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ffirs.indd i 22/09/12 10:16 AM
 PROFESSIONAL NODE.JS®

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xxvii

 PART I INTRODUCTION AND SETUP

CHAPTER 1 Installing Node . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CHAPTER 2 Introducing Node . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

 PART II NODE CORE API BASICS

CHAPTER 3 Loading Modules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
CHAPTER 4 Using Buffers to Manipulate, Encode, and Decode Binary Data . . . . . . 29
CHAPTER 5 Using the Event Emitter Pattern to Simplify Event Binding . . . . . . . . . . 35
CHAPTER 6 Scheduling the Execution of Functions Using Timers. . . . . . . . . . . . . . . 45

 PART III FILES, PROCESSES, STREAMS, AND NETWORKING

CHAPTER 7 Querying, Reading from, and Writing to Files . . . . . . . . . . . . . . . . . . . . . . 53
CHAPTER 8 Creating and Controlling External Processes . . . . . . . . . . . . . . . . . . . . . . 63
CHAPTER 9 Reading and Writing Streams of Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
CHAPTER 10 Building TCP Servers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
CHAPTER 11 Building HTTP Servers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
CHAPTER 12 Building a TCP Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
CHAPTER 13 Making HTTP Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
CHAPTER 14 Using Datagrams (UDP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
CHAPTER 15 Securing Your TCP Server with TLS/SSL . . . . . . . . . . . . . . . . . . . . . . . . . 139
CHAPTER 16 Securing Your HTTP Server with HTTPS . . . . . . . . . . . . . . . . . . . . . . . . . 149

 PART IV BUILDING AND DEBUGGING MODULES AND APPLICATIONS

CHAPTER 17 Testing Modules and Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
CHAPTER 18 Debugging Modules and Applications. . . . . . . . . . . . . . . . . . . . . . . . . . . 167
CHAPTER 19 Controlling the Callback Flow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .177

Continues

ffirs.indd i 22/09/12 10:16 AM

  PART V BUILDING WEB APPLICATIONS
CHAPTER 20 Building and Using HTTP Middleware . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
CHAPTER 21 Making a Web Application Using Express.js . . . . . . . . . . . . . . . . . . . . . . 217
CHAPTER 22 Making Universal Real-Time Web Applications Using Socket.IO . . . . 241

 PART VI CONNECTING TO DATABASES

CHAPTER 23 Connecting to MySQL Using node-mysql . . . . . . . . . . . . . . . . . . . . . . . . 267
CHAPTER 24 Connecting to CouchDB Using Nano. . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
CHAPTER 25 Connecting to MongoDB Using Mongoose . . . . . . . . . . . . . . . . . . . . . . . 311

INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351

ffirs.indd ii 22/09/12 10:16 AM

 PROFESSIONAL

Node.js®

ffirs.indd iii 22/09/12 10:16 AM

ffirs.indd iv 22/09/12 10:16 AM
 PROFESSIONAL

Node.js®
BUILDING JAVASCRIPT-BASED SCALABLE SOFTWARE

Pedro Teixeira

ffirs.indd v 22/09/12 10:16 AM

 Professional Node.js®: Building JavaScript-Based Scalable Software
Published by
John Wiley & Sons, Inc.
10475 Crosspoint Boulevard
Indianapolis, IN 46256
www.wiley.com

Copyright © 2013 by John Wiley & Sons, Inc., Indianapolis, Indiana

Published simultaneously in Canada

ISBN: 978-1-118-18546-9
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trademarks or registered trademarks of John Wiley & Sons, Inc., and/or its affi liates, in the United States and other coun-
tries, and may not be used without written permission. Node.js is a registered trademark of Joyent, Inc. All other trade-
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ffirs.indd vi 22/09/12 10:16 AM

 This book is dedicated to my wife, Susana.
Throughout all these years she has always been an
example of strength and persistence.

ffirs.indd vii 22/09/12 10:16 AM

ffirs.indd viii 22/09/12 10:16 AM
 ABOUT THE AUTHOR

PEDRO TEIXEIRA is a prolific open-source programmer and author of many Node.js modules. After
graduating with a degree in Software Engineering more than 14 years ago, he has been a consultant,
a programmer, and an active and internationally known Node.js community member.
He is a founding partner of The Node Firm and a Senior Programmer at Nodejitsu Inc., the leading
Node.js platform-as-a-service provider. He is also the author of the popular Node Tuts screencasts.
When Pedro was 10 years old, his father taught him how to program a ZX Spectrum, and since
then he has never wanted to stop. He taught himself how to program his father’s Apple IIc and then
entered the PC era. In college he was introduced to the universe of UNIX and open-source, becom-
ing seriously addicted to it. In his professional life he has developed systems and products built
with Visual Basic, C, C++, Java, PHP, Ruby, and JavaScript for big telecommunications companies,
banks, hotel chains, and others.
He has been a Node.js enthusiast since its initial development, having authored many applications
and many well-known modules like Fugue, Alfred.js, Carrier, Nock, and more.

ffirs.indd ix 22/09/12 10:16 AM

ffirs.indd x 22/09/12 10:16 AM
 ABOUT THE TECHNICAL EDITOR

MANUEL KIESSLING is a software development and systems administration team lead, using and
teaching agile practices in both domains. He runs several open-source projects, is an active blogger,
and wrote the freely available Node Beginner Book. He currently lives near Cologne, Germany, with
his wife and two children.
He is the co-author of Chapter 22, “Making Universal Real-Time Web Applications Using Socket.IO,”
and Chapter 23, “Connecting to MySQL Using node-mysql.”

