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BOOK III. parliament of Paris to abide constantly in that metropolis; which before used to follow the perfon of the king, wherever he went, and in which he himself ufed frequently to decide the causes that were there depending: but all were then referred to the fole cognizance of the parliament and it's learned judges. And thus alfo in 1495 the emperor Maximilian I. fixed the imperial chamber (which before always travelled with the court and houfhold) to be constantly held at Worms, from whence it was afterwards tranflated to Spire'.

THE aula regia being thus ftripped of fo confiderable a branch of it's jurifdiction, and the power of the chief justiciar being alfo confiderably curbed by many articles in the great charter, the authority of both began to decline apace 40under the long and troublefome reign of king Henry III,

And, in farther purfuance of this example, the other several
offices of the chief jufticiar were under Edward the first (who,
new modelled the whole frame of our judicial polity) fub-
divided and broken into diftinct courts of judicature. A
court of chivalry was erected, over which the conftable and
marefchal prefided; as did the fteward of the houshold over
another, conftituted to regulate the king's domeftic fervants.
The high steward, with the barons of parliament, formed an
auguft tribunal for the trial of delinquent peers; and the ba-
rons referved to themselves in parliament the right of review-
ing the fentences of other courts in the laft refort. The diftri-
bution of common justice 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 chan-
cery ifluing 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 jurisdiction which was not cantoned out to other
courts, and particularly the fuperintendence of all the rest by
way of appeal; and the fole cognizance of pleas of the crown
1 Ibid. xxix. 467.

* Mod. Un. Hift. xxiii. 396.

or

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 public) is the plaintiff; and common pleas, which include all civil actions, depending between fubject and fubject. The former of these 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 ftiled by fir Edward Coke 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.

THE judges of this court are at prefent" four in number, [ 41 ] one chief and three puifnè justices, created by the king's letters patent, who fit every day in the four terms to hear and determine all matters of law arifing in civil caufes, whether real, perfonal, 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.

VI. THE Court of king's bench (fo called because the king ufed formerly to fit there in perfono, the ftile of the court still being coram ipfe rege)(3) is the supreme court of common law

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in the kingdom; confifting of a chief justice and three puifnè juftices, who are by their office the fovereign confervators of the peace and fupreme coroners of the land. Yet, though the king himself used to fit in this court, and ftill is fuppofed fo to do; he did not, neither by law is he empowered? to, determine any cause or motion, but by the mouth of his judges, to whom he hath committed his whole judicial authority 4.

THIS Court, which (as we have faid) is the remnant of the aula regia, is not, nor can be, from the very nature and conftitution of it, fixed to any certain place, but may follow the king's perfon wherever he goes; for which reafon all procefs iffuing out of this court in the king's name is return

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(4) Lord Mansfield, in 4 Burr. 851. does not mean to fay, nor do the records there cited warrant the conclusion, that Ed. I. actually fat in the king's bench. Dr. Henry, in his very accurate Hiftory of Great Britain, informs us, that he has found no inftance of any of our kings fitting in a court of juftice before Ed, IV. " And "Ed. IV. (he fays) in the fecond year of his reign, fat three days together, during Michaelmas term, in the court of king's bench; but it is not faid 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 juftice was administered, " rather than to act the part of a judge." 5 vol. 382. 4to edit.

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Lord Coke fays, that the words in magna charta, c. 29, nec fuper eum ibimus nec fuper eum mittemus nifi, &c. fignify that we shall not fit in judgment ourselves, nor fend our commiffioners or judges to try him. 2 Inst. 46.

But that this is an erroneous conftruction of these words, appears from a magna charta granted by king John in the 16th year of his reign, which is thus expreffed, nec fuper eos per vim vel per arma ibimus nifi per legem režni noftri vel per judicium parium fuorum. See Int. to Bl. Mag. Ch, p. xiii.

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able

able" ubicunque fuerimus in Anglia." It hath indeed, for fome centuries paft, ufually fate at Westminster, being an antient 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 actally fate at Roxburgh'. And this moveable quality, as well as it's dignity and power, are fully expreffed by Bracton, when he fays that the juftices of this court are "capi"tales, generales, perpetui, et majores; a latere regis refidentes; "quia omnium aliorum corrigere tenentur injurias et errores. And it is moreover efpecially provided in the articuli fuper cartas' that the king's chancellor, and the juftices of his bench, fhall follow him, fo that he may have at all times near unto him fome that be learned in the laws.

THE jurifdiction of this court is very high, and tranfcendent. It keeps all inferior jurifdictions within the bounds of their authority, and may either remove their proceedings to be determined here, or prohibit their progrefs below. It fuperintends all civil corporations in the kingdom. It commands magiftrates and others to do what their duty requires, in every cafe where there is no other specific remedy. It protects the liberty of the fubject, by fpeedy and fummary interpofition. It takes cognizance both of criminal and civil causes; the former in what is called the crown-fide or crownoffice; the latter in the plea-fide of the court. The jurisdiction of the crown-fide it is not our prefent business to confider; that will be more properly difcuffed in the ensuing volume. But on the plea-fide, or civil branch, it hath an original jurisdiction and cognizance of all actions of trefpafs, or other injury alleged to be committed vi et armis; of actions for forgery of deeds, maintenance, confpiracy, deceit, and actions on the cafe which allege any falfity or fraud: all of which favour of a criminal nature, although the action is brought for a civil remedy; and make the de

M. 20, 21 Edw. I. Hale Hift. C. L. 200.

1. 3. c. 10.

28 Edw. 1. 5.

fendant

Book III. fendant liable in ftrictnefs to pay a fine to the king, as well as damages to the injured party". The fame doctrine is alfo now extended to all actions on the cafe whatsoeverw: but no action of debt or detinue, or other mere civil action, can by the common law be profecuted by any fubject in this court, by original writ out of chancery*; though an action of debt, given by ftatute, may be brought in the king's bench as well as in the common pleasy. 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 cuftody of the marshall, or prison-keeper, of this court, for a breach of the peace or any other offence. And, in procefs of time, it began by a fiction to hold plea of all perfonal actions whatsoever, and has continued to do fo for ages: it being furmifed that the defendant is arrested for a fuppofed trefpafs, which he never has in reality committed; and, being thus in the cuftody of the marshall of this court, the plaintiff is at liberty to proceed against him for any other perfonal injury which furmife, of being in the marshall's cuftody, the defendant is not at liberty to difpute. And these fictions of law, though at first they may startle the stu dent, he will find upon farther confideration to be highly beneficial and useful: especially as this maxim is ever invariably observed, that no fiction fhall extend to work an injury; it's proper operation being to prevent a mischief, or remedy an inconvenience, that might refult from the general rule of law. So true it is, that in fictione juris femper fubfiftit acquitas. In the prefent cafe, it gives the fuitor his choice of more than one tribunal, before which he may institute his action; and prevents the circuity and delay of justice, by allow

u Finch. L. 198. 2 Inft. 23. Dy- fitionem non admittitur probatio: quid verfite de courtes. c. bank le roy.

w F. N. B. 86. 92. 1 Lilly, pract.

Reg. 503.

* 4 Inft. 76. Trye's Jus Filazar. 101, y Carth. 234.

z 4 Init. 71. a Ibid. 72.

Thus too in the civil law; contra

enim efficeret probatio veritatis, ubi filtie adverfus veritatem fingit? Nam filio nibil aliud eft, quam legis adverfus veritatem in re poffibili ex jufta caufa difpofitio. (Gothofred. in Ff. 1. 22. t. 3.)

c3 Rep. 30. 2 Roll. Rep. 502. 411 Rep. 51. Co. Litt. 150.

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