LECTURE XXXIV.

The court of Common Bench or Common Pleas—The jurisdiction of this court—Actions real, personal, or mixt—The court of Exchequer—The jurisdiction of this court—Exchequer chamber—The judicature of Parliament.

The next of the superior courts, is the Common Bench, or Common Pleas, as it is more commonly called, being the proper court for the determining suits between subjects, wherein the king is not concerned; and upon the multiplication of business in the curia regis, it was separated from it, for the more speedy and easy dispatching the affairs of the people. As in the very old times the king often sat in person in the curia regis, and that he might have an opportunity of so doing when he pleased, that court always followed the king wherever he went within the kingdom of England; and in those days it was customary for the kings to take progresses; and reside in the different seasons of the year in different parts of the kingdom, as we see, by the variety of places where the parliaments were held in old times. The same practice of the courts and the records following the person of the king continued in France longer than in England. For when king John was taken by the black prince at the battle of Poictiers, the antient records of that kingdom were lost, and there are scarce any now remaining there, of what had passed previous to that time, except enrolments made since, of the antient charters that were in the hands of the subjects.

But in England the constant removal of the courts was found very burdensome to the people, who had suits much earlier. For their ease, therefore, it was enacted in Magna Charta, that communia placita non sequantur curiam nostram, sed teneantur in aliquo certo loco; that the Court of Common Pleas should no longer be ambulatory, but held in one certain place. Westminster was the place fixed upon, and there, if we except some occasional removals, on account of epidemical sicknesses, hath it been held ever since. And in long space of time after, the other courts became, though not in pursuance of any positive law, fixed there also. By their becoming settled in a certain place, one great inconvenience, besides the hardships on the suitors, was avoided, namely, the loss and imbezzlement of the records by these frequent removals. For it is very remarkable, that there is not a record remaining of the times previous to the fixing of the courts, not even the enrolments of the acts of parliament themselves, except a few, and a very few, of the courts of Exchequer, which, concerning the king’s revenue, were more carefully preserved[372].

But the greatest advantage that attended this change was the improvement of the law, and, what was a consequence thereof, the preservation of the liberty of the subject. For now it became much more convenient for persons to apply to that study, when they were no longer under a necessity of removing. And we therefore, soon after, find the practitioners of the law settled together, something in a collegiate manner; and after the dissolution of the order of Knights Templars, the habitation of these latter, called the Temple, was granted to them for their residence and improvement. Here, they continued to confer the degrees of Apprentices, or Barristers at law, and Sergeants at law, which they had began before, in imitation of the bachelors and doctors degrees in universities.

The preservation of the liberty of the subject was, as I said before, another happy consequence that resulted from the fixing the courts, and the uniting the professors of the law into one body. For as, about this time the study of the civil and canon laws was eagerly pursued by the clergy in the universities, and the English customs as much depreciated by them as possible, and as those two laws were founded on maxims of despotism, and, as such, encouraged and supported to the utmost by the popes, and all kings that aimed at arbitrary power, the common lawyers were necessitated, for the support of their profession, to take the popular side of the question, and to stickle for the old Saxon freedom, and limited form of government.

Hence the steady opposition they made, even in those early times, to the king’s dispensing. Nay, they carried their zeal for liberty so far, as (since they could not directly, in those days, oppose the weight of the civil law) to quote the very passages of it that were in favour of absolute power, and by their glosses make it speak the language of liberty. Thus Bracton quotes that text: Quod principi placet, legis habet vigorem; that is, in its true meaning, the monarch is sole legislator: but Bracton’s comment is, id est, non quicquid de voluntate regis temere presumptum fuerit, sed quod concilio magistratuum suorum, rege auctoritatem præstante, habita super hoc deliberatione & tractatu, recte fuerit definitum; that is, the king is not sole legislator; directly contrary to the sense of the very text he quotes. And it must be allowed, to the honour of the common lawyers, that, with the exception of a few venal time-serving individuals, they have, for a succession of ages, proved themselves true friends to a rational civil liberty in the subject, and to reasonable power and prerogative in the king[373].

To come to the jurisdiction of this court. Its proper business, as appears from its name, is to take cognizance of all common pleas, that is, all pleas that are not pleas of the crown, or at the suit of the king. With these it cannot meddle; for all actions at the suit of the king for criminal matters, belong to the King’s Bench, as those for his revenue do properly to the Exchequer. But it hath jurisdiction, and that universally, throughout England, in all civil causes, whether real, personal, or mixt; the distinction of which it will not be amiss just to point out.