ffirs.indd xi 22/09/12 10:16 AM

ffirs.indd xii 22/09/12 10:16 AM
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Other documents randomly have
different content
lanterns and torches to welcome John to the capital, streamed
together on the morning of the eventful 8th October at the well-
known sound of the great bell, swinging out from its campanile in St.
Paul’s Churchyard. There they heard John take the oath to the
‘Commune,’ like a French king or lord; and then London, for the first
time, had a municipality of her own."[485]
For any accurate definition of a commune we look in vain to
contemporary writers, who are usually carried away by their political
bias. Richard of Devizes[486] quotes with approval, “Communia est
tumor plebis, timor regni, tepor sacerdotii.” Some insight has been
gained in recent years, however, into its exact nature. A Commune
was a town which had obtained recognition as a corporate entity, as
a link in the feudal chain, becoming the free vassal of the king or
other lord, and itself capable of having sub-vassals of its own.[487] Its
chief institutions were a mayor and an elective council, generally
composed of twenty-four members, some or all of whom were
known as échevins or skivini, a word which in its modern form of
“scavengers” has fallen on evil days, no longer denoting the city
fathers, but men who perform civic duties of a useful but less
dignified nature. Perhaps the chief peculiarity of the commune was
the method of its formation, namely, by popular association or
conspiracy, involving the taking of an oath of a more or less
revolutionary nature by the citizens and its subsequent ratification by
those in authority. It is generally admitted that these communes,
though revolutionary in their origin, were not necessarily democratic
in their sympathies. Under the new constitution of London, the
grievous taxation of Richard’s reign was made to fall more heavily on
the poor of London than on any other class. The commune thus set
up in 1191, tolerated at first rather than encouraged by the Crown,
formed thenceforth the municipal government of the capital; the
citizens chose not only their own sheriffs, but also their own mayor,
although the latter, when once appointed, held office for life.
When John became king, he granted three charters, ratifying the
privileges of the capital in return for a gersuma (or slump payment)
of 3000 marks.[488] All the franchises specified in the old charter of
Henry I. were now confirmed, with one exception: the liberty to
appoint a justiciar of their own, now seen to be inconsistent with the
Crown’s centralizing policy, was abandoned. None of these charters
made mention of mayor or commune, but they confirmed some
minor privileges gained in Richard’s reign.[489]
A fourth charter, dated 20th March, 1201, was merely of
temporary interest; but a fifth, granted on 9th May, 1215, little more
than a month previous to Magna Carta, is of great importance, and
represents the bait thrown by John to the citizens in the hope of
gaining their support in this new crisis, as he had previously gained
it in the crisis of 1191. The fifth charter not merely confirmed to the
citizens in explicit terms the right already enjoyed by them of
electing a mayor for life, but allowed them to elect a new one every
year. Miss Norgate does not exaggerate, when she describes this
concession as “the crowning privilege of a fully constituted
municipality, the right to elect their own mayor every year.”[490] An
annually elected magistrate would, undoubtedly, feel his dependence
on the citizens more than one holding office for life; but it seems
probable that the chief value of the grant lay in its confirmation by
John as king, of the rights conceded by him fourteen years earlier as
his brother’s unauthorised representative, and enjoyed meanwhile
on an insecure tenure. The charter of May, 1215, by officially
recognizing the mayor, placed the commune over which he presided
on a legal footing. The revolutionary civic constitution, sworn to in
1191 was now confirmed. The citizens acted on the permission
granted them of annually changing their chief magistrate: but in
place of supporting the king who made the grant, they opened their
gates to his enemies.[491]
Such then was the London whose privileges were confirmed by
Magna Carta—a city which had slowly grown to greatness, obtaining
after many struggles a complete municipal constitution in the form
of a commune with annually elected mayor and council, as well as
sheriffs of its own appointment, who excluded the Crown’s financial
officers not only from the district within its walls but from the whole
of Middlesex. The Great Charter, avoiding details, confined itself to a
general confirmation to the men of London of their ancient “liberties
and free customs,” two words[492] whose vagueness ought in this
connection to receive a liberal interpretation.[493]
London, in this respect, was not to stand alone; a similar
concession was explicitly made in favour of all other cities, boroughs,
towns, and sea-ports. This was a mere confirmation, however, not to
be read as conferring new privileges or exemptions, each borough
being left to prove its own customs as best it might. In the reissues
of Henry, the distinction of being mentioned by name was shared by
these “barons of London,” with “the barons of the Cinque ports,”
who from their wealth, their situation, and their fleet, were allies
well worth conciliating. They played, indeed, a prominent part in the
decisive naval victory gained by Hubert de Burgh on 24th August,
1217.[494]
Other portions of John’s Great Charter which specially affected the
Londoners were the last clause of chapter 12, and chapters 33 and
41; while many of the privileges granted or confirmed in other
chapters were shared by them. The Mayor of London, it should be
added, was one of the executive committee of twenty-five, entrusted
with wide powers to enforce the provisions of the Charter.[495]
Among the most cherished privileges claimed by the chartered
boroughs were the rights to exact tolls and to place oppressive
restrictions upon all rival traders not members of their guilds,
foreigners and denizens alike. The confirmation of these privileges in
this chapter has been held to contradict chapter 41, which grants
protection and immunities to foreign merchants.[496] The
inconsistency, however, should not be pushed too far, since the later
chapter aimed at the abolition of “evil customs” inflicted by the king,
not of those inflicted by the boroughs. At the same time, all favour
shown to aliens would be bitterly resented by their rivals, the English
traders. If the charter had been put in force in its integrity, the more
specific privileges in favour of foreign merchants would have
prevailed in opposition to the vague confirmation of borough
“liberties” wherever the two came into collision.[497]

479. Firma is explained infra, c. 25.

 480. Stubbs, Const. Hist., I. 439. Cf. Round, Commune of London,
220, who is in substantial agreement. Miss Mary Bateson, however,
thinks that “there has been a tendency unduly to minimise the
measure of administrative unity in the twelfth-century shire of
London.” See the evidence produced by her, Engl. Hist. Rev., XVII.
480-510.

481. Geoffrey de Mandeville, 356.

482. See e.g. Miss Norgate, Angevin Kings, II. 471.

483. Geoffrey, 367.

484. Commune of London, 222.

485. Commune of London, 224.

486. Select Charters, p. 252.

487. M. Luchaire, Communes Françaises, p. 97, defines it as

“seigneurie collective populaire.”

488. Miss Bateson, Engl. Hist. Rev., XVII. 508.

489. E.g. the removal of obstacles to free navigation in Thames

and Medway. Cf. infra, c. 33.

490. John Lackland, 228.

491. From this date the list of mayors shows frequent, sometimes
annual, changes. Thus Serlo the mercer was Mayor in May, 1215,
when London opened its gates to the insurgents, while William
Hardell had succeeded him before 2nd June, 1216, when he headed
the citizens who welcomed Louis to make London his headquarters.

492. Both words are discussed infra, c. 39.

 493. The Charter mentions neither mayor nor commune, but
probably by implication confirmed both. Prof. G. B. Adams finds such
confirmation, not in c. 13, but in c. 12 (by its application of the word
auxilium to London); and maintains that with the omission of this
word from subsequent charters "London’s legal right to a commune
fell to the ground." Engl. Hist. Rev., XIX. 706.

