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country; and endued with a pervading genius, that enabled him to discover and to pursue the true spirit of justice, notwithstanding the embarrassments raised by the narrow and technical notions which then prevailed in the courts of law, and the imperfect ideas of redress which had possessed the courts of equity. The reason and necessities of mankind, arising from the great change in property by the extension of trade and the abolition of military tenures, co-operated in establishing his plan, and enabled him in the course of nine years to build a system of jurisprudence and jurisdiction upon wide and rational foundations, which have also been extended and improved by many great men, who have since presided in chancery. And from that time to this, the power and business of the court have increased to an amazing degree (21).

From this court of equity in chancery, as from the other superior courts, an appeal lies to the house of peers. But there are these differences between appeals from a court of equity, and writs of error from a court of law: 1. That the former may be brought upon any interlocutory matter,

(21) Besides the chancellor, the master of the chancellor. Id. 431. the rolls has jurisdiction of judging causes on Besides the master of the rolls (the chien), the extraordinary side of the court of chance- there are eleven other masters in chancery. ry. Cardinal Wolsey was, it is said, the first Com. Dig. Chancery, B. 5. All answers and who introduced this power, though then much affidavits are sworn before one of them and objected to ; yet now it seems he is authorized signed; all matters of account, exceptions to by special commission under the great seal. answers, &c. irregularities, contempts, and Wyatt Prac. Reg. 278. Com. Dig. Chancery, such like, are referred to them. 13 C. II. st. B. 4. "The time and place of his sitting are 6. 12 G. I. c. 32. 5 G. III. c. 28. 32 G. III. usually at six o'clock in the evening at his c. 42. 9 G. III. c. 19. 46 G. III. c. 128. Be. own court in the rolls yard. All decrees made sides these there are masters extraordinary, apby him must be signed by the lord chancellor pointed in the country to take affidavits, &c. before they are enrolled. 3 Geo. II. c. 30. s. Next in precedence are the six clerks, each of 1. By statute 23 Geo. II. c. 25. s. 6. a yearly whom has ten sworn clerks under him. The sum of 12001. was granted to him; and by the six clerks are principally concerned in matters late act 6 Geo. IV. c. 84. his salary is raised in equity, and it is their business to transact to 70001. He holds his office by patent for life, and file all proceedings by bill and answer, and takes the oath prescribed by 18 Edw. IIl. and also to issue certain patents which pass in open court. Wyatt Prac. Reg. 277. He the great seal, as pardons of men for chance takes precedence next after the chancellor, be. medley, patents for ambassadors, sheriff's pafore all other of the judges.

tents, and some others; all these matters are Owing to the great increase of business, transacted by their under clerks. 1 Har. Ch. and which is still increasing, it was provided P. 75. Though formerly otherwise, clients by 53 Geo. III. c. 24. that his majesiy might are now at liberty to choose their own clerks. appoint an additional judge assistant, called Ord. Ch. 107. They claim besides fees of six the vice-chancellor, to assist the chancellor, clerks' office, others as comptrollers of the who must be a barrister of fifteen years standhanaper, and for enrolling warrants, for paing, to hold his office during good behaviour, tents, grants, and other matters passing under subject to removal upon the address of both the great seal, and relurned into hanaper bouzes. By sec. 2. be shall hear such cases office. Six clerks, and three clerks of petty as the chancellor shall direct; his decrees bag, are by letters patent, 16 Eliz, incorporatshall be subject to reversal by the chancellor, ed and styled clerks of the enrolment of the and must be signed by the latter before they high court of chancery, and have two deputies. are enrolled. By sec. 3. he cannot alter or Sec 14 & 15 H. VIII. c. 8. vary a decree of chancellor or master of rolls. The office of registrar of this court is of Sec. 4. directs in what court he shall sit, and great importance.Com. Dig. Chancery, B. be is to rank next after the master of rolls. 6. The registrar has four deputies; two of Sec. 5. appoints his officers. Sec. 6. how he whom always sit in court and take notes of is to be removed. Sec. 7. oath of office. Sec. orders and decrees, &c. and before the same 8. bis salary, (50001.) increased by 6 Geo. IV. are entered he signs them. 45 Geo. III. c. 75. € 84. to 60001. Sec. 12. that he and his officers Besides these, there are the master of the shall receive no fees for business done. Quære, subpæna office, register of affidavits, examin. Whetber the vice-chancellor bas power to ers, ushers, accountant-general, 12 Geo. I. c. bear, by consent, a motion to discharge or al. 32. 12 Geo. II. c. 24. 9 Geo. III. c. 19. 32 ter an order made by the lord chancellor ? See Geo. III. c. 42. 46 Geo. III. c. 129. 54 Geo. IJ. & W. 429. If he is authorized to dis- III. c. 14. cursitors, clerks of the petty bag charge it, he is not to alter it. Id. ib. When office, serjeant at arms, warden of the fleet, sitting for the lord chancellor, he has no juris- clerk of the chapel of the rolls, &c. diction to alter or discharge orders made by VOL. II.


