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These are the several species of common law courts, which, though dispersed universally throughout the realm, are nevertheless of a partial jurisdiction, and confined to particular districts: yet communicating with, and as it were members of, the superior courts of a more extended and general nature; which are calculated for the administration of redress, not in any one lordship, hundred, or county only, but th oughout the whole kingdom at large. Of which sort is, V. The court of common pleas, or, as it is frequently termed in law, the court of common bench.
By the ancient Saxon constitution, there was only one superior court of justice in the kingdom; and that court had cognizance both of civil and spiritual causes, viz.: the wittena-gemote, or general council, which assembled annually or oftener, wherever the king kept his Christmas, Easter, or Whitsuntide, as well to do private justice as to consult upon public business. At the conquest the ecclesiastical jurisdiction was diverted into another channel; and the conqueror, fearing danger from these annual parliaments, contrived also to separate their ministerial power, as judges, from their deliberative, as counsellors to the crown. He therefore established a constant court in his own hall, thence called by Bracton, (h) and other ancient authors aula regia, or aula regis. This court was composed of the king's great officers of state resident in his palace, and usually attendant on his person: such as the lord high constable and lord mareschal, who chiefly presided in matters of honour and of arms; determining according to the law military and the law of nations. Besides these there were the lord high steward, and lord great chamberlain; the steward of the house[*38] king's seal, and examine all such writs, grants, and letters, as were to pass under that authority; and the lord high treasurer, who was the principal adviser in all matters relating to the revenue. These high officers were assisted by certain persons learned in the laws, who were called the king's justiciars or justices; and by the greater barons of parliament, all of whom had a seat in the aula regia, and formed a kind of court of appeal, or rather of advice, in matters of great moment and difficulty. All these in their several departments transacted all secular business both criminal and civil, and likewise the matters of the revenue and over all presided one special magistrate, called the chief justiciar, or capitalis justiciarius totius Angliæ; who was also the principal minister of state, the second man in the kingdom, and by virtue of his office guardian of the realm in the king's absence. And this officer it was, who principally determined all the vast variety of causes that arose in this extensive jurisdiction; and from the plenitude of his power grew at length both obnoxious to the veople, and dangerous to the government which employed him. (i)
hold; the lord chancellor, whose peculiar *business it was to keep the
This great universal court being bound to follow the king's household in all his progresses and expeditions, the trial of common causes therein was found very burthensome to the subject. Wherefore King John, who dreaded also the power of the justiciar, very readily consented to that article which now forms. the eleventh chapter of magna carta, and enacts, "that communia placita non sequantur curiam regis, sed teneantur in aliquo loco certo." This certain place was established in Westminster-hall, the place where the aula regis originally sat, when the king resided in that city; and there it hath ever since continued. And the court being thus rendered fixed and stationary, the judges became so too, and a chief with other justices of the common pleas was thereupon appointed; with jurisdiction to hear and determine all pleas of land, and injuries merely civil, between subject and subject. Which critical establishment
of this principal court of common law, at that particular juncture [*39] and that particular place, gave rise to the inns of court in its neighbourhood; and thereby collecting together the whole body of the common lawyers, enabled the law itself to withstand the attacks of the canonists and civilians, who laboured to extirpate and destroy it. (j) This precedent was soon after copied by King Philip the Fair in France, who about the year 1302 fixed
(h) l. 3, tr. 1, c. 7. (i) Spelm. Gl. 331, 2, 3. Gilb. Hist. C. P. Introduc. 17. (j) See Book I, introduc. § 1
the parliament of Paris to abide constantly in that metropolis; which before used to follow the person of the king wherever he went, and in which he himself used frequently to decide the causes that were there pending; but all were then referred to the sole cognizance of the parliament and its learned judges. (k) And thus, also, in 1495 the emperor Maximilian I. fixed the imperial chamber (which before always travelled with the court and household) to be constantly held at Worms, from whence it was afterwards translated to Spire. (7)
The aula regia being thus stripped of so considerable a branch of its jurisdiction, and the power of the chief justiciar being also considerably curbed by many articles in the great charter, the authority of both began to decline apace under the long and troublesome reign of King Henry III. And, in further pursuance of this example, the other several officers of the chief justiciar were under Edward the First (who new-modelled the whole frame of our judicial polity) subdivided and broken into distinct courts of judicature. A court of chivalry was erected, over which the constable and mareschal presided; as did the steward of the household over another, constituted to regulate the king's domestic servants. The high steward, with the barons of parliament, formed an august tribunal for the trial of delinquent peers; and the barons reserved to themselves in parliament the right of reviewing the sentences of other courts in the last resort. The distribution of common justice between man and man was thrown into so provident an order, that the great judicial officers were *made to form a check upon each other: the court of chancery issuing all [*40] original writs under the great seal to the other courts; the common pleas being allowed to determine all causes between private subjects; the exchequer managing the king's revenue; and the court of king's bench retaining all the jurisdiction which was not cantoned out to other courts, and particularly the superintendence of all the rest by way of appeal; and the sole cognizance of pleas of the crown or criminal causes. For pleas or suits are regularly divided into two sorts pleas of the crown, which comprehend all crimes and misdemeanors, wherein the king (on behalf of the public) is the plaintiff; and common pleas, which include all civil actions, depending between subject and subject. The former of these 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 (m) the lock and key of the common law; for herein only can real actions, that is, actions which 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 most of them the king's bench has also a concurrent authority. (4)
The judges of this court are at present (n) four in number, (5) one chief and three puisne justices, created by the king's letters patent, who sit every day in the four terms to hear and determine all matters of law arising in civil causes, whether real, personal, or mixed and compounded of both. These it takes cognizance of, as well originally, as upon removal from the inferior courts beforementioned. But a writ of error, in the nature of an appeal, lies from this court into the court of king's bench. (6)
(1) Ibid. xxix, 467.