494. See supra, p. 170.

495. See infra, c. 61.

496. Cf. Pollock and Maitland, I. 447-8.

497. Cf. infra, c. 41.

 CHAPTER FOURTEEN.
Et ad habendum commune consilium regni, de auxilio assidendo
aliter quam in tribus casibus predictis, vel de scutagio assidendo,
summoneri faciemus archiepiscopos, episcopos, abbates, comites, et
majores barones, sigillatim per litteras nostras; et preterea faciemus
summoneri in generali, per vicecomites et ballivos nostros, omnes
illos qui de nobis tenent in capite; ad certum diem, scilicet ad
terminum quadraginta dierum ad minus, et ad certum locum; et in
omnibus litteris illius summonicionis causam summonicionis
exprimemus; et sic facta summonicione negocium ad diem
assignatum procedat secundum consilium illorum qui presentes
fuerint, quamvis non omnes summoniti venerint.
And for obtaining the common counsel of the kingdom anent the assessing of
an aid (except in the three cases aforesaid) or of a scutage, we will cause to be
summoned the archbishops, bishops, abbots, earls, and greater barons, by our
letters under seal; and we will moreover cause to be summoned generally,
through our sheriffs and bailiffs, all others who hold of us in chief, for a fixed
date, namely, after the expiry of at least forty days, and at a fixed place; and in
all letters of such summons we will specify the reason of the summons. And
when the summons has thus been made, the business shall proceed on the day
appointed, according to the counsel of such as are present, although not all who
were summoned have come.

This chapter, which has no equivalent among the Articles of the

Barons, appears here incidentally: it would never have found a place
in Magna Carta but for the need of suitable machinery to give effect
to the provision of chapter 12.[498]
As the earlier clause is frequently supposed to contain a general
doctrine of taxation, so this one is often cited as enunciating a
general doctrine of parliamentary representation; while the close
connection between the two chapters is taken to indicate an equally
close connection between the two conceptions supposed to underlie
them, and is urged as evidence that the framers of Magna Carta had
grasped the essentially modern principle that taxation and
representation go together.[499] In this view, the barons at
Runnymede deserve credit for anticipating some of the best features
of the modern system of parliamentary government. The words of
the text, however, will scarcely bear so liberal an interpretation. Vital
points of difference between the principles of Magna Carta and the
modern doctrine of representation are revealed by a careful analysis.
Under chapter 12 scutages and extraordinary aids could only be
levied “with common counsel of our kingdom,” and now chapter 14,
by formulating rules for convening the individuals whose consent
was thus required, fixes authoritatively the composition of an
assembly definitely charged with this specific function. The same
Latin words which signify joint “consent” or counsel thus came to
signify also a special institution, namely, that “Common Council”
afterwards of such vital constitutional importance, continuing under
a new name the old curia regis in several of its most important
aspects, and passing in turn into the modern Parliament. The duties
and constitutional importance of this commune concilium may be
considered under six heads.
I. Nature of the Summons. Formal writs had to be issued when
the attendance of the members was required. These writs must
specify the time, place, and reason of assembling, giving formal
notice at least forty days in advance. In these respects the writs
issued were all to be the same; but in one vital particular a
distinction was recognized. Each of the really powerful men of the
realm—archbishops, bishops, abbots, earls, and "other greater
barons"—must receive a separate writ, under the royal seal,
addressed to him individually and directly, while the “smaller barons”
were to be summoned collectively and indirectly through the sheriffs
and bailiffs of each district.
II. Composition of the Council. It is clear that the meetings
contemplated were purely baronial assemblies since none but Crown
tenants were invited to attend; while individual notice under the
king’s seal was given only to the more important magnates among
them. The Common Council of the Charter was thus an assembly of
military Crown tenants, and “the common consent of my kingdom”
in John’s mouth was synonymous with “the consent of my
barons.”[500]
The king’s Council had by this time freed itself from any
complicated theories as to its own composition, which may ever
have hampered it. It was now extremely homogeneous; a feudal
muster of Crown vassals. Some historians, indeed, in their anxiety to
find distinguished pedigrees for their democratic ideals, have traced
the origins of the leading features of the modern Parliament back to
the Anglo-Saxon era; but such attempts are hurtful to the best
interests of history, while they do not in the least advance the cause
of popular liberties.
It is unnecessary here to examine the various rival theories
professing to explain the composition of the Anglo-Saxon
Witenagemot, or to discuss the exact connection between that
venerable institution and the Curia Regis of the Norman kings. As a
matter of fact, the early constitution of the court of the Conqueror or
of Rufus seems to have been monarchic rather than aristocratic or
democratic; that is to say, it depended to a great extent on the
personal will of the king, who might issue or withhold writs of
summons very much as he pleased. No evidence exists, of date
anterior to the Great Charter, of any magnate thrusting himself
unbidden into a royal council or forcing the king to issue a formal
invitation. On one occasion, indeed, the action of Henry II. in
omitting to issue a writ laid him open to unfavourable criticism. This
was in October, 1164, when a special council was summoned to
Northampton to pass judgment upon various questions at issue
between the king and Thomas à Becket. The primate was ordered to
appear for judgment, but the formal writ of summons, which every
archbishop, as holder of a barony, was wont to receive as matter of
course, was deliberately withheld. Apparently contemporary opinion
condemned this omission.[501] It is safe to infer, then, that as early as
1164, the method of issuing these writs had become uniform, but
this constitutional understanding was not reduced to writing until
embodied in Magna Carta. Thus it was in 1215 that the magnates of
England formulated for the first time a distinct claim to be present at
the king’s councils; and even then the demand only referred to
assemblies summoned for one specific purpose. Previously,
attendance was reckoned not as a privilege, but merely as an
expensive burden, incident, like so many other burdens, to the
possession of land.[502]
III. Position of the “Minor Barons.” In recognizing a distinction
between two classes of Crown tenants, the Great Charter merely
gave the weight of its authority to existing usage, as that had taken
shape in the reign of Henry II. Crown tenants varied in power and
position in proportion to the extent of their lands, from the great earl
who owned the larger share of one or more counties, down to the
small free-holder with only a few hides, or it might be acres, of land.
A rough division was drawn somewhere in the midst; but the exact
boundary was necessarily vague, and this vagueness was probably
encouraged by the Crown, whose requirements might vary from time
to time.[503] Those Crown tenants on one side of this fluctuating line
were known as barones majores, those on the other as barones
minores. The distinction had been recognized as early as the days of
Henry II.;[504] but Magna Carta helped to stereotype it, and
contributed to the growing tendency to confine the word “baron” to
the greater men.[505] It is unlikely that any “minor baron” who
obeyed the general summons would enjoy equal authority with the
magnates invited individually by writ; and it is difficult to say even
whether he was sure of a welcome, and, if so, in what capacity.
Three distinct theories at least have been advanced as to the
position occupied by the “minor barons” in the Common Council. (1)
The duty of attendance, burdensome to all, was specially
burdensome to the poorer Crown tenants. It has accordingly been
suggested that the device of inviting them by general summons was
intended as an intimation that they need not come. This is the view
taken by Prof. Medley.[506]
(2) Dr. Hannis Taylor holds an exactly opposite opinion, reading
this chapter as the outcome of a desire to ensure the fuller
attendance of the smaller men—as an attempt “to rouse the lesser
baronage to the exercise of rights which had practically passed into
desuetude.”[507] Each of the barones minores was thus encouraged to
attend for himself and his own interests. If such an attempt had
really been made, and had succeeded in compelling the attendance
of a large proportion of those who previously had almost made good
their right to shirk the burden, the result would have been to leave
no room whatever for the future introduction of the representative
principle into the national council.
(3) A third theory, while agreeing that those summoned by
general writ were intended to obey the summons, thinks that the
smaller Crown tenants were called not exclusively each man for
himself, but in a representative capacity. It is thus suggested that a
few knights (probably elected for this purpose by their fellows) were
expected to attend to represent the others. Dr. Stubbs seems
predisposed towards this opinion, although he expresses himself
with his usual caution.[508]
The reasons for rejecting this third theory will be more
conveniently discussed in connection with the doctrine of
representation. It is perhaps unnecessary to decide between the two
others; but it may be suggested, even at the risk of seeming to
invent a fourth theory in a series already too numerous, that to the
great men who framed the clause it must have been a matter of
supreme indifference whether their humbler fellow-tenants attended
or stayed away. The general summons expressed neither an urgent
desire for their presence, nor yet an intimation that they were not
wanted; but merely conformed with the established usage, and left
with each “minor baron” the decision whether he should come or
stay away. His presence would make little difference upon the
deliberations of the magnates.
IV. Representation. It is well to hesitate before applying to ancient
institutions a word so essentially modern as “representation.” In a
sense the reeve and the four best men of every village “represented”
their fellows in the county court from a very early age; and in a
somewhat different sense the feudal lord “represented” his free
tenants and villeins in the king’s court, but in neither instance was
there anything approaching the very definite relation which exists at
the present day between the elected member of Parliament and the
constituents he “represents.” It is true that the difference may in
some respects be one of degree rather than of kind, and it is further
true that two years before the date of Magna Carta a tentative
experiment had been tried in the direction of introducing
representatives of the counties into the king’s Council, thus taking
the first step in a long process destined ultimately to lead without
any absolute breach of continuity to the modern Parliament. But the
Barons in June, 1215, showed no desire to follow the example set by
John in November, 1213. The terms in which Magna Carta directs
that all minor barons should be summoned are explicit, and may be
profitably contrasted with the words used in the writ dated 7th
November, 1213, addressed to the sheriff of Oxford, ordering him to
compel, in addition to the barons and the knights already summoned
(presumably barones minores), the attendance of quatuor discretos
homines de comitatu tuo (presumably other than Crown tenants).
[509]