the latter upon nothing but only a definitive judgment: 2. That on writs of error the house of lords pronounces the judgment, on appeals it gives direction to the court below to rectify its own decree.

IX. The next court that I shall mention is one that hath no original jurisdiction, but is only a court of appeal, to correct the errors of other jurisdictions. This is the court of exchequer chamber; which was first erected by statute 31 Edw. III. c. 12. to determine causes by writs of error from the common law side of the court of exchequer. And to that end it consists of the lord chancellor and lord treasurer, taking unto them the justices of the king's bench and common pleas. In imitation of which a second court of exchequer chamber was erected by statutr.7 Eliz. c. 8. consisting of the justices of the common pleas, and the barons of the ex

chequer, before whom writs of error may be brought to reverse [56] judgments *in certain suits (1) originally begun in the court of

king's bench. Into the court also of exchequer chamber (which then consists of all the judges of the three superior courts, and now and then the lord chancellor also), are sometimes adjourned from the other courts such causes, as the judges upon argument find to be of great weight and difficulty, before any judgment is given upon them in the court below (m).

From all the branches of this court of exchequer chamber, a writ of error lies to

X. The house of peers, which is the supreme court of judicature in the kingdom, having at present no original jurisdiction over causes, but only upon appeals and writs of error, to rectify any injustice or mistake of the law, committed by the courts below. To this authority this august tribunal succeeded of course upon the dissolution of the aula regia. For, as the barons of parliament were constituent members of that court ; and the rest of its jurisdiction was dealt out to other tribunals, over which the great officers who accompanied those barons were respectively delegated to preside ; it followed, that the right of receiving appeals, and superintending all other jurisdictions, still remained in the residue of that noble assembly, from which every other great court was derived. They are therefore in all causes the last resort, from whose judgment no farther appeal is permitted ; but every subordinate tribunal must conform to their determinations ; the law reposing an entire confidence in the honour and conscience of the noble persons who compose this important assembly, that (if possible) they will make themselves masters of those questions which they undertake to decide, and in all dubious cases refer themselves to the opinions of the judges, who are summoned by writ to advise them; since upon their decision all property must finally depend.

Hitherto may also be referred the tribunal established by statute 14 Edw. III. c. 5. consisting (though now out of use) of one prelate, two earls, and two barons, who are to be chosen at every new parliament, to hear complaints of grievances and delays of justice in the king's courts,

and (with the advice of the chancellor, treasurer, and justices of [*57] both benches) to give directions for remedying these *inconvenien

ces in the courts below. This committee seems to have been established, lest there should be a defect of justice for want of a supreme court of appeal, during any long intermission or recess of parliament ; for the statute farther directs, that if the difficulty be so great, that it may not (1) See chap. 25, page 411.

(m) 4 Inst. 119. 2 Buist. 146

well be determined without assent of parliament, it shall be brought by the said prelate, earls, and barons, unto the next parliament, who shall finally determine the same.

XI. Before I conclude this chapter, I must also mention an eleventh species of courts, of general jurisdiction and use, which are derived out of, and act as collateral auxiliaries to, the foregoing ; I mean the courts of assize and nisi prius.

These are composed of two or more commissioners, who are twice in every year sent by the king's special commission all round the kingdom (except London and Middlesex, where courts of nisi prius are holden in and after every term, before the chief or other judge of the several superior courts (22); and except the four northern counties, where the assizes are holden only once a year) (23), to try by a jury of the respective counties the truth of such matters of fact as are then under dispute in the courts of Westminster-hall. These judges of assize came into use in the room of the ancient justices in eyre, justiciari in itinere ; who were regularly established, if not first appointed, by the parliament of Northampton, A. D. 1176, 22 Hen. II. (n) with a delegated power from the king's great court, or aula regia, being looked upon as members thereof; and they afterwards made their circuit round the kingdom once in seven years for the purpose of trying causes (6). They were afterwards directed by magna carta, c. 12. to be sent into every county once a year, to take (or receive the verdict of the jurors or recognitors in certain actions, then called) recognitions or assizes ; the most difficult of which they are directed to adjourn into the court of common pleas to be there determined. The itinerant justices were sometimes mere justices of assize or of dower, or of gaoldelivery, and the like; and they had sometimes a more general [*58 ] commission, to determine all manner of causes, being constituted justiciarii ad omnia placita (p): but the present justices of assize and nisi prius are more immediately derived from the statute Westm. 2. 13 Edw. I. c. 30. which directs them to be assigned out of the king's sworn justices, associating to themselves one or two discreet knights of each county. By statute 27 Edw. I. c. 4. (explained by 12 Edw. II. c. 3.) assizes and inquests were allowed to be taken before any one justice of the court in which the plea was brought ; associating to him one knight or other ap

