnshire or wherever it may be. But by this means, by the Bill of Middlesex numerous long and expensive stages of the legal process were skipped and the case was immediately heard in a central court.
This became very popular and King’s Bench actually stole a considerable proportion of the business of Common Pleas. But the encroachment of King’s Bench onto Common Pleas business was, in part, masked by the vast explosion of litigation in the late 16th and the 17th centuries. Hard figures are difficult to come by but in 1610 there were perhaps 40,000 cases a year heard in Common Pleas. So this is increased fourfold from the late 15th century. King’s Bench was perhaps hearing 20,000-25,000 cases per year. So that’s a tenfold increase. Exchequer Pleas still [doing] a small amount of business, it had 548 cases that year. And Chancery was hearing just under 5,000 cases in 1610. So it increased hugely but was still considerably less busy than the common law court of King’s Bench and Common Pleas.
King’s Bench however was not the only competitor. Legislation had been passed as early as 1284 to prevent the Exchequer of Pleas from hearing common pleas. This meant the business of the Exchequer of Pleas was very small until the 17th century. But it began to develop a writ called quominus, or quo minus, in which a royal debtor or exchequer official might sue or be sued in the Exchequer on the grounds that he might otherwise be able so much the less – quominus – to discharge his revenue obligations to the crown.
But the application of this writ became increasingly loose, almost anyone became able to sue in the Exchequer of Pleas as virtually any action with financial ramifications would be accepted as having potential revenue implications for the crown. So it also started to encroach on the normal business of Common Pleas, particularly debt cases.
By 1823 the competition had seriously impacted on Common Pleas business. In that year Common Pleas held 13,000 cases, King’s Bench 43,500 cases, the Exchequer of Pleas increased to nearly 7,000 cases a year from just 548 in 1610 and the Court of Chancery was also operating around 6,000 cases per year. So again considerably smaller but Common Pleas was no longer the busiest court.
In 1828, Henry Brougham, Lord Chancellor, told the House of Commons that that jurisdiction of the three main courts of common law was virtually coextensive. King’s Bench he said:
‘…has drawn over to itself actions which really belong to the Court of Common Pleas. The Exchequer has by means of another fiction has opened its doors to every suit and so has drawn to itself the right of trying cases that were never placed within its jurisdiction’
And he also noted that King’s Bench was immoderately overburdened by the number of cases. In response to complaints such as this and the report of committee investigating the slow pace of the Court of Chancery, the Judicature Commission was formed in 1867 and given a wide remit to investigate the reform of the courts, the law and the legal profession. The result was the Supreme Court of Judicature Act of 1873 which merged the Common Pleas, the Exchequer of Pleas, King’s Bench and the Court of Chancery into one body, the High Court of Justice and the Common Pleas existence as a separate court was ended.
To the second part of the talk and that’s a brief look at the records of the Court of Common Pleas that survive here in The National Archives. To begin with through, a few words on terminology. The main series of records of the Court of Common Pleas, and which I will be concentrating on today, are the Plea Rolls. These are in The National Archives’ series CP 40. They are occasionally know as their old Latin name the De Banco rolls. They are made up of hundreds of sheets of parchment sewn together at one end, each one is known individually as a rotulus and in plural as rotuli. These are not actually technically membranes which are sewn – a single membrane is sewn at both ends. The main series of records, the Plea Rolls are in The National Archives’ series CP 40 from 1273 to 1874. They are arranged by legal term – Michaelmas, Hilary, Easter and Trinity – and then by a regnal year. For the medieval period there is one CP 40 per term containing up to 600 rotuli. For the early modern period there are perhaps six o
r seven, certainly by the 17th century, six or seven per term containing probably in excess of 3,000 rotuli. These records can be browsed through The National Archives online catalogue to identify which term and year each one relates to but the catalogue contains no details at all of any cases contained within any of the Plea Rolls. You cannot search by county or plaintiff or defendant.