So far from the words of Magna Carta showing any desire to

confirm this precedent, they show a deliberate intention to ignore it,
and to fall back on the more ancient practice. The members of the
assembly which Magna Carta stipulated should be convened for the
taking of “the common consent” were all of one type, drawn from
the same section of the land-owning aristocracy, namely, military
tenants-in-chief of the Crown. The barons, great and small, might be
present, each man for himself; but the other tax-paying classes were
completely ignored.[510] They were neither present nor yet
represented. The barons in this, as in other matters, stood out for
the old feudal order under which they had preserved a wide
measure of independence from the Crown’s control; whereas King
John for selfish reasons adopted the more enlightened policy of his
father, and even, unconsciously it may be, anticipated some of the
measures of his grandson, Edward Plantagenet. In brief, John was
progressive, while his opponents were conservative. The present
chapter must be added to the not inconsiderable list of those which
attempted to bring about a feudal reaction.[511]
 V. Powers and Functions of the Council. It was not until long after
the days of Magna Carta that Parliament secured the most important
of those functions now deemed essential to its existence. No claim
was made by the Great Charter on behalf of the commune concilium
to any right to be consulted in the making of laws or in the
performance of administrative or judicial duties by the Crown. No
effort was made towards formulating any doctrine of ministerial
responsibility. This assembly, narrow and aristocratic in its
composition, had only one right secured to it by Magna Carta—
namely, a limited control over one form of taxation. Even here, as
we have seen, no general or sweeping claim was put forward on its
behalf. It had no right to a control of the national purse: the barons
confined themselves to a selfish assertion of a right to protect their
own individual pockets against an increase of feudal burdens. A
modern Magna Carta would have contained a careful list of the
powers and privileges of “the common council of the realm,” and
would have given to this list a conspicuous place of honour.[512]
VI. Rights of Majorities and Minorities. The medieval conception of
constitutional solidarity was defective; the king’s council acted too
much like a fortuitous gathering of unrelated individuals, and too
little like a recognized organ of the body politic. Each “baron” was
summoned on his own behalf, and in order that he might give his
individual consent to a proposed levy; while it is doubtful how far a
dissenting minority could be bound by a decision of the rest.
Accordingly, the framers of Magna Carta deemed it necessary to
assert what would be too obvious to modern politicians to require
assertion—namely, that when the commune concilium had been
properly convened, its power to transact business should not be
interfered with because a section of those summoned chose to stay
away. “The business shall proceed on the day appointed, according
to the advice of such as shall be present, although all that were
summoned do not come.” Not all business was competent, however,
for the cause of summons had to be mentioned in the writs. If these
writs were in order, the Council, so we may presume, had power to
impose aids or scutages on those who were absent.[513]
 Nothing is said, however, as to the validity of a protest made by
those who came and expressed disapproval of what the majority
agreed to. As the substance of this chapter was observed in practice
(though omitted from subsequent confirmations), a precedent of the
year 1221 may perhaps be cited to illustrate the interpretation put
upon it by contemporary practice. A Council summoned by William
Marshal, as Regent of Henry III., had consented to a levy of
scutage, and the bishop of Winchester was assessed at 159 marks
as the amount due for his knight’s fees. He refused to pay, on the
ground, quite untenable by modern standards, that he had all along
dissented from the grant. The fact of his protest was vouched by
Hubert de Burgh and others who had been present at the Council.
The plea was actually accepted by the Regent, and the exchequer
adjudged bishop Peter to be quit of the payment.[514] The incident
shows how far the statesmen of the day were from realizing the
most elementary principles of political theory. They had not yet
grasped the conception of a Council endowed with constitutional
authority to impose its will on a dissenting minority. Here it was
apparently a minority of one.
The barons by consenting in 1217 to accept a return to the fixed
rates of scutage customary in the reign of Henry II., deliberately
sacrificed such right of control over the finances of the nation as
they may have obtained in 1215. At no time, indeed, did they show
any appreciation of the vital nature of the constitutional issues at
stake. The importance of the common council, and the necessity of
defining its composition, functions, and privileges, lay entirely
beyond their narrow sphere of vision.
It should be remembered, however, that the substance of this
chapter of John’s charter (although discarded in subsequent
reissues) was virtually observed in practice by the Crown, and
treated as in force by the barons. From this time forward the
Common Council was almost invariably consulted before the Crown
attempted to levy such contributions; and sometimes was bold
enough to make conditions or to decline payment altogether, the
first instance on record of an outright refusal taking place in a
Parliament held at London in January, 1242.[515]
 The barons, in October, 1255, if Matthew Paris has not fallen into
error, considered that the provisions of chapters 12 and 14 of John’s
Magna Carta were still in force, although they had been omitted in
the reissues of Henry III. When the king asked a liberal aid in
furtherance of his scheme for securing the crown of Sicily for his son
Edmund, those present at the Council deliberately refused, on the
ground that some of their peers had not been summoned “according
to the tenor of Magna Carta.” This incident illustrates the extreme
constitutional importance rightly attached by the barons to the rigid
observance by the Crown of the established usage relative to the
convening of Parliament.[516]

498. On the whole subject of the commune concilium, cf. supra

151-4 and also 173-4.

