Not so common pleas


“The most fortunate of men, Be he a king or commoner, is he Whose welfare is assured in his own home.”

— Johann Wolfgang von Goethe

“Equal justice under law is not merely a caption on the facade of the Supreme Court building; it is perhaps the most inspiring ideal of our society.”

— Justice Lewis Powell

At the bottom of every one of these columns for the past 13 years has been a notice that I am employed at the Probate/Juvenile Division of the Delaware County Court of Common Pleas. But just what is a “Court of Common Pleas,” and are those pleas really all that common? What is the origin of the term? Why do states like Ohio, Pennsylvania, Delaware, New York, New Jersey and South Carolina all use it?

A “plea” in this setting is not someone asking for mercy, a child requesting a cookie, or a groom on bended knee. Here, the term plea is used in the legal sense. It means that a person has come to court to ask for legal relief in some way. They are pleading for justice — perhaps a civil judgment in their favor, a restitution order, or even a protection order keeping someone away from them.

But if there are “common pleas,” are there also ones that happen infrequently? If I wanted a court order to make someone hop on one leg and cluck like a chicken, would I have to file that lawsuit in the “Court of Uncommon Pleas?”

Well, no.

Like so many things in the American legal system, this term arises from the British legal system that came to the New World with English settlers and remained, in modified form, after the American Revolution. And, ironically, it is a term that we still use, but that the British have long since abandoned.

Once we recognize that the term has prerevolutionary British origins, then we can start to suspect that the term “common” doesn’t mean frequently appearing as opposed to rare, but rather that the term applies to the “commoners” — the lower classes, as opposed to royalty and the landed gentry. And that’s precisely the origin of the term.

Prior to the late 12th century, the curia regis or “King’s court” would ride circuit in England and Wales dispensing judgment. This, in turn, had formed from the “Witengamot” or “meeting of the wise men” (ironically, the source of the term “Wizengamot” in J.K. Rowling’s popular Harry Potter series). Shortly before the signing of the Magna Carta, the curia regis broke into a King’s bench and a second branch intended to hear the complaints of the common man.

This, latter, branch came to be known as the “Court of Common Pleas” — the venue for justice to the commoner.

The Magna Carta then required that these courts exist to hear suits between common men, stating in section 17, “Ordinary lawsuits shall not follow the royal court around, but shall be held in a fixed place.” The history of the English legal system then follows several centuries of struggle for power between the King’s Bench and the Court of Common Pleas, a history that is not important to recount here, other than to note that American revolutionaries, angry at a King and royal system that stifled their rights as commoners, would have championed courts that were intended for the common man to seek justice.

It isn’t surprising, then, that five of the original 13 colonies and, soon after, Ohio, decided to call their trial courts “courts of common pleas.” This made it clear to their citizens that there was no higher legal class — no king’s court in which the haughty could seek one level of justice and the commoner was left behind.

Meanwhile, back in England, the territorial battles over which court had jurisdiction over which types of cases led to several compromises that gradually erased the distinctions between the courts. As a result, the Parliament of the United Kingdom passed the Supreme Court of Judicature Act of 1873. Because of that act, the King’s Bench, the Court of Common Pleas, the Court of the Exchequer and the Court of Chancery were merged into a single court called “the High Court of Justice,” which eliminated the Court of Common Pleas in the U.K. by 1880. The High Court of Justice continues in operation today.

Most British citizens, therefore, aren’t familiar with the term, and most Americans associate it with the wrong meaning of the word “common.” But the name is yet another reminder that our courts are open to all, meant for all, and strive to bring justice to all, regardless of wealth, age, race, gender, nationality or social status.

By David Hejmanowski

Contributing Columnist

David Hejmanowski is Judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.

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