(m) 4 Inst. 99.
(k) Mod. Un. Hist. xxiii, 396. (n) King James I, during the greater part of his reign, appointed five judges in the courts of king's bench and common pleas, for the benefit of a casting voice in case of a difference in opinion, and that the circuits might at all times be fully supplied with judges of the superior courts. And, in subsequent reigns, upon the permanent indisposition of a judge, a fifth hath been sometimes appointed. Sir T. Raym. 475.
(4) [The jurisdiction of each court is so well established, that at this day the court of king's bench cannot be authorized to determine a mere real action; so neither can the court of common pleas, to inquire of felony or treason. Hawk. b. 2. ch. 1, s. 4; Bac. Ab. Courts, A. Thə king's bench, however, tries titles to land by the action of ejectment.]
(5) The number of the judges was afterwards changed to five, and by statute 31 and 32 Vic. c. 125, it is increased to six. And the writ of error, instead of being to the king's bench, is to the judges of that court and the barons of the exchequer in the exchequer chamber, and from their judgment to the house of lords.
(6) [This court is called the queen's bench in the reign of a queen, and during the protectorate of Cromwell it was styled the upper bench.]
*VI. The court of king's bench (so called because the king used for[*41] merly to sit there in person, (o) the style of the court still being coram ipso rege) is the supreme court of common law in the kingdom; consisting of a chief justice and three puisne justices, who are by their office the sovereign conservators of the peace, and supreme coroners of the land. Yet, though 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 (p) to, determine any cause or motion, but by the mouth of his judges, to whom he hath committed his whole judicial authority. (q) (7)
This court, which (as we have said) is the remnant of the aula regia, is not, nor can be, from the very nature and constitution of it, fixed to any certain place, but may follow the king's person wherever he goes: for which reason all process issuing out of this court in the king's name is returnable " ubicunque fuerimus in Anglia." It hath indeed, for some centuries past, usually sat at Westminster, being an ancient palace of the crown; but might remove with the king to York or Exeter, if he thought proper to command it. And we find that, after Edward I had conquered Scotland, it actually sat at Roxburgh. (r) And this movable quality, as well as its dignity and power, are fully expressed by Bracton, when he says that the justices of this court are "capitales, generales, perpetui, et majores; a latere regis residentes, qui omnium aliorum corrigere tenentur injurias et errores." (s) And it is moreover especially provided in the articuli super cartas, (t) that the king's chancellor, and the justices of his bench, shall follow him, so that he may have at all times near unto him some that be learned in the laws.
[*42] *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 civil corporations in the kingdom. It commands magistrates and others to do what their duty requires, in every case where there is no other specific remedy. It protects the liberty of the subject, by speedy and summary interposition. It takes cognizance both of criminal and civil causes; the former in what is called the crown-side or crown-office; the latter in the plea-side of the court. The jurisdiction of the crown-side it is not our present business to consider; that will be more properly discussed in the ensuing book. But on the plea-side, or civil branch, it hath an original jurisdiction and cognizance of all actions of trespass, or other injury alleged to be committed vi et armis; of actions of forgery of deeds, maintenance, conspiracy, deceit, and actions on the case which allege any falsity or fraud: all of which savour
(0) 4 Inst. 73.