(s) Seld. Jan. 1. 2. $ 5. Spelm. Cod. 399. recusavit, quod septem anni nondum erant clapsi,

(0) Co. Litt. 293.- Anno 1201. justiciarii intine. postquam justiciarii ibidem ultimo-sederunt. (Ano rantes venerunt apud Wigorniam in octavis S. Jo- nal. Eccl. 'Wigorn. in Whart. Angl. sacr. I. 495). hannis baptistae ; --et totus comitatus eos admittere (p) Bract. l. 3. tr. 1. c. 11.

(22) The courts of nisi prius in London and absence of any one of the chiefs, the same au. Middlesex are called sittings : those for Mid- thority was given to two of the judges or dlesex were established by the legislature in barons of his court. The statute 12 Geo. I. c. the reign of queen Elizabeth. În ancient 31. extended the time to eight days after term, times all issues in actions brought in that and empowered one judge or baron to sit in county were tried at Westminster in the terms, the absence of the chief. The 24 Geo. II. c. at the bar of the court in which the action was 18. has extended the time after term still farinstituted; but when the business of the ther to fourteen days; and the time was aftercourts increased, these trials were found so wards, and still continues unlimited during great an inconvenience, that it was enacted the vacation next after the term, by the 1 Geo. by the 18 Eliz. c. 12. that the chief justice of IV. c. 55. Before the passing of the 1 Geo. the king's bench should be empowered to try IV. c. 21. the nisi prius sittings in Middlesex within the term, or within four days after the were confined to Westminster-hall, but by that end of the term, all the issues joined in the act they may be held at any other fit place courts of chancery and king's bench; and that within the city of Westminster. the chief justice of the common pleas, and the (23) But now the assizes here are held chief baron, should try in like manner the is. twice a year. sues joined in their respective courts. In the


proved man of the county. And, lastly, by statute 14 Edw. III. c. 16. inquests of nisi prius may be taken before any justice of either bench (though the plea be not depending in his own court), or before the chief baron of the exchequer, if he be a man of the law, or otherwise before the justices of assize, so that one of such justices be a judge of the king's bench or common pleas, or the king's serjeant sworn (24). They usually make their circuits in the respective vacations after Hilary and Trinity terms; assizes being allowed to be taken in the holy time of lent by consent of the bishops at the king's request, as expressed in statute Westm. 1. 3 Edw. I. c. 51. And it was also usual during the times of popery, for the prelates to grant annual licenses to the justices of assize to administer oaths in holy times : for oaths being of a sacred nature, the logic of those deluded ages concluded that they must be of ecclesiastical cognizance (9). The prudent jealousy of our ancestors ordained (r), that no man of law should be judge of assize in his own county, wherein he was born or doth inhabit (25); and a similar prohibition is found in the civil law (s), which has carried this principle so far that it is equivalent to the crime of sacrilege, for a man to be governor of the province in which he was born, or has civil connexion (t).

The judges upon their circuits now sit by virtue of five several authori. ties. I. The commission of the peace. 2. A commission of oyer and

terminer. 3. A commission of general gaol-delivery. The consi[*59] deration of all which belongs properly *to the subsequent book of

these commentaries. But the fourth commission is, 4. A commission of assize, directed to the justices and serjeants therein named, to take (together with their associates) assizes in the several counties ; that is, to take the verdict of a peculiar species of jury, called an assize, and summoned for the trial of landed disputes, of which hereafter. The other authority is, 5. That of nisi prius, which is a consequence of the commission of assize (u), being annexed to the office of those justices by the statute of Westm. 2. 13 Edw. I. c. 30. and it empowers them to try all questions of fact issuing out of the courts of Westminster, that are then ripe for trial by jury (26). These by the course of the courts (w) are usually appointed to be tried at Westminster in some Easter or Michaelmas term, by a jury returned from the county wherein the cause of action arises ; but with this proviso, nisi prius, unless before the day prefixed the judges of assize come into the county in question. This they are sure to do in the

(g) Instances hereof may be met with in the ap- ' pendix to Spelman's original of the terms, and in Mr. Parker's Antiquities, 209.

