a jurisdiction totally exclusive of the king's superior courts. For in order to be entitled to sue an action of trespass for goods before the king's justiciars, the plaintiff is directed to make affidavit that the cause of action does really and bona fide amount to 40s.; which affidavit is now unaccountably disused (b), except in the court of exchequer (3). The statute also 43 Eliz. c. 6. which gives the judges in many personal actions, where the jury assess less damages than 40s. a power to certify the same and *abridge the plaintiff of his full costs, was also meant [*36] to prevent vexation by litigious plaintiffs; who, for purposes of mere oppression, might be inclinable to institute suits in the superior courts for injuries of a trifling value. The county-court may also hold plea of many real actions, and of all personal actions to any amount, by virtue of a special writ called a justicies; which is a writ empowering the sheriff for the sake of dispatch to do the same justice in his county-court, as might otherwise be had at Westminster (c). The freeholders of the county are the real judges in this court, and the sheriff is the ministerial officer. The great conflux of freeholders, which are supposed always to attend at the county-court (which Spelman calls forum plebeiae justiciae et theatrum comitivae potestatis) (d), is the reason why all acts of parliament at the end of every session were wont to be there published by the sheriff; why all outlawries of absconding offenders are there proclaimed; and why all popular elections which the freeholders are to make, as formerly of sheriffs and conservators of the peace, and still of coroners, verderors, and knights of the shire, must ever be made in pleno comitatu, or in full countycourt. By the statute 2 Edw. VI. c. 25, no county-court shall be adjourn ed longer than for one month, consisting of twenty-eight days. And this was also the ancient usage, as appears from the laws of king Edward the elder (e); "praepositus (that is, the sheriff) ad quartam circiter septimanam frequentem populi concionem celebrato: cuique jus dicito; litesque singulas dirimito." In those times the county-court was a court of great dignity and splendour, the bishop and the earldorman (or earl) with the principal men of the shire sitting therein to administer justice both in lay and ecclesiastical causes (f). But its dignity was much impaired, when the bishop was prohibited and the earl neglected to attend it. And, in modern times, as proceedings are removable from hence into the king's superior courts, by writ of pone or recordari (g), in the same manner as from *hundred-courts, and courts-baron; and as the same writ of false [*37] judgment may be had, in nature of a writ of error; this has occasioned the same disuse of bringing actions therein.

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 throughout 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 [*38] household; the lord chancellor, whose peculiar *business it was to

keep the 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 Anglie; 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 people, and dangerous to the government which employed him (i).

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 judge became so too, and a chief with other justices of the common pleas was thereupon appointed; with jurisdiction to hear and de

(h) 1. 3, tr. 1, c. 7.

(i) Spelm Gl. 331, 2, 3. Gilb. Hist. C. P. introd. 17.

termine 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 and that particular [39] 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 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 depending; 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 (1).

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 chan- [*40] cery issuing all 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).

(j) See Book I. introd. ◊ 1.

(A) Mod. Un. Hist. xxiii. 296.

(1) Ibid. xxix. 46.
(m) 4 Inst. 99.

:

(4) The jurisdiction of each court is so well established, that at this day the court of king's (6) See Hov. n. (G) at the end of the Vol. B. III.

The judges of this court are at present (n) four in number, one chief and three puisnè 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 before-mentioned. But a writ of error, in the nature of an appeal, lies from this court into the court of king's bench.7 [*41] *VI. The court of king's bench (so called because the king used formerly to sit there in person (o), the style of the court still being coram ipso rege) (5) is the supreme court of common law in the kingdom; consisting of a chief justice and three puisnè 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) (6).

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 moveable 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

(n) King James 1. 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.

(0) 4 Inst. 73.

(p) See Book I. ch. 7. The king used to decide 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. The king's bench, however, tries titles to land by the action of ejectment.

(5) 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.

causes in person in the aula regia. "In curia
domini regis ipse in propria persona jura decernit."
(Dial. de Scacch. 1. 1,4). After its dissolution king
Edward I. frequently sat in the court of king's
bench. (See the records cited 2 Burr. 851.) (6).
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.

(7) M. 20. 21 Edw. I. Hale Hist. C. L. 200.

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 charta, 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 eos 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. (7) See Hov. n. (7) at the end of the Vol. B. III.

(6) 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 to gether, 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

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.

*The jurisdiction of this court is very high and transcendent. It [*42] 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 for forgery of deeds, maintenance, conspiracy, deceit, and actions on the case which allege any falsity or fraud: all of which savour 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) (7); 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 [43] supposed trespass, which he never has in reality committed; and, being thus in the custody of the marshal of the 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 aequitas (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 cir

(a) l. 3, c. 10.

(t) 28 Edw. I. c. 5.

(u) Finch. L. 198. 2 Inst. 23. Dyversité de courtes c. bank le roy.

(w) F. N. B. 86. 92. 1 Lilly. Pract. Reg. 503. (z) 4 Inst. 76. Trye's Jus Filizar. 101.

(y) Carth. 234.

(z) 4 Inst. 71.

(a) Ibid. 72.

(b) Thus too in the civil law; contra fictionem non admittitur probatio: quid enim efficeret probatio veritatis, 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.
(d) 11 Rep. 51.
Co. Litt. 150.

(7) This is not the present practice, R. T. Hardw. 317. Tidd's Prac. 8 ed. 97.