king's household in all its progresses and expeditions, the trial of common causes therein was found very burdensome 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 communia placita non sequantur curiam nostram, sed teneantur in aliquo certo loco. This certain place was established in Westminster 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 so considerable a branch of its jurisdiction, and the power of the chief justiciar being also considerably curbed by many articles in the great charter, the authority of both began to decline apace under the long and troublesome reign of king Henry III.; and in further pursuance of this example, the other several offices of the chief justiciar were, under Edward I. (who new-modelled the whole frame of our judicial polity), subdivided and broken into distinct courts of judicature. A court of chivalry was erected, over which the constable and mareschal 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 private 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 superintendence of all the rest by way of appeal, and the sole cognisance of pleas of the crown, or criminal causes. For pleas, or suits, are regularly divided into two sorts: pleas of the crown, which comprehend all crimes and misdemeanors wherein the king (on behalf of the public) is plaintiff; and common pleas, which include all civil actions between subject and subject. The former of these were the proper object of the jurisdiction of the court of king's bench; the latter, of the court of common pleas, which is styled by sir Edward Coke' the lock and key of the common law."

The judges of this court are at present five in number, one chief and three puisne (or junior) judges, created by the queen's letters patent. A writ of error, in the nature of an appeal, formerly lay from this court to the court of queen's bench; but by stat. 1 Wm. IV. c. lxxi. a writ of error lies from the common pleas, not to the court of queen's bench, but to the court of exchequer chamber, before the judges of the queen's bench and the barons of the exchequer.

VI. The court of Queen's Bench (so called because the sovereign used formerly to sit there in person, the style of the court being still before the queen herself) is the supreme court of common law in the kingdom, consisting of a chief justice and four puisne justices, who are 14 Inst. c. x. p. 99. 24 Inst. c. vii. p. 70.

by their office the sovereign conservators of the peace, and the supreme coroners of the land. Yet though the king himself used to sit in this court (as king Edward I. frequently did), and her majesty is still supposed to do so, the sovereign did not, nor is by law empowered to determine any cause or motion but by the mouth of the judges, to whom she hath committed the whole of her judicial authority.2

This court, which, as we have said, is the remnant of the aula regia, is not, nor can be, from the very nature and constitution of it, fixed to any certain place, but may follow the queen's person wherever she goes; and this movable quality, as well as its dignity and power, are fully expressed by Bracton, when he says that the justices of this court are capitales, generales, perpetui, et majores; a latere regis residentes, qui omnium aliorum corrigere teneantur injurias et errores. And it is moreover especially provided in the articuli super chartas (stat. 25 Ed. I. c. v.), that the king's chancellor, and the justices of his bench, shall follow him, so that he may have at all times near unto him some that be learned in the laws.

The jurisdiction of this court is very high and transcendent. It keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined there, or prohibit their progress below. The jurisdiction of this court was originally confined to criminal cases, or those which savoured of a criminal nature; but it now takes cognisance both of criminal and civil causes: the former in what is called the crown side, or crown office; the latter in the plea side of the court. The most remarkable prerogative of this court in the exercise of its civil jurisdiction is, the exclusive power of issuing and determining upon the writ 1 See Blackst. Com. b. i. c. vii. 24 Inst. c. vii. p. 72, 73.

of mandamus; a proceeding very important as a legal remedy in many cases where the public law of the empire is violated. The writ of mandamus is a command in the queen's name issuing from the court of queen's bench, and directed to any person, corporation, or inferior court of judicature, within the queen's dominions (including1 every territory which by conquest or any other mode is annexed to the crown of England), requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court has previously determined, or at least supposes (upon cause being shewn by the party why the writ should not issue), to be consonant to right and justice. It is a high prerogative writ, of a most extensively remedial nature, and may be issued where the injured party has no other specific remedy, or even in some cases where he has also another more tedious method of redress, as in cases of admission or restitution to an office, but not as a mere private remedy for the party; because this writ is a remedy for wrongs and violations of law, wherein the public government of the kingdom is interested, and not for the mere administration of private law between man and man. Thus it hath been held,* that an application for a mandamus is an application to the discretion of the court, and that a mandamus is a prerogative writ, and not a writ of right, to be issued as a matter of course. It lies for an infinite number of purposes, which it is impossible here to recite minutely, to compel ministerial officers (however

3

Rex v. Cowle, 2 Burr. 856.

2 Rex v. Wyndham, Cowp. 378.
3 Blackst. Com. b. iii. c. vii. p. 110.

✦ By Ashurst, J. 2 Term. Rep. 385.

12 East, 336. 1 B. & C. 489. 9 Barn. & Cress. 456.

high their dignity and functions may be) to perform their legal duties; and also commanding judges of inferior courts to do justice, according to the powers of their office, whenever the same is delayed: for it is the peculiar business of the court of queen's bench to superintend all the inferior tribunals of the kingdom, and therein to enforce the due exercise of those judicial or ministerial powers with which the crown or the legislature have invested them; and this not only by restraining their excesses, but also by quickening their negligence, and obviating their denial of justice.

The writ is first issued in the alternative, either to do thus, or signify some reason to the contrary; to which a return, or answer, must be made on a certain day. And if the inferior judge, or other person, to whom the writ is directed, returns an insufficient reason, then there issues, in the second place, a peremptory mandamus to do the thing absolutely, to which no other return will be admitted but a certificate of perfect obedience and due execution of the writ. If the inferior judge or other person makes no return, or fails in his respect and obedience, he is punished for his contempt by attachment. If the facts stated in the return are denied on the part of the crown, the question must (according to the characteristic principle of the common law) be tried by a jury; but the party may also have an action for a false return, and, if found false by the jury, shall recover damages, together with a peremptory mandamus to the defendant to do his duty.'

The proceedings of the court of queen's bench in

Blackst. Com. b. iii. c. vii. p. 110; and see stat. 1 Wm. IV. c. xxi. as to traversing the return, if false in fact. It extends the operation of stat. 9 Anne, c. xx.