499. E.g. Sir William R. Anson, Law and Custom of the

Constitution, I. 14, emphatically declares that one of the two
cardinal principles of the entire Charter is “that representation is a
condition precedent to taxation.”

500. This is illustrated by a comparison of the words used in the

text with the phrases in which Henry and his sons expressed “the
common consent” to important ordinances and charters: e.g. (a) the
Assize of Clarendon in 1166 (Select Charters, 143) bears to have
been ordained by Henry II. “de consilio omnium baronum suorum”;
(b) John’s Charter surrendering his kingdom to Innocent in 1213
declares that he acted “communi consilio baronum nostrorum”
(Select Charters, 285); (c) Matthew Paris makes Earl Richard
complain to his brother Henry III. in 1255 that the Apulian business
had been entered on “sine consilio suo et assensu barnagii” (Chron.
Maj. V. 520).

501. See Ramsay, Angevin Empire, p. 54, and authorities there

cited.
 502. See L. O. Pike, House of Lords, 92, "There is no trace of any
desire on the part of the barons to be summoned to the king’s great
Council as a privilege and an honour before the reign of John." Cf.
also Report on the Dignity of a Peer, I. 389.

503. See Prof. Medley, Engl. Const. Hist., 123.

504. See Dialogus de Scaccario, II. x. D., “baronias scilicet

majores seu minores.”

505. Cf. supra, c. 2.

506. Engl. Const. Hist., 123. “The smaller tenants-in-chief would

thankfully regard the general summons as an intimation to stay
away.”

507. Engl. Const., I. 466.

508. See Const. Hist., I. 666. “Whether or no the fourteenth

article of the Great Charter intended to provide for a representation
of the minor tenants-in-chief by a body of knights elected in the
county court,” etc.

509. Cf. supra, p. 36. The writ appears in Rot. Claus, I. 165, and
also in Sel. Charters, 287. Cf. New Rymer, I. 117.

510. Cf. supra, c. 12.

511. Cf. Anson, Law and Custom, I. 44. “The provisions of 1215
described an assembly of a type which was already passing away.”
Cf. what is said of reactionary tendencies in connection with cc. 37
and 39.

512. Cf. Report on Dignity of a Peer, I. 63, where it is mentioned

as “remarkable that no one article in the Charter has reference to
the previous existence of any assembly convened for general
purposes of legislation; nor does the charter contain any provision
for the calling of any such assembly in the future, or any provision
purporting the existence by law of any representative system for the
purpose of general legislation.”

513. Cf. Stubbs, Const. Hist., I. 607: “Absence, like silence, on

such occasions implies consent.”

514. See Pipe Roll of 5 Henry III., cited Madox, I. 675.

515. See Prothero, Simon de Montfort, 67, and authorities there

mentioned.

516. See M. Paris, Chron. Maj., V. 520. His words are: “Et
responsum fuit quod omnes tunc temporis non fuerunt juxta
tenorem magnae cartae suae vocati, et ideo sine paribus suis tunc
absentibus nullum voluerunt tunc responsum dare.” Matthew,
however, probably improved his story in the telling, adding local
colour from the only version of the charter known to him—namely,
that spurious copy he had incorporated in his own history. He clearly
knew nothing of the essential differences between the charters of
John and of Henry. The barons in 1255 may, or may not, have been
equally ignorant.
 CHAPTER FIFTEEN.
Nos non concedemus de cetero alicui quod capiat auxilium de
liberis hominibus suis, nisi ad corpus suum redimendum, et ad
faciendum primogenitum filium suum militem, et ad primogenitam
filiam suam semel maritandam, et ad hec non fiat nisi racionabile
auxilium.
We will not for the future grant to any one licence to take an aid from his own
free tenants, except to ransom his body, to make his eldest son a knight, and
once to marry his eldest daughter; and on each of these occasions there shall
be levied only a reasonable aid.

