THE Authority and Jurisdiction OF THE Court of Common Pleas. BY Y the Saxon conftitution there was only one By Saxon conftifuperior court of justice in the kingdom: and tution only one that had cognizance both of civil and fpiritual fuperior court. caufes: viz. the wittenagemot, or general council, which affembled annually or oftner, wherever the king kept his eafter, christmas, or whitfuntide, as well to do private juftice as to confult on publick bufinefs. But after the conqueft, the ecclefiaftical jurifdiction was diverted into another channel; and the conqueror, fearing danger from these annual parliaments, contrived alfo to feparate their minifterial power, as judges, from their deliberative, as counsellors to the crown. He therefore established a conftant court in his own hall, made up of the officers of his palace, who tranfacted the business, both criminal and civil, as well as matters of the revenue. When they fat in the hall, they were called a court criminal, when up stairs, a court of revenue; the civil pleas they held in either court. This court was called by Bracton and other authors, aula regia, or aula regis. Bra&t. lib. 3. c. 7. These high officers were affifted by certain perfons learned in the laws, who were called the king's jufticiars or juftices, and by the greater barons of parliament, all of whom had a feat in the aula regia, and formed a kind of court of appeal, or rather of advice, in matters of great moment and difficulty. These in B their Court of Com mon Pleas to be holden in fome .• their feveral departments tranfaced all fecular bufinefs both criminal and civil, and likewife matters of the revenue and over all prefided one fpecial magiftrate, called the chief justiciar, or capitalis jufticiarius totius Anglie; who was alfo principal minifter of ftate, the fecond man in the kingdom, and, by virtue of his office, guardian of the realm in the king's abfence. And this officer it was, who principally determined all the vast variety of caufes that arofe 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 Gloff. 331, 2, 3. Gilb. C. P. 17. This great univerfal court being bound to follow the king's household in all its progrefles and expeditions, the trial of common caufes therein was - found very burthenfome to the fubject. Wherefore king John, who dreaded alfo the power of the jufticiar, very readily confented to that article which now forms the eleventh chapter of magna charta, and enacts," that Common Pleas fhall not follow our "Court, but fhall be holden in fome place certain." This certain place was established in Westminsterhall, the place where the aula regis originally fat, when the king refided in that city; and there it hath ever fince continued. And the court being thus rendered fixed and ftationary, the judges became fo too, and a chief, with other juftices of the common pleas, was thereupon appointed, with jurifdiction to hear and determine all pleas of land, and injuries merely civil between fubject and fubject which critical eftablishment of this principal court of common law, at that particular juncture and that particular place, gave rife to the inns of court in its neighbourhood; and thereby collecting together the whole body of the common lawyers, enabled the law itfelf to withstand the attacks of the canonifts and civilians, who laboured to extirpate and deftroy it. The branch of its jurifdiction. The aula regia being thus ftripped of fo confider- The au'ang'a ble a branch of its jurifdition, and the power of ripped of a the chief jufticiar being alfo confiderably curbed by many articles in the great charter, the authority of both began to decline apace under the long and troublesome reign of Henry the third. And, in further purfuance of this example, the other feveral offices of the chief justiciar were under Edward the first (who new-modelled the whole frame of our judicial polity) fubverted and broken into diftinct courts of judicature. The diftribution of common juftice between man and man was thrown into fo provident an order, that the great judicial officers were made to form a checque upon each other; the court of chancery iffuing all original writs under the great feal to the other courts; the common pleas being allowed to determine all caufes between private fubjects; the exchequer managing the king's revenue; and the court of king's bench retaining all the jurifdiction which was not cantoned out to other. courts, and particularly the fuperintendance of all the reft by way of appeal; and the fole cognizance of pleas of the crown, or criminal caufes: For pleas or fuits are regularly divided into two forts; pleas of the crown, which comprehend all crimes and mifdemefnors, wherein the king (on behalf of the publick) is plaintiff; and common pleas, which include all civil actions depending between fubject and fubject. The former of thefe were the proper object of the jurifdiction of the court of king's bench; the latter of the court of common pleas; which is a court of record, and is ftyled by Sir Edward Coke, "the lock and key of the common law;" 4 Inft. 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 perfonal 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 fug- This court may geftion, grant prohibitions, to keep as well tem- grant prohi B 2 poral bitions. Actions from inferior courts may be removed here. May grant a babeas corpus. May punith its own officers. Jurifdiction is general. Cannot hold plea under 40 s. poral as ecclefiaftical courts within their bounds and jurifdiction, without any original or plea depending; for the common law, which in these cafes is a prohibition of itself, ftands inflead of an original. 4 Inft. 92. Vaugh. 157. 12 Co. 108. Actions are also removed into this court out of inferior courts of record, by writ of habeas corpus cum caufa, or certiorari; and out of inferior courts not of record, by pone, tolt, recordari, accedas ad curiam, or writ of falfe judgment. In term time, it may award a habeas corpus by the common law, for any perfon committed for any caufe under treafon or felony, and thereupon difcharge him, if it fhall clearly appear by the return, that the commitment was against law; as being made by one who had no jurifdiction of the caufe, 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 cafes. 3 Wilf. 172. Wood's Cafe. I And. 297. Moor 839. 1132. 2 Inft. 52. a. 1 Brownl. 33. It also hath jurifdiction for the punishment of its own officers and minifters, and all other perfons guilty of contempt against the rules and orders of the court. Its jurifdiction is general, and extends throughout England, and by flatute of Gloucefter, 6 Ed. 1. c. 8. None fhall have writs of trespass before juftices, unless he fwear by his faith, that the goods taken away were worth 405. Lord Coke in his 2 Inft. 311. fays, Writs of trefpafs are here put but for an example, for debt, detinue, covenant, and the like. And as inferior courts which are not of record cannot hold plea of debt, &c. or damages, but under 40 s. fo the fuperior courts that are of record cannot hold plea of debt, &c. or damages regularly, unless the fame amount to 40 s. or above, ibid. For the wildom of the common law was, that men fhould not be troubled for fuits of fmall value in the |