(s) FY. 1. 22. 3.
(1) C. 9. 29. 4.
(u) Salk. 454.
(w) See ch. 22.



(r) Stat. 4 Edw. III. c. 2. 8 Rich. II. c. 2. 33 Hen. VIII. c. 24.

c. 91.

(24) And now by 1 Geo. IV. c. 55. sect. 5. nisi prius, was taken off by the 49 Geo. III. any judge or baron may, on his circuit, amend a record, and make any order in any cause, al. (26) An important act, the 3 Geo. IV. c. 10. though it was not in a suit depending in his was lately passed to remedy the defect of the own court.

commission not being opened on the day ap. (25) This restriction was construed to ex. pointed; by which it is enacted, that the com. tend to every commission of the judges : bu mission may be opened on succeeding day it being found very inconvenient, the 12 Geo. to the one appointed ; and if such succeeding II. c. 27. was enacted for the express purpose day be a Sunday, or any other day of public of authorizing the commissioners of oyer and rest, then on the next following day, provided terminer, and of gaol-delivery, to execute their the opening the commission on the appointed commissions in the criminal courts within the day was prevented by the pressure of business counties in which they were born, or in which elsewhere, or by some unforeseen cause or ao. they reside. See 4 book, 271. This re- cident. striction, as to commissioners of assize and

vacations preceding each Easter and Michaelmas term, which saves much expense and trouble. These commissions are constantly accompanied by writs of association, in pursuance of the statutes of Edward I. and II. before mentioned; whereby certain persons (usually the clerk of assize and his subordinate officers) are directed to associate themselves with the justices and serjeants, and they are required to admit the said persons into their society, in order to take the assizes, &c.; that a sufficient supply of commissioners may never be wanting. But, to prevent the delay of justice by the absence of any of them, there is also issued of course a writ of si non omnes ; directing that if all cannot be present, any two of them (a justice or a serjeant being one) may proceed to execute the commission.

These are the several courts of common law and equity, which are of public and general jurisdiction throughout the kingdom. And, upon the whole, we cannot but admire the wise economy and admirable provision of our ancestors, in settling the distribution of justice in a method so well calculated for cheapness, expedition, and ease. By the constitution which they established, all trivial debts, and injuries of small consequence, were to be recovered or redressed in every *man's own [*60] county, hundred, or perhaps parish. Pleas of freehold, and more important disputes of property, were adjourned to the king's court of common pleas, which was fixed in one place for the benefit of the whole kingdom. Crimes and misdemeanors were to be examined in a court by themselves; and matters of the revenue in another distinct jurisdiction. Now indeed, for the ease of the subject and greater dispatch of causes, methods have been found to open all the three superior courts for the redress of private wrongs; which have remedied many inconveniences, and yet preserved the forms and boundaries handed down to us from high antiquity. If facts are disputed, they are sent down to be tried in the country by the neighbours; but the law, arising upon those facts, is determined by the judges above : and, if they are mistaken in point of law, there remain in both cases two successive courts of appeal, to rectify such their mistakes. If the rigour of general rules does in any case bear hard upon individuals, courts of equity are open to supply the defects, but not sap the fundamentals, of the law. Lastly, there preside over all one great court of appeal, which is the last resort in matters both of law and equity; and which will therefore take care to preserve an uniformity and equilibrium among all the inferior jurisdictions : a court composed of prelates selected for their piety, and of nobles advanced to that honour for their personal merit, or deriving both honour and merit from an illustrious train of ancestors': who are formed by their education, interested by their property, and bound upon their conscience and honour, to be skilled in the laws of their country. This is a faithful sketch of the English juridical constitution, as designed by the masterly hand of our forefathers, of which the great original lines are still strong and visible ; and, if any of its minuter strokes are by the length of time at all obscured or decayed, they may still be with ease restored to their pristine vigour : and that not so much by fanciful alterations and wild experiments, (so frequent in this fertile age), as by closely adhering to the wisdom of the ancient plan, concerted by Alfred, and perfected by Edward I., and by attending to the spirit, without neglecting the forms, of their excellent and venerable institutions.


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