This chapter confers on the tenants of mesne lords protection

similar to that already conferred on Crown tenants: sums of money
are no longer to be extorted from them arbitrarily by their lords.[517]
Different machinery, however, had here to be adopted, since the
expedient relied on in chapter 12 (“the common consent of the
realm”) was clearly inapplicable.
I. Points of difference between tenants-in-chief and under-tenants.
Tenants of mesne lords were in some respects better off than
tenants of the king,[518] but in others their position was distinctly
worse. Not only had they to satisfy the demands of their own lord
for “aids,” but they generally found that part of every burden laid by
the king upon that lord’s shoulders was transferred to theirs. In
seeking to provide for under-tenants the protection of which they
stood so much in need Magna Carta looked, not to the common
council, but to the king. No mesne lord was to be allowed to compel
his tenants to contribute to his necessities without obtaining a
written licence from the Crown; and stringent rules forbade the issue
of such licences except upon the usual three occasions. Contrast this
procedure with that which affected Crown tenants.
(1) While chapter 12 had spoken of “aids and scutages,” this one
speaks of “aids” alone. The omission can be readily explained: a
mesne lord in England had no right of private war, and was, as a
logical consequence, debarred from demanding scutage upon his
own initiative. He might, indeed, allocate upon his freeholders part
of any scutage which the Crown had taken from him; but the great
barons who framed the Charter had no intention to renounce so just
a right. The restriction of this clause to “aids” was thus intentional.
(2) It would have been absurd to require “the common counsel of
the realm” to every aid paid by the freeholders of a manor. The
embryo Parliament had no time for petty local affairs; and the
present chapter makes no such suggestion. Some substitute had,
however, to be found. A natural expedient would have been to
compel the mesne lord who wished an aid to take “the common
consent” of the freeholders of his manor, assembled for that purpose
in their court baron, as in a local parliament. This course was
sometimes followed. Henry Tracey, for example, in 1235 (although
armed with a royal writ), convened his Devonshire knights and
obtained their collective consent to an aid of 20s. per fee on the
occasion of his daughter’s marriage.[519] No such obligation, however,
had been placed upon mesne lords by Magna Carta, which had
sought a practical substitute for “the common consent of the realm”
in quite a different direction, as will be explained immediately.
(3) A check upon such exactions was sought, not in any action by
the court baron, but in the mesne lord’s need for a royal licence. The
necessity for this may at first have been a practical, rather than a
legal, one; for executive power lay with the officers of the Crown
alone, and the sheriff gave his services only at the king’s command.
[520]
The Crown thus exercised what was virtually a power of veto
over all aids taken by mesne lords. Such a right, conscientiously
used, would have placed an effectual restraint on their rapacity.
John, however, employed it solely for his own advantage, selling
writs to every needy lord who proposed to enrich himself (and,
incidentally, the Crown also) at his tenants’ expense.
 Magna Carta forbade the two tyrants thus to combine against the
sub-tenants, enunciating a hard-and-fast rule which, if duly
observed, would have struck at the root of the grievance. The whole
subject of aids was removed from the region of royal caprice into the
region of settled law. No writ could be lawfully issued except on the
three well-known occasions.
II. The Influence of Magna Carta upon later Practice. This chapter,
along with chapters 12 and 14, was discarded by Henry III.; and
little difference, if any, can be traced between the practices that
prevailed before and after 1215. Only in one particular were the
requirements of John’s Magna Carta observed, namely, as regards
the need for obtaining a royal licence. Mesne lords after this date,
whatever may have been their reason, invariably asked the Crown’s
help to collect their aids. They could not legally distrain their
freeholders, except through the sheriff, and this was, in part at least,
a result of Magna Carta.[521]
Henry III., however, entirely disregarded the rule which forbade
the licensing of extraordinary aids. Like his ancestors, he was
prepared to grant writs on almost any plausible pretext. From the
Patent and Close Rolls, as well as from other sources, illustrations of
the Crown’s earlier and later practice may readily be collected.
(1) Scutages. In 1217, for example, Henry granted permission to
all Crown tenants who had served in person to collect scutage from
their knights.[522]
(2) Ordinary Aids. (a) John in 1204 authorized the collection of “an
effectual aid” from the knights and freeholders of the Constable of
Chester for the ransom of their lord.[523] (b) A royal writ in 1235
allowed Henry Tracey, as already mentioned, to take an aid for his
eldest daughter’s marriage.
(3) Special Aids. (a) When a fine of sixty marks was incurred in
1206 by the Abbot of Peterborough, John allowed him to distrain his
under-tenants for contributions.[524] (b) An heir, paying relief, might
likewise transfer the obligation to his freeholders.[525] (c) The lord’s
debts were frequently paid by his tenants. The returns to the
Inquest of 1170 contain particulars of the “sums given individually
by some forty burgesses of Castle Rising towards paying off the
mortgages of their lord, the Earl of Arundel, who was clearly in the
hands of the Jews”;[526] while in 1234 the Earl of Oxford and the
Prior of Lewes each obtained a letter patent distraining their tenants
to contribute to the discharge of their debts.[527] Sufficient evidence
is thus preserved that Henry III. took full advantage of the omission
from his own charters of this part of his father’s promises. He did not
question too minutely the justice of applications for such writs, if
good fees were punctually paid. His letters, during the earlier years
of his reign, authorized the taking of a “reasonable” aid, without
hinting at any mode of determining what that was. This is illustrated
by the procedure adopted by Henry Tracey in 1235, who apparently
debated with his assembled knights of Devonshire the amount to be
paid as “reasonable,” and finally accepted 20s. per fee.[528] It is
interesting to note, however, that this same mesne lord, twelve
years later, obtained a writ bidding the sheriff of Somerset assist him
to collect “the scutage of Gascony” at a specified rate, namely, 40s.
per fee.[529]
The first Statute of Westminster virtually reverted to the rule laid
down in 1215, for its terms imply that aids could only be taken on
the three well-known occasions. The vague declaration that these
should be reasonable in amount is replaced by the specification of a
fixed rate, namely 40s., or double what had been usual at an earlier
period. Definition of the amount and times of payment may,
however, have been worth purchasing even at this increase.

517. The chapter is, therefore, on the one hand a necessary

supplement of cc. 12 and 14, while on the other it is merely a
particular application of the general principle enunciated in c. 60,
which extended to sub-tenants all the benefits secured to Crown
tenants by previous chapters.

518. The exemptions enjoyed by them are explained under c. 43.

519. See Bracton’s Notebook, case 1146, cited by Pollock and

Maitland, I. 331.
 520. In theory, in Henry II.’s reign at least, a royal writ was not
required in the normal case. See Dialogus, II. viii., and the editors’
comment (p. 191): “Normally the levying of money under any
pretext from a land-owner gave him a right to make a similar levy on
his under-tenants.” As regards scutage, a distinction was recognized.
The lord who actually paid scutage might collect it from his sub-
tenants without a licence; but, if he served in person, he could
recover none of his expenses except by royal writ. See Ibid., and cf.
Madox, I. 675. It is necessary, however, to avoid confusion between
two types of writ, (a) that which merely authorized contributions,
e.g., de scutagio habendo; (b) that which commanded the sheriff to
give his active help.

521. Cf. Pollock and Maitland, I. 331: “The clause expunged from
the Charter seems practically to have fixed the law.”

522. Close Rolls, I. 306, cited Pollock and Maitland, I. 331.

523. Patent Rolls, 5 John, cited Madox. I. 615.

524. Close Rolls, 7 John, cited Madox, I. 616.

525. See Glanvill, IX. 8.

526. See Round, Commune of London, 130.

527. See Madox, I. 617, citing Patent Rolls, 18 Henry III. Various
other examples are given by Pollock and Maitland, I. 331, e.g. “the
earl of Salisbury, to enable him to stock his land.”

528. Supra, p. 303, and cf. Pollock and Maitland, I. 331.

529. See Madox, I. 677.

 CHAPTER SIXTEEN.
Nullus distringatur ad faciendum majus servicium de feodo militis,
nec de alio libero tenemento, quam inde debetur.
No one shall be compelled to perform greater service for a knight’s fee, or for
any other free tenement, than is due therefrom.

