Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

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].