Sivut kuvina

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 statute 27 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 inconveniences 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 Bulst. 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 (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 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

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

(0) Co. Litt. 293.—Anno 1261. justiciarii intinerantes venerunt apud Wigorniam in octavis S. Johannis baptistae;-et totus comitatus eos admittere

(22) The courts of nisi prius in London and Middlesex are called sittings: those for Middlesex were established by the legislature in the reign of queen Elizabeth. In ancient times all issues in actions brought in that county were tried at Westminster in the terms, at the bar of the court in which the action was instituted; but when the business of the courts increased, these trials were found so great an inconvenience, that it was enacted by the 18 Eliz. c. 12. that the chief justice of the king's bench should be empowered to try within the term, or within four days after the end of the term, all the issues joined in the courts of chancery and king's bench; and that the chief justice of the common pleas, and the chief baron, should try in like manner the issues joined in their respective courts. In the

recusavit, quod septem anni nondum erant elapsi,
postquam justiciarii ibidem ultimo-sederunt. (An-
nal. Eccl. Wigorn. in Whart. Angl. sacr. I. 495).
(p) Bract. I. 3. tr. 1. c. 11.

absence of any one of the chiefs, the same authority was given to two of the judges or barons of his court. The statute 12 Geo. I. c. 31. extended the time to eight days after term, and empowered one judge or baron to sit in the absence of the chief. The 24 Geo. II. c. 18. has extended the time after term still farther to fourteen days; and the time was afterwards, and still continues unlimited during the vacation next after the term, by the 1 Geo. 1V. c. 55. Before the passing of the 1 Geo. IV. c. 21. the nisi prius sittings in Middlesex were confined to Westminster-hall, but by that act they may be held at any other fit place within the city of Westminster.

(23) But now the assizes here are held twice a year.

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 (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 (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 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 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

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(s) Ff. 1. 22. 3.

(t) C. 9. 29. 4.
(u) Salk. 454.
(w) See ch. 22. p. 353.

nisi prius, was taken off by the 49 Geo. III.

c. 91.

(26) An important act, the 3 Geo. IV. c. 10. was lately passed to remedy the defect of the commission not being opened on the day appointed; by which it is enacted, that the commission may be opened on the succeeding day to the one appointed; and if such succeeding day be a Sunday, or any other day of public rest, then on the next following day, provided the opening the commission on the appointed day was prevented by the pressure of business elsewhere, or by some unforeseen cause or accident.

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.


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 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 sort of distinction between the lay and the ecclesiastical jurisdiction: the county-court was as much a spiritual as a temporal tribunal : the rights of the church were ascertained and asserted at the same time, and by the same judges, as the rights of the laity. For this purpose the bishop of the diocese, and the alderman, or in his absence the sheriff of the county, used to sit together in the county-court, and had there the cognizance of all causes, as well ecclesiastical as civil: a superior deference being paid to the bishop's opinion in spiritual matters, and to that of the lay

judges in temporal (a). This union of power was very advanta[*62] geous to them both; the presence of the "bishop added weight and reverence to the sheriff's proceedings; and the authority of the sheriff was equally useful to the bishop, by enforcing obedience to his decrees in such refractory offenders, as would otherwise have despised the thunder of mere ecclesiastical censures.

But so moderate and rational a plan was wholly inconsistent with those views of ambition, that were then forming by the court of Rome. It soon became an established maxim in the papal system of policy, that all ecclesiastical persons, and all ecclesiastical causes, should be solely and entirely subject to ecclesiastical jurisdiction only: which jurisdiction was supposed to be lodged in the first place and immediately in the pope, by divine indefeasible right and investiture from Christ himself; and derived from the pope to all inferior tribunals. Hence the canon law lays it down as a rule, that" sacerdotes a regibus honorandi sunt, non judicandi (b);" and places an emphatic reliance on a fabulous tale which it tells of the emperor Constantine: that when some petitions were brought to him, imploring the aid of his authority against certain of his bishops, accused of oppression and injustice, he caused (says the holy canon) the petitions to be burnt in their presence, dismissing them with this valediction; "ite et inter vos causas vestras discutite, quia dignum non est ut nos judicemus Deos (c).”

(a) Celeberrimo huic conventui episcopus et aldermannus inter sunto; quorum alter jura divina, alter humana populum edoceto. LL. Eadgar. c. 5.

(1) In the U. S. there are no ecclesiastical courts or military courts, like those mentioned in this chapter. The surrogates in New

(b) Decret. part. 2 caus. 11. qu. 1. c. 41.
(c) Ibid.

York have cognizance of matters affecting the estates of deceased persons.

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