For military tenants, the transition from scutage to service was a

natural one; since it was not enough to protect themselves from
exactions in money, if they were still exposed to arbitrary exactions
in kind. John, therefore, declared that no freeholder should be
constrained to do more service for his lands than he was legally
bound to do. Disputes might arise, however, as to what extent of
service actually was due in each particular case, and Magna Carta
did nothing to remove such ambiguities. The difficulties of definition,
indeed, were enormous, since the duration and conditions of service
might vary widely even among tenants-in-chivalry, in consequence of
special exemptions or special burdens which appeared in title deeds
or rested upon immemorial usage. The barons would be unwilling to
enter on so intricate and laborious a task, fearing that the
introduction of such complications might do more harm than good.
The necessity for accurate definition may never have occurred to
them: the main purport of their grievance was so vividly present to
their own minds that they did not acknowledge the possibility of any
mistake. The military Crown tenants had frequently objected to
serve abroad, particularly during John’s campaigns in Poitou, which
involved a long expensive journey to a region in which they had
nothing at stake.[530] They regarded themselves as not legally bound
to make expeditions to such portions of the Angevin Empire as had
not belonged to the Norman kings when their ancestors got their
fiefs. To force them to enter on campaigns to the south of France, or
to fine them heavily for staying at home, was, they argued, to
distrain them ad faciendum majus servicium de feodo militis quam
inde debetur. When they inserted these words in the Charter, they
doubtless regarded them as an absolute prohibition of compulsory
service in Poitou, at all events.[531] The clause was wide enough,
however, to include many minor grievances connected with service.
The barons did not confine its provisions to military service even, but
extended it to other forms of freehold tenure (“nec de alio libero
tenemento”). No freeholder, whether in socage, serjeanty, or
frankalmoin, could in future be compelled to render services not
legally due.
If the barons thought they had thus settled the vexed questions
connected with foreign service, they deceived themselves. Although
this chapter (unlike those dealing with scutage) remained in full
force in all subsequent confirmations, it was far from preventing
disputes. Yet the disputants in future reigns occupied somewhat
different ground. From the days of William I. to those of Charles II.,
when the feudal system was abolished, quarrels frequently arose,
the most famous of which culminated in 1297 in Edward’s unseemly
wrangle with the Earls of Norfolk and Hereford, whose duty it was to
lead the royal army as hereditary Constable and Marshal
respectively, but who refused point-blank to embark for Gascony
except in attendance on the king’s person.[532]
It has been shown in the Historical Introduction[533] how the
obligations of a military tenant fell naturally into three groups
(services, incidents, and aids), while a fourth group (scutages) was
added when the Crown had adopted the expedient of commuting
military service for its equivalent value in money.
Feudal grievances also may be arranged in four corresponding
groups, each redressed by special clauses of Magna Carta: abuse of
aids by chapters 12, 14, and 15; abuse of the feudal incidents, by
chapters 2 to 8; abuse of scutage, by chapters 12 and 14; and
abuse of service, by the present chapter, which thus completes the
long list of provisions intended to protect tenants against their feudal
lords.
 530. See the authorities cited supra, p. 85, nn. I and 2.

531. In the so-called “unknown Charter of Liberties” (see

Appendix) John concedes to his men “ne eant in exercitu extra
Angliam nisi in Normanniam et in Brittaniam,” a not unfair
compromise, which may possibly represent the sense in which the
present chapter was interpreted by the barons.

532. Walter of Hemingburgh, II. 121. Cf., on the whole subject of

foreign services, supra, 154.

533. Supra, 72–86.

 CHAPTER SEVENTEEN.
Communia placita non sequantur curiam nostram sed teneantur in
aliquo loco certo.
Common pleas shall not follow our court, but shall be held in some fixed
place.

An attempt was here made to render royal justice cheaper and

more accessible. Law-suits in which the Crown had no special
interest, common pleas, were to be held in some one, fixed, pre-
appointed spot, and must no longer follow the king as he moved
about from place to place. The full extent of the boon conferred by
this reform will be better appreciated after a short consideration of
the method of dispensing justice adopted by Henry II. and his sons.
I. The Curia Regis as a Court of Law. The evil complained of was a
characteristically medieval one, and arose from the fact that all
departments of government were originally centred in the king and
his household, or Curia Regis, which performed royal and national
business of every kind. This Curia Regis, indeed, united in itself the
functions of the modern Cabinet, of the administrative departments
(such as the Home Office, the Foreign Office, and the Admiralty),
and of the various legal tribunals. It was the parent inter alia of the
Court at St. James’s and the courts at Westminster. One result of
throwing so many and miscellaneous duties on a small body of hard-
worked officials was to produce a congestion of business. Nothing
could be done outside of the royal household, and that household
never tarried long in any one spot. Everything was focussed to one
point, but to a point constantly in motion. Wherever the king went,
there the Curia Regis, with all its departments, went also. The entire
machinery of royal justice followed Henry II., as he passed,
sometimes on the impulse of the moment, from one of his favourite
hunting seats to another. Crowds thronged after him in hot pursuit,
since it was difficult to transact business of moment elsewhere.
This entailed intolerable delay, annoyance, and expense upon
litigants who brought their pleas for the king’s decision. The case of
Richard d’Anesty is often cited in illustration of the hardships which
this system inflicted upon suitors. His own account is extant and
gives a graphic record of his journeyings in search of justice,
throughout a period of five years, during which he visited in the
king’s wake most parts of England, Normandy, Aquitaine, and Anjou.
The plaintiff, although ultimately successful, paid dearly for his legal
triumph. Reduced to borrow from the Jews to meet his enormous
outlays, mostly travelling expenses, he had to discharge his debts
with accumulations of interest at the ruinous rate of 86⅔ per cent.
[534]

