THE AUTHORITY AND JURISDICTION OF THE COURT OF KING'S BENCH. THE primary objects of the law are the establishment of rights, and the prohibition of wrongs: and to accomplish the redress of injuries, courts of justice are instituted in every civil society, in order to protect the weak from the insults of the strong, by expounding and enforcing those laws, by which rights are defined, and wrongs prohibited. This remedy is therefore principally to be sought by application to these courts of justice, which, in all instances of an injury being committed, either inflicts a punishment on the offender, or gives a recompence to the person injured. A court is defined to be a place wherein justice is duly Court defined. administered. Co. Lit. 58. And as, by our excellent constitution, the sole executive power of the laws is vested in the person of the king, it will follow, that all courts of justice, which are the medium by which he administers the laws, are derived from the power of the crown. For whether created by act of parliament, letters patent, or subsisting by prescription, (the only methods by which any court of judicature can exist,) the king's consent in the two former is expressly, and in the latter impliedly given. In all these courts, the king is supposed, in contemplation of law, to be always present; but as that is in fact impossible, he is there represented by his judges, whose power is only an emanation of the royal prerogative. For the more speedy, universal, and impartial administration of justice between subject and subject, the law hath appointed numerous courts, some B Courts of record. By the Saxon constitution only one superior court. The court of with a more limited, others with a more extensive jurisdiction; some constituted to inquire only, others to hear and determine; some to determine in the first instance, others upon appeal, and by way of review. All courts of record are the king's courts, in right of his crown and royal dignity, and therefore no other court hath authority to fine or imprison; so that the very erection of a new jurisdiction with power of fine or imprisonment, makes it instantly a court of record. Finch's Law, 235. Salk. 200. 12 Mod. 388. The courts of Westminster are the superior courts of the kingdom, and have a superintendance over all other courts by prohibitions, (if they exceed their jurisdiction,) on writs of error, and false judgment of their proceedings. Carth. 11, 12. By the ancient Saxon constitution, there was only one superior court of justice in the kingdom: and that had cognizance both of civil and spiritual causes, viz. the willenagemote, or general council, which assembled annually, or oftener, wherever the king kept his Easter, Christmas, or Whitsuntide, as well to do private justice as to consult upon public business; but at the conquest the ecclesiastical jurisdiction was diverted into another channel. The conqueror, fearing danger from those annual parliaments, established a constant court in his own hall, called by ancient authors aula regia, or, aula, regis, which was composed of the king's great officers of state, resident in his palace, and attendant on his person, assisted by certain persons, learned in the laws: 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 de partments, transacted all secular business, both criminal and civil, and likewise matters of the revenue; and over all presided one special magistrate, called the chief justiciar or capitalis justiciarius totius Anglice, who was 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 priucipally determined all the vast variety of causes that arose in this extensive jurisdiction; and, from the plenitude of his power, grew at length obnoxious to the people, and dangerous to the government which employed him. Spel. Gloss. 331, 332, 333. This great universal court being bound to follow the King's Bench king's household in all his progresses and expeditions, bound to fol- the trial of common causes therein was found very burlow the king. thensome 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 charta, and enacts, "That communa placita non sequantur curiam regis, sed teneantur in aliquo loco certo." This certain place was established in Westninster-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. The aula regia being thus stripped of a considerable The aula branch of its jurisdiction, and the power of the justiciar regia stripped being also considerably curbed by many articles in the of a branch of its jurisdicgreat charter, the authority of both began to decline tion. apace under the long and troublesome reign of King Henry the Third. And in further pursuance of this example, the other several offices of the chief justiciar were under Edward the First, (who new modelled the whole frame of the judicial polity,) subdivided and broken into distinct courts of judicature. A court of chivalry was erected, over which the constable and marshall 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 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 superintendance of all the rest by way of appeal; and the sole cognizance of pleas of the crown, or criminal causes. is the supreme The court of King's Bench is the supreme court of Court of K.B. common law in the kingdom; and is so called, because the king used formerly to sit there in person; it consists of a chief justice, and three puisne justices, who are by their office the sovereign conservators of the peace, and This court is the aula regia. supreme coroners of the land. Yet, though the king him self used to sit in this court, and still is supposed to do so, 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 Inst. 71, 73. This court is the remnant of the aula regia, and is a remnant of 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 by original, issuing out of this court in the king's name is returnable, " ubicunque fuerimus in Anglia." Usually sat at For some centuries past it hath usually sat at WestWestminster. minster, being an ancient palace of the crown; but this was not always the case, for we find that after Edw. I. had conquered Scotland, it actually sat at Roxburgh. Hal. Hist. C. L. 200. Termed the custos morum It is termed the custos morum of all the realm, and by the plenitude of its power, wherever it meets with an of the realm. offence contrary to the first principles of justice, and of dangerous consequences (if not restrained), adapts a proper punishment to it. 2 Haw. Pl. C. 6 Sid. 168. Peculiar jurisdiction. It has a peculiar jurisdiction, not only over all capital offences, but also over all other misdemeanors of a public nature, tending either to a breach of the peace, or to oppression or faction, or any manner of misgovernment; and it is not material whether such offences being manifestly against the public_good, directly injure any particular person or not. 4 Inst. 71. 11 Co. 98. 2 Haw. P. C. 6. It has a discretionary power of inflicting exemplary punishment on offenders, either by fine, imprisonment, or other infamous punishment, as the nature of the crime, considered in all its circumstances, shall require. 2 Haw. 7. Also this court by its extensive authority, may as well proceed on indictments removed by certiorari out of inferior courts, as on those originally commenced here, whether the court below be determined, or still in esse, and whether the proceedings be grounded on the common law, or on a statute making a new law, concerning an old offence. 9 Co. 118. 2 Inst. 549. Cromp. Juris. 131. But before allowance of certiorari, the defendant must find sureties to appear and plead, and to procure the issue to be tried the next assizes, or on the next term after such certiorari granted, or sitting after the said term, and give due notice thereof, and appear from day to day in the said court, and not depart from thence until discharged. Stat. 5 W. & M. c. 1. and 8 & 9 IV. |