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restoration the seal was committed to the earl of Clarendon, who had withdrawn from practice as a lawyer near twenty years; and afterwards to the earl of Shaftsbury, who (though a lawyer by education) had never practised at all. Sir Heneage Finch, who succeeded in 1673, and became afterwards carl [*55] of Nottingham, was a person of the greatest abilities and most uncorrupted integrity; a thorough master and zealous defender of the laws and constitution of his country; and endued with a prevailing genius, that enabled him to discover and to pursue the true spirit of justice, notwithstanding the embar rassments raised by the narrow and technical notions which then prevailed ir 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. (18) 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 a definitive judgment: 2. That on writs of error the house of lords pronounces tne 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 statute 27 Eliz. c. 8, consisting of the justices of the common pleas, and the barons of the exchequer, before whom writs of error may be brought to reverse judgments *in certain suits (1) originally begun [*56] in the court of king's bench. (19) Into the court also of exchequer

(1) See chap. 25, p. 411.

(18) Besides the chancellor there are three vice-chancellors; one being provided for by statute 53 Geo. III, c. 24, and two were added by statute 5 Vic. c. 5. These judges are to hear and determine all matters depending in the court of chancery-either as a court of law or equity-subject to an appeal to the lord chancellor, or to the court of appeal in chancery men tioned below.

The master of the rolls has long held a separate court of equity, and his jurisdiction, which was for a long time in dispute, is now regulated by statute. Originally he was the chief merely of the masters in chancery, whose functions were mainly ministerial, but now decrees and orders made by him are final, except as they may be altered or set aside on appeal to the lord chancellor, or to the court of appeal in chancery. By statute 15 and 16 Vic. c. 80, tae gradual abolition of masters in chancery is provided for, and their functions are transferred to the judges and their chief clerks. By statute 1 and 2 Vic. c. 94, the master of the rolls is custodian of the public records.

By statute 14 and 15 Vic. c. 83, the court of appeal in chancery was created. It consists of two lords justices, with whom the lord chancellor may be associated, or the court may be held by him and either one of the lords justices, and by the two lords justices alone. An appeal from either of the vice-chancellors or from the master of the rolls may be either to this court or to the lord chancellor. The two lords justices, without the lord chancellor, also constitute a court of appeal in bankruptcy, in which cases their judgment is final. From the court of appeal in chancery an appeal lies to the house of lords. If when sitting alone the lords justices differ in opinion, the decision appealed from stands affirmed.

By a recent act (30 and 31 Vic. c. 64), each of the lords justices may sit separately as a court of appeal, for the purpose of hearing appeals from interlocutory orders.

(19) But now these courts are abolished, and the court of exchequer chamber, as it now exists, is composed, for the purpose of hearing appeals from any one of the superior courts of

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 parlia ment 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. (20)

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 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 justice for [*57] 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. 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 collatteral auxiliaries to, the foregoing; I mean the courts of assize and nisi prius.

These are composed of two or more commmissioners, 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), (21) to try

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

law-the queen's bench, common pleas and exchequer-of the judges, or judges and barons, as the case may be, of the other two courts.

(20) 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. If those two should chance to be lay members, and the decree under review be one made by the chancellor himself, his own vote would affirm it, as the lay members would take no part. But usually four or five law lords are present.

(21) But now the asizes are held here twice a year.

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, (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. (0) 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 comnon 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 [*58] had sometimes a more general 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 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 justiccs 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. (q) 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; (22) 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) 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 properly to the subsequent book of these Commentaries. But the [*59] 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 here

(n) Seld, Jan. 1. 2, § 5. Spelm. Cod. 399.

(0) Co. Litt. 293.—Anno, 1261, justiciarii itinerantes venerunt apud Wigorniam in octavis S. Johannis baptiste--et totus comitatus eos admittere recusavit, quod septem anni nondum erant elapsi, postquam justicurit ibidem ultimo-sederunt (Annal. Eccl. Wigorn, in Whart. Angl. sacr. I, 495.)

(p) Bract. 1. 3. tr. 1. c. 11.
(7) Instances hereof may be met with in the appendix to Spelman's original of the
Parker's Antiquities, 209.
(r) Stat. 4 Edw. III, c. 2. S Ric. II, c. 2. 33 Hen. VIII, c. 24.