II. Common Pleas and Royal Pleas. Long before 1215 all litigations
conducted before the king’s courts had come to be divided roughly
into two classes, according as the royal interests were or were not
specially affected by the issue. Those on one side of this fluctuating
line were known as royal pleas, or “pleas of the Crown,” provisions
for holding which are contained in chapter 24, those on the other
side as ordinary pleas or “common pleas,” to which alone the
present chapter refers. As these ordinary suits did not require to be
determined in the royal presence, it was therefore possible to
appoint a special bench of judges to sit permanently in some fixed
spot, to be selected once for all as likely to suit the convenience of
litigants. No town was named in Magna Carta; but Westminster,
even then the natural home of law, was probably intended from the
first. It is Westminster that Sir Frederick Pollock has in mind when he
writes in reference to this chapter: “We may also say that Magna
Carta gave England a capital.”[535] The barons in 1215, however, in
asking this reform, were not insisting on any startling innovation, but
demanding merely the strict observance of a rule long recognized.
During most of John’s reign, a court did sit at Westminster
dispensing justice, with more or less regularity; and there most
“common pleas” were tried, unless John ordered otherwise.[536]
Magna Carta insisted that all exceptions must cease; the rule of law
must supersede the royal caprice.
III. Effects of Magna Carta on the genesis of the three Courts of
Common Law. The ultimate consequences of the accomplishment of
this reform reached further than was foreseen. Intended merely to
remove from litigants a practical grievance of frequent occurrence, it
had important indirect effects on the development of the English
Constitution. By securing for common pleas a permanent home, it
gave an impetus to the disintegrating tendencies already at work
within the many-sided household of the king. It contributed
somewhat to the slow process whereby the Curia Regis, as an
administrative organ, was differentiated from the same Curia as the
dispenser of justice. It helped forward the cleavage destined to
divide completely the future Courts of Westminster from the Court of
St. James’s and from Downing Street. Nor was this all: the special
treatment accorded to “common pleas” emphasized the distinction
between them and royal pleas, and so contributed to the splitting up
of the same Curia Regis, on its judicial side, into two distinct
tribunals. One little group of judges were set apart for hearing
common pleas, and were known as "the king’s Judges of the Bench,"
or more briefly as “the Bench,” and at a later date as the Court of
Common Pleas. A second group, reserved for royal pleas, became
the court Coram Rege, known subsequently as the Court of King’s
Bench. There were thus two benches: a common bench for common
pleas and a royal bench for pleas of the Crown.[537]
The double process by which these two small courts separated
themselves slowly from the parent court and from each other began
long prior to Magna Carta, and was not completed before the close
of the thirteenth century. These benches were also closely linked
with a third bench, known for centuries as the Court of Exchequer,
which was in its origin merely one department of that government
bureau, the king’s financial Exchequer—that office in which money
was weighed and tested and the royal accounts drawn up. Many
disputes or pleas affecting Crown debts and debtors had to be there
decided, and in due time a special group of officials were set aside
to try these. These men, called, not judges, but “barons of the
exchequer,” formed what was in fact, though not in name, a third
bench or court of justice.
All three of the Courts of Common Law—the Court of King’s
Bench, the Court of Common Pleas, and the Court of Exchequer—
were thus offshoots of the king’s household. In theory, each of these
ought to have confined itself to the special class of suits to which it
owed its origin—to royal pleas, common pleas, and exchequer pleas
respectively; but by a process well known to lawyers and law-courts
in all ages, each of them eagerly encroached on the jurisdictions and
the fees appropriate to the others, until they became, for most
purposes, three sister courts of similar and co-ordinate authority.
They were bound to decide all suits according to the technical and
inflexible rules of common law; and their jurisdiction thus required a
supplement, which was supplied by the genesis of the Court of
Chancery, dispensing, not common law, but equity, which professed
to give (and, for a short time, actually did give) redress on the
merits of each case as it arose, unrestrained by precedents and legal
subtleties.
IV. The Evolution of the Court of Common Pleas. The comment
usually made upon the present chapter is that we have here the
origin of the Court of Common Pleas. Now, legal institutions do not
spring, full-fledged, into being. The Court of Common Pleas, like its
sister Courts of King’s Bench and Exchequer, was the result of a long
process of gradual separation from a common parent stem. Prior to
1215 several tentative efforts seem to have been made towards
establishing each of these. On the other hand, it is probable, nay
certain, that long after 1215 the Court of Common Pleas did not
completely shake off either its early dependence upon the Curia
Regis, or yet its close connection with its sister tribunals.
Three stages in the process of evolution may be emphasized. (1)
The earliest trace of the existence of a definite bench of judges, set
apart for trying common pleas, is to be found in 1178, not in 1215.
When Henry II. returned from Normandy in the former year, he
found that there had been irregularities in his absence. To prevent
their recurrence, he effected certain changes in his judicial
arrangements, the exact nature of which is matter of dispute. A
contemporary writer[538] relates how Henry chose two clerks and
three laymen from the officials of his own household, and gave to
these five men authority to hear all complaints and to do right “and
not to recede from his court.” It was long thought that this marked
the origin of the Court of King’s Bench, but Mr. Pike[539] has
conclusively proved that the bench thus established was the
predecessor, not of the royal bench, but rather of the bench for
common pleas.
In 1178, then, these five judges were set apart to hear ordinary
suits; but they were specially directed not to leave Henry’s court; so
that common pleas still “followed the king,” even ordinary litigants in
non-royal pleas having to pursue the king in quest of justice as he
passed from place to place in quest of sport.
It must not be supposed that the arrangement thus made in 1178
settled the practice for the whole period of thirty-seven years
preceding the grant of Magna Carta. On the contrary, it was merely
one of many experiments tried by that restless reformer, Henry of
Anjou; and the separate court then instituted may have been pulled
down and set up again many times. The bench which appears in
1178 had probably, at best, a fitful and intermittent existence. There
is evidence, however, that some such court did exist and did try
common pleas in the reigns of Richard and John.[540] On the other
hand, this tribunal had in John’s reign ceased to follow the king’s
movements habitually (thus disregarding the decree of 1178), and
had established itself at Westminster.[541] It was in 1215 considered
an abuse for John to try a common plea elsewhere. Times had
changed since his father had granted as a boon that a set of judges
should remain constantly at “his court” to try such cases.
(2) Magna Carta in 1215 gave authoritative sanction to the already
recognized rule that common pleas should be tried at Westminster,
instead of moving with the king. No exceptions were henceforth to
be allowed. Young Henry renewed this promise, and the
circumstance of his minority favoured its strict observance. A mere
boy could not make royal progresses through the land dispensing
justice as he went. Accordingly, all pleas continued for some twenty
years to be heard at Westminster. The same circumstances, which
thus emphasized the stability of common pleas (along with all other
kinds of pleas) in one fixed place, may have arrested the process of
cleavage between the two benches. All the judges of both courts sat
at Westminster, and therefore there was the less need for allocating
the business between them with any exactitude. The two benches
were in danger of coalescing.
(3) About the year 1234 a third stage was reached. Henry began
to follow the precedent, set by his ancestors, of moving through his
realm with judges in his train, hearing pleas wherever he stopped.
While one group of judges went with him, another remained at
Westminster. Some way of allocating the business had therefore to
be found. Common pleas, in accordance with Magna Carta, remained
stationary; while pleas of the Crown went on their travels. The split
between the two benches now became absolute. Each provided itself
with separate records. From the year 1234, two continuous series of
distinct rolls can be traced, known respectively as rotuli placitorum
coram rege and rotuli placitorum de banco. If any date in the history
of one law court, which is in process of becoming two, can be
reckoned as specially marking the point of separation, it should be
that at which separate rolls appear. The court’s memory lies in its
records, which are thus closely associated with its identity. In 1234
the common bench and the royal bench had become distinct.[542]
Evidence drawn from a few years later proves that a definition of
common pleas had been arrived at and that the rule which required
them to be held “in a fixed place” was insisted on. While Henry and
his justices sat in judgment at Worcester in 1238, a litigant protested
against his suit being tried before them. It was a “common plea” and
therefore, he argued, ought not to follow the king, in violation of
Magna Carta. At Westminster only, not at Worcester or elsewhere,
could his case be heard.[543]
With royal pleas, however, it was very different: for long they
continued to follow the king’s person without any protest being
raised; and the Court of King’s Bench did not finally settle at
Westminster for nearly a century after the Court of Common Pleas
had been established there. So late as 1300, Edward I. ordained by
the Articuli super cartas that “the Justices of his Bench” (as well as
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