before the king himself, is a remnant of the aula regia before mentioned, and the supreme court of common law in the kingdom. The judges of this court are at present four in number, and consist of a chief justice and three puisne judges, "who are by their office the sovereign conservators of the peace and supreme coroners of the land."

In this court ought criminal actions to be determined, or such wherein the king on the part of the public is the plaintiff, which are called pleas of the crown, and personal pleas, which include all civil actions depending between subject and subject: the former were the proper object of the jurisdiction of the court of king's bench, the latter of the court of common pleas, "which is a court of record, and is styled by sir Edward Coke, the lock and key of the common

propria persona; James I. being the last monarch that so distinguished it, but was informed by his judges, that he could not deliver an opinion; for, notwithstanding the king himself used to sit in this court, and still is supposed so to do, he did not, neither by law is he empowered (as on this occasion was proved), to determine any cause or motion but by the mouth of his judges, to whom he hath committed his whole judicial authority.

"The jurisdiction of this court is very high and transcendent; it keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined here, or prohibit their progress below; it superintends all corporations in the kingdom; it commands magistrates and others to do what their duty requires in every case where there is no specific remedy; it protects the liberty of the subject by speedy and summary interposition; it is likewise a court of appeal, into which may be removed by writ of error all determinations of the court of common pleas, and of all inferior courts of record in England, and to which a writ of error lies also from the king's bench in Ireland," &c.-Comment. vol. iii. 43.

law; for herein can only real actions, that is, actions that concern the right of freehold, or the realty, be originally brought; and all other or personal pleas between man and man are likewise here determined, though in some of them the king's bench has also a concurrent authority."

The moveable quality of this court is indicated in all process issuing thereout in the king's name, which is made returnable ubicunque fuerimus in Anglia, wheresoever we shall be in England; and this, as well as its power and dignity, are fully expressed by Bracton, when he says, the justices of this court are "capitales generales perpetui et majores; a latere regis residentes; qui omnium aliorum corrigere tenentur injurias et errores:" but notwithstanding it is in this respect directly contrary to the court of common pleas, it does not appear to have been often moved till after the 28 Edward I. when it was especially provided by the statute called Articuli super cartas, "that the chancellor and the justices of his bench should follow the king, for that he might at all times have near unto him some who were learned in the laws that might be able to order all such matters as might come unto the court at all times when need should require."

Before that time, viz. in 42 H. III. the king, whose removal to several of his palaces was frequent, as our public records plainly shew, appointed it to be held at Westminster till he should otherwise determine, as appears by his special commission 5 to

$ Pat. 42 Hen. 3. m. 2.

Roger de Thurkelby, Gilbert de Preston, and Nicholas Handlo: these judges, it seems, soon after took their oaths in the exchequer before the lord treasurer; for in 1 Edward II. Roger le Brabazon, and the rest of his fellow-justices of this court then constituted, being appointed to do the like, the record adds, prout moris est.

The first who had the office of capitalis justiciarius ad placitam coram rege tenenda was Robert de Bruis, constituted 8th of March, 52 Hen. III.; the title of justiciarius Angliae having an end in Philip Basset, who was advanced to that place by the king in the 45th of Hen. III.

In the 17th of Edward II. Hervie de Staunton, then chancellor of the exchequer, was constituted chief justice of this court, with command that he should not quit his office of chancellor, but cause it to be executed by some other fit person at such times as he should be necessitated to attend the hearing of causes in this place.

It is said that John Whiddow, a justice of this court in 1 Mariæ, was the first of the judges who rode to Westminster Hall on an horse or gelding; for before that time they rode on mules.

COMMON PLEAS.

THE Court of common pleas, or, as it is frequently termed in law, the court of common bench, was

• Claus. I Edw. 2. in dorso, m. 1.

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established with jurisdiction to hear and determine all pleas of land and injuries merely civil, between subject and subject: it was anciently kept in the king's palace distinct from that of the king's bench. This appears not only from a charter of Henry I. whereby he granted to the abbot of B. conusance of all pleas, with this expression", "so that neither the justices of the one bench or of the other, or justices of assize, should meddle," &c.; but by the express words of Magna Charta, that "common pleas should not follow the court, but be held in some certain place." This place was the exchequer, where those causes were heard, and not any other peculiar court, at least until the confirmation of the Great Charter, which was about the latter end of the reign of John, as will appear from the authorities cited in the account of that court. These shew that the chief justice of England, and other persons learned in the laws of the realm, did anciently sit there and hear complaints in civil cases, as well as that fines were there levied before them: it is likewise equally evident from the direct words of the statute of 28 E. I. before quoted, called Articuli super cartas, cap. 4. viz. that "no common plea shall be henceforth held in the exchequer contrary to the form of the Great Charter."

The severing of this court from the exchequer was at first, no doubt, occasioned by the great increase of suiters and causes, and a wish to moderate the expense and trouble to which the subject was liable by

7 Coke's Reports, part 8. in proëm, ex 26. lib. assis. pl. 24.

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repairing to the king's supreme court wherever he moved; as well as to take off the charge and hazard in carrying the records upon all occasions of the king's removal: so that this law fixing the common pleas in a certain place, viz. at Westminster, the people knew where to resort for trial of their rights: after this time the writ ran thus, quod sit coram justiciariis meis apud Westmonasterium: whereas before, quod sit coram me vel justicia med.

The first who appears to have had the appellation of capitalis justiciarius in this court was Gilbert de Preston, who by that title had his livery of robes in 1 Edw. I.

I

It seems, that the certain fixing of this court at Westminster occasioned much more resort thereto than before; for about the beginning of the reign of Edward II. there were so many suits there, that the king was necessitated to increase the number of his justices from three to six, and so to divide them that they might sit in two places,-Et covient, says the record', que taunz ysoient, pur ceo q'il covent aver deus places pour le multitude des plez, que plus est ore qué unques ne fust en nuly temps :-the names of these six justices were, sir William de Bereford chief justice, sir Lambert de Trikingham, sir Hervy de Staunton, sir Henry Le Scrope, sir John de Benstede, and sir William de Bourne.