So what do the Plea Rolls in the series CP 40 contain? There are four distinct types of material, the first two comprising 95% of any given roll. The four types are mesne process, pleading, enrolled private deeds and a list of the attorneys. I shall deal with these in a little bit more detail.
The first section then is what is known as mesne process and this is procedural information. More precisely, it’s copies of writs issued during proceedings and writs were issued at every stage of the judicial process for example a writ would be issued to a sheriff to ensure a defendant was in court to hear the accusations against him, a writ would be issued to the sheriff to empanel a jury of 12 local men to decide a case and it’s this that’s written up onto the plea roll.
Mesne process is formulaic and will not tell you a great deal about the case but it can be useful particularly for much of the medieval period when there are no real finding aids. You often need to follow the process of the case to work out what actually happened or where the pleadings will be. The mesne process was written by officials called philisers, these are officers of the court who filed and wrote up these writs. Their names are at the bottom of each rotulate and as each philiser deals with the same few counties it can be quite a shortcut to, once you’ve worked out which philiser is dealing with a county you’re interested in, to flick through and look for the relevant philiser’s name at the bottom of each membrane.
The second type of material and certainly the most interesting for researchers are the pleadings. Unfortunately the Plea Rolls, or CP 40s, do not contain word-for-word transcripts of what happened in court or what was said in court. They are summaries of the legal arguments used by the plaintiffs and the defendants. Although pleadings may have occupied several court hearings over several legal terms, usually the full pleading of the case will only appear once in the main plea roll, normally the first time the legal argument is set out which means you normally only need to look for the pleading once.
Where a verdict was reached it will usually be entered after the main pleading and was written up there months, perhaps years later. The pleadings written in the name of one of the prothonotaries, principal notary if you like, who were the chief clerks of the court. There are two before 1461 and three afterwards.
The third and fourth sections of any plea rolls are much, much shorter. They will contain a few private property deeds which were enrolled almost at the end of the roll. These are on the roll during the medieval period and up ‘til 1583 after which they are hived off to a different record which I’ll come back to later. The last section is a list of the attorneys who appeared in the court and the parties they appeared on behalf of so if you’re looking for a lawyer, the career of a lawyer, that’s quite a useful section.
The records themselves are arranged roughly chronologically within the term, so by specific days within the term. But this means they’re not arranged by county or by type of business. Mesne process alternates with pleadings throughout the document and if you’re looking for a county there is no separate section for Essex or Norfolk or Yorkshire.
However, certainly from about 1400, there’s a fairly fixed structure to the roll and this does make it a little bit easier to navigate around. The first 22 rotuli, each one will be written by each of the philisers, prothonotary and other officials of the court. So you will see the first 22 will have all the names of the people who are writing the rest of the roll.
Rotuli 23-100 will contain mesne process. Rotuli 101-120 will contain pleadings written by the first prothonotary, 121-140 by the second prothonotary, and after 1461 when there’s a third prothonotary, rotuli 141-160 will contain 20 pleadings written up by that prothonotary. Rotuli 160-300 will be process, 301-360 will be 20 rots [rotuli] each by the three prothonotaries. 360-400 will be more process. 401-460, 501-560, and so on, will be the prothonotaries sanctions. The last two sections are the Charter Rolls – the rots of the Charters and the rotuli for the attorneys will be the last two sections at the end. So it is possible to work out where, if you’re looking for specific pleadings, where you need to go within the roll.
Each pleading will look rather longer than the process and visually slightly different. The county will always be in the left hand margin. The first few words will almost always be the defendants name with his place of residence and his occupation and a note he’s been summoned into court or arrested to respond to the plaintiff whose name will follow and then a brief description of the type of case, so a debt case or a trespass or something like that. The next section will contain the plaintiff’s accusation. A separate paragraph will follow with the defendant’s response to the plaintiff’s accusations. And the plaintiff will usually then have another paragraph where he counters the defendant’s arguments. This can go on for some time. The last bit of any given pleading will contain notes of the further legal proceedings, how long it’s been postponed for, when a jury was summoned and the verdict will be written up there, if one was reached. So again it’s quite quick to find the relevant information and to work ou
t who is involved in a case; it’s always in the first two or three lines.