Real actions are those that are brought to recover land itself, where the claimant has a right to an estate in it for life at least; and these, until within these two hundred and fifty years, were the only ones used for that purpose; but, since that time, they are gone almost entirely out of use, on account of their nicety, their delays, their being conclusive; and their place is supplied by mixed actions, which are easier, shorter, and may be tried again. However, if any one was inclined, at this day, to bring such an action, this is the court to bring it in; and therefore all common recoveries, which antiently were, and still carry the form of, real actions, are suffered in this court.

Personal actions are those that are brought for the recovery either of some duty, or demand in particular, or of damages for the non-performance of some promise or contract, entered into, or lastly such as are brought by a man to recover a compensation in damages for some injury sustained in his person—or property. To give but one or two instances of these last: If my ground is trespassed on, if my person is assaulted, my reputation injured, the remedy is by the personal actions of trespass, assault & battery, or slander. All actions for breach of covenants are likewise personal actions; for, by the common law, damages only are recoverable thereon, and the party is not obliged to perform the covenant. Wherefore, if a man chuses rather to have his covenant performed than receive a satisfaction in damages, he must go into a Court of Equity, which will oblige a man to perform in specie, what he hath specifically engaged to perform, if the performance is possible. This court, therefore, being the proper court for personal actions, fines of lands are levied here; for they are fictitious actions, founded on a fictitious breach of covenant.

Mixed actions are designed for the recovery of a specific thing, and also damages, and consequently partake of the nature both of real and personal actions. For instance: If a tenant for life, or years, or at will, commits waste, he forfeits to the owner of the inheritance the place wherein the waste was done, and treble damages. The action of waste, therefore being brought to recover both, is a mixed action. The action of ejectment also, which was originally proper to recover damages for being put out of a lease for years, but is now the common remedy, substituted in the lieu of real actions, is now of the same nature; because both the land itself, and damages for the wrong are recovered[374].

These three kinds of actions are properly the business of this court, though, as to the two last, actions personal and mixed, the courts of King’s Bench and Exchequer have, by fictions, gained a concurrent jurisdiction with this court; the King’s Bench, by supposing the defendant to be in the custody of the marshal thereof; and the Exchequer, by supposing the plaintiff to be a debtor to the king.

The proper way of founding the jurisdiction of this writ, is by a writ out of Chancery, returnable hither, either to begin a cause originally here, or to remove one depending in an inferior court not of record; but, in some cases, they proceed without any writ from Chancery, as in causes brought by or against an officer of the court, and likewise, in granting prohibitions to other courts that attempt to enlarge their jurisdictions.

Before I conclude, I must observe, that this court, though one of the four high courts derived out of the curia regis, is not, however, supreme, but subordinate to the King’s Bench. For judgments given therein are reversible in the King’s Bench, by a writ of error issuing from the Chancery, suggesting the king’s being informed that manifest error has interveened, and commanding the record to be transmitted into the King’s Bench; the judges belonging to which, upon the face of it, and nothing else, are to affirm or reverse the judgment; for the error must be manifest; and no error in point of fact, but error only in point of law, can be averred against a record.

The lowest in rank of the four great courts, though from antient times one of the greatest importance, is the court of Exchequer, whose business was to collect in the several debts, fines, amerciaments, or other duties or properties belonging or accruing to the king, and likewise, to issue money by his orders; and this court being originally solely erected for the king’s profit, is the reason, I presume, why it is held in rank the lowest; it being more honourable to the crown to give precedence of rank to those courts that were intended for the administration of justice to the subject, above that which was intended merely for the king’s temporal advantage. Besides, this court was, in its original, distinct from the curia regis, the treasurer being the judge in this, as the justiciarius Angliæ was in the other; and therefore, it was regular, that the Chancery, and Common Pleas, as having been once part of the supreme court, should take place before this. Its having been originally a distinct court, accounts for its independency on the King’s Bench; for, no writ of error lies from it to the King’s Bench, as doth from the Common Pleas, but its errors are rectified in another manner[375].

This court, as well as the Chancery, hath, properly speaking, two courts: one, ordinary, proceeding according to the strict rules of the common law; the other, by equity; for, as it is the king’s duty to render justice with mercy, so, in this court, the rights of the king are not always exacted with rigour; but, on circumstances of reason and equity, may be mitigated or discharged. The court of common law in this court had antiently much more business than of late. Originally, whilst the royal demesnes were unalienated, they had the setting of them for years; but, afterwards, people chusing rather the authority of the great seal, took them in Chancery. That court, as I mentioned when treating of it, had likewise gained the returns of inquisitions of office, and had also gained by act of parliament, the composition of forfeitures, for the king’s tenants in capite aliening their lands without license; which, otherwise, would have belonged to this court. The erection of the Court of Wards, also, by Henry the Eighth, took off that branch of its jurisdiction; and the abolishing of the military tenures by Charles the Second took away the business of calling in their fruits. The erecting the office of the Treasury, as distinct, for the issuing of money, had the same effect; but, above all, the erecting new jurisdictions, and appointing new judges to try causes relative to the new taxes, as the Commissioners of the Customs and Excise, and Commissioners of Appeal, diminished the peculiar business of the court[376].