(p) See book 1, ch. 7. The king used to decide causes in person in the aula regia. "In curia domini regis ipse in propria persona jura decernit." (Dial, de Scacch. l. 1, ? 4.) After its dissolution King Edward 1 frequently sat in the court of king's bench. (See the records cited. 2 Burr. 151.) And, in later times, James I is said to have sat there in person, but was informed by his judges that he could not deliver an opinion. (g) 4 Inst. 71. (r, M. 20. 21 Edw. I. Hale Hist. C. L. 200. (s) l. 3, c. 10. (t) 28 Edw. I, c. 5.
(7) [Lord Mansfield, in 2 Burr. 851, does not mean to say, nor do the records there cited warrant the conclusion, that Edw. I actually sat in the king's bench. Dr. Henry, in his very accurate history of Great Britain, informs us, that he has found no instance of any of our kings sitting in a court of justice before Edw. IV. "And Edw. IV (he says), in the second year of his reign, sat three days together, during Michaelmas term, in the court of king's bench; but it is not said that he interfered in the business of the court; and as he was then a very young man, it is probable that it was his intention to learn in what manner justice was administered, rather than to act the part of a judge." 5 vol. 382. 4to. edit. Lord Coke says, that the words in magna carta, c. 29, nec super eum ibimus nec super eum mittemus nisi, &c., signify that we shall not sit in judgment ourselves, nor send our commissioners or judges to try him. 2 Inst. 46. But that this is an erroneous construction of these words, appears from a charter granted by King John in the 16th year of his reign, which is thus expressed: nec super cos per vim vel per arma ibimus nisi per legem regni nostri vel per judicium parium suorum. See Int. to Bl. Mag. Ch. p. xiii. Statutes and charters in pari materia must be construed by a reference to each other, and in the more ancient charter the meaning is clear, that the king will not proceed with violence against his subjects, unless justified by the law of his kingdom, or by a judgment of their peers.]
of a criminal nature, although the action is brought for a civil remedy; and make the defendant liable in strictness to pay a fine to the king, as well as damages to the injured party. (u) The same doctrine is also now extended to all actions on the case whatsoever; (w) but no action of debt or detinue, or other mere civil action, can by the common law be prosecuted by any subject in this court, by original writ out of chancery; (x) (8) though an action of debt, given by statute, may be brought in the king's bench as well as in the common pleas. (y) And yet this court might always have held plea of any civil action (other than actions real) provided the defendant was an officer of the court; or in the custody of the marshal, or prison-keeper, of this court; for a breach of the peace or any other offence. (2) And, in process of time, it began by a fiction to hold plea of all personal actions whatsoever, and has continued to do so for ages: (a) it being surmised that the defendant is arrested for a supposed trespass, which he never has in reality committed; and, being thus in the [*43] custody, of the marshal of this court, the plaintiff is at liberty to proceed against him for any other personal injury: which surmise, of being in the marshal's custody, the defendant is not at liberty to dispute. (b) And these fictions of law, though at first they may startle the student, he will find upon further consideration to be highly beneficial and useful; especially as this maxim is ever invariably observed, that no fiction shall extend to work an injury; its proper operation being to prevent a mischief, or remedy an inconvenience, that might result from the general rule of law. (c) So true it is, that in fictione juris semper subsistit æquitas. (d) In the present case, it gives the suitor his choice of more than one tribunal, before which he may institute his action; and prevents the circuity and delay of justice, by allowing that suit to be originally, and in the first instance, commenced in this court, which, after a determination in another, might ultimately be brought before it on a writ of error. (9)
For this court is likewise a court of appeal, into which may be removed by a 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 court of king's bench in Ireland. (10) Yet even this so high and honourable court is not the dernier resort of the subject; for, if he be not satisfied with any determination here, he may remove it by writ of error into the house of lords, or the court of exchequer chamber, as the case may happen, according to the nature of the suit, and the manner in which it has been prosecuted. (11)
VII. The court of exchequer is inferior in rank not only to the court of king's bench, but to the common pleas also: but I have chosen to consider it in this order, on account of its double capacity, as a court of law and a court of equity
*also. It is a very ancient court, of record, set up by William the Con- *
(u) Finch, L. 198. 1 Inst. 23. Dyversite de courtes c. bank le roy.
(z) Inst. 71.
(x) 4 Inst. 76. Trye's Jus Filizar. 101. (a) Ibid. 72.
(b) Thus, too, in the civil law; contra fictionem non admittitur probatio: quid enim efficeret probatio veritalis, ubi fictio adversus veritatem fingit Nam fictio nihil aliud est, quam legis adversus veritatem in re possibili er justa causa dispositio. (Gothofred, in Ff. l. 22, t. 3.) (c) 3 Rep. 30. 2 Roll. Rep. 502. (f) Madox, hist. exch. 109. (g) Spelm. Guil. I, in cod. leg. vet. apud Wilkins.
