of error, yet his son put a negative at once upon their whole application: and in Edward IV's time, the process by bill and subpoena was become the daily practice of the court. (x) *But this did not extend very far: for in the ancient treatise, [*53] entitled diversite des courtes, (y) supposed to be written very early in the sixteenth century, we have a catalogue of the matters of conscience then cognizable by subpoena in chancery, which fall within a very narrow compass. Procedure in chancery.-No regular judicial system at that time prevailed in the court; but the suitor when he thought himself ag grieved, found a desultory and uncertain remedy, according to the private opinion of the chancellor, who was generally an ecclesiastic, or sometimes (though rarely) a statesman: no lawyer having sat in the court of chancery from the times of the chief justices Thorpe and Knyvet, successively chancellors to King Edward III, in 1372 and 1373, (2) to the promotion of Sir Thomas Moore by King Henry VIII, in 1530. After which the great seal was indiscriminately committed to the custody of lawyers, or courtiers, (a) or churchmen, (b) according as the convenience of the times and the disposition of the prince required, till Sergeant Puckering was made lord keeper in 1592; from which time to the present the court of chancery has always been filled by a lawyer, excepting the interval from 1621 to 1625, when the seal was intrusted to Dr. Williams, then dean of Westminster, but afterwards bishop of Lincoln; who had been chaplain to Lord Ellesmere, when chancellor. (c) Dispute over power of equity. In the time of Lord Ellesmere (A. D. 1616) arose that notable dispute between the courts of law and equity, set on foot by Sir Edward Coke, then chief justice of the court of king's bench; whether a court of equity could give relief after or against a judgment at the common law? This contest was so warmly carried on, that indictments were preferred against the suitors, the solicitors, the counsel, and even a master in chancery, for having incurred a pramunire, by questioning in a court of equity a judgment in the court of king's bench, obtained by gross fraud and imposition. (d) This matter being brought before the king, was by him referred to his learned counsel [*54] for their advice and opinion: who reported so strongly in favour of the courts of equity, (e) that his majesty gave judgment in their behalf; but not contented with the irrefragable reasons and precedents produced by his counsel (for the chief justice was clearly in the wrong), he chose rather to decide the question by referring it to the plenitude of his royal prerogative. (f) Sir Edward Coke submitted to the decision, (g) and thereby made atonement for his error: but this struggle, together with the business of (x) Rot. Parl. 14 Edw. IV, No. 33 (not 14 Edw. III, as cited 1 Roll. Abr. 370, &c.). (y) Tit. Chancery, fol. 296 Rastell's edit. A. D. 1534. (b) Goodrick, Gardiner, and Heath. (z) Spelm. Gloss. 111. Dudg. chron. Ser. 50. (d) Bacon's Works, IV, 611, 612, 632. (f)"For that it appertaineth to our princely office only to judge over all judges, and to discern and determine such differences as at any time may and shall arise between our several courts, touching their jurisdictions, and the same to settle and determine, as we in our princely wisdom shall find to stand most with our honour," &c. (1 Chanc. Res, append. 26.) (Biogr. Brit. 1390.), (g) See the entry in the council book, 26 July, 1616. commendams (in which he acted a very noble part), () and his controlling the commissioners of sewers, (2) were the open and avowed causes, (k) first of his suspension and soon after of his removal, from his office. Beginning of orderly practice.- Lord Bacon, who succeeded Lord Ellesmere, reduced the practice of the court into a more regular system; but did not sit long enough to effect any considerable revolution in the science itself: and few of his decrees which have reached us are of any great consequence to posterity. His successors, in the reign of Charles I, did little to improve upon his plan; and even after the restoration the seal was committed to the earl of Clarendon, who had withdrawn from practice as a lawyer near twenty years; and afterwards to the earl of Shaftesbury, who (though a lawyer by education) had never practised at all. Lord Nottingham.-Sir Heneage Finch, who succeeded in 1673, *and became afterwards earl of Nottingham, was a person [*55] of the greatest abilities and most uncorrupted integrity; a thorough n.ster and zealous defender of the laws and constitution of his 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. Appeals in equity.- 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, 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. Court of exchequer chamber.- 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 (h) In a cause of the bishop of Winchester, touching a commendam, King James, conceiving that the matter affected his prerogative, sent letters to the judges not to proceed in it till himself had been first consulted. The twelve judges joined in a memorial to his majesty, declaring that their compliance would be contrary to their oaths and the law; but upon being brought before the king and council, they all retracted and promised obedience in every such case for the future, except Sir Edward Coke, who said, "that when the case happened, he would do his duty." (Biogr. Brit. 1388.) (i) See that article in chap. 6. (k) See Lord Ellesmere's speech to Sir Henry Montague, the new chief justice, 15 Nov. 1616. (Moore's reports, 828.) Though Sir Edward might probably have retained his seat, if, during his suspension, he would have complimented Lord Villiers (the new favorite), with the disposal of the most lucrative office in his court. (Biogr. Brit. 1391.) 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 statute 27 Eliz., ch. 8, consisting of the justices of the common pleas, and the barons of the exchequer, before whom writs of error [*56] may be brought to reverse 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 upon 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.1 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 par (1) See chap. 25, p. 411. 66 (m) 4 Inst. 119. 2 Bulst. 146. 1 In practice the house of lords, when sitting to hear appeals, is composed only of the law lords," as they are called; that is, the peers who at the time hold judicial positions or who have heretofore held such positions. Every peer indeed has the right to be present and participate, but it is a right which is not, and could not often with propriety be, asserted, since few except the law lords have any such training as would fit them for the duties to be performed. A quorum of peers must be present, but three is a quorum of the house of peers, and two besides the chancellor would be sufficient to constitute this court. Formerly it was not necessary that the three be law lords, and if two chanced to be lay members, and the decree under review was one made by the chancellor himself, his own vote would affirm it, as the lay members would take no part. But now three lords of appeal are required to be present in hearing every case. For the law as to this see note 1, p. 30. liament, 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 both benches) to give directions for remedying these *inconveniences in the courts below. This committee seems to have been established, lest there should be a defect of jus[*57] tice 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 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. Courts of assize and nisi prius.- 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; and except the four northern counties, where the assizes are holden only once a year),1 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, justiciarii in itinere: who were regularly established, if not first appointed, by the parliament of Northampton, A. D. 1176, 22 Hen. II, (2) 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. (o) 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 gaol-delivery, and the like; and *they had sometimes a more general commission to determine all manner of causes, being constituted [58] justiciarii ad omnia placita (justices for all pleas): (p) but the present justices of assize and nisi prius are more immediately derived from the statute Westm. 2, 13 Edw. 1, c. 30, which directs them to be assigned out of the king's sworn justices, associating to (n) Seld. Jan. 1. 2, § 5. Spelm. Cod. 329. (o) Co. Litt. 293.-Anno, 1261, justiciarii itinerantes venerunt apud Wigorniam in octavis S. Johannis baptista;-et totus comitatus eos admittere recusavit, quod septem anni nondum erant elapsi, postquam justiciarii ibidem ultimo sederunt. (The itinerant justices came to the city of Worcester on the octave of St. John the Baptist; but the whole county refused to admit them because seven years had not yet elapsed since the justices had last sat there.) (Annal. Eccl. Wigorn. in Whart. Angl. sacr. 1, 495.) (p) Bract. l. 3. tr. 1. c. 11. (57) 1 But now the assizes are held here twice a year. 897 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 approved 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. 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; 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 any civil connexion. (t) Authority of judges of assize.—The judges upon their circuits now sit by virtue of five several authorities. 1. The commission of the peace. 2. A commission of oyer and terminer. 3. A commission of general gaol-delivery. The consideration of all which belongs [*59] 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 at Westminster, that are then ripe for trial by jury. 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 vacations preceding each Easter and Michaelmas term, which saves much expense and trouble. These commissions are constantly (q) Instances hereof may be met with in the appendix to Spelman's original of the terms, and in Mr. Parker's Antiquities, 209. (8) Ff. 1, 22, 3. (r) Stat. 4 Edw. III, c. 2. 8 Ric II, c. 2. (u) Salk. 454. (t) C. 9, 29, 4. 33 Hen. VIII, c. 24. |