It will be now proper to consider the nature and extent of their present jurisdiction. Here then are sworn the sheriffs, and other officers concerned in the king’s revenue and duties; and here they are to return, and make up their accounts. Here, likewise, the king sues his debtors, or even the debtor of his debtor (for so far his prerogative extends); and here also, for enabling his debtors to pay him, they are priviledged to sue their debtors; an allowance that hath grown up by degrees to extend the jurisdiction of this court, and to make it concurrent with the Common Pleas. For it is only alledging, (and this they will not allow to be traversed or denied) that the plaintiff is the king’s debtor, and the business is done. The court acquires an immediate jurisdiction. The same allegation is likewise necessary, when a suit of equity is commenced in this court; for otherwise, the suit would, on the face of it, appear to belong to Chancery. I need scarce observe, that the officers of this court are to sue and be sued here; for that is a privilege common to the officers of all the courts, arising from their personal attendance. Here, likewise, the king’s attorney-general exhibits informations for concealment of customs and seizures, informations upon penal statutes, where there is a fine due to the king, forfeitures and breach of covenant to the king; likewise all informations for intrusions, wastes, spoils or encroachments on the king’s lands; in general, where the crown suffers in its profits.

In this court of common law, the Barons of Exchequer only are judges, and are called Barons, because antiently none were judges there under that degree. In the Court of Equity, the chancellor of the Exchequer is joined with them, though it must be owned this officer hath seldom, of late years, acted either in England or Ireland, in his judicial capacity, and it hath been considered little more than as a great lucrative place. Errors in this court are not, as I observed before, redressed in the King’s Bench, as those of the Common Pleas are, but in another court, called the Exchequer Chamber, consisting of the lord chancellor, lord treasurer, and chief judges.

There is another court of Exchequer Chamber in England, tho’ we have none such in this kingdom, erected 27th Eliz. and composed of the judges of the Common Pleas and barons of the Exchequer, in which lies a writ of error from the King’s Bench, to reverse judgments in certain suits commenced there originally. Into this court are frequently removed, or adjourned from any of the other courts, causes that are of a new impression, and attended with difficulty, or even such concerning which the judges, perhaps, entertain no great doubts, but are new, and attended with extensive consequences; and this, for the more solemn determination, that all the judges of all the courts might be consulted about establishing a new precedent. Antiently such causes were adjourned into parliament, but the legislative business of that high court increasing, this court was substituted for the above purpose of consultation[377].

To finish this account concerning the superior courts at once, it will be proper to say something of the supreme judicature of all, that of parliament. Antiently, as I have frequently observed, all causes but such as concerned the king or peers, or those that were of great difficulty, or such as justice could not be expected in by law, were dispatched in the county courts, the rest by petition to the king in parliament, or, in the intervals thereof, in the curia regis, which originally was but a committee thereof, appointed by the king. Hence matters determined there, were subject to a review in parliament; writs of error from the King’s Bench returned there; and when the Equity courts grew up, appeals from the Chancery and Exchequer in matters of equity. This power of judicature is peculiar to the lords (for the parliament consisted at first only of them, and when the commons were introduced, they sat in a distinct house) and the parliament hears at present only matters that come from other courts by appeal, or by writ of error, which is in the nature of an appeal, and no causes originally. It is true, that, for a long time after the division of the courts, many causes by petition were brought into parliament in the first instance; but these being generally referred to the courts below, the practice ceased, and would not now be allowed. For a long time accusations against peers were originally admitted, but at present, and for this long time, indictments found below are required before a peer can be tried; nor can the trial of peers by impeachment in parliament be considered as an original trial, for the commons are considered as the grand inquest or grand jury of the whole nation, and therefore an impeachment by them is not only equivalent to, but has and ought to have greater weight than any indictment by any private grand jury.

In this judicature of the lords, an impeachment there, is one singularity, an exception to the grand rule, that every man is to be tried by his peers, and that is, that a commoner impeached by the commons shall be tried by the lords. The reason of this procedure seems to be, that all the commons of England are supposed parties to the accusation, when their representatives have accused him, and it might be dangerous to trust his life with a common jury; but the lords are strangers to the charge, and it is their interest to controul the commons, if they proceed with too great violence[378].