(d) 11 Rep. 51.
Co. Litt. 150.
(e) Lamb. Archeion. 24.
(h) 4 Inst. 103-116.
(8) This is not the present practice. See Tidd's Prac. 8th ed. 97. (9) [But as there is no reason for doing that indirectly which may be done directly, it was considered expedient to abolish this among other legal fictions (2 Wm. IV, c. 39), and the modo of commencing an action has for some time been, and is now, uniform in all the superior courts.]
(10) This is now otherwise. Writs of error and appeals from this court are to the house of lords of the United Kingdom.
(11) But now the appeal in all cases is to the judges of the common pleas and barons of the exchequer in the exchequer chamber, and from their judgment to the house of lords
board, which covers the table there: and on which, when certain of the king's accounts are made up, the sums are marked and scored with counters. It consists of two divisions: the receipt of the exchequer, which manages the royal revenue, and with which these Commentaries have no concern: and the court or judicial part of it, which is again subdivided into a court of equity, and a court of common law. (12)
The court of equity is held in the exchequer chamber before the lord treasurer, the chancellor of the exchequer, the chief baron, and three puisne ones. (13) These Mr. Selden conjectures (i) to have been anciently made out of such as were barons of the kingdom, or parliamentary barons; and thence to have derived their name; which conjecture receives great strength from Bracton's explanation of magna carta, c. 14, which directs that the earls and barons be amerced by their peers; that is, says he, by the barons of the exchequer. (k) The primary and original business of this court is to call the king's debtors to account, by bill filed by the attorney-general; and to recover any lands, tenements, or hereditaments, any goods, chattels, or other profits or benefits, belonging to the crown. So that by their original constitution the jurisdiction of the court of common pleas, king's bench, and exchequer, was entirely separate and distinct: the common pleas being intended to decide all controversies between subject and subject; the king's bench to correct all crimes and misdemeanors that amount to a breach of the peace, the king being then plaintiff, as such offences are in open derogation of the jura regalia of his crown; and the exchequer to adjust and recover his revenue, wherein the king also is plaintiff, as the [*45] withholding and non-payment thereof is an injury to his jura fiscalia. But, as by a fiction almost all sorts of civil actions are now allowed to be brought in the king's bench, in like manner by another fiction all kinds of personal suits may be prosecuted in the court of exchequer. For as all the officers and ministers of this court have, like those of other superior courts, the privilege of suing and being sued only in their own court; so also the king's debtors and farmers, and all accomptants of the exchequer, are privileged to sue and implead all manner of persons in the same court of equity that they themselves are called into. They have likewise privilege to sue and implead one another, or any stranger, in the same kind of common law actions (where the personalty only is concerned) as are prosecuted in the court of common pleas.
This gives original to the common law part of their jurisdiction, which was established merely for the benefit of the king's accomptants, and is exercised by the barons only of the exchequer, and not the treasurer or chancellor. The writ upon which all proceedings here are grounded is called a quo minus : in which the plaintiff suggests that he is the king's farmer or debtor, and that the defendant hath done him the injury or damage complained of; quo minus sufficiens existit, by which he is less able to pay the king his debt or rent. And these suits are expressly directed, by what is called the statute of Rutland, (?)
(i) Tit. hon. 2, 5, 16.
(k) l. 3, tr. 2, c. 1, § 3.
(1) 10 Edw. I, c. 11.
(12) [Though this court is inferior in rank as well to the court of common pleas as the king's berch, and though in general a subject has a right to resort to either of the superior courts for tho redress of a civil injury, yet this court, having an original, and in many cases an exclusiv jurisdiction in fiscal matters, will not permit questions, in the decision of which the king's revenue or his officers are interested, to be discussed before any other tribunal; and therefore, if an action of trespass against a revenue officer, for his conduct in the execution of his office, be brought in the court of C. P. or K. B., it may be removed into the office of pleas of this court of exchequer. 1 Anstr. 205; Hardr. 176; Parker, 143; 1 Price, 206; 8 id. 584; Manring's Exchequer Prac. 161, 164, n. On such occasions the court interposes on motion, by ordering the proceeding to be removed into the office of pleas, which order operates by way of injunction.]
(13) The equity jurisdiction of the exchequer, by statute 5 Vic. c. 5, was transferred to the court of chancery, and it is now only a court of law and revenue. The fiction mentioned in the text a few lines further on, by which it obtained jurisdiction, is now abolished, and nearly every civil case may be brought in this court without resort to any such suggestion. The number of the judges was increased to six by statute 31 and 32 Vic. c. 125.