I’m now going to take a few sample cases from across the period of the court’s existence just to give a flavour of the types of cases the court heard.
My first example comes from the Trinity term of 1462 and there are two cases on two successive rotuli. The first, John, Bishop of Worcester, sues the Berkeley family, Lord Berkeley, over their occupation of a watermill in Gloucestershire. The Berkeleys respond claiming that the mill is parcel of their manor of Kings Weston doesn’t belong to the bishop. The following rotuli, a separate case: John, Bishop of Worcester sues the Berkeley’s again claiming they entered and hunted in his park at Westbury in Gloucestershire which they had no leave to do. The Berkeleys make their response saying that the Bishop gave them license to hunt in this manor. Neither case reaches a verdict but it’s clearly part of a wider dispute between two powerful landowners and they’ve chosen, for this part of it, to fight it out in court. They may well have fought it out in person elsewhere.
But it wasn’t just the high and mighty who used the Court of Common Pleas. In the same term, Trinity of 1462, one Robert Porter of Cerne in Dorset, who was a husbandman and labourer, is arrested to respond to one John Hipwell of a plea of trespass. John Hipwell claims that Robert Porter:
‘…with force and arms of his sword, bow and arrows, broke into and entered the close and house of John Hipwell at Abbotsbury and there he stole four bulls, seven bullocks and seven cows worth a total of 10 pounds’
And the plaintiff claims 20 pounds in damages. The defendant pleads not guilty to the charges. The case is postponed to the following term. And then the roll notes there were six further postponements, each case allegedly the sheriff didn’t return the rule writ. And then the case disappears. So no verdict was reached and nothing happened. This is not uncommon with medieval pleas.
Moving forward in time and a different type of case in the roll for 1603, one Gregory Norfolk, who is a tanner, is or was summoned to respond to William Alston, plaintiff. And Alston claims that Gregory Norfolk owes him a debt of eight pounds. Apparently on 5 August, 1603, Gregory Norfolk agreed an obligation, a contract with Alston the plaintiff that if he paid four pounds by a certain date that then a contract would be complete, but if Norfolk didn’t pay four pounds by a certain date then he would owe the plaintiff eight pounds, in punitive charges if you like. Plaintiff Alston alleges that the four pounds was not paid. Defendant Norfolk initially said he had paid it and then later confessed that he hadn’t. Norfolk was therefore liable to pay the eight pounds for the contract and was given damages assessed at two pounds.
So while this is a complete and self-contained case it doesn’t actually tell us two things. It doesn’t tell us what the initial contract was for – so commercial dealings or money lending, we don’t know – and it also doesn’t say why Norfolk actually changed his story. It does give you the whole of the legal proceedings over the case.
And to take a more modern example, this comes from the Michaelmas term of the fifth year of Queen Victoria’s reign which is 1841. Charles New is the plaintiff and he has been assigned the goods and effects of Michael Pellet who was a bankrupt. And Charles New had complained by his attorney, George Boardman, that the defendant Michael Messenger had agreed to pay the plaintiff £2,000 as assignee of the bankrupt goods but the plaintiff says that Michael Messenger, the defendant, did not carry out this payment. Nine days later, the defendant appears by his attorney, Edward Spenser and claims that he never agreed to pay the plaintiff £2,000. He says the plaintiff was not the assignee of Pellet’s goods and estates, so that’s the bankrupt. So that was 19 June. The following term in November 1841, the plaintiff repeats his arguments, appears in court, repeats his arguments and they both put themselves ‘upon their country’ (they submitted to trial by jury. In June 1842, so exactly a year after the first pleading, a jury appears, their names are in the roll and they’re sworn in. They state that the defendant did agree to pay the plaintiff, as the plaintiff had claimed, that the plaintiff was the assignee of Michael Pellet the bankrupt goods and they grant the plaintiff costs, damages and charges. The damages were assessed at £464, the plaintiff’s costs were assessed at 40 shillings and the Crown’s costs were assessed at £173 which is quite a substantial amount. Again we have the whole record of the case, it isn’t necessarily terribly informative as precisely why the defendant was paying the plaintiff £2,000. We don’t know quite what the background to the case is but we do have the legal arguments.
How then would one try and find a case in the Court of Common Pleas? As I said earlier they are not searchable on the online catalogue; the sheer number means they have never been fully catalogued.
For the medieval period, the earliest part of the court’s existence, there are published Calendars called the Curia Regis Rolls which run to 18 volumes. These cover the period up to 1249 and can be found in The National Archives or a good reference library. But for the rest of the medieval period there is no one [single] comprehensive finding aid. There are some selective calendars, there are some people’s notes who have worked on the records extensively, these are in the series IND 1 and PRO 66. They’re patchy, some cover some dates, some dates aren’t covered, one or two are very good on specific counties (if you’re researching Yorkshire there’s better finding aids than for elsewhere but they are quite patchy). For much of the time it is a case of trawling through the rolls covering the period that you are interested in looking for the counties or the person you are interested in.
From 1509 through in fact to 1859 the situation is somewhat better. There are contemporary docket …what are known as docket rolls surviving. These are in the record series CP 60 and these provide the main means of access to the records. They are brief notes of each case. They will note the type of case, so a debt, they will have a county in the left hand margin, the top line will contain the plaintiff’s attorney’s surname and then the plaintiff’s surname. The line below will contain the defendant’s attorney’s surname and then the defendant’s surname. So it’s the second set of names that you are looking for if you’re chasing an individual. But they will also give you a reference to the rotulus on which the case is pleaded. So it does give you a specific page number, if you like, to take to the CP 40 and therefore searching through these rolls is a real shortcut compared to going through the very, very large rolls themselves. From the 1560s there’s one of these per prothonotary so you may need to check two or three to cover all the pleading in the court in any given time but they do provide the primary means of access to the records. These are as I say contemporary, they are original documents and they need to ordered up at The National Archives but they are less back-breaking than the CP 40s themselves.
I’m briefly going to mention two or three other series of Common Pleas records. One of the sections on the Plea Rolls are private deeds which are enrolled, for a fee, on the record. And this occurs form the earliest period through to 1583 when they are moved to a separate series, CP 43. From this date CP 43 also contains pleas over land. So property disputes effectively are moved to a separate series and the CP 40s contain solely debt cases and some are contractual material. These include the famous common recoveries which is a fictitious action by which land can be conveyed to others.
There are again contemporary finding aids to these records in the series IND 1. They never really reach the size of the CP 40s, the roll for Easter 1610 has 180 rotuli of pleadings and about 30 rotuli of enrolled private deeds compared to probably 2,500-3,000 rotuli in the CP 40s. In 1838 the pleas of land stop being in the separate series of CP 43 and return to the main series in CP 40. For just under a century, 1327-1409, Plea Rolls containing royal pleas, so where the king has a direct interest, are in a separate series which is CP 23. There’s also a very long series of records in the series CP 21 from 1272-1798 containing essoins which are notes of the allowable excuses made by litigants for nonattendance in court.
For further reading on the court it’s worth mentioning JH Baker’s An Introduction to English Legal History, which is the most accessible summary of English legal history that I am aware of. And there is one book written solely on the Court of Common Pleas by Margaret Hastings who wrote a book in 1947 called The Court of Common Pleas in Fifteenth Century England, which is a detailed introduction or detailed discussion of the court and its officials.
Transcribed as part of a volunteer project by Natalie Bell, April 2015