(8) Ff. 1, 22, 3.

terms, and in Mr.

(t) C. 9, 29, 4.

(22) [This restriction was construed to extend to every commission of the judges: but it being found very inconvenient, the 12 Geo. II, c. 27, was enacted for the express purpose of authorizing the commissioners of oyer and terminer, and of gaol-delivery, to execute their commissions in the criminal courts within the counties in which they were born, or in which they reside. See book 4, 271. This restriction, as to commissioners of assize and nisi prius. was taken off by the 49 Geo. III. c. 91.]

after. 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. 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 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 county, hundred, or perhaps parish. Pleas of [*60] 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 presides 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 hands 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 case 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. (23)

(u) Salk. 454.

(w) See ch. 23, p. 353.

(23) The courts of the United States consist of the following: 1. The senate as a court of impeachment.



BESIDES the several courts which were treated of in the preceding chapter and in which all injuries are redressed, that fall under the cognizance of the common law of England, or that spirit of equity which ought to be its constant attendant, there still remain some other courts of a jurisdiction equally public and general; which take cognizance of other species of injuries. of an ecclesiastical, military and maritime nature; and therefore are properly distinguished by the title of ecclesiastical courts, courts military, and courts maritime.

I. Before I descend to consider particular ecclesiastical courts, I must first of all in general premise, that, in the time of our Saxon ancestors, there was no

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The court of impeachment derives its authority from article 1, section 3 of the constitution, and is sufficiently spoken of elsewhere. The judicial power generally is conferred by article 3,

section 2.

The supreme court has original jurisdiction of all cases affecting ambassadors, other public ministers and cousuls, and of those to which a state shall be a party. It also has appellate jurisdiction from the circuit court in civil cases, where the matter in dispute exceeds $2000, and from the highest state court of each state, in any case where has been drawn in question the validity of a treaty, or of a statute of, or an authority exercised under, the United States, and the decision of the state court has been against its validity; also where has been drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of its being repugnant to the constitution, laws or treaties of the United States, and the decision of the state court has been in favor of such state law or authority; also where the decision of the state court has been against a right claimed under any clause of the constitution of the United States, or under any treaty or statute of or commission held under the United States; it has also appellate jurisdiction from the territorial courts where the amount in dispute exceeds $1000, except from Washington territory, where it must exceed $2000; and from the supreme court of the District of Columbia and from the court of claims, where the amount in controversy exceeds $3000; and in any other case where the judgment or decree may affect a constitutional question or furnish a precedent for a class of cases, the United States may appeal without regard to the amount in controversy.

The United States circuit courts have original jurisdiction, concurrently with the state courts. of all civil suits, at common law or in equity, where the matter in dispute exceeds $500, and the United States is a plaintiff, or an alien is a party, or where the suit is between a citizen of the state in which it is brought and a citizen of another state. They have exclusive jurisdiction of all crimes and offences cognizable under the authority of the United States, except where specially otherwise provided; and concurrent jurisdiction with the district courts of the crimes and offences cognizable therein. Under the patent laws they have jurisdiction in equity to restrain infringements. They have also appellate jurisdiction from the district courts where the matter in dispute exceeds $50.

The district courts have jurisdiction exclusively of the state courts, and concurrently with the circuit courts, of all crimes and offences cognizable under the authority of the United States, committed within their several districts or upon the high seas, where the punishment is not capital. They have also exclusive cognizance of all civil causes of admiralty and maritime jurisdiction, including seizures under the laws of impost, navigation or trade of the United States; and of all seizures on land or water under the laws of the United States, and of all suits for penalties and forfeitures incurred under those laws. They have also jurisdic tion concurrently with the state courts and the circuit courts, of all cases where an alien sues for a tort, done, in violation of the law of nations or of a treaty of the United States; also of all suits at common law where the United States or any officer thereof, under the authority of an act of congress, may sue; also exclusive of the state courts of all suits against consuls or vice-consuls except for capital offences. These courts also have jurisdiction in bankruptcy


The territorial courts possess such powers as are specially conferred upon them by the acts providing for their creation.

The supreme court of the District of Columbia is a court of general jurisdiction in law and equity: any one of its judges may hold a district court with the powers of the other

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