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11

THE

Authority and Jurisdiction

OF THE

Court of Common Pleas. .

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Y the Saxon constitution there was only one By Saxon confti.
superior court of justice in the kingdom: and tution only one

that had cognizance both of civil and spiritual superior court.
causes: viz. the wittenagemot, or general council,
which assembled annually or oftner, wherever the
king kept his eafler, christmas, or whitsuntide, as
well to do private justice as to consult on publick
business. But after the conqueft, the ecclesiastical
jurisdiâion was diverted into another channel; and
the conqueror, fearing danger from these annual
parliaments, contrived also to separate their mi.
Histerial power, as judges, from their deliberative,
as counsellors to the crown. He therefore establish-
ed a constant court in his own hall, made up of the
officers of his palace, who transacted the business,
both criminal and civil, as well as matters of the
revenue. When they sat in the hall, they were
called a court criminal, when up stairs, a court of
revenue; the civil pleas they held in either couri.
This court was called by Braeton and other authors,
cula regia, or aula regis. Bra&t. lib. 3. c. 7. These
high officers were affifted 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 regin, and formed a
kind of court of appeal, or rather of advice, in
matters of great moment and difficulty. These in

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their several departments transacted all secular business both criminal and civil, and likewise matters of the revenue : and over all presided one special magiítrale, called the chief justiciar, or capitalis juflicsarius totius Angliæ; who was also 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 arole 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. - Spelman's Glof. 331,

2, 3. Gilb. C. P. 37. Court of Com- This great universal court being bound to follow mon. Pleas to be the king's household in all its progresles and expeplace certain, ditions, the trial of common causes therein was

• found very burthenfome to the subject. Wherefore

king John, who dreaded also the power of the juftiiar, very readily consented to that article which now forms the eleventh chapter of magna charta, and enacts, “ that Common Pleas shall not failow our Court, but hall be helden in some place certain.This certain place was established in 11'istminsterkall, 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 mereiy civil between subject and subject: which critical establishment of this principal court of commoil law, at that particular juncture 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 withftand the attacks of the canonifts and civilians, who laboured to extirpate and destroy it.

The

branch of its

The aula regia being thus stripped of so confider- The an'a ng's able a branch of its jurifdition, and the power of fripped of a the chief jufliciar being also considerably curbed by

jurisdiciione many articles in ihe great charter, the authority of both began to decline apace under the long and troublesome reign of Henry the third. And, in further pursuance of this example, the other several offices of the chief justiciar were under Edward the fiiit (who new-modelled the whole frame of our judicial polity) subverted and broken into diftinét courts of judicature. The distribucion of common justice between man and man was thrown into so provident an order, that the great judicial officers were made to form a checque upon each other; the court of chancery 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 reveriue ; and the court of king's bench retaining all the jurisdiction which was not cantoned out to other, courts, and particularly the superintendance of all the rest by way of appeal; and the sole cognizance of pleas of the crown, or criminal caules : For pleas or suits are regularly divided into two forts ; pleas of the crown, which comprehend all crimes and mildemelnors, wherein the king (on behalf of the publick) is 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, " the lock and key of the common law;" 4 Infi. 99. 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 here determined; though in the latter the king's bench has also a concurrent authority.

This court without any writ, may, upon a sug. This conte may gestion, grant prohibitions, to keep as well tem- grant prohi

birioos. B 2

poral

babeas corpuso

poral as ecclesiastical courts within their bounds and jurisdiction, without any original or plea depending; for the common law, which in these cases is a prohibition of itself, stands instead of an orie

ginal. 4 Inf. 92. Vaugh. 157. 12 Co. 108. Adions from Actions are also removed into this court out of interior courts inferior courts of record, by writ of habeas corpus may be removed

cum causa, or certiorari; and out of inferior courts here,

not of record, by pone, tolt, recordari, accedas ad

curiam, or writ of false judgment. May grant a

In term time, it may award a habeas corpus by the common law, for any person committed for any cause under treason or felony, and thereupon discharge him, if it fall clearly appear by the return, that the commitment was against law; as being made by one who had no jurisdiction of the cause, or for a matter for which, by law, no man ought to be punished. Vaugh. 154. 2 Jones 14. And now it is clear, that this court has a general jurisdiction to grant writs of habeas corpus, in all cases. 3 Wilf. 172. Wood's Cafe. i And. 297. Moor 839. 1132.

2 Int. 52. a. i Brownl. 33. May punilh its It alto hath jurisdiction for the punishment of own officers, its own officers and ministers, and all other per

fons guilty of contempt against the rules and or

ders of the court. Tidiation is Its jurisdiction is general, and extends throughout sencial England, and by statute of Gloucester, 6 Ed. 1.c. 8.

None shall have writs of trespass before justices, unless he swear by his faith, that the goods taken away were

worth 405.

Lord Coke in his 2 Inft. 311. says, Writs of trespass are here put but for an example, for debt,

ditinue, covenant, and the like. Cannot hold plea And as inferior courts which are not of record vodor 40 s.

cannot hold plea of debt, &c. or damages, but under 40 s. so the superior courts that are of record cannot hold plea of debt, &c. or damagis regularly, unless the same amount to 40 s. or above, ibid. For the wisdom of the common law was, that men fhould not be troubled for